APPROPRIATING ‘RIGHT TO LIVELIHOOD’ OF THE THIRD GENDER:

A CASE STUDY ON EMPLOYEES OF KOCHI METRO RAIL LTD (KMRL)

Dr. Ambily P, Adv. Ajoy Jose

“I have everything, yet I have nothing.”

-Unknown
INTRODUCTION

In the society, there exists a perception on the way in which men and women are ‘supposed’ to
conduct. 'Transgenders' are referred as individuals of any age or sex whose appearance, personal
traits, or behaviours dissent from stereotypes1. The term ‘transgender’ or ‘third gender’ includes a
person whose identity or behaviour falls outside the purview of stereotypical gender norms. In this
manner, it can be derived that it is community generated.

The Constitution of India mandates right to equality as a fundamental right 2 and any form of
discrimination is considered as an anti thesis of the same3. The Constitution also ensures right to
privacy and personal dignity4 to all citizens. In spite of the constitutional affirmation of fundamental
rights and equality in all spheres, it is to be noted that the third gender continues to be ostracized.
Different facets of such deprival refers to infringement of right to marry, right to claim an identity,
right to education, employment, and so on5. This leads to their seclusion from the very fabric of
civilized society and are subjected to many forms of harassment6.

Major scenario of discrimination faced by the community is in the matter of employment. Reports
have pointed out that socio cultural factors are the determining factors that lead to deprival of
transgender’s right to education and consequentially right to livelihood7. The study conducted by
Ministry of Social Justice and Empowerment depicted that 70% of the transgender community have

1
As stated in The Commissioner of Income Tax and anr v. Smt. K. G. Rukmini Amma, ILR 2010 Kar.4711. Para 13
states ‘in all Central Acts and Regulations, unless there is anything repugnant in the subject or context words
importing the masculine gender shall be taken to include females. Thus it is an accepted notion that there are only two
gender- male and female.
2
India Const. art 14.
3
India Const. art 15.
4
India Const. art 21.
5
Dr. Khushboo P. Hotchandani, “Problems of Transgender in India: A Study from Social Exclusion to Inclusion”,
Intenational Journal of Human Resources and Social Sciences, Vol. 4, April 2017 at p. 75 available at
http://www.academia.edu/33006703/PROBLEMS_OF_TRANSGENDER_IN_INDIA_A_STUDY_FROM_SOCIAL
_EXCLUSION_TO_SOCIAL_INCLUSION (last seen 26 Sept 2018 at 01.00 PM).
6
Queen Empress v. Khairati (1884) ILR 6 All 204, wherein a transgender person was arrested and prosecuted under
Section 377 on the suspicion that he was a 'habitual sodomite' and was later acquitted on appeal.
7
Sawant, Neena. (2017), Transgender: Status in India, Annals of Indian Psychiatry available at
https://www.researchgate.net/publication/322012741_Transgender_Status_in_India (last seen 26 Sept 2018, 12.30 PM).
at least one experience of being denied a job due to their gender identity and 89% reported of being
mistreated at their workplaces8. The outcome of the study reaffirms that societal perception to their
identity is the major factor which presents a hurdle in attaining a dignified life and right to
livelihood. In spite of constitutional protection9, progressive steps by the Indian judiciary10 and
government initiatives11, the transgender community remains in the backdrop of the ‘civilised
society’. In this paper, the authors explore the reasons for their continuing under privileged status
with special reference to transgender community in Kochi, Kerala12. Case study method is adopted
in this research specifically on the employment of transgender by KMRL. In spite of the positive
measures adopted by the KMRL for the upliftment of the third gender, the preliminary research
identified that many cease to continue in employment. The objective of the study is to identify the
work place environment and existence of socio cultural issues related to employment if any.

CONSTITUTIONAL MANDATE
United Nations has been instrumental in advocating the protection and promotion of rights of sexual
minorities, including transgender persons. The Universal Declaration of Human Rights, 194813 and
International Covenant on Civil and Political Rights, 1966 (ICCPR) recognize that every human
being has the inherent right to live and this right shall be protected by law and that no one shall be
arbitrarily denied of that right14. Everyone shall have a right to recognition, everywhere as a person
before the law. ICCPR states that no one shall be subjected to arbitrary or unlawful interference
with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and
reputation and that everyone has the right to protection of law against such interference or attacks 15.

Right to live with human dignity is inherently linked with right to equality16 and liberty17 of an
individual18. Thus right to life with human dignity19 encompasses right to recognition and social

8
Report of the Expert Committee on Issues relating to Transgender Persons, Survey by Ministry of Social Justice and
Empowerment available at socialjustice.nic.in/writereaddata/UploadFile/Binder2.pdf
9
India Const art. 16, art. 41.
10
National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
11
Kerala becomes First State to Unveil transgender Policy, The Indian Express dated 26 Sept, 2018.
12
A comparative study looks at the experience of the transgender community in Kerala reveals that they do migrate to
Tamil Nadu for a better life. Reported in Economic and Political Weekly, Vol. 51, issue No:2, 09 Jan 2016 available at
https://www.epw.in/journal/2016/2/reports-states/third-gender-and-crisis-citizenship.html (last seen 24 Sept 2018 at
03:15 PM).
13
Article 6.
14
Article 16.
15
Article 17.
16
India Const. art. 14.
17
India Const. art. 21.
18
Susanne Baer, Dignity Liberty, Equality: A Fundamental Rights Triangle of Constitutionalism, The University of
Toronto Law Journal, Vol. 59, No. 4 (Fall, 2009), pp. 417-468 at p. 418.
19
Dignity is read into right to life by cases such as Vikram Deo Singh v. State of Bihar AIR 1978 SC 597.
inclusiveness20. The treatment of third gender as a ‘deviant’ category leads to distorted
configuration of these rights. Transgender identities in India seek for a status of ‘third gender’
contrary to ‘deviant’ category. In this scenario, the crux of debate is right to life with human dignity
and other rights that emanate from the concept21. Accordingly, right to livelihood and employment
is taken as a major theme of discussion.

In Olga Tellis v. Bombay Municipal Corporation22 the Supreme Court held that right to livelihood
is born out of the right to life, as no person can live without the means of living, that is, the means
of livelihood. The Court has observed in this connection:

“….the question which we have to consider is whether the right to life

includes the right to livelihood. We see only one answer to that question,
namely, that it does. The sweep of the right to life conferred by Article 21 is
wide and far-reaching. It does not mean, merely that life cannot be
extinguished or taken away as, for example, by the imposition and execution
of the death sentence, except according to procedure established by law. That
is but one aspect of the right to life an equally important facet of that right is
the right to livelihood because, no person can live without the means of
living, that is, the means of livelihood.”

The court further opined that if the right to livelihood is not treated as a part and parcel of the
constitutional right to life, the easiest way of depriving a person of his right to life would be to
deprive him of his means of livelihood to the point of abrogation. The court thus interpreted right to
employment opportunities within the pursuit of right to livelihood by this judgment.

Right to gender equality was squarely placed within right to employment opportunities, was well
stated by the Supreme Court in Vishaka v. State of Rajasthan23. Right to employment opportunities
of transgender was specifically dealt in National Legal Services Authority v. Union of India and
Ors24. This judgment provided a ray of hope for the third community upon their right to livelihood.
In the absence of such a right, educated transgenders are not in a position to get employment and

20
Ibid.
21
Kesavanadnda Bharati v. State of Kerala (1973) 4 SCC 225) and other succeeding judgments elaborated the scope of
Art. 21 of Constitution of India.
22
AIR 1986 SC 180.
23
AIR 1997 SC 3011.
24
AIR 2014 SC 1863.
they are further victimised for lack of financial support. Thus the Supreme Court judgement had put
forward an innovative step towards their empowerment. K.S. Radhakrishnan, J expressed the issue
of social exclusion faced by the community thus:

“Seldom, our society realizes or cares to realize the trauma, agony and pain
which the members of Transgender community undergo, nor appreciates the
innate feelings of the members of the Transgender community, especially of
those whose mind and body disown their biological sex. Our society often
ridicules and abuses the Transgender community and in public places like
railway stations, bus stands, schools, workplaces, malls, theatres, hospitals,
they are sidelined and treated as untouchables, forgetting the fact that the
moral failure lies in the society’s unwillingness to contain or embrace
different gender identities and expressions, a mindset which we have to
change.”

The court stated that if democracy is based on the recognition of the individuality and dignity of
man, as a fortiori we have to recognize the right of a human being to choose his sex/gender identity
which is integral to his/her personality and is one of the most basic aspect of self-determination
dignity and freedom. The court further stated that the true measure of development of a nation is not
economic growth but it is human dignity. Accordingly, the right to dignity of the third gender and
need for social inclusiveness by providing employment opportunities was well defined by the
judiciary.

The court further directed the Centre and State Governments to provide social welfare schemes to
the community and to extend reservation in educational institutions and for public appointments.
This Supreme Court judgment aims to bring transgender at par with other citizens but the attitude of
the society remains as a major hurdle25.

PROGRESSIVE INITIATIVES FOR SOCIAL INCLUSION OF THIRD GENDER

A right of Transgender Persons Bill, 2014 was the landmark legislative step towards the issue. The
Bill seeks to end the discrimination faced by the transgender community. It was introduced as a
private member’s Bill Mr.Tiruchi Siva, a Dravida Munnetra Kazhagam (DMK) Rajya Sabha MP. It
was unanimously passed in the Upper House but was never debated in the Lok Sabha. It was
reintroduced in the Lok Sabha after considerable revision. The Bill was much criticised on the

25
Shanavi Ponnusamy v. Ministry Of Civil Aviation and Anr. (10.08.2018 - SC Order): MANU/SCOR/25247/2018
highlights the social stigma attached to transgender individuals in matters related to employment.
inadequate definition of the third gender and other internal contradictions 26. The Transgender
Persons (Protection of Rights) Bill, 2016 was slated to be re-introduced in winter session of
Parliament which starts on December 15, 2017. The Bill has not materialised into an Act so far.
Lesbian, gay, bisexual and transgender (LGBT) issues are relatively new to India in terms of public
discourse and societal understanding27. So, the same is reflected in the way employers approach the
subject. Only some multinationals such as Google, IBM Corp., Accenture Plc, Barclays and
Thomson Reuters Corp. have LGBT non-discrimination policies in place in India. In the southern
city of Bengaluru, the Solidarity Foundation that champions the cause of transgender people has
placed about a dozen with private companies over the last three years28.
However, there are many initiatives by governments and private sector towards the goal of gender
justice by providing an opportunity of employment. The ministry of social justice and
empowerment is giving finishing touches to its ‘umbrella’ protection schemes such as providing
scholarship and pension29. Even though the social justice department has initiated projects to bring
transgenders into the mainstream by teaching them life skills, social stigma remains a big hurdle 30.
But these initiatives provide a myriad of hope to the third gender community in India. Limited
government initiatives by few state governments need a special mention in this regard. The Tamil
Nadu government in 2014 announced that transgenders are to be appointed in the state’s home
guard force. The Odisha government became the first state to give transgenders social benefits such
as pension, housing and food.
Kerala emerged as the first state to unveil transgender policy envisaging ending the societal stigma
towards the sexual minority group and ensuring them non-discriminatory treatment31. The state
Department of Social Justice has issued the policy to enforce the constitutional rights of
transgenders (TGs), taking into account the Supreme Court judgement (2014) and the findings of
the recent Kerala State TG Survey32.
Kerala State TG Survey during 2014-15 is identified as a positive move by the government in
understanding the issues faced by transgenders statistically. Survey was conducted among 4000
community members in Kerala. The outcome of the study is an indicator of issues related to
transgenders in Kerala. The statistical data is stated thus:

26
See more at http://myparliament.org/Docs/Manual_Transgender%20Protection%20Bill%202016.pdf (last seen 29
Sept 2018, 4:00 PM).
27
As told by Mr. Santrupt Mishra, HR director of Aditya Birla Group.
28
Id at 26.
29
Government set to launch umbrella scheme for transgender community, dated an 28, 2016 at
//economictimes.indiatimes.com/articleshow/50749264.cmsutm_source=contentofinterest&utm_medium=text&utm_ca
mpaign=cppst (last seen 23 Sept 2018, 3:15 PM).
30
The Indian Express dated 24 Sept 2018.
31
Indian Express dated October 01, 2018.
32
Kerala State TG Survey 2014-15 at http://swd.kerala.gov.in/DOCUMENTS/Report/Survey%20Report/12157.pdf (last
visited 01 Oct 2018, 02:00 PM).
 Considering the issue of employment opportunities, literacy rate among TGs in Kerala is
only 7%, 58% drop out before completing tenth grade and only 11% have regular jobs.
Out of those in employment, 78% have not revealed their transgender identity in
workplaces. The major factor that is a determining factor of employment issues is related
to lack of social inclusiveness. Only 31% feel that people appreciate even their physical
presence, 51% hide their gender identity from their own family and 57% feel that they are
an unwanted member in the family. Majority of the surveyed transgenders feel discomfort
while facing others in the society and 76% wish to get acceptance in the society, majority
have shown suicidal tendency and self violence due to depression. Many reported that
they have faced abuse, insults, discrimination, threatening and mental torture being in
public. Thus their employment issues are largely related to lack of societal inclusiveness.

Kochi Metro Rail Limited (KMRL)

Kerala became the first Indian state to initiate adopting transgenders into mainstream society by
building a ‘Transgender Policy’ in 2016. Following the policy, the Kochi Metro Rail Limited
(KMRL) offered employment to the transgender community33. It is the first government agency in
India to open its doors to transgenders since a landmark 2014 Supreme Court ruling that recognized
the country’s two million transgenders as the third gender.

The metro agency is the first government-owned company in India to formally appoint them. The
better educated members are posted at ticket counters while the rest work in the housekeeping
section34. KMRL’s35 forward decision to hire 23 transgenders from the self-help group
Kudumbashree to work at its trains and stations has been highly appreciated as a step towards
empowering the community36.

The selected candidates from the community were trained in soft and technical skills and most of
them were at ease in their work. Later, the reports stated that many transgenders were leaving
employment from Kochi Metro. This study aims to identify issues faced by the transgender
community while working with KMRL. With special reference to KMRL case study authors will
also try to identify in what all ways society has excluded these third gender community.

33
Economic Times dated 20 May 2017.
34
http://timesofindia.indiatimes.com/articleshow/59304984.cms?utm_source=contentofinterest&utm_medium=text&ut
m_campaign=cppst (last visited 30 Sept 2018, 02:45 PM)
35
KMRL former MD Mr. Eliyas George initiated this step which was later carried on by his successors to office.
36
http://timesofindia.indiatimes.com/articleshow/59304984.cms?utm_source=contentofinterest&utm_medium=text&ut
m_campaign=cppst (last visited 28 Sept 2018, 06:45 AM)
CASE REPORT*37

On 29th of September 2018, researchers obtained an appointment with the Public Relation Officer

of the KMRL. Researchers visited their office, located at 8th Floor, Revenue Tower, Park Avenue,

Marine Drive, Kochi. She was very passionate to share with us regarding KMRL. Researchers have

explained their objective behind the case study. The study was limited to focused and casual

interaction to transgender and PRO. Confidentiality regarding identity of the transgender has to be

maintained throughout the study.

KMRL is not just a means of transport, but also a livelihood improvement project. Master Brain

behind the idea of extending employment opportunities to the third gender community is by Mr.

Elias George, IAS, who was the former director of Kochi Metro. He has a vast experience across

different sectors of administration. Initially, team was sceptical about the idea. On 5th of July, 2016,

KMRL team has decided to move on with this idea and now they made history by employing third

gender community. People do not interact with transgender. They live separately from the society,

they are not given jobs, and their rights are not respected. KMRL team wants to bring them into the

mainstream by ensuring that people interact with them.

KMRL have made 10th Standard as the minimum qualification for house-keeping staff and

graduation for ticketing staff. Considering the socio-economic scenario of third gender community

KMRL, made certain relaxation for the minimum qualification. For house-keeping staff KMRL,

made it to 6th standard and for ticketing staff they could not compromise the minimum

qualification. KMRL has also made monthly salary for housekeeping staff around Rs. 9500/- and

ticketing around Rs.13000/-. During the recruitment of third gender community of KMRL, they

have faced lot of challenges.

For the recruitment of the transgender, KMRL have got the list of transgender after the police

clearance. Criminal background test was also conducted with the help of police to identify the right

candidates. After the recruitment, training was given to them. Initially 23 transgenders got recruited

in the KMRL. Due to lack of accommodation, transgenders were quitting from KMRL.

transgenders could not find a place to sleep in the city. Lodges are charging Rs. 400/- to Rs.600/-

37
* See Annexure 1 for the interview report.
per day. They cannot afford this with KMRL monthly salary. KMRL is unable to provide

accommodation as they were appointed under a contract given to Kudumbasree, an All-women anti-

poverty mission.

Presently KMRL have 628 members of Kudumbasree working in various wings of the KMRL. If

KMRL give any special consideration to the transgenders, these women will also claim it. It will not

be possible for KMRL to provide accommodation everyday. Out of 23 appointed, 13 dropped out,

again KMRL have made the recruitment. Presently 14 transgenders are associated with KMRL.

Social stigma remains overarching problem, in which KMRL is in a helpless position.

Researchers came to realise that whoever is presently associated with the KMRL has got the support

backing in some or other way from their own family. Family acceptance has a huge impact on their

life. Support extended for the transgender during the developmental stage imbibes confidence to

face the larger society and they are able to overcome social stigma to some extent. Third community

is keen to look forward for creating awareness in the society.

Transportation is another crucial issue transgender are facing with regard to employment.

Transgender feels non-inclusiveness in Public transports. Abuse is still an everyday occurrence.

Transgenders feel that they are also part of the society and they are not less than any other

individual. Their dignity is not respected in all spheres of life.

CONCLUSION
Recognition of transgender as a third gender is not a social or medical issue, but a human rights
issue38. This statement highlighted the current state of facts as well as the goal to be achieved by the
society. Even in the present scenario, third gender community faces many issues related to the need
of social inclusiveness. The right to chose one’s gender identity is an essential part to lead a life
with dignity within the ambit of Article 21. Determining the right to personal freedom and self
determination, the Supreme Court rightly observed that the gender to which a person belongs is to
be determined by the person concerned39. They cannot be discriminated against on the ground of
gender as it is violative of Articles 14, 15, 16 and 21. The Court also protected one’s gender
expression by invoking Article 19 (1) (a) and held that no restriction can be placed on one’s

38
Justice K.S. Radhakrishnan, See National Legal Services Authority case supra note 10.
39
Supra note 10.
personal appearance or choice of dressing subject to the restrictions contained in article 19(2) of the
Constitution40.

The case study on KMRL third gender employees lead to the understanding that the overall well
being of the community is challenged by issues such as lack of adequate housing, shelter and
protection from the government and other authorities with respect to affirmation of employment
opportunities. They are deprived of social and cultural participation and hence they have restricted
access to education, health care and public places which further deprives them of the Constitutional
guarantee of equality before law and equal protection of laws. They face challenges from their peers
itself during education and many drop out before completing elementary level of education. It is
further noted that those who have successfully completed education is unable to find out adequate
opportunities. Seldom does a skilled individual from this community get into formal employment
due to the policy of hiring only from either the male or female gender. The transgender community
faces stigma and discrimination and therefore has fewer opportunities as compared to others.
Society’s non-acceptance narrows down their life choices considerably.

SUGGESTIONS

Ensuring the right to get access to education and vocational training is the foremost step needed to
address the issue of lack of employment opportunities. Special educational quota or reservation may
ensure all government and public authorities to provide education and employment opportunities to
the third gender without any discrimination. The major issue which the third gender faces is
discrimination and differential treatment from their native family, educational institutions, public
places and the society at large. The government should initiate programmes and campaign to create
awareness among the society to accept them as part of the society itself. The development
programmes to uplift the community should go hand-in-hand with the awareness programmes as
both are supplementary and complimentary in nature.

An extensive reform for inclusiveness of third gender in the workforce assuring employment
opportunities need to be adopted. Separate labour laws ensuring rights for the third gender are to be
implemented and third gender need to be included within the ambit of the term ‘persons’41in such
legislations. Labour laws relating to sexual harassment should be inclusive of third gender and free
legal aid to those aggrieved need to be provided. Their struggle for a dignified life and employment
need to be adequately addressed by means of special provisions such as accommodation, transport

40
Ibid.
41
Sec. 3(42), The General Clauses Act of 1897.
to workplace and setting up a grievance cell specific to workplaces. Separate toilet facilities are to
be provided. Employers and other employees need to be sensitised to ensure that the third gender is
included within the system and a friendly environment is created. Anti discrimination policies need
to be meaningfully implemented in such a way that discrimination in atmosphere of employment is
eradicated.

The third gender need to be enlightened with education and providing adequate opportunities of
employment as this would empower them to live with human dignity. Self employment grants may
also be extended. Moreover, the society, the family members of third gender, employers and the
government need to be reminded that social inclusiveness is not merely the right of the third gender,
but it is more of a duty of the counter part as well.
ANNEXURE I

Date: 29th September 2018

Time: 12:35pm
Address: KMRL Head Office, 8th Floor, Revenue Tower, Park Avenue, Marine Drive, Kochi
682035.

Interview with Ms. Rashmi CR, PRO of KMRL.

Interviewer 1 & 2 : First of all Thank you Ma’m for giving us the opportunity for the case study.

Respondent : Its my pleasure..

Interviewer 1 : We are so amazed by the initiative taken by the KMRL for the upliftment of the third

gender community. How do you all welcomed this idea within KMRL itself? Is it inspired by NLSA

judgement?

Respondent: Master Brain behind this idea for extending employment opportunities to third gender

community is by Mr.Elias George IAS, who was the former director of Kochi Metro. He has a vast

experience across different sectors of administration. Initially we were skeptical how it will work

out. Elias Sir has inspired all of us to work for this idea into reality. On 5th of July, 2016 we have

decided to move on with this idea and now we are happy that we made history by employing third

gender community. People dont interact with trans people. They live separately from the society,

they are not given jobs, their rights are not respected. We want to bring them into the mainstream by

ensuring that people interact with them every day - on their way to work. We want the metro to be

not just a means of transport, but also a livelihood improvement project.

Interviewer 2:What were the Challenges KMRL faced during the recruitment of third gender

community of KMRL?

Respondent : We required 10th Standard as the minimum qualification for house keeping staff and

graduation for ticketing staff. Considering the socio-economic scenario of third gender community
we have made certain relaxation for the minimum qualification. For house-keeping staff we have

relaxed it to 6th standard. For Ticketing staff we couldnt compromise the minimum qualification.

We also made monthly salary for house keeping staff as Rs.9500 and ticketing as Rs.13000.

For the recruitment of the trans people, We have got the list of transgender after the police

clearance. Criminal background test was important for us to identify the right candidates.After the

recruitment , training was given to them and they thoroughly enjoyed the training period.

Interviewer 1 : How many trans people were recruited?

Respondent : 23

Interviewer 2 : Why are they quitting? Is social-stigma remains overarching problem?

Respondent : Lack of accomodation. They couldnt find a place to sleep in the city. Lodges are

charging Rs.400 to Rs.600 per day. They cannot afford this with KMRL monthly salary. We are

unable to provide the trans people accomodation as they were appointed under a contract given to

Kudumbasree, an All-women anti-poverty mission.

We have 628 members of Kudumbasree working in various wings of the KMRL. If we give any

special consideration to the transpeople, these women will also claim it. It will not be possible for

us to provide accomodation to everyday. Out of 23, 13 transpeople dropped out, again we have

made the recruitment. Presently 14 transpeople are associated with us.

Interviwer 1: Thank you Ma’m for your inputs and spending your time with us.

Respondent: Always Welcome