–By Riya Thawani and Jhalak Gupta*
“The rule of law requires a just law which facilitates equality, liberty, and dignity in all its facets,”- Justice D.Y. Chandrachud.
The measures against age-old and institutionalized cruelty have to be implanted by every possible means and towards all aspects, to support the change. India has taken a step towards the end of binary gendered society by legitimizing the third gender and granting them equal status to that of other genders. After the judgment of the Supreme Court in NALSA v Union of India, the Parliament after several failed attempts has finally enacted the Transgender Persons Act, 2019 (the Act) for protection of the rights of the transgender community.
The transgender community, due to centuries of prejudice and discrimination, suffers from social and economic backwardness. They have to be provided with a safe and healthy workplace for their economic development. The authors in this piece hence propose that the Sexual Harassment of Women at Workplace Act, 2013 (POSH Act), which only protects women, shall be amended to include trans-persons as victims under the act. The laws cannot be static and have to keep evolving with the changing needs of the time. This is the time, to ensure that trans-persons are provided a friendly work environment where they can work efficiently, without gender bias and prejudice.
The definition of ‘transgender person’ in the Act is broadly worded to include trans-man, trans-woman, persons with intersex variations, etc. It refers to those persons who do not relate to the gender assigned to them at birth. Justice AK Sikri[i] termed it as across or beyond gender. He said that even though it has come to be known as an umbrella term for gay, lesbian, etc., the NALSA judgment was restricted to the ‘beyond gender’ meaning of the term transgender.
Constitutional Mandate and the Present Scheme:
The equality scheme of the Indian constitution is enshrined mainly under Articles 14,15,16,19 and 21, which elucidate that all citizens have an equal opportunity to prosper and enjoy their life regardless of their race, caste, religion, community, social status, and gender. These rights were recognized for transgender in NALSA judgment. Thus, transgender has a fundamental right to live and work with dignity and without discrimination or harassment.
The right to livelihood[ii] is enshrined in India’s constitutional ethos as a fundamental right and to that end; the state and society must endeavour to remove any harmful practice that stands in the way of any individual’s basic human right – irrespective of their gender. The atrocities held against the trans-community have already been dealt at length by the SC in the judgment, therefore the POSH Act needs to be trans-inclusive to enable them to work with dignity and earn a livelihood.
Additionally, there have also been attempts in this direction by the policy-makers but none has fructified yet. An expert committee in 2013 recommended that workplace harassment policies should be transgender-inclusive. Further, Rule 10(3) of the draft Rules, 2020(to the Act, 2019) states that the government shall review any law, statute, code, etc. to prohibit discrimination of any kind to the transgender in any government or private institution. Some initiatives include Regulation 3(d) of the UGC regulations which recognize all genders under the ambit of “aggrieved party” unlike the POSH Act[iii] and Karnataka’s policy decision to make the POSH Act inclusive of trans-persons.
Thus, it can be concluded that the need for a change is realized by the government but it can come forth only when a community is afforded equal protection, procedurally and substantively, such that are empowered to effectively participate in public.
The right to work with dignity in harassment and discrimination-free environment irrespective of the sexual identity and orientation of the person is a universally recognized right. Article 6 and 7 of the International Covenant for Economic Social and Cultural Rights (ICESCR) obligate States to ensure economic and social development of all while safeguarding their fundamental freedoms and provide a just and favourable economic environment. Further, General Comment 23 of the ESCR Committee mandates legislation for prohibiting sexual harassment at the workplace and providing for remedies to the victims of such harassment.[iv]
The International Labour Organization (ILO) had also recognized sexual harassment as a form of discrimination at the workplace in its Discrimination (Employment and Occupation) Convention of 1958. Recently, in recommendation 12 of its 108th Session on ‘Ending Violence and harassment in the world of work’, it obligates States to ensure an enabling environment for transgender and other disadvantaged groups. Though this convention is not yet ratified by India, the Supreme Court has held that India has “a constitutional duty to honour internationally recognized rules and principles”, including those relating to transgender rights.
Countries like the USA have taken steps in this direction to create a friendly workplace for all genders. The US Equal Employment Opportunity Commission (EEOC) implements measures for protection against harassment of transgender as well as the binary genders at the workplace. South Asian countries like Sri Lanka, Bangladesh, and Nepal have gender-neutral sexual harassment laws at the workplace. As per NHRC Report on the Study of Transgender of 2017, around 92% of transgender are deprived of the right to participate in any form of economic activity, forcing them to take up low paying jobs in the informal sector at high risk of abuse. India thus needs to expand the sexual harassment laws at the workplace to include trans-community to encourage their economic development.
Shortcomings in Transgender Act 2019!
The Act includes various provisions for recognition, protection against discrimination, welfare measures, etc. for the trans-people which bind the government departments as well as the corporates and other firms also,[v] but the same is suggestive as no course of action is prescribed in case of non-compliance by these entities unlike in POSH Act which provides for a well-structured Internal-committee and local committee for such grievances by the women employees. The establishment of an internal committee is mandatory for every workplace, in both organized and unorganized sectors, with ten or more than ten employees to receive complaints of sexual harassment.[vi] Further, local committees are formed in every district to hear complaints from employees working in the workplace with less than ten people and in cases where the complaint is against the employer itself.[vii] Thus, POSH Act provides a robust mechanism to fight sexual harassment at the workplace.
The Act prescribes punishment for physical, sexual, and other abuses against transgender, but these terms have not been defined anywhere in the Act. Contrary to this, the POSH Act under Section 2(n) defines in clear and unambiguous terms as to what would ‘sexual harassment’ include. Further, the POSH Act contains provisions for interim relief to the victims like paid leaves, departmental transfers, etc.,[viii] which would not necessarily be available before the court. Other problems with the procedure in the Act include time-consuming court proceedings, the burden to prove the abuse, and thereby uncertainty of punishment.
With the introduction of start-ups like PeriFerry that that has taken up the task of bringing employment opportunities to trans-persons, there is an urgent need for the development of workplaces where they can co-exist with the other genders and work efficiently. The right to work with dignity and protection against sexual harassment are universally acknowledged human rights.[ix]So, in light of the legal and social developments, it is vital for India to take active steps to protect trans-persons, include them in the human rights agenda of the country afforded the same, if not more, protection as women who are considered as vulnerable to sexual harassment and abuse. Consequently, the POSH Act shall be modified to protect trans-persons also and the phrase “aggrieved woman” be replaced with “aggrieved woman or transgender”.
Moreover, this would not be the first instance of a women-specific law applying to transgender. The Supreme Court in Anamika v Union of India upheld the use of Section 354A IPC, which penalizes sexual harassment against women, by trans-persons. This provision is however limited in the sense that the perpetrator can only be a man and it would make transgender employees go through lengthy court procedures every time they are sexually harassed at work.
The authors believe that India is still not ready for gender-neutral laws because of prevailing patriarchy. It is also true that there is abundant data to show that women are progressing and being employed at higher positions of authority and their presence at workplaces has increased. However, they are nowhere near to being proportionately represented to men. Thus, we have not gone as far as to propose the expansion of sexual harassment laws to include men.
The special amendment in POSH Act is required to protect the socially abused and economically weak community from harassment and unnecessary litigation cost as it would provide them a platform to address the complaints at the workplace itself. Other than this amendment, companies should formulate trans-inclusive policies, have separate washrooms for trans-persons, conduct awareness camps for sensitization of employees, reserve some jobs for trans-persons, etc.
* The authors are 3rd year B.A.LL.B. students of National Law University Odisha, Cuttack.
[i]National Legal Service Authority v Union of India, AIR 2014 SC 1863 .
[ii]The Constitution of India 1950, art 21; Olga Tellis and others v. Bombay Municipal Corporation &ors, AIR 1986 SC 180.
[iii]Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, §9(1) r/w UGC (Prevention, Prohibition and Redressal of Sexual harassment of women employees and students in higher educational institutions) 2015, Regulation 7.
[iv]Economic Social & Cultural Rights Committee, General Comment No. 23, UN Doc E/C.12/GC/23 (2016) [65(e)].
[v]The Transgender Persons (Protection of Rights) Act 2019, §10.
[vi]Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, § 4.
[vii]Ibid, § 6.
[viii]Ibid, § 12.
[ix]Universal Declarations of Human Rights, UN Doc A/810 (1948), Art 23.