Can a trans person file a workplace sexual harassment complaint

 

Can a trans person file a workplace sexual harassment complaint

Unlike crimes against men, women and children, the Indian government does not publish annual statistics about crimes against transgender people. For decades, transgenders have been looked upon as unnatural elements and forced to take up menial jobs owing to discriminatory hiring practices in India.

History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality.

Let’s first understand who is a “transgender”?

Transgender is generally described as an umbrella term for persons whose gender identity, gender expression or behaviour does not conform to their biological sex. Transgenders may also take in persons who do not identify with their sex assigned at birth and they describe themselves as ―third gender as they do not identify themselves as either male or female.

Applicability of Sexual Harassment laws on transgenders at the workplace –

Let’s look at if the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,2013 (2013 Act), as the 2013 covers “transgender”. The Act clearly states that the law is applicable to women.

Provisions in the Act, however, only recognise the complainant to be an “aggrieved woman” under Section 2(a), thereby excluding transgender persons and precluding the possibility of LGBTQ people being subjects of workplace sexual harassment. Therefore, the POSH act is not applicable to men or transgenders.

However, if a trans person identifies as a woman she will be protected under the POSH Act because then she will fall under the ambit of “aggrieved woman” as defined by the Act. 

Both by literal interpretation and the golden rule of interpretation of statutes the POSH law will be applicable to trans woman.

Further, Section 354 A of Indian Penal Code states that a man making physical contact and advances involving unwelcome and explicit sexual overtures or demanding sexual favours or making sexually coloured remarks, shall be guilty of the offence of sexual harassment.

Onus on Companies for creating a safe working environment for Transgenders

The fact remains that India is home to more than 55 million LGBTQ adults and the country as a whole cannot afford to ignore them anymore, both as individuals, a market and as a talent pool. This is why Transgender Awareness is so important. Positive steps are needed to be taken in this direction which will lead to the recognition of members of the transgender community as a part of society and provide them a safe working environment.

 

 

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