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12 February 2020
In National Legal Services Authority v Union of India (AIR 2014 SC 1863), the Supreme Court recognised that transgender persons are entitled to basic human rights, such as:
Pursuant to this judgment, transgender is recognised as a third gender.
However, despite the above, transgender persons have been subjected to harassment, social stigma, discrimination and violence and excluded from education, employment and society in general.
To address these issues, the Indian legislature has enacted the Transgender Persons (Protection of Rights) Act 2019. The act was passed by the Lok Sabha on 5 August 2019 and the Rajya Sabha on 26 November 2019 and came into force with effect from 10 January 2020.
The Transgender Persons Act aims to protect transgender persons' rights and welfare.
A 'transgender person' is someone whose gender does not match that which they were assigned at birth and includes:
The Transgender Persons Act prohibits discrimination against transgender persons, including:
The Transgender Persons Act also provides for rights of health facilities to transgender persons, including separate HIV surveillance centres, sex reassignment surgeries and hormonal therapy counselling. The act incorporates the provision of identity certificates for transgender persons, after an application has been made to the district magistrate indicating their gender as 'transgender'. Further, the Transgender Persons Act contemplates the establishment of a National Council for Transgender Persons.
In addition to the general provisions above, the Transgender Persons Act requires workplaces to:
However, there is no provision for mandatory reservation for transgender persons in an establishment.
The Transgender Persons Act provides for penalties of imprisonment ranging from six months to two years and fines in cases of offences relating to violence against and abuse of transgender persons. There is no specific penalty for discrimination against transgender persons or failure to designate a person as a complaint officer. However, in case of these violations, the aggrieved person can approach the judicial authorities for a direction to comply with the provisions and the judicial authorities may, if they deem fit and in addition to directing the employer to comply with the act, impose fines on the employer.
Many multinationals already have robust policies on diversity and inclusion. This needs to be universal. Particularly for workplaces, progress should be made in furthering transgender persons' rights under the Transgender Persons Act. Awareness sessions should be conducted to make employees aware of the act. Company policies should also be aligned to be more inclusive towards transgender employees.
This is a welcome step which can go a long way in achieving gender justice for transgender persons. On effective implementation, the Transgender Persons Act can bring about a change in workplaces' perception and treatment of transgender employees.
For further information on this topic please contact Pooja Ramchandani or Suryansh Gupta at Shardul Amarchand Mangaldas & Co by telephone (+91 11 4159 0700) or email (firstname.lastname@example.org or email@example.com). The Shardul Amarchand Mangaldas & Co website can be accessed at www.amsshardul.com.
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