In 2014, India's apex court granted citizens the power to choose their gender identity irrespective of their sex. However, the government continues to struggle with the implementation of a mechanism that could protect rights of a person belonging to the third gender.
Shanavi Ponnusamy is a 26-year-old transwoman who accused Air India of denying her employment as a trainee female cabin crew because of her gender.
"I was good in studies. My gender never created any difficulties for me in my education. I have never faced discrimination as a transwoman prior to this," she said.
In November 2017, acting on a petition filed by Shanavi, the Supreme Court directed the Ministry of Civil Aviation and Air India to provide her with a response explaining why she was denied the job.
Air India's employment process includes a preliminary medical examination, including height and Body Mass Index (BMI), and a group dynamics and personality test (GD and PAT). Shanavi claimed she was refused the job after the GD and PAT, and the examiners were hostile towards her.
However, the company claimed that Shanavi was not discriminated based on her gender, but was given an equal opportunity as a woman as she applied in the female category. Air India also added that it only rejected her job application because she failed to secure the minimum of 55 percent needed to qualify the test.
The public sector aviation company called the petition a 'classic example of frivolous litigation,' where the petitioner's intent was to 'arm twist and gain forceful employment'.
"I applied for the female section as there was no option to apply as a transgender. I have all the necessary qualifications," Shanavi said. "I actually wanted to be a pilot but my family was not in a position to financially support me. Before applying to the company, I was working as an Air India cabin support executive at a private firm," she added.
Shanavi’s lawyer, Manoj Selva filed a rejoinder last week against Air India's counter affidavit with reference to the NALSA judgement of 2014. "While the respondent (Air India) claims that she (Shanavi) did not get the necessary marks, the job advertisement did not mention any such requirements... She was denied the job because of her gender," he said.
The rejoinder is scheduled to be heard on 9 April.
"The NALSA (National Legal Service Authority vs Union of India) judgement of 2014 is the parent law for trans-rights in India. It states that any person who identifies as trans or intersex has the option of choosing between existing identities, and can identify themselves as male, female or transgender," said Deeptha Rao, an advocate at Bengaluru-based Alternate Law Forum.
But for Shanavi, her professional dream seems to have curtailed her right to choose her own gender as a transwoman.
When she initially approached the Ministry of Civil Aviation through an online government portal, requesting to be considered as a transwoman for a cabin crew post at Air India, Shanavi was told that the aviation firm does not have a policy to employ transgender people.
"I identify myself as a woman and it is difficult for me to apply for a job in the same category," Shanavi said.
According to Deeptha, several companies still lack separate quotas for transgender people in their employment policies. "Employment schemes, as they stand post the NALSA judgement, ideally should be read as including male, female and transgender, irrespective of the gender identity they were given at birth," she said.
As Shanavi had to apply under the female category for the cabin crew position at Air India, she was considered as a female for the BMI test. Manoj and Shanavi feel that this also played a big part in her rejection.
Deeptha pointed out that if a person identifies themselves as trans, they will not have any avenue for employment if an employer is sticking to the male-female binary.
A Standing Committee suggestion prohibiting discrimination on grounds of "any matter relating to employment, including, but not limited to, recruitment, promotion and other related issues" was recently added to the Transgender (Protection of Rights) Bill of 2016.
However, most employers are yet to develop a job category for the third gender. Shanavi hopes that her petition would help in implementing existing mechanisms and formulating future policies to ensure her right to work as a transwoman.
Recalling how the NALSA judgement gave full autonomy to people who identified themselves as a transgender to decide which gender-identity they want their documents in Deeptha said, "There is no mandate for a medical procedure to be done. Gender is a social construct."
"In my case, my past is irrelevant," said Shanavi adding that she is only fighting for her right to be allowed to work as a transgender cabin crew in a non-discriminatory work environment. But her task isn't easy. "If a person's candidature is rejected after an interview, they are given a reason as to why their application was rejected. But in Shanavi's case, no reason was given," says Manoj.
"As per the NALSA judgement, the moment a person's gender identity has been recognised, they are to be included in all aspects of citizenship," Deeptha said. "Employment, health and education are all entitlements that are available to every citizen and the judgement also said that within six months, the government is supposed to implement (the recognition of transgender people)," she said.
But even after three years since the judgement, Shanavi's gender identity is limiting her employment opportunities.
Deeptha feels that there is a void in the implementation of policies to protect the rights of transgender people. She added that there is still a lack of clarity in determining how a transgender person will be recruited or how the third gender will recognised, not in comparison to but as being different from both male and female.
But Shanavi is positive of having the judgement in her favour. Recalling the Madras High Court order that allowed K Prithika Yashini to become the country's first transwoman sub-inspector, she said, "Even Yashini had to fight for her identity. I am also fighting for my right."
The author is a member of The NewsCart, a Bengaluru-based media startup.
Updated Date: Apr 05, 2018 01:11 AM