The Transgender Persons (Protection of Rights) Act, 2019 (Act) has been made effective from January 10, 2020. The Act protects rights of transgender persons and promotes their welfare. The purpose of this alert is to draw your attention to a few provisions of the Act that employers and HR managers must take notice of.
Who is a transgender person?
The Act is using various terms to define term 'transgender person'. These terms describe persona of a 'transgender person'. A transgender person means a:
- 'trans-man' or 'trans-woman' i.e. a person whose gender does not match the gender assigned at the time of birth, irrespective of such person undergoing sex reassignment surgery or hormone therapy or laser therapy;
- person with intersex variations;
- genderqueer; and
- person having socio-cultural identities as 'kinner', 'hijra', 'aravani' or 'jogta'. (Section2(k))
What provisions of the Act an employer/HR manager should be aware of?
The Act requires every establishment to:
- prohibit discrimination* against a transgender person in employment or occupation (Section 3 and Section 9);
- comply with provisions of the Act and provide prescribed facilities to a transgender person (Section 10); and
- designate a person to be a 'Complaints Officer' to deal with complaints relating to violation of any provision of Act (Section 11).
* Discrimination against transgender person may be by way of (i) unfair treatment in employment or matter relating to recruitment, promotion or other related issues; or (ii) denial of employment; or (iii) termination from employment just because the person is a transgender.
What penalty does the Act prescribe?
The Act is draconian as it provides for upfront imprisonment for atleast 6 months which may extend to 2 years and fine for causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse of a transgender person.
Usage of words 'sexual' 'verbal', 'emotional' and 'economic' abuses are very subjective and therefore, daunting! (Section 18)
What employers/HR managers need to do going forward?
Now that the Act formally confers upon a transgender person legal status corresponding to such person's actual condition, the employers and HR managers will have to take steps to ensure workplace inclusion of a transgender person. For this, the employers and HR manages may consider:
- Charting out 'dos and don'ts' to act as guide for employees in their dealings with colleagues as well as third parties (individuals) who are transgender persons;
- Sensitizing and publicizing 'best practices' for employees such that they are tolerant, respectful and not only socially accept their transgender colleagues but also such colleagues' sexual orientation, gender identity, etc.;
- Providing a robust grievance redressal mechanism to transgender employees to resolve their complaints relating to victimization, alienation, discrimination, abuse, exploitation, ridicule, violence, etc.; and
- Putting in place a manual that would act as a guide particularly focusing on aspects like dress codes, privacy, manner in which the transgender person be referred (like he, she, it or they), provision of common facilities (cafeteria, toilets, etc.) that correspond to their gender identity, updating necessary office forms, policies, record keeping, etc. to make it gender neutral, etc.
India's work culture has undergone interesting changes. The traditional brick and mortar offices and desk jobs are rapidly being replaced by virtual offices, working from home, working from shared spaces, free lancing, working as gig workers, etc.. The Act coming into force has, however, upended the rules of the game. The phenomenal and rapid transition thus far achieved now looks timid before the mammoth challenge of managing a huge, diverse workforce of best and the brilliant. Indian employers/ HR managers are once again called to do what they are good at- embrace this challenge and rise to the occasion. Hopefully, we will see next set of 'great places to work' being ranked for their efforts to achieve a transgender inclusive workplace.
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