A case for menstrual-injustice free workplaces in India
We as a society are still reluctant to openly talk about menstruation. There are families who do not permit menstruators1 to enter the kitchen during menstruation. Many still believe that, if menstruators touch a living plant during their periods, it will die. Even now, banishing menstruators to a corner of the house while they bleed is a common practice in many communities. Ironically, though motherhood is treated as divine, the very aspect which makes it possible, ‘the menstruation cycle’ is treated as impure, inauspicious and unfortunate. Thus, a little blood on the back of the dress is enough to drain the confidence of many. It is really important that we openly talk about menstrual problems so that unlearning the misconceptions that are prevalent becomes easier.
Who is a menstruator?
'Menstruator' simply means, a person who menstruates. There is a common misconception that, only women menstruate. However, there are transgenders, non-binary, gender fluid persons, etc. who menstruate. It is also pertinent to note that, not all women menstruate. The word "menstruator" is thus a gender-inclusive and accurate word to denote people who have menstruation.
What is Menstrual injustice?
It is true that menstruators are entitled to rest and care during their periods. But, this is not a justification for treating them like ‘untouchables’. They are entitled to take care of their physical and mental health without being deprived of their dignity. Menstruation is part of an individual’s biology. Oppressing people for their biology is unacceptable. Any kind of injustice inflicted upon individuals on account of their menstruation can be termed as menstrual injustice.
Menstrual injustice takes several forms including isolation from public life, denial of opportunities, non-availability of proper sanitation, causing damage to physical and mental health, denial of menstruator status to menstruating transgenders and non-binary persons, etc. One of the least addressed issues of menstrual injustice in India is the problems menstruators face at work places. Working menstruators face a different set of issues. Many do not have any choice but to work even during 'period pain.'
Menstruators are expected to silently accept the physical and mental troubles they undergo during periods as their private problems and to perform their duties at work places without any complaint. Practices and policies of our nation reflect this idea and force menstruators not to expect any forms of leniency or relaxation during menstruation. To effectively manage menstruation at workplaces one will require “access to water, sanitation and hygiene (WASH) facilities, affordable and appropriate menstrual hygiene materials and services for their disposal, information on good practices, and a supportive environment where they can manage menstruation without embarrassment or stigma.”2 The non availability of these facilities adds to the misery of menstruators at work places. It is not a secret that India has a long way to go to ensure menstrual hygiene for all menstruators. We do not have adequate mechanisms to ensure 'WASH’ facilities at work places in the private and public sector.
It is the duty of the State to address these issues and bring in laws to curb unjust practices prevalent at workplaces. It is laudable that private entities like ‘Cultural Machine’ provide menstrual leave to women. However, menstrual justice is not an issue to be left to the mercy of private individuals, nor can it be extended only to women by denying those benefits to menstruating transgender and non-binary people.
As a fundamental right:
High Court of Jammu & Kashmir in a suo motu case (2020)3 dealing with dropping out of girl students from schools due to menstruation related issues, observed that, menstrual health must be treated as part of larger framework of sexual reproductive health rights; As rights embodied in right to life and right to education guaranteed under Article 21 and Article 21A, respectively. Reproductive rights are part of the right to life and liberty guaranteed by the Constitution of India under Article 21 (Suchita Srivastava, 2009 4). Right to reproductive choice was held to be a facet of right to privacy, dignity and bodily integrity of women, in Puttaswamy judgment (2017) 5. The right to health, a salient feature of menstrual justice, is also recognised as a fundamental right in India. Therefore, the right to menstrual justice has to be treated as a fundamental right of menstruators. Not much effort is coming forth from our governments to protect this right of menstruators vis-à-vis work places. The lawmakers in India are empowered by Article15 (3) of the Constitution of India to make special provisions for women and children.
In the National Legal Service Authority case6 top court directed the State and Central governments to take steps to treat “third gender” as socially and educationally backward classes of citizens. Therefore, special provisions can be made to ensure that, menstruators are given adequate number of paid leaves during menstruation, to protect them from discrimination and harassment; to ensure healthy and hygienic work environment, and to ensure their physical and mental health.
Japan has been giving menstrual leave to women since 1947. Menstrual leaves is given by countries like South Korea, Indonesia, etc. However, an enactment giving similar benefits, has not yet materialised in our country. Bihar is an exemption to a certain extent. The Bihar government has been giving menstrual leave to women government employees since 1992 as a result of strong agitation staged by women rights advocates and employees.
Opposition to menstrual leave policy :
Though, there is not much disagreement against the plea provide access to clean water, sanitation, and hygiene facilities at workplaces, there are many arguments raised against the plea for menstrual justice at workplaces. Some argue that, providing menstrual leave and other special benefits or protection to menstruators is discriminatory. It is also argued that, it might lead to a situation where employers are reluctant to give employment to menstruators.As long as one person is not biologically capable of menstruation, it is unreasonable to be aggrieved for menstruators getting additional benefits. As already stated, legislation to ensure menstrual justice will come under the umbrella of Article 15 of the Constitution. The state has a duty to ensure that, people are not denied employment on account of their gender. The failure to do this duty is not a justification for denying menstrual justice.
Another argument is that all women don’t experience menstrual discomforts. There are women who find it comfortable to rejoin duty a week after delivering a child. That does not mean that there is no need for laws providing maternity leave. In an article titled ‘Managing Menses: An Analysis of Workplace Inclusivity and Representation’ by Tanisha Chakraborty and Dr. Mukesh Kumar Mishra published in International Journal of Development Research, the ‘medical issues faced by menstruating women’ are discussed in detail. By referring to the report by Endometriosis Society of India, they say that, more than 25 million Indian women suffer from endometriosis, which is a chronic disease resulting in excruciating pain during periods and many women nearly pass out due to the pain. In an article published in Journal of Pain Research it was stated that, “Menstrual pain was reported by 84.1% of women, with 43.1% reporting that pain occurred during every period, and 41% reporting that pain occurred during some periods.”7 It was also noted that “at least one in four women experiences distressing menstrual pain characterized by a need for medication and absenteeism from study or social activities.”8 Therefore, proper menstrual justice policy at work places is a need of the hour.
Attempts to legislate:
“According to a research conducted at University College London, and published earlier this year revealed that period pain can be “as bad as having a heart attack””- This is an extract from the ‘statement of objects and reasons’ of the “The Menstruation Benefits Bill, 2017” introduced in the Lok Sabha by Ninong Ering, M.P.
The said Bill tried to address some of the pressing demands of menstrual justice activists. This included providing four days paid menstrual leave for women and leave for girl students from standard VIII, overtime benefits for not availing the menstrual leave, 30 minutes rest time to women twice a day for not more than four days during their menstruation, right to self-perception of their menstruation, facility of crèche, mandating establishments to intimate a women employee at the time of her initial appointment about all the benefits available to her and punishment for violation of the provisions of the Bill etc. The provisions of the Bill were applicable to certain private sector establishments as well. The Bill suffered from many drawbacks, including the complete exclusion of menstruating transgenders and non-binary persons from its scope. But sadly, this remains as the only attempt (even as a failed one) so far made in India to legislate on the issue of menstrual injustice at private and public workplaces.
Another Bill on ‘menstruation’ was introduced by Dr. Shashi Tharoor M.P. as ‘The Women’s Sexual Reproductive and Menstrual Rights Bill, 2018”. This Bill was introduced to “emphasise on the agency of a woman in her sexual and reproductive rights and to guarantee menstrual equity for all women by the State”. However, it did not address the issue of menstrual injustice at work places. Supriya Sadanand Sule M.P. also introduced a Bill namely “The Menstrual Hygiene Management (Awareness and Affordable Sanitary Napkin Distribution) Bill, 2018”. This Bill also did not deal with the above discussed aspects. These three bills have now lapsed.
A comprehensive legislation ensuring a menstrual injustice-free workplace for menstruators, still remains a dream. We cannot afford to wait forever for this necessary change to happen. It must happen to ensure progress in our society.
Endnotes:
The word “menstruator” is used intentionally as there are individuals other than women who menstruate and also due to the fact that, all women do not menstruate.
Sommer M, Chandraratna S, Cavill S, Mahon T, Phillips-Howard P. Managing menstruation in the workplace: an overlooked issue in low- and middle-income countries. Int J Equity Health. 2016;15:86. Published 2016 Jun 6. doi:10.1186/s12939-016-0379-8.
https://indiankanoon.org/doc/131951607/
(2009) 14 SCR 989
(2017) 10 SCC 1
(2014) 6 SCC 438
Grandi G, Ferrari S, Xholli A, Cannoletta M, Palma F, Romani C, Volpe A, Cagnacci A. Prevalence of menstrual pain in young women: what is dysmenorrhea? J Pain Res. 2012;5:169-74. doi: 10.2147/JPR.S30602. Epub 2012 Jun 20. PMID: 22792003; PMCID: PMC3392715.
Ibid
Endnotes:
The word “menstruator” is used intentionally as there are individuals other than women who menstruate and also due to the fact that, all women do not menstruate.
Sommer M, Chandraratna S, Cavill S, Mahon T, Phillips-Howard P. Managing menstruation in the workplace: an overlooked issue in low- and middle-income countries. Int J Equity Health. 2016;15:86. Published 2016 Jun 6. doi:10.1186/s12939-016-0379-8.
https://indiankanoon.org/doc/131951607/
(2009) 14 SCR 989
(2017) 10 SCC 1
(2014) 6 SCC 438
Grandi G, Ferrari S, Xholli A, Cannoletta M, Palma F, Romani C, Volpe A, Cagnacci A. Prevalence of menstrual pain in young women: what is dysmenorrhea? J Pain Res. 2012;5:169-74. doi: 10.2147/JPR.S30602. Epub 2012 Jun 20. PMID: 22792003; PMCID: PMC3392715.
Ibid