Transgender Persons (Protection Of Rights) Rules, 2020: Some Pertinent Points The Employers Need To Know

In exercise of the powers conferred by Section 22 of the Transgender Persons (Protection of Rights) Act, 2019 (“TP Act”), the Central Government has made the following rules (stated further below). These rules are called the Transgender Persons (Protection of Rights) Rules, 2020 (“TP Rules”). 

The Central Government (Ministry of Social Justice and Empowerment) has notified the Rules on 25th September 2020 in the Gazette of India. Hence, they are effective from this date of publication and extend to the whole of India. 

Here are some pertinent points for any Indian Corporate/Employer to be aware of and comply with within their workplace. 

Why does an Employer need to know this information?

Transgenders are a significant category of people, but society has stigmatized them over centuries. 

The Supreme Court of India, in the case of National Legal Services Authority vs. Union of India and others, on 15th April 2014 (“NALSA Judgment“), held that “Self-determination of gender is an integral part of personal autonomy and self-expression. Self-determination of gender falls within the realm of personal liberty guaranteed under Article 21 of India’s Constitution.” Therefore, “Self-identified gender can be either male or female or a third gender.”

After the NALSA judgment, the Central Government introduced “third gender” as a separate category for classification as gender in several official forms. After that, the legislature passed the Transgender Persons (Protection of Rights) Act, 2019 (“TP Act“). The TP Act also aims to ensure no discrimination against transgender persons. They are recognized as a third gender and can enjoy their rights like all other human beings irrespective of their gender.

Who is a Transgender Person?

Under the TP Act and TP Rules, “transgender person” means a person whose gender does not match with the gender assigned to that person at birth. This term includes trans-man or trans-woman. It doesn’t matter whether the transperson has undergone a Sex Reassignment surgery (also called Gender-Affirming surgery), hormone therapy, laser therapy, or any other therapy. The term transgender also includes intersex variations, genderqueer, and a person having a socio-cultural identity as Kinner, Hijra, Aravani, and Jogta. 

However, many of the laws in our country have a gender-binary language. The Supreme Court also observed this in the NALSA Judgment. It said that “Binary notion of gender reflects in the Indian Penal Code, (for example, Section 8, 10), and also in the laws related to marriage, divorce, inheritance, etc. Non-recognition of the identity of Hijras/Transgender people in the various legislations denies them equal protection of the law. Due to this non-recognition, transgender persons face wide-spread discrimination.” 

Now, here is a chance for employers to rectify the existing inequalities in our society and the workplace. 

What do the Employers need to do?

TP Act, Section 9: No establishment shall discriminate against any transgender person in any matter relating to employment. This statute includes recruitment, promotion, infrastructural adjustments, employment benefits, and other related issues (vide section 12, Rules).  

Rainmaker Opinion: As legislative and social history has already shown us, laws are not enough to change society. The change won’t come unless we (Employers and Management) decide to change our workplace and consciously make it transgender person-friendly.

1. First, the Employer must ensure compliance with the TP Act and TP Rule’s provisions and provide facilities to transgender persons as prescribed (in the TP Rules). Vide Section 12 (4) (a), the Employer must provide infrastructural facilities (such as unisex toilets), measures for safety and security (transportation and guards), and amenities (such as hygiene products).
2. The Employer must publish an equal opportunity policy for transgender persons. The establishment must display this policy, including the details of the Complaints Officer. This provision for the display of policy is just like in the PoSH Act, 2013. The Employer can display the policy on the company website and/or at conspicuous places in the workplace.
3. The Employer must also include the applicability of Rules and Regulations of the company regarding employees’ service conditions in the policy. 
4. The Employer must outline in the policy that all employees must respect the gender identity of the employees. Therefore, they must not breach Confidentiality if the transgender person wishes to keep their gender identity concealed. 

Rainmaker Opinion:  The Confidentiality aspect of transgender persons is a delicate issue. The Employer must deal with this issue in consultation with a specialist firm. The policy must include clear guidelines that the employees need to follow. Unfortunately, the TP Rules are not clear and elaborate on this aspect. 

How can the Employer provide Grievance Redressal?

The Employer must put in place a Grievance Redressal Mechanism. They must designate a Complaints Officer to deal with the complaints relating to the violation of the TP Act’s provisions. The Employer must do so within thirty days of the TP Rules coming into force (25th September 2020). 

The Complaints Officer must inquire into the complaint received within fifteen days from the date the officer receives the complaint. 

The Head of the establishment (Employer) must take action on the Complaints Officer’s inquiry report within fifteen days of receiving the report. Suppose the above time limits have not been adhered to. In that case, the Head of the establishment must take action forthwith.

How does a Transgender Person apply for a Certificate of Identity?

The issue of Gender Identity and the Certificate of Identity, being a broad topic, will be dealt with in another blog in detail. But the crux is that a transgender person desirous of obtaining a Certificate of Identity can apply for the same to the District Magistrate. 

Is the contentious requirement of medical examination still part of the TP Rules?

The Trans Bill 2019, which required mandatory medical examination, had garnered many protests. The Ministry of Social Justice and Empowerment has removed this clause and allowed transgender persons to self-determine their gender. They are free to declare their sex without undertaking any medical or physical examination. To get an Identity Certificate, they need to submit an affidavit of the declaration of their desired gender, to the District Magistrate.

What is Gender-Affirming Surgery?

Gender–Affirming Surgery changes a person’s sexual characteristics to reflect their gender identity better. Some trans and gender diverse people need these surgeries for their well-being.

However, suppose a transgender person undergoes medical intervention towards a gender-affirming procedure. Such a person will need a certificate issued by the Medical Superintendent or Chief Medical Officer of the medical institution where they got the medical procedure done. Along with this certificate, they can apply to the District Magistrate for an Identity Certificate. 

How can Rainmaker Training help a prospective Employer?

We have expert lawyers who can help draw a suitable and legally correct equal opportunity policy for transgender persons. It is crucial to make your workplace transgender-friendly with a positive culture. We can train your employees to understand better the challenges faced by the trans community. Not only that, but we can also help draw up a set of guidelines for the management concerning the Dos and Don’t while hiring, promoting, deciding benefits, and security measures. 

Though transgender persons to date continue to be deprived of their fundamental rights, isn’t it time to take some serious affirmative steps towards their upliftment in society? 

Please welcome transgender people to your workplace, and leave the worrying about making your workplace Transgender community-friendly to the specialists.

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Author: Sumali Nagarajan

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References:

New Rules of Trans Bill 2019 Draw Closure on Mandatory Medical Examination for Identity Certificate – by The New Leam Staff

Transgender Persons (Protection of Rights) Rules, 2020 – by Corporate Law – Notifications- Notifications/Circulars

Transgender Persons (Protection of Rights) Act, 2019 – by Wikipedia