Handling Of Complaints Of Sexual Harassment By Transgenders Under The POSH Act

January 5, 2023
Posh Complaint (law)

By Anuradha Gandhi and Apalka Bareja

Discrimination based on gender and sexual harassment is widely known to be faced by women everywhere. However, this perception does not completely rule out the probabilities of men or even the transgender persons to be on the vulnerable side. Though considering that the rate of crimes against women have always been on the rise, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the “POSH Act”) was a step ahead in ensuring safety and to provide protection against sexual harassment of women at workplace and for prevention and redressal of complaints of sexual harassment of women at workplaces. The Act per se is one of the major recourse taken by the Indian Legislature in identifying harassment faced by women at workplaces however, notably the Act lacks Gender-neutrality.

Recognition of Identity of Transgender Persons

Transgenders have been discriminated at varied levels in the society since time immemorial. However, the recent judicial activism and awareness of right to live with dignity of every citizen has relatively made the lives of transgenders livable and their identity has been ethically and legally recognized to a great extent.

The rights of transgender persons were first recognized by the Indian Judiciary in the judgment of National Legal Services Authority v. Union of India (NALSA Judgement),[1] by giving them the position of ‘third gender’ in consonance with the fundamental rights under Article 14 and Article 21 as guaranteed under the Constitution of India. The judiciary, further, took a major step ahead in legalizing homosexuality and decriminalizing Section 377 of the Indian Penal Code[2] in the landmark judgment named, Navtej Singh Johar v. Union of India.[3] The judgement came as a huge success for the LGBTQ community by putting them at par with other genders and an attempt in eliminating the stigma attached to them since years.

Complaint Redressal Mechanism for Transgender Persons under the POSH Act

The pronouncement of the abovementioned judgments has stirred the debate of applicability of the POSH Act on transgender persons particularly the redressal mechanism.

Section 2 (a) of the POSH Act recognizes the complainant to be an ‘aggrieved woman’, thereby excluding the possibility of LGBTQ persons to be the subjects of it.

The Act further provides for establishment of an Internal Complaints Committee (“ICC”), headed by the Presiding Officer which is supposed to be a Woman employed at a senior level at workplace from amongst the employees, to handle the complaints of sexual harassment filed by the ‘aggrieved woman’. Ironically, the Act though has been enacted for women, does not even attempt to define the word “Woman” indicating that the ICC does not have the jurisdiction to proceed against a complaint filed by any person belonging to the other gender.

The Transgender Persons (Protection of Rights) Act, 2019

The Transgender Persons (Protection of Rights) Act, 2019 (the “Act”) was enacted with the aim to protect the rights of transgender persons and their welfare. The said Act defines “Transgender person” as –

“a person whose gender does not match with the gender assigned to that person at birth and includes 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 such socio-cultural identities as kinner, hijra, aravani and jogta.”

The Act of 2019 further prohibits discrimination against transgender persons in educational institutions, workplaces or any other place having similar setting.[4] Further, the Act mandates the appointment of a designated person as a Complaint Officer in every establishment to handle complaints made by a transgender person.[5]

Though the Act prohibits discrimination against the Transgender persons in employment and also mandates appointment of a grievance redressal officer in every establishment but the Act does not outline a proper redressal mechanism for handling complaints of ‘sexual harassment’ more precisely and efficiently.

There, thus, exist a gap between the intention to protect and actual protection provided to the LGBTQ community as a whole.

The Need to draft Gender-neutral POSH Policy at Organization Level

While it can be said that the POSH law is not gender-neutral that provides protection only to women with nearly no clarity as to its application on transgender persons, however, when read with the Transgender Persons Rights Act and the NALSA judgment, a view that can be taken is that the POSH Act would also provide protection to transgender women. The institutions and organizations themselves should address the need to draft a gender-neutral and inclusive POSH Policy for their employees which in its entirety can be an effective way to recognize the rights of transgender persons and thereby also protect them against sexual harassment.

The practice has already been adopted by some of the organizations such as University Grants Commission to have University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women employees and students in Higher Educational Institutions) Regulations, 2015.[6]

Rachita Thakur, Junior Associate at S.S. Rana & Co. has assisted in the research of this article.

[1] (2014) 5 SCC 48

[2] Section 377 of IPC provides for Unnatural offences and states that Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment of life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

[3] (2018) 10 SCC 1

[4] Section 9 of the Transgender Persons (Protection of Rights) Act, 2019

[5] Section 11 of the Transgender Persons (Protection of Rights) Act, 2019

[6] https://www.ugc.ac.in/pdfnews/7203627_UGC_regulations-harassment.pdf

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