Transgender and the Right to Employment in India: Analysing the Trajectories of Discrimination

The Foucault lines are a perfect portrayal of discrimination against the transgender community in a society like India and even across the world. The social painting of the TG community by the other communities of Indian society has not only resulted in denying them fundamental human rights but has also lost the attention of those sitting in power that needs to be accorded. Surprisingly, there is a bust of discourse available when discussing discrimination against women, which is laudable. Unfortunately, there is a dearth of literature concerning the transgender community and especially regarding their employment, a fundamental human right recognized by the world community at large.(Chakrapani et al., 2015)


Introduction
The Foucault lines are a perfect portrayal of discrimination against the transgender community in a society like India and even across the world. The social painting of the TG community by the other communities of Indian society has not only resulted in denying them fundamental human rights but has also lost the attention of those sitting in power that needs to be accorded. Surprisingly, there is a bust of discourse available when discussing discrimination against women, which is laudable. Unfortunately, there is a dearth of literature concerning the transgender community and especially regarding their employment, a fundamental human right recognized by the world community at large. (Chakrapani et al., 2015) At this juncture, it is also pertinent to mention that even though a lot has been said and implemented to some extent at both the national and international level concerning the problems of discrimination at the workplace, i.e., during employment, much remains to be implemented and paid heed towards the fundamental human right 'to' work. It is present here where transgender people see themselves as the most marginalized group of society. (de Vries, 2015) A R T I C L E I N F O

Article history
Received: January 9, 2021 Revised: June 29, 2021 Accepted: July 25, 2021 Every citizen of India is guaranteed the 'Right to Work' under the Indian Constitution. However, policymakers, governments, and the Indian Judiciary have been keen only on laying down a framework concerning 'Rights at work.' This tendency (un)wittingly affects the minority grouptransgender people. In this sense, India currently appears to be lacking a well-defined anti-discrimination employment framework. Regarding this issue, this paper aims to investigate the trajectories of transgender community discrimination face in the employment sector. This paper is written in the context of human rights discourse analysis. This paper argues that although the effort of the Supreme Court and the Government of India have taken a positive step to enhance the livelihood conditions of the transgender communities, it must be mentioned that this recognition is not ample to solve the problem. Although this recognition goes a long way in trying to secure the economic needs of the transgender community, social exclusion takes time to change simultaneously with the changing mindset of society. This Indian Judiciary policy should be followed by the guideline for enforcing the 'Right to Work,' especially concerning the transgender community.
The discussion becomes very relevant and significant in the contextual environment of Modern India and its liberal market economy where private players walk shoulder to shoulder with the public sector houses. Presently, it is the big business and corporate houses which rule over the Indian economy and, in fact, contribute a significant amount to India's GDP. Public-private partnerships have gained sway these days speak volumes about the triumph of the private players in the market and their role in securing jobs for educated persons and those in need. The private bodies' level of sway also increases the probability of arbitrariness in providing employment opportunities to the common public (Dutta et al., 2019).
As a result of the employers exercising an upper hand in employing people in their industries, instances of discrimination have become a part of the day of lives of people who deserve to be used. India, even if politically stable and modernized in terms of recognizing citizens' rights and noncitizens, seems to lose the front when it comes to societal considerations. Indian society has always looked down upon the transgender community in every respect, and they face discrimination in every walk of life in terms of education, housing, employment, etc. It is an unfortunate but blatant truth that the discrimination at the societal level goes straight into the veins of participation in the economic production of commodities, goods, services, and other kinds of employment (Poteat & Scheim, 2016).
When we talk about the Right 'to' Work, we directly refer to the dignity of people's lives, their livelihood, and the means to achieve their livelihood. So, the right to work is at the heart of the liberty of individuals. When it boils down to this level, the state machinery has to secure such a right. The same thing becomes a crucial issue in the context of discrimination faced by the transgender community. This becomes a pertinent issue to be examined since India still lacks a comprehensive employment discrimination framework that could cater to all forms of discrimination. Therefore, what is the lacuna? Has the constitutional mandate of Right 'To' Work lost its identity in the cloud of Rights 'at' Work (Wylie et al., 2016).
In this light, this paper focuses on the diverse hues and horizons of discrimination against transgender people in India concerning the Indian Constitution, Laws, and international obligations and efforts being made at the national level in this direction (if any). This paper also makes recommendations for a suitable anti-discrimination framework that is the need of the hour. This research will focus on understanding the 'trans-genders and what all discriminations they face concerning the employment opportunities, delves deep into the legal paradigms of the concept of 'Right to work' at both the national and international levels. It throws light on the popular notions of this recognized right of an individual and argues the problems in India's present employment jurisprudence.

Transgender People the Social Stigma and the Skewed Understandings
In straightforward terms, transgender people are individuals of any age and sex whose appearance, behavioral patterns, and personal attributes are not considered to agree with the popular stereotypical notions of how 'men' and 'women' in society are 'supposed to be. These are the communities that are tagged as "gender-nonconforming" to that of mainstream society. These are usually considered to be transgressing the so-called social norms. These social norms are nothing but a concrete set of set practices and beliefs that have been in existence in any society for an extended period (Winter et al., 2016).
As time has passed, such approaches have experienced latent continuation in the mindset of the masses even after the expansion of liberal jurisprudence and philosophies embodying the ethics of equality, respect for the dignity of any individual. The problem at hand is not very difficult to cull out. Such a social stigma attached to these communities borrows its potent from the hierarchical notions embedded deeply in our stereotypical society. When a child is born into a family, they are loaded with the things and toys that a 'boy' and 'girl' are supposed to play or have and dressed accordingly. It is the beginning of a child's socialization who learns that it could be either a boy or a girl and not any third category (Sema, 2019).
There is a considerable lack of understanding of the relation between the 'biological sex,' 'gendered identity, and sexual orientation amongst the masses due to an almost negligible amount of BESTUUR ISSN 2722-4708 Vol. 9, No. 1, August 2021  awareness programs. All such factors make the transgender community a "tritiya prakriti" and are typically subjected to social exclusion. As a result of such disguised understandings, transgender people face immense discrimination throughout their lives. As a result, they are given restricted access to education, health services, public spaces, toilets, bathrooms, and whatnot. For instance, in India, the presence of the hijra community is considered to be auspicious in Indian weddings.(Y. Singh et al., 2014) However, at the same time, when it comes to according dignity to those individuals, then there are only rejections, complaints, and exclusion in their entirety. It must be mentioned here that this transgender community also includes those who do not declare themselves to be transgender openly in the public domain (e.g., hijras) but are so and perceived by people. The most blatant discrimination that has always caught the attention of scholars is the discrimination against transgender people concerning employment. Various instances have come into the limelight. In Tamil Nadu, a young athlete, the daughter of a municipal conservancy worker, got selected to the police force. Within months, following a routine medical examination, her intersex condition was revealed, and the young woman was dismissed from the party for which she had all other qualifications (A. A. Singh & McKleroy, 2011).
A study by the Centre of Social Medicine and Community Health has shown that the transgender communities have been tagged as the repositories of viruses and HIV infections. This has possibly resulted in not even giving them the opportunity of employment in any industry. The National Expert Committee on the issues of Transgender Persons in its approach paper on Education and Employment opportunities and challenges for TGs has acknowledged the fact that the low level of education that TGs get due to insensitive teachers and the staff forces them to other occupations like sex work, as a result of which they become vulnerable to STIs (Sexually transmitted infections) and also pushes them to take optimal jobs like begging and so on (Sineath et al., 2016).
Transgender people belonging to the backward categories get victimized badly due to double exclusion based on their caste and gender. In this way, transgender people lose out on every social benefit that a 'man' or a 'woman' gets from society. The latest population census of 2011, which for the first time categorized TGs as a separate category to count the population, showed that the TG population in India is nearly half a million, and it is increasing too. It is alarming to know that half a million people live their lives as petty beggars, and some indulge in sex work too to let them both ends meet (Schmidt et al., 2012).

Employment Laws in India: Do they Embody Right to Work
The pious thread of social justice has weaved the constitutional fabric of India. The preamble embodies social justice's objective and focuses on the non-discrimination of any social class on the hands of the drawbacks, which are not his, but social. This concept of social justice enshrined in the preamble paves the way for the idea of the 'right to work.' The 'right to work is closely related to other fundamental rights, such as the right to life, food, and education (Handayani et al., 2020).
In a country where millions of people are deprived of any economic assets other than labor power, gainful employment is essential for these rights to be fulfilled. This right to gainful employment finds a mention in the Constitution of India, Universal Declaration of Human Rights, and International Covenant on Economic, Social, and Cultural Rights. All the provisions which refer to the concept of 'right to work' is elaborated on the factors related to 'rights at work' and not 'right to work.' It becomes essential to distinguish between the disguised concepts of 'right to work' and 'rights at work.' The difference between the two has been explicitly demarcated in both national and international covenants (Gilbertson, 2018).
On the one hand, if the right to work includes the right to get a fair opportunity to work, then, on the other hand, the rights at work have rights of workers during the course of employment at any workplace, be it concerning wages, conditions of service, discriminations concerning terms of employment or workings hours, etc. On analyzing them together under a theoretical paradigm, both rights constitute the "Rights of Work" elements. Therefore, we see that the Constitution of India and the international documents refer to both rights (Zubaidi et al., 2020).
The importance of the 'right to work' as a fundamental human right has been strengthened effectively after Article 23 of UDHR and Article 6 and 7 of ICESCR. UDHR 23 states that 'Everyone Vol. 9, No. 1, August 2021, pp.  has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. The substance of the provision distinguishes between 'right to work' and 'just and favorable conditions of work' viz, 'rights at work.' Similarly, Article 6 of ICESCR states that 'The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right (Sineath et al., 2016). Therefore, Article 6 categorically defines the right to work as a right held by a person even before he is engaged in any employment (Triwanto & Aryani, 2020). The distinction becomes more pertinent under ICESCR because Article 7 enlists the 'rights at work' separately. These rights include the right to fair wages and equal remuneration, safe and healthy working conditions, reasonable working hours, etc. By the drafting of the provisions of these international covenants, it can be concluded that a careful distinction has been maintained between the ideas of 'right to work' and 'rights at work (Nuryanto, 2019).
The Indian Constitution refers to the right to work under the "Directive Principles of State Policy." Article 39(a) directs the state to secure its policies, a right to an adequate means of livelihood to all its citizens without any discrimination. Hence, 39(a) guarantees the fundamental 'right to work'. Further, Article 39(d) and (e) talk about 'rights at work.' Various rights at work recognized under Article 39(d) and (e) are equal pay for equal work, non-discrimination to wages based on gender, health, and strength of workers. The makers of the Constitution of India have explicitly marked the distinction between 'right to work' and 'rights at work' by merely providing them under different heads. Moreover, Articles 41 and 43-A significantly talk about 'right to work' only (Jethva et al., 2018).
In the light of some provisions put into place to enhance the mandate of social justice, the distinction between the ideas of 'right to work' and 'rights at work' becomes significant. The contrast between the two ideas has been used in the different sections to realize how the idea of 'right to work has become infructuous and the attention of the legislature and judiciary has been focused upon the upliftment of 'rights at work' only as far as the experience shows. Article 41 states as the state shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want." (Chakrapani et al., 2015) The only statute in India that embodies the idea of non-discrimination at the time of recruitment is the Equal Remuneration Act, 1976. Section 5 of the act stipulates that an employer covered under the show cannot discriminate against women in recruitment or any service condition after recruitment, such as promotions, training, or transfer. Section 10(2) (c) of the same act lays down the penalty for the contravention of section 5. However, this provision is not enough. Firstly, this provision does not apply to all the types of establishments, and secondly, the Judiciary has laid down no guidelines to the enforcement of 'Right to work' (Gilbertson, 2018).
However, at the same time, such a distinction seems quite problematic when analyzing the policy and the letter of the law and its implementation. Most of the law instruments lay down guidelines and procedures to discrimination being faced at work and not before work or at the time of being hired. All these instruments in legislation, rules, and guidelines focus on Conditions of employment, service, wages, compensation, prohibitions during service, etc. For instance, although the Indian Constitution mandates that it is a directive principle of state policy to see that everyone gets an equal and fair opportunity to work, such a necessary legal standard is not visible in most of India's labor and employment laws. No legislation lays down the rules, particularly on the hire and recruitment of persons in India (Dutta et al., 2019).
The only statute in India that embodies the idea of non-discrimination at the time of recruitment is the Equal Remuneration Act, 1976. Section 5 of the act stipulates that an employer covered under the act cannot discriminate against women in recruitment or any condition of service after recruitment, such as promotions, training, or transfer. Section 10(2) (c) of the same act lays down the penalty for the contravention of section 5 (Arabandi, 2016).
However, this provision is not enough. Firstly, this provision does not apply to all the types of establishments, and secondly, the judiciary has laid down no guidelines to enforce the 'Right to work.' On top of this, even if most of the directive principles get implemented in the court of the law through the instrumentality of Article 14, 19, and 21, the discriminations to the directive principles like "right to work" ceaselessly occur as no mechanisms are requiring a mandated behavior on the part of BESTUUR ISSN 2722-4708 Vol. 9, No. 1, August 2021, pp. 25-32 Utkarsh K. Mishra, et.al (Transgender andthe Right to Employment in India…) employers while recruiting. Laying down a provision like section 5 of the ERA is just lip service. The absence of grievance redressal procedure, evidence in such matters, the system to be followed by employers while recruiting has made this provision almost dysfunctional (Arabandi, 2016).
On the contrary, there are countries like the United States. which have already stepped much forward to curb discrimination against TGs even before employment. The Employment Non-Discrimination Act (ENDA) is landmark legislation proposed in the US Congress that would prohibit discrimination in 'hiring' and 'engagement based on sexual orientation or gender identity by employers. It got introduced in the 113th Congress in April 2015 and has been passed by the Senate. It must be mentioned here that Section 5 of ERA may become a potential instrument if it is given a proper shape by subsequent guidelines or rules made under that provision. Otherwise, as we have seen, none of the employment laws in India enforce the 'right to work' and instead focus only on rights at work (Vaitses Fontanari et al., 2019).

Recognition of Transgender as a Third Gender Law 2019: A Silver lining in the cloud
The Indian Supreme Court, in its judgment, i.e., National Legal Services Authority v. Union of India and Ors, recognized transgender people as a "Third Gender." The Supreme Court examined all the international documents and also read the institutional principles of morality beset within the Indian Constitution and held that the transgender community as a whole should be considered as a third gender as the right to gender identity or right to self-determination is part and parcel of Article 14, 19 and 21 and under no circumstances. Therefore, such a right should be violated. It considered that non-recognition of transgender people as a 'third gender makes them very vulnerable to daily discrimination in every walk of life (Y. Singh et al., 2014).
The Supreme Court, in this judgment, noted that in India, one's gender and sex are fixed at birth and are used in all subsequent legal transactions. Therefore, binary classification of gender into male and female that does not recognize a third gender category, like the Peoples' Union for Civil Liberties (PUCL) Report on 'Human Rights Violations against the Transgender Community' argues, turns the transgender status of hijras into that of a legal non-entity. Only two sexesmale and femaleare recognized in Indian civil law. Furthermore, India does not recognize sex changes on identity cards, making it impossible for an intersex person or hijra to choose a legal female identity in most states. Lack of legal recognition has essential consequences in getting a government ration (food-price subsidy) shop card, passport, and bank account (Philip & Soumyaja, 2019).
With this landmark judgment, the recognition of transgender people is seen in new identity documents such as the Unique Identification Number with the gender category including male, female and transgender (though, access to this still has been limited). It is estimated that over 19,000 transgender people across the country have been issued Aadhaar cards that recognize them as a third gender. Even the state governments' efforts have begun to show up to secure social, economic, and political justice for the transgender community. One such example would be that of the State of Karnataka (Ming et al., 2016).
The Karnataka government has taken some very positive steps to enhance the livelihood of the transgender community. The most important one is the C.S. Dwarakanath Backward Classes Commission Report of 2010. The Commission recommended that the transgender community be included in more backward communities (2-B) that would then entitle them to government benefits. The Commission held that based on evidence, witnesses and spot inspection, and detailed analysis, they are more backward. Hence, under Section 19 (1) (Ming et al., 2016).
The basis for this decision was their finding that none of the persons from these communities with whom they had spoken got the government jobs either in the Government Departments or in the nongovernment agencies. Many of them were school dropouts, and a few had studied only up to the tenth standard. The areas where they resided were even worse than slums. The rooms measuring 6 x 10 feet had 5 to 10 occupants. The Commission noted, "From the fact that they used to share the food they got from begging, we realized that they were backward not only economically but also socially and educationally (Ming et al., 2016).
The Karnataka Government also enacted orders that provide for socio-economic benefits for these people. The Karnataka High Court recently appointed C. Anu, a transgender person, to an administrative job in the Group D category. In its 2012-2013 Budget, the Karnataka Government has instituted an initiative entitled Lingathwara Alpasankhyathara Yojana (Gender Minorities Programme), proposing to implement training, loans, and subsidies through NGOs working in the area (because transgender people may not have permanent addresses and may have issues with identification). In this way, we see that the Supreme Court of India has, by recognizing the transgender people as the third gender, opened the gateway for the recognition of fundamental rights of their livelihood, but how will the gateways for getting equal opportunities in employment be opened for them is still something awaited in the form of some judicial intervention.(A. A. Singh & McKleroy, 2011) Another milestone in this direction was the landmark and the most awaited Transgender people's law on protecting their rights. For the first time in the past 46 years, a private member's bill was passed by the Rajya Sabha. i.e., the Upper House of the Parliament of India. The Transgender Persons (Protection of Rights) Act was passed in 2019 and came into force on 10th January 2020. The preamble of the Act itself provides for the essence behind the law. For the first time, a Transgender person has been finally defined as a 'person in the history of Indian Laws (Divan et al., 2016).

Conclusion
Based on the discussion showed the effort of the Supreme Court of India and the Government of India is a positive step in the direction to enhance the livelihood conditions of the transgender communities, it must be mentioned that this recognition is not going to solve the problem. Although this recognition will go a long way in trying to secure the economic needs of transgender people, the social exclusion that transgender people face at the societal level will take time to change with the changing mindset of society. According to the authors, it will change once the 'gender conforming class' sees the 'non-gender-conforming class' in the same jobs, government avenues where they would shoulder to shoulder. Indian Judiciary should lay down proper guidelines for implementing the "Right to Work," especially to the transgender community. These guidelines will be in addition to the framework provisions of Section 3 and 9 of the Transgenders Act, 2019. Even though the provisions provide for non-discrimination even at the entry-level for the TG community, the conditions can only be realized with a practical implementation mechanism. The Indian Judiciary can develop such a mechanism. Affirmative action like reservations is another step to make the lives of the Transgenders better as these are also socially and economically backward.