A critique of the legislation’s understanding of discrimination and its inadequacy to tackle the lack of representation and discrimination in the workplace.
The Transgender Persons (Protection of Rights) Act, 2019 (‘Transgender Persons Act’) came into force in December 2019, and the latest Rules have been published in July. The Act ostensibly seeks to remedy the discrimination faced by the trans community and was supposed to provide tools for their assimilation in the educational and economical folds of society. However, the legislation already faces challenges to its constitutionality as it takes away from several rights guaranteed by the Supreme Court in NALSA v. Union of India.
While the majority of critique levelled at the legislation deals with its failure to provide gender self-identification, this article argues that due to the limited understanding of discrimination adopted by the legislation it is ineffective to deal with workplace discrimination and hence, is not adequate to ensure the induction of trans people in the workplace.
Setting the Tone: Imagination of Discrimination
The Act fails to define discrimination however, the Rules published in July state that discrimination,
means any distinction, exclusion or restriction on the basis of gender identity and expression which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field and includes all forms of discrimination, including denial of reasonable accommodation.
There are a couple of issues that the definition gets right. Firstly, it includes gender expression as a ground for discrimination. This is important to ensure that subconscious gender stereotyping leading to discrimination and solidification of gender norms is restricted. Hence, it prohibits establishments from discriminating against individuals based upon gender stereotypes. Secondly, the definition is verbatim transplanted from the definition of discrimination under the Convention on the Rights of Persons with Disabilities which is also adopted by the Rights of Persons with Disabilities Act, 2016. This borrowing is laudable as it helps introduce the idea and perhaps jurisprudence of ‘reasonable accommodation’ into the Act.
However, this borrowing might have been effective if the definitional clause was not so narrow. A major failure of the legislation is its silence on indirect discrimination. Indirect discrimination refers to a particular policy or rule which applies to everyone but has a disproportionate impact on the members of one group. This is important as indirect discrimination, it can be argued, places a positive duty on stakeholders to take pre-emptive action even in the absence of litigation.
As this legislation seeks to remedy the discrimination faced by the community has faced, its imagination should have extended beyond direct discrimination. In this regard, it could have sought the guidance from discrimination legislations being formulated around the same time such as the Equality Bill, 2019. Further, legislations from other jurisdictions such as the Equality Act, 2010 and the Sex Discrimination Act, 1984 which protect against gender discrimination have also included indirect discrimination within their framework. This failure to include indirect imagination sets the tone for the rest of the legislation. While it sets out inclusion and non-discrimination in the workplace as a goal the measures it seeks to adopt to achieve the goal fail to place any positive duty on the concerned stakeholders.
Workplace Discrimination and Equality of Opportunity
Sections 3(b) and (c) pertain to workplace discrimination. The former states that no establishment shall discriminate against a trans person in relation to employment and the latter states that no one shall deny or terminate their employment.
What one observes is the seeping in of the legislations imagination of discrimination into the duties that it levies on stakeholders. The legislation simply places a negative duty on the employer not to discriminate. It fails to delegate any positive action. Positive action, in this scenario, considering how the skill gap is an important factor inhibiting the inclusion of the trans population, would entail offering vocational training, reserving certain seats for trans candidates, reviewing policies for induction and promotion etc. Rule 10 contains a passing reference to the inclusion of trans people in the pre-existing vocational schemes, however this too has shortcomings. Firstly, this duty has simply been placed on the ‘appropriate government’ indicating that it will only extend to the public sector. Secondly, it does not place a duty on the government to introduce any new vocational schemes that target the trans population and their particular circumstances. Thirdly, it fails to set a timeframe within which the trans population must be included in these schemes. Setting this time frame is necessary given the failure of States previously to develop policies and ensure inclusion of trans people as the ‘third gender’ in government posts and notifications despite the directives issued by the Supreme court.
A similar drawback of the Act is its understanding of ‘equal opportunity’. Rule 12 is titled ‘Equal Opportunities in Employment’. It states that all establishments shall implement measures to ensure non-discrimination against in issues such as recruitment, promotion etc. This duty is akin to the one placed on establishments under Section 3. The additional duty placed under Rule 12 is that every establishment needs to publish an Equal Opportunity Policy for transgender persons. Rule 12(4) states that private establishments must publish details such as infrastructural facilities, applicability of rules regarding service conditions, details of the complaint officers etc.
Equality of opportunity has two facets: formal and substantive. The conception in India, as opposed the United States and United Kingdom, is more comfortable in going beyond the formal understanding of procedural fairness which this particular Rule seems to encapsulate. The concept of equality of opportunity in India involves a substantive approach. As noted by the Equal Opportunity Commission, 2008 such a substantive approach goes beyond direct discrimination and places a burden to eliminate indirect discrimination as well. It also requires the State to take into account and neutralize historical burden of circumstances. Flowing from the first two, this approach places an obligation on the State and creates a positive duty on public authorities. Hence, the state cannot limit itself to a negative role of non-discrimination and carries a responsibility to strive to create parity of circumstances. As Bhatia argues, a transformative reading of NM Thomas, also places an explicit duty on the State to remedy the lack of representation. This understanding was furthered in NALSA when the Supreme court directed the Center and States to treat trans people as socially and educationally backward and extend reservation for public appointments.
The legislation fails to understand or inculcate this understanding of equality of opportunity. The policy does not envision any structural changes. Similar to the lacklustre duty placed under Section 3 this duty also fails to account for indirect discrimination as it does not place any positive duty on establishments to review their policies or tweak recruitment and promotion criteria. Hence, the legislation goes against the mandate of NALSA, takes away the reservation provided and replaces it with the duty to publish a simple policy disclosing company practices in the garb of ‘equal opportunity’. Without reservation and other positive duties, it seems difficult to envision how the trans community, which has faced systemic discrimination and marginalisation from the cultural and education folds of life, will even get access to jobs let alone an equitable workplace.
Individualised complaints mechanism
Another shortcoming of the legislation flowing from its imagination of discrimination is the reliance on the individualised grievance redressal model. Section 11 along with Rule 13 places a duty to designate a person to be a complaint officer to deal with rights emanating from the legislation.
This model is troubling for two major reasons. Firstly, the Act fails to define the powers of the complaint officer. Secondly, cause for greater concern is the continued reliance on an individualised model. Anti-discrimination laws in India (such as The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013) and elsewhere have traditionally been enforced through this individualised complaints led model.
However, this model is insufficient to tackle discrimination as it puts the burden on an individual to file a complaint, provide evidence and substantiate their claims. In case the institutional complaints mechanism fails, the individual is forced to go through lengthy and costly litigation. Further, even in case the outcome is favourable it is only the individual who gets compensated. Yashini Prithika v. Tamil Nadu Recruitment Board, one of the few cases that relates to the issue of workplace discrimination faced by the trans community, is a case in point. In this case, the Tamil Nadu government had failed to create a separate category for trans people in the notification issued for sub-inspectors. Prithika alone decided to take the matter to court and ensured her participation in the test. However, Pritika could not pass the second prong of the test and missed the mark by 1.11 seconds. She again sought redressal from the court. The court allowed her to continue to the last prong due to inadequate representation of the trans community in the police force. The outcome though laudable illustrates the shortcomings of the individualised model. The court only provided redressal to Prithika, and suggested no structural changes to the recruitment criteria to remedy the lack of representation of the trans community.
Equality legislations must envisage a greater role to be played by institutions for their goals to be met. Hence, placing a more proactive duty on institutions initiates structural change. The Fair Employment (Northern Ireland) Act, 1989 (‘FEA’) provides for a good example. It places a fourfold duty on institutions. First, they have an obligation to monitor. Every institution with ten or more employees is supposed to register with the ENCI, the equivalent for this legislation could be the National Council for Transgender Persons established under Section 16. The second obligation is to undertake periodic reviews of their employment practices, such as recruitment, promotion, and training, and evaluate whether members of the protected community (here the trans community) are likely to enjoy fair and equal participation in the community. Third, where participation levels are dismal the employer must proactively engage in affirmative action to remedy the situation. Lastly, the commission envisaged under the FEA has enforcement powers as opposed to the role of the Council in India. The commission under the FEA, is supposed to review the workplace practices, and affirmative action policies in place by private institutions and in case they are deemed inadequate, it can make recommendations for affirmative action to be taken or get the organisation to give written undertakings. In case the undertaking is not complied with the commission can serve directions or apply to the tribunal for enforcement.
Such a model, as Fredman notes, would “place responsibility on public bodies, employers and others who are in a position to bring about change, whether or not they have actually caused the problem.” In a legislation such as the Transgender Persons Act that seeks to undo past discrimination, there is an urgent need to shift from an individualised model to alternatives that place more proactive duties to ensure the assimilation of the trans community into the workplace.
A failed attempt
The Act fails to understand the systemic nature of discrimination faced by the trans community and realise how recent any positive changes are. This failure is glaring in its enunciation of discrimination which then seeps into the kind of duties it envisages for key stakeholders such as the government and private establishments. To successfully dislodge their burden, private organisations simply need to publish an equal opportunity report and install a complaints officer. This kind of ‘discrimination laundering’ is ineffective as it does not remedy any structural issues. Further, this legislation even removes the reservation guaranteed by NALSA. Due to the inadequacy of the law to capture discrimination adequately or tackle it using mechanisms that lay positive duties on institutions, it is insufficient to enable any change in representation or workplace discrimination.
The author is a student at NALSAR Hyderabad.