The Labour Ministry took a progressive step in 2015 when it acknowledged transgender persons’ right to equal wages in the Wages Code Bill. It appears, however, that the government took two steps forward and three steps back. The government has now gone back on its plans to include separate clauses protecting transgender persons’ labour rights.
The reason, a senior Labour and Employment Ministry official told The Hindu, was an observation made by the Law Ministry. “The Law Ministry objected, citing the General Clauses Act of 1897, according to which ‘transgenders’ fall within the definition of ‘person’,” the Labour Ministry official said.
While it appears that government’s defense is based on inclusion, people from the community as well as activists say that the move may end upholding the existing discriminatory status quo.
Vyjayanthi Vasanta Mogli, founder of Telangana Hijra Intersex Transgender Samiti and a trans woman, questioned the government about whose interest was being harmed if they acknowledged transgender persons in the labour law.
“They can always argue that there are existing laws which subsume transgender persons. But in cases of violence, in the face of prejudice, they don’t help at all,” she argues.
She refers to an incident in Pune where a transgender woman was allegedly assaulted and raped by four men. When she managed to escape and was taken to a hospital, the doctors and nurses created a ruckus and raised questions about how a transgender person could be raped. Later, the four men were granted bail because in both section 377 and 376, there is a definite mention of gender, but not a 'third gender'.
“Including transgender persons specifically under the law will help protect those members of the community regardless of whether they have transitioned,” Vyjayanthi states. “We should rebut the government’s claim that this extra mention is not needed because it doesn’t hurt anyone’s interest. And if it is indeed hurting someone’s interests, the government needs to come clean. Whose interest are you trying to safeguard by not including the word ‘transgender’?” she questions.
Sunil Mohan, a Bengaluru-based researcher and member of the transgender community, points out that while ‘persons’ technically includes the transgender community, it is only on paper.
“It’s true that a person can be interpreted to be a transgender person also. But it doesn’t happen in a lay person’s imagination. That is why we need to be included in the legislation specifically to bring the community into the public’s consciousness. You need to remind them that there is another community that exists and which they cannot keep ignoring,” he asserts.
He concedes however that you cannot include a word or clause and change the society’s perception. However, looking for social change before making a law or vice versa is like a chicken and egg chase. “You have to start somewhere. People need to be reminded that we exist and we also need the same things to sustain ourselves,” he says.
Christy Raj, a Bengaluru-based trans man, says that because people’s imagination of others like them doesn’t extend to the trans community, the protection of Wages Code Bill may not extend to them at all. “People from the community anyway do not get jobs. If we aren’t mentioned in the Bill also, the pretext for not giving us fair wages, or employment becomes - ‘here it says ‘person’, not third gender’,” he argues.
While many trans persons and activists have argued for the need of visibility, Bittu Karthik, a scientist and transgender rights activist argues that not all members of the community are after visibility. He agrees with the others however, that a law which names transgender persons will be immensely helpful to the community.
“On one hand, it is good that the government considers us a part of the ‘people’ which the law can protect. But it isn’t as important to have a law which subsumes trans persons in ‘persons’ as it is to have specific laws that recognise the discrimination trans people face in terms of accessing jobs with specific remedies,” Bittu argues.
He states further that in the Indian context, many in the transgender community simply want to be identified as a man or a woman. However, the pressure for trans persons to identify as transgender has been mounting, and is an influence of the American conception LGBTQI+ rights movement, Bittu points out. “Several trans people in the Indian context have used invisibility as a survival strategy,” he says.
He adds that the rights and safeguards which extend to women in the workplace must also extend to transgender persons. “Like women can avail maternity rights, trans people should also be able to avail some time off where they can take leave and undergo a gender affirmation surgery if they so wish. Most of the time, trans persons - the few who have access to jobs - are fired when they want to go for their surgery,” Bittu says.
In such a context then, he asserts, there is a need to recognise the specific grounds on which transgender persons tend to be denied jobs, fair wages or face sexual harassment at the workplace. “Very few trans people have jobs even in the informal sector. So, it is important to name the forms of discrimination which keep them from accessing jobs, and penalise those who discriminate,” Bittu says.