In a shocking move on 3 September, the National Democratic Alliance (NDA) government dropped all plans to identify trans-people and incorporate the rights of the third gender within India’s labour law framework.
In 2014, in the National Legal Services Authority (NALSA) vs Union of India judgment, the Supreme Court recognised transgender persons as the 'third gender' and affirmed that all basic human rights and constitutional freedoms of the transgender community are absolute and non-negotiable.
The judgment asked the Centre as well as the states to provide them with equitable opportunities for education and employment. However, besides a few draft legislative bills, there has been no concrete move to align the extant laws in the country with the NALSA verdict. This has, in many ways, re-entrenched the stigma and discrimination against the community.
The law ministry has made reservations towards the inclusion of provisions to codify wages and protect the rights of trans-people from discrimination, and therefore, such provisions in the labour ministry's draft law have been shelved.
The new wages bill (The Code on Wages, 2017) was drafted so that India’s 44 labour laws could be streamlined into four codes that would cover all regulations regarding wages, social protection and safety, industrial relations and health and working conditions.
The Ministry of Labour and Employment had proposed the insertion of clauses for recognising the rights of transgender workers in these four labour codes, but the law ministry opposed it stating that according to the General Clauses Act of 1897, all trans persons would fall within the definition of 'person', hence, no separate provision was added for them.
In the previous version of the wages bill in 2015, provisions prohibiting stigma and discrimination against the transgender community in the payment of wages was inserted by the labour ministry, and this was done to honour the NALSA verdict. Even the proposed amendments to Factories Act, 1948 had certain special protections for workers from the transgender community.
The proposal read as follows: “Every transgender worker shall have equal right to work opportunities in a factory. The state government may make rules providing to secure the rights of transgender workers to ensure respect for inherent dignity, non-discrimination, full and effective participation and inclusion in society, respect for difference and acceptance of transgender persons as part of human diversity and humanity." But even this provision has been removed in the latest draft amendments.
While the verdict spurred two separate legislative bills — a unanimously passed private matter bill presented by Tiruchi Siva, Rajya Sabha member of the Parliament from the Dravida Munnetra Kazhagham (DMK) in 2014, and another bill by the central government — what it couldn’t do was to provide for welfare measures and affirmative action to erase discrimination and stigma against the community.
Moreover, none of the tenets of the NALSA judgment have been incorporated in the marriage, adoption, succession and criminal laws of the country. Criminal offences, especially those dealing with sexual assault and gender-based violence, also remain based on the heteronormative, binary gender constructs, and therefore, the transgender community remains unprotected.
Very recently, a transgender woman was sexually assaulted and gang-raped by four men in Pune; her perpetrators, however, were granted bail since, as the courts decided, in sections 377 and 376 of the Indian Penal Code, there is no mention of 'third gender'.
According to Laxmi Narayan Tripathi, a trans-rights activist, this move is "hypocritical". "The dignity of our body needs to be protected at the workplace as well with basic facilities such as restrooms and equal wages,” she said.
The transgender community has been subject to discrimination, abject violence and increased societal stigma for centuries, and a historically oppressed group is deserving of affirmative action at all levels of government. The removal of the word, “transgender” and replacing it with the gender-neutral term “person” creates more issues than it solves.
What the law ministry has done by opposing the usage of transgender identity within the wages bill is draconian. It has suggested that transgender identity and rights be negated, and this goes completely against the tenets of the NALSA verdict. Moreover, while policymakers understand the need for a more comprehensive labour law paradigm with a nuanced understanding of how gender affects wage policy and discrimination within the workforce, there is little effort to make lasting changes in the law.
The NALSA judgment recognised the right of self-determination of trans-people and its substantial value with reference to Principle 3 of the Yogyakarta Principles, which says, “Everyone has the right to recognition everywhere as a person before the law. Persons of diverse sexual orientations and gender identities shall enjoy legal capacity in all aspects of life. Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom....”
Why, then, are our politicians and policymakers discounting this right of self-determination of transgender individuals? What is the real implication of the NALSA verdict three years on, if there are reservations about using their identities for changing laws and affecting policy?
At this juncture, we cannot deny the fact that transgender individuals are immensely vulnerable to physical and sexual violence as well as mental torture in workplace settings. This is because they have been discriminated against all their lives. Moreover, as the government creates more opportunities for them, whether it be in education or employment, it would be essential that such opportunities and their place in the system are protected by strong legislation.
It is evident that the mere declaration of transgender rights by the judiciary is not enough, and unless other organs of the government work together to distort and destroy the years of marginalisation that trans-people have gone through, there is no way that their interests and their constitutional freedoms will be upheld.
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Updated Date: Sep 05, 2017 16:17:56 IST