By Resham Jain on 30 November, 2020
For a long time, transgender persons have been excluded from contributing towards socio-economic activities and decision-making processes. So much so that it was only during the 2011 census that, for the first time, data related to their employment, literacy and caste was collected. As per a 2017 study conducted by the Kerala Development Society for the National Human Rights Commission of India, 96% of transgender participants (including qualified and skilled persons) reported that they were discriminated and denied employment opportunities in the formal sector.
The transgender community is ubiquitous in India’s social construct. From Sathyasri Sharmila, Tamil Nadu’s first transgender lawyer to Padmini Prakash, anchor of a local Tamil news channel to Dr. Manabi Bandopadhyay, first trans-woman to become a college principal, transgender persons are gaining recognition across different sectors. Yet, their presence and participation at workplaces, remains elusive. Organizations are often ill-equipped to support and integrate transgender employees into the mainstream.
Growing awareness and sensitization towards protection of rights of “trans” individuals is slowly bridging this gap. For instance, Corporates like Godrej, IBM, and Infosys have implemented non-discriminatory policies and employee resource groups for their LGBTQ+ employees. Organizations are realizing that a trans-friendly environment not only uplifts a socially and economically marginalized community, but also fosters opportunities for innovation and access to a wider talent pool. Additionally, legal reforms such as The Transgender Persons (Protection of Rights) Act, 2019 (“Act”) and rules thereunder, are steps towards eliminating workplace discrimination.
This blog post aims to analyze the employment specific provisions of the Act, impact on prevalent data protection and privacy practices, and way forward for organizations.
1. Transgender Law and workplace compliances: The Act came into force on January 10, 2020 and inter alia seeks to ensure that a “transgender person” is not discriminated by any “establishment” in matters related to employment, recruitment and promotion (section 9). Section 2(k) defines a transgender person as a person whose gender does not match with the gender assigned to him/her at birth and includes a trans-man or trans-woman (whether or not such person has undergone sex reassignment surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having socio-cultural identities such as kinner, hijra, aravani and jogta. Section 2(b) of the Act defines an establishment as any (i) government owned or controlled body or authority and (ii) company or body corporate or association or body of individuals, firm, cooperative or other society, association, trust, agency or institution.
1.1 Obligations on establishments: The Act prohibits establishments from denying employment to, termination [section 3(c)]; and causing unfair treatment [section 3(b)] of transgender persons during the course of their employment. Rules 12 and 13 of The Transgender Persons (Protection of Rights) Rules, 2020 (“Rules”) further mandate establishments to:
- provide a safe working environment to transgender employees;
- ensure that transgender employees are not discriminated in any matter related to their employment, including but not limited to, recruitment, infrastructure facilities, employment benefits and promotion;
- publish an Equal Opportunities Policy (“Policy”) on its website or display at a conspicuous place in its premises;
- ensure that the Policy contains information related to inter alia(i) infrastructure facilities and amenities (g. unisex toilets, hygiene products); (ii) safety and security measures (e.g. transportation, security guards); (iii) applicability of establishment’s terms and conditions of service on transgender employees; (iii) data protection and privacy practices and (iv) grievance redressal mechanism;
- appoint a complaint officer within thirty (30) days from date of notification of the Rules, i.e. September 25, 2020; the complaint officer shall make enquiry into the complaints received and must submit an enquiry report to the head of the establishment within fifteen (15) days of receipt of a complaint; and
- ensure that appropriate action is taken within fifteen (15) days from submission of the enquiry report; in case the complaint officer fails to conduct the enquiry and submit report within the timelines stated under #5, the head of the establishment shall take immediate remedial action.
1.2 Enforcement and penalties: While the Act puts onus on establishments to comply with the obligations stated at 1.1 above, it is silent on how these will be enforced as well as legal recourses available for transgender employees if there is a breach. This lack of accountability and responsibility can cause serious injury to the rights of transgender employees and undermine the objects and intent of the Act.
Section 18 of the Act imposes a fine and imprisonment of 6 months which can extend upto 2 years on “whoever”, (i) compels or entices a transgender person to indulge in the act of forced or bonded labour except any compulsory public service imposed by the government; (ii) denies a transgender person the right of passage to a public place or obstructs the use or access of such public place; (iii) harms or injures or endangers the life, safety, health or well-being, whether mental or physical, of a transgender person or tends to cause physical, sexual, verbal, emotional and economic abuse. The term “whoever” can arguably include “establishments” as well. Hence, even in the absence of any express penal provision, establishments may get covered under section 18 if an offence of the manner stated thereunder is alleged against them. Of course, whether establishments will be included within the scope of section 18 or not is likely to be contested before courts. That said, employees, in their individual capacity, will continue to be covered within the scope of the Act if they breach section 18.
2. Right to privacy: Every transgender person is entitled to a self-perceived gender identity [Section 4(2) of the Act]. In common parlance, gender identity means an individual’s own sense of having a particular gender.
Transgender employees may be required to provide both personal and sensitive personal data prior to and during the course of their employment. In addition to the usual personal identifiers such as name, address, contact number, employers may collect sensitive data pertaining to gender identity for smooth transition and integration of transgender employees. This data would include ID cards issued by appropriate authorities to recognize a person as a transgender (Section 6) or upon change in gender, if applicable (Section 7). The Act and Rules [Rule 12(4)(c)] impose a positive obligation on employers to keep data related to gender identify confidential.
Employers are also required to obtain written consent from transgender employees prior to collection and processing of their sensitive personal data. Due to sensitivity of the data involved, it is essential that HR departments are adequately trained to ensure that transgender employees are treated with respect and dignity at every step of collection and processing of their data. Addtionally, sensitive personal data should be collected only for lawful purpose and not be retained longer than necessary for the intended purpose. It is also critical for establishments to implement appropriate technical and organisational measures to ensure that the personal and sensitive personal data of transgender employees is secure from unauthorised access. While security measures should be adopted for all employee data, any internal or external misuse of data shared by transgenders can have serious ramifications such as stigmatization, social discrimination, loss of employment, etc.
In addition to the SPDI Rules, it is important to assess the treatment of personal and sensitive personal data of transgender employees under the current draft of the Personal Data Protection Bill, 2019 (“PDP Bill”). Unlike the present regime, the PDP Bill governs both electronic and physical forms of data. Section 13 of the PDP Bill provides that employee personal data, except sensitive personal data, can be processed without such employee’s consent, if processing is necessary for (a) recruitment or termination of employment; (b) provision of any service or benefit to the employee; (c) verifying attendance or (d) activities related to performance evaluation. Sensitive personal data which inter alia includes transgender status [Section 3(36)(viii)] cannot be processed without explicit consent. This means that employers cannot collect personal data of transgender employees which does not have nexus with the 4 limited purposes mentioned in section 13 without consent.
3. Gender identity and confidentiality: The Act mandates employers to keep the gender identity of transgender employees confidential; however, it does not prescribe any consequence of breach. In other words, if there is a breach of Section 4(2) of the Act or Rule 12(4)(c) of the Rules, there is no recourse under the Act. Nevertheless, Section 43A of the Information Technology Act, 2000provides that a “body corporate” (including a firm, sole proprietorship or other association of individuals engaged in commercial or professional activities) shall be liable to pay damages to any person(s) whose data has been compromised due to its failure to protect their data. Thus, where data is in electronic form which is most likely, transgender persons can seek recourse under Section 43A
While transgender employees will have recourse under Section 43A, in practice, there are no precedents where employees have been able to prosecute their employers for leaking their “confidential” data. It appears that the lack of legal remedy within the Act as well as an in effective recourse to Section 43A may render Section 4(2) and Rule 12(4)(c) infructuous. Hopefully, this is only temporary till the PDP Bill comes into force.
In the interim, employers should develop and implement best practices to ensure that the mandate of confidentiality is complied with in letter and spirit. After all, the proposed PDP Bill can expose them to a penalty of up to INR 15 Crore or 4% of their total worldwide turnover of the preceding FY, whichever is higher.
4. Way forward: The legislative intent behind the Act is noble. However, rights of transgender persons can be seriously compromised due to lack of accountability in the present legal framework. HR departments should consistently engage with the top management to assess how best they can comply with the Act, Rules as well as the existing and proposed data privacy and protection regime. Managers have to be trained not just in how data ought to be processed but even how it is collected while interacting with transgenders. Sensitivity is key and if that requires internal training, organizations should proactively do so. Complying with just the “letter of the law” will hardly be enough in this case!
 Study on Human Rights of Transgender as a Third Gender – https://nhrc.nic.in/sites/default/files/Study_HR_transgender_03082018.pdf (last accessed on Nov 18, 2020)
 10 Transgender People who are breaking barriers across fields – https://www.shethepeople.tv/home-top-video/10-transgender-people-breaking-barriers/ (last accessed on Nov 18, 2020)
 A Manifesto for Trans Inclusion in the Indian Workplace – https://indiaculturelab.org/assets/Uploads/Godrej-India-Culture-Lab-Trans-Inclusion-Manifesto-Paper2.pdf (last accessed on Nov 13, 2020)
 https://www.ibm.com/thought-leadership/LGBT%2Bpride/ (last accessed on Nov 13, 2020)
 https://www.infosys.com/about/diversity-inclusion/lgbtqia.html (last accessed on Nov 13, 2020)
 The year of trans-friendly workplaces – https://www.livemint.com/Leisure/iRTcQo4LtMlBgg5orMnG3I/The-year-of-transfriendly-workplaces.html (last accessed on Nov 13, 2020)