India’s new labour codes are set to take effect soon, however, they fall short of including transgender rights in their scheme. Globally, LGBTQIA+ workplace equality is at the center of this discussion, as was recently emphasised by International Labour Organization (“ILO”) Director-General Guy Ryder. While India recognized transgender rights in 2014 in NALSA v Union of India (“Nalsa”), it has been reluctant to enact provisions recognizing transgender rights in existing labour codes, and the government has previously rejected the recommendations of a Parliamentary Committee report which advocated for the explicit inclusion of provisions protecting the rights of transgender people in India’s labour codes. Despite the enactment of the Transgender Persons Act, 2019 (the “Act”), labour laws remain unchanged. Moreover, a disproportionate emphasis on efforts to include cisgender women in India’s labour codes has left behind the transgender community. The case of India demonstrates that in the Global South, the fight for trans rights, especially in labour law, continues. This exclusion reflects the challenges of intersectionality, where overlapping identities, gender identity among them, can worsen discrimination.
In the Indian context, a 2014 World Bank Report model highlighted that the stigma against transgender people could cost an economy like India $32 billion, or about 1.7% of its GDP at the time, and emphasized that productivity is linked to social inclusion. This issue was highlighted in Shanavi Ponnusamy v Ministry of Civil Aviation, where a trans woman was denied a cabin crew position at Air India. The Supreme Court acknowledged the challenges faced by transgender individuals in the country, and directed the Indian government to create inclusive job policies in consultation with the National Council for Transgender Persons.
(I) Maternity Benefits
The Social Security Code excludes transgender people from maternity benefits in several ways. Eligibility criteria, which require that the beneficiary be a “woman,” exclude transgender people who can get pregnant. The code also does not address the needs of transgender couples who cannot adopt due to legal restrictions by the dictum of courts. Even for transgender people considering surrogacy, the definition of “commissioning mothers” requires that a “biological mother” use their own eggs to create an embryo which is then implanted in another woman, which excludes transgender men who still have female reproductive organs.
To make matters worse, the definition of “dependents,” which includes a deceased employee’s family who financially relied on them to receiving benefits, seems to enshrine binary gender norms and traditionally established familial structures. This excludes transgender parents and their children as well as the dependents of same-sex partners. Moreover, the use of terms like “widow” and “daughter-in-law” specifically denotes cisgender women thereby excluding LGBTQIA+ individuals entirely. Transgender individuals and their families are left vulnerable and without crucial social security benefits.
(II) Transgender Representation on National and State Boards under Sections 6 and 7 of the Social Security Code
A UNDP report paints a grim picture of transgender livelihoods in India, where employment rates are significantly lower for transgender people compared to the general population. Transgender individuals face frequent rejection from job opportunities: up to 96% out of roughly 490,000 transgender people in the Indian workforce, according to the Election Commission and recent census data. The result is that transgender people in the Indian workforce often resort to low-wage and demeaning work, such as street performing, sex work, or begging to sustain themselves. This marginalisation is further compounded by the lack of trans representation on National and State Boards so constituted under the Social Security Code. The inclusion of trans voices in these boards is crucial for creating gender-sensitive policies and ensuring that the needs of transgender individuals are prioritized while securing funding for trans-focused initiatives.
(III) Non-penalty on Violation under Sections 9-11 of the Transgender Persons Act, 2019.
Section 11 of the Transgender Persons Act, 2019 (“TPA”) outlines the role of grievance officers, who are appointed to deal with the complaints in workplaces relating to the violation of the provisions under the TPA. However, sections 9-11 of the TPA mandate that these grievance officers be chosen by employers themselves, which raises concerns about impartiality in handling complaints by transgender employees. This lack of impartiality is compounded by the absence of penalties in the TPA for employer violations of workplace obligations. Transgender employees are left with limited options, often relying on Constitutional remedies, such as the case of Shanavi Ponnusamy, where petitioners relied on Articles 14 and Article 15 of the Indian Constitution and the NALSA judgment to allege discrimination in the selection process for cabin crew in Air India Airlines, instead of resorting to the statutory remedies themselves. The lack of specific enforcement of rules further weakens the TPA’s effectiveness. The Supreme Court’s call in NALSA for affirmative action under the Socially and Economically Backward Communities categories for the transgender community remains unheeded, and there are no consequences for non-compliance with sections 9-11 of the TPA. These loopholes create a situation where the TPA’s protections for transgender workers are significantly weakened.
(IV) Conclusion
Workers’ rights under international human rights law offer a strong framework for India to improve the lives of transgender people. The International Covenant on Civil and Political Rights prohibits discrimination and guarantees equal protection before the law – this includes discrimination on the basis of gender identity (Article 26). Similarly, the International Covenant on Economic, Social and Cultural Rights protects the right to work without discrimination (Article 12). These principles, along with ILO standards on non-discrimination, impose an obligation on India to ensure equal opportunities for all workers. Looking beyond the binary gender system, the Yogyakarta Principles, despite being non-binding, offer a helpful framework for legal recognition of diverse gender identities.
Policy decisions will guide progress in this regime. Policy recommendations that ought to be adopted include adding a transgender identity option on forms, clarifying maternity benefit guidelines, workplace inclusion training and quotas in government boards, and penalties for non-compliance with transgender rights protections.
Vasujit Dubey is a penultimate year student at Dharmashastra National Law University, Jabalpur, India. His research interest includes labour laws, international trade law and aonstitutional law.
Poorva Sharma, is a penultimate year student at Dharmashastra National Law University, Jabalpur, India. She is a labour law, international trade law and public international law enthusiast.