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Ten Human rights and equality in education: Conclusion

• Published: June 2018
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This concluding chapter argues that a human rights-based approach to education offers a promising framework for identifying and addressing the obstacles that stand in the way of minorities and disadvantaged groups enjoying equal rights to quality education. It should serve as a blueprint for laws, policies, and programmes geared towards achieving Sustainable Development Goal 4 — universal access to quality education. The diversity of perspectives featured in this book consider these obstacles from a variety of viewpoints, illuminating more fully the complexities that need to be considered in order to successfully overcome them. These conversations need to continue across countries in a way that brings together all the actors and stakeholders in the education system to work in partnership towards a rights-oriented vision of quality education for all children.

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A/HRC/53/27: Securing the right to education: advances and critical challenges - Report of the Special Rapporteur on the right to education, Farida Shaheed

17 may 2023, a/hrc/53/27.

In her first report to the Human Rights Council, 25 years after the establishment of the mandate on the right to education, the Special Rapporteur reviews achievements, particularly on how the right to education is understood today and the obligations it entails, as well as contemporary and emerging issues that need to be considered to ensure the right to education for all, today and in the future.

Special Rapporteur on the right to education

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Human Rights Council at its fifty-third session

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• > Remedies for Human Rights Violations
• > Conclusion

Book contents

• Remedies for Human Rights Violations
• Cambridge Studies in Constitutional Law
• Copyright page
• Brief Contents
• Acknowledgements
• Table of Cases
• 1 The Importance and Complexity of Remedies
• 2 A Two-Track Approach to Individual and Systemic Remedies
• 3 Interim Remedies
• 4 Remedies for Laws That Violate Human Rights
• 6 Remedies in the Criminal Process
• 7 Declarations, Injunctions and the Declaration Plus
• 8 Remedies for Social, Economic and Cultural Rights
• 9 Remedies for Violations of Indigenous Rights
• 10 Conclusion
• Select Bibliography

10 - Conclusion

Published online by Cambridge University Press:  29 March 2021

This Chapter outlines four methodological and four substantive contributions of the book. By addressing the frequent neglect of remedies in human rights law, the book brings human rights closer to the reality of their frequent violation, especially for less advantaged people. It also examines the inter-relations and cross-fertilization of remedies in domestic and international law. It reveals remedies as a fruitful site for comparative law. This includes American remedial exceptionalism and differences between regional supra-national human rights courts. This Chapter highlights the book’s development of an overarching conceptual structure for remedies. Substantively, the book argues that familiar proportionality principles can improve remedial decision-making and make it more transparent. It also outlines similarities between South African engagement orders and the duty to consult Indigenous peoples. In both cases, engagement can result in consensual agreements, but also can limit rights. The two-track approach recognizes that remedies should compensate for past harms and prevent immediate irreparable harms, but also that they should prevent repetitive violations in the future. Individual remedies can recognize remedial failure and start another cycle of two-track individual and systemic remedies.

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• Kent Roach , University of Toronto
• Book: Remedies for Human Rights Violations
• Online publication: 29 March 2021
• Chapter DOI: https://doi.org/10.1017/9781108283618.011

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South African Journal of Education

On-line version  issn 2076-3433 print version  issn 0256-0100, s. afr. j. educ. vol.35 n.2 pretoria may. 2015, http://dx.doi.org/10.15700/saje.v35n2a1044 .

Human rights literacy: Moving towards rights-based education and transformative action through understandings of dignity, equality and freedom

Anne Becker; Annamagriet de Wet; Willie van Vollenhoven

Edu-HRight Research Unit, Faculty of Education Sciences, North-West University Potchefstroom Campus, South Africa [email protected]

The twentieth century has been characterised by the proliferation of human rights in the discursive practices of the United Nations (Baxi, 1997). In this article, we explore the continual process of rights-based education towards transformative action, and an open and democratic society, as dependent upon the facilitation of human rights literacy in teacher training. Our theoretical framework examines the continual process of moving towards an open and democratic society through the facilitation of human rights literacy, rights-based education and transformative action. We focus specifically on understandings of dignity, equality and freedom, as both rights (legal claims) and values (moral action) across horizontal and vertical applications, considering the internalisation and implementation of dignity, equality and freedom towards transformative action. Our analysis of data stemming from a project funded by the National Research Foundation (NRF) entitled 'Human Rights Literacy: A quest for meaning', brought student-teachers' understandings into conversation with the proposed theoretical framework. In terms of understandings related to dignity, equality and freedom, participants seemingly understand human rights either as legal interests, or alternatively, as they pertain to values such as caring, ubuntu, respect, human dignity and equality. Legal understandings primarily focus on the vertical application of the Bill of Rights (RSA, 1996a) and the role of government in this regard, whereas understandings related to the realisation of values tended to focus on the horizontal applications of particularly dignity and equality as the product of the relation between self and other. We conclude the article by linking the analysis and the theoretical framework to education as a humanising practice within human rights as a common language of humanity. In so doing, we argue that human rights literacy and rights-based education transcend knowledge about human rights, moving towards transformative action and caring educational relations premised on freedom, dignity and equality. Finally, recommendations are made regarding human rights and rights-based education as transformative action within the South African context, towards an open and democratic society.

Keywords: democracy; dignity; equality; freedom; human rights; human rights education; human rights literacy; rights-based education; transformation; transformative action

Introduction

The twentieth century has been characterised by the proliferation of human rights in the discursive praxis of the United Nations (UN) (Baxi, 1997). At the Vienna Conference on Human Rights (1993), the UN secretary-general posed that human rights constitute a "common language of humanity" (in Baxi, 1997:142). The Constitution of the Republic of South Africa (RSA, 1996a, hereafter The SA Constitution) entrenched dignity, freedom and equality as the foundation of a democratic state, which protects the fundamental rights and freedoms of its people.

In order to translate human rights into classroom and school management praxis, the South African Department of Education (DoE) published the Implementation Guidelines for Safe and Caring Child-friendly Schools in South Africa (Department of Education & [United Nations Children's Fund] UNICEF South Africa, 2008 - hereafter Implementation Guidelines). According to the Implementation Guidelines, a rights-based school "demonstrates, promotes, and helps monitor the rights and wellbeing of all children" (Department of Education & UNICEF South Africa, 2008:7). The implementation of human rights and the internalisation of human rights values in schools and in teaching-learning are crucial to sustaining human rights and social justice in a transformative democracy.

The aim of this article is to explore the continual process of developing rights-based education towards transformative action, as being dependent upon the facilitation of human rights literacy in teacher training. With a focus on the South African context, the article forms part of a larger research project funded by the NRF. The project titled Human Rights Literacy: A quest for meaning (Roux & Du Preez, 2013) explored student-teachers' conceptualisation and ontology of human rights and human rights values, with this article posing the question: 'could human rights literacy, as understandings of dignity, equality and freedom as both rights (legal claims) and values (normative action) within horizontal and vertical applications, aid rights-based education towards transformative action and an open and democratic society?'

We begin by examining the continual process of moving towards an open and democratic society through the facilitation of human rights literacy in teacher training, rights-based education and transformative action from a theoretical perspective. In so doing, we focus specifically on understanding dignity, equality and freedom as both rights (legal claims) and values (moral action) within horizontal and vertical applications, considering the internalisation and implementation of dignity, equality and freedom towards transformative action.

Our data analysis explores the data in terms of student teachers' understandings of dignity, freedom and equality, and we link the conclusions from our analysis and the theoretical framework to education as a humanising practice within human rights as a common language of humanity. To conclude, we make recommendations concerning human rights and rights-based education as transformative action within the South African context.

Theoretical Framework

Human rights as the "common language of humanity" (in Baxi, 1997:142) are embraced as educational aims in numerous global human rights treaties since 1948. In terms of the Convention on the Rights of the Child (UN, 1989), the aims of education, in addition to personal development, involve strengthening a respect for human rights and freedoms, enabling individuals to participate effectively in a free society, and promoting understanding, friendship and tolerance.

Working from within a framework for the realisation of children's rights to education and rights within education, the UNICEF and United Nations Educational, Scientific and Cultural Organisation (UNESCO) recommend a "human rights-based approach to education" (UNICEF/UNESCO, 2007:7-9), rooted in principles such as equality and non-discrimination, participation and inclusion, empowerment, accountability and respect for the rule of law. A rights-based approach to education is informed by human rights norms and standards. Such an approach aims, inter alia, to contribute to positive social transformation and social cohesionin and through education (UNICEF/UNESCO, 2007). The 1993 UNESCO Montreal Declaration states that education (and rights-based education) "should aim to nurture democratic values, sustain impulses for democratization [sic] and promote societal transformation based upon human rights and democracy" (UNESCO, 1993:1).

In keeping with international principles of a rights-based approach to education, the DoE published the Implementation Guidelines (Department of Education & UNICEF South Africa, 2008), which aim at translating rights into classroom and school management praxis. These guidelines define rights-based education within a holistic approach to quality education and are rooted in The SA Constitution (RSA, 1996a) and the Convention on the Rights of the Child (UN, 1989).

Rights-based education in a transformative democracy relies on the implementation of human rights and the internalisation of human rights values in schools, and in teaching-learning. Section 7 of the South African Constitution describes the Bill of Rights as "a cornerstone of democracy" and provides, together with Section 1, inter alia, the values of dignity, equality and freedom as a framework for building an open and democratic society (Currie & De Waal, 2013:6-7). Thus, rights-based education should be premised on these values.

Rights-based education and the implementation and internalisation of human rights and human rights values are, however, not static; rather, these are on-going processes of moving towards the realisation of human rights and democracy within a transformative society. This understanding echoes Gordimer's (2011:501) view, that "democracy is not an on-off affair; it has to be learned, day by day." We therefore view an "open and democratic society" (RSA, 1996a, preamble, Sections 36 and 39) not as a static end-point but rather as a process involving continual becoming as human rights are learnt and human rights values are internalised day by day.

Teachers play an important role in the facilitation of rights-based education towards transformative action, premised on human rights and democracy. It is incumbent upon them to facilitate the development of a sense of respect and responsibility towards others, to inspire learners to uphold human rights, and to promote democratic values and practices in schools (RSA, DoE, 2000). Being responsible for the dignity, equality and freedom of others in a classroom requires both teacher and child to always be "one-caring or one cared-for" (Noddings, 2007:372). The dignity and equal worth of all others are realised in the reception of the other as a subject in a caring relation within the teaching-learning context (Noddings, 2007). South Africa's Promotion of Equality and Prevention of Unfair Discrimination Act (RSA, 2000) echoes the ideal of a caring society, where it states in the preamble that "this Act endeavours to facilitate the transition to a democratic society, united in its diversity, marked by human relations that are caring and compassionate".

For this reason, it is imperative that teacher training facilitates the acquisition of human rights literacy, manifesting as rights-based education within caring educational relations. For the purpose of this article, we define human rights literacy as transcending knowledge about human rights towards understandings of the processes of human rights and implications thereof in an educational context (Roux, 2010).

Human rights literacy: Moving towards rights-based education and transformative action

Against the background of the above discussion, we illustrate the continual process of rights-based education towards transformative action in the diagram below ( Figure 1 ), as dependent upon the facilitation of human rights literacy in teacher training. Human rights literacy, the implementation of human rights and internalisation of human rights values and rights-based education, are essential components of education as a humanising practice within caring educational relationships. In turn, such education could facilitate transformative action towards an open and democratic society, based on human rights, which may be marked by caring and compassionate human relations. An open and democratic society is viewed not as a static end-point, but as one of the components in a cycle of continually moving towards an open and democratic society through human rights literacy and transformative action - teaching-learning democracy day by day.

The most basic of all rights is the right to be human, and to remain human (Baxi, 1997). Our analyses and critique of data from this project are framed within the theoretical paradigm as proposed by Freire (1993), where the conceptualisation of education as a humanising practice of freedom is concerned. Given Freire's (1993:25) conceptualisation of pedagogy and education, humanising and democracy are central concerns, where the author notes that, "while the problem of humanising has always, from an axiological point of view, been humankind's central problem, it now takes on the character of an inescapable concern."

The critical theory paradigm (the conceptualisation of the emancipatory role of education) developed during the late 1920s with the Frankfurt School. Although there are many lines of thought in critical theory, all have a re-appropriation of classical Marxism in common. Critical theorists are informed by ethical concerns and a critical stance towards society. Critical theory research continually critiques conceptions of humanity and humanising from the positions of the oppressed and marginalised within societal and educational contexts (Becker, 2013; Blake & Masschelein, 2003). At its very heart, the paradigm is an ideological one of emancipation and transformation (Ponterotto, 2005).

Human rights literacy: Understanding dignity, equality and freedom

Values are understood as ideals we share about what is good, important and desirable in life, and serve as guidelines for our actions and attitudes (Longman Dictionary of Contemporary English, 2003). As values, dignity, equality and freedom represent ideals about a good life, or a society. Arguing that all persons are of equal moral worth, the ideal of a democratic society implies that all persons should collectively decide what they regard as the good life, and which rules should guide action towards the realisation of such a good life (Young, 1990). Such ideals are described in the preamble to The South African Constitution (RSA, 1996a) as "a democratic and open society" and include the aims of both improving "the quality of life of all citizens" and freeing "the potential of each person".

The South African Constitution (RSA, 1996a) outlines the values that underpin the South African republic and society as, inter alia, "human dignity, the achievement of equality and the advancement of human rights and freedoms" (Section 1(a)). Section 7(1) highlights dignity, equality and freedom specifically as "democratic values", which are affirmed by the Bill of Rights. These values steer legislation, as well as its interpretation and implementation, and place a duty on government to respect, protect and promote the values in both vertical and horizontal applications (Sections 1, 7, 36 and 39). Dignity, equality and freedom are, as Yacoob (2014) puts it, meant to transform our society from one in which only the fittest survive, to one in which we "care for and empower vulnerable people". i Within the South African socio-historic context, the Constitution (RSA, 1996a) explicitly acknowledges that freedom, dignity and equality should be realised within protected socio-economic rights (Cameron, 2014).

For the sake of furthering the realisation of the values of dignity, equality and freedom, The South African Constitution (RSA, 1996a) incorporated these values as human rights. In so doing, it (RSA, 1996a) provides principles and norms to measure right and wrong and enforces the realisation of the values it promotes and enshrines (Nieuwenhuis, 2007a). Rights are "legally enforceable interests that warrants protection by means of a legal remedy or sanction" (Smit, 2013:45), and the legal system has the duty to ensure that people enjoy these rights (Nieuwenhuis, 2007a). The values of dignity, equality and freedom should thus be understood not only as ideals and guidelines (values) but also as protected interests or legal claims (rights). For this reason, The SA Constitution (RSA, 1996a) protects the rights to equality (Section 9), dignity (Section 10) and specific freedoms (Section 12, 15, 16, 18, 21 and 22).

The preamble to the Universal Declaration of Human Rights (UN, 1948) holds the recognition of inherent dignity, as well as the equal and in-alienable rights of all members of the human family as the foundations of freedom, justice and peace in the world. Consequently, only where equality and dignity are achieved, will individuals and groups be able to claim their freedoms. On the other hand, the realisation of freedom is necessary for dignity and equality to be achieved. Dignity, equality and freedom (as rights and values) work reciprocally and are linked to one another in the sense that the protection of each is essential for the realisation of the other.

The enforcement and implementation of rights are in the hands of national governments (Donnely, 2007), having both vertical and horizontal applications. The Department of Basic Education (DoBE), as an organ of state, promulgated and implemented several South African educational laws and policies. ii However, Nkonyane (2014) holds that despite laws and policies to protect rights and promote social justice, South Africa remains one of the most unequal societies in the world, with high levels of poverty. Furthermore, according to Sou-dien (2010), it seems that the post-apartheid curriculum perpetuates historic patterns of discrimination and reinforcing the marginalisation of poor children in South Africa.

Countering the inequality and injustices in post-apartheid South Africa would require that the interpretation and application of laws be aligned with "the values that underlie an open and democratic society based on human dignity, equality and freedom" (RSA, 1996a, Section 39(1)), enabling the Constitution "to continue to play a creative and dynamic role in the expression and achievement of the ideals and aspirations of the nation" (S v. Mhlungu 1995 (3) SA 391 (CC)). Whereas, the interpretation and implementation of human rights encompass interaction between different rights, and between individual and collective rights, having an understanding of how the values of dignity, equality and freedom underpin such interpretations and implementations, could impact the holistic interpretation of rights and the balance of power and sovereignty in societal and political relations (Mihr, 2009).

Human dignity is broadly accepted as an inherent and an inalienable attribute of humans (Vorster, 2005). The meaning of human dignity is explained by the court in S v. Makwanyane1995 (3) SA 391 (CC) to refer to the idea that all humans are equal in dignity and are worthy of equal respect and concern:

Recognising a right to dignity is an acknowledgement of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. This right therefore is the foundation of many other rights that are specifically entrenched.

In terms of Section 10 of the Constitution (RSA, 1996a), everyone has "inherent dignity and the right to have their dignity respected and protected". As a right (legal claim), dignity places an imperative on government and organs of state, such as departments of education and schools, to respect each person and to protect that person's dignity (vertical application) (Currie & De Waal, 2013). It is also horizontally applicable, where all persons (natural and juristic) should respect the dignity of every person.

An understanding that all people have human dignity to the same extent, invites equal respect for all (Currie & De Waal, 2013; Smit, 2013), which highlights the interaction and interdependence between dignity and equality. Currie and De Waal (2013) succinctly describe equality as the idea that people who are similarly situated in relevant ways, ought to be treated similarly. The interrelatedness between dignity and equality has been highlighted by the Constitutional Court on more than one occasion, where it has defined unfair discrimination as "treating persons differently in a way which impairs their fundamental dignity as human beings, who are inherently equal in dignity" (Prinsloo v. Van der Linde 1997 (3) SA 1012 (CC)). This interrelatedness also came to the fore in The President of the Republic of South Africa v. Hugo 1997 (4) SA 1 (CC) para 41.

According to Albertyn and Goldblatt (1998), equality as a value gives power to the vision of the Constitution (RSA, 1996a), while equality as a right supplies the means by which this is be achieved. The right to equality, in terms of Section 9 of the Constitution (RSA, 1996a), poses an imperative implementation of (the value of) equality and expressly enacts both vertical and horizontal application. Section 9 offers a guarantee that the law will protect and benefit people equally, and prohibits unfair discrimination. This section is intended to protect, inter alia, vulnerable gender, race, ethnic, religious, cultural, linguistic, social, abled and age groups from unfair discrimination (Yacoob, 2014). Understanding the value of equality calls for the implementation of substantive equality, rather than formal equality, taking the result or outcomes of a particular provision or application into account, so as to determine whether equality has been achieved (Currie & De Waal, 2013).

Just as dignity and equality are inextricably linked, both also have a direct bearing on freedom. Dignity and equality both contribute to the realisation of freedom, while freedom in turn is a prerequisite in a democracy, without which a culture of human rights would not flourish, and where dignity and equality would not be able to be realised. Freedom is described as the supreme value of liberalism and defined as having the ability to make choices for oneself, being autonomous, or being free from constraint (Law, 2007). Thus, freedom is viewed as an intrinsic part of all human beings, whose dignity would be violated should it be limited. When the freedom of some is limited to a greater extent than the freedom of others, equality is violated and inequality perpetuated. For this reason, freedom has been incorporated into the Bill of Rights as different rights: freedom of the person (Section 12); religion, conscience, thought and belief (Section 15); expression (Section 16); association (Section 18); movement and residence (Section 21); and trade, occupation and profession (Section 22). These rights provide enforceable implementation of (the value of) freedom pertaining to specific aspects of human life.

The values of dignity, equality and freedom compel us to take responsibility for becoming an open and democratic society based on dignity, equality and freedom. In addition, as enforceable rights, the rights to dignity, equality and freedom provide a guarantee for the protection and enforcement of the values that underpin these rights. Human rights literacy, described as understandings of dignity, equality and freedom as both values and as enforceable rights could, therefore, enable and empower departments of education, education institutions and educators to internalise and implement human rights and human rights values in schools and in teaching-learning. The continual process of becoming, of moving towards an open and democratic society through rights-based education and transformative action, is dependent upon the facilitation of human rights literacy in teacher training.

Research Process

Within the broader project of which this article forms part, the research team explored what human rights literacy entails and aimed to establish and develop improved transformative curriculum and teaching-learning approaches (Roux & Du Preez, 2013). The project group collected qualitative and quantitative research data by means of three different collection processes: a walk-about, a survey, and small focus-group discussions (Becker, De Wet & Parker, 2014). This article draws from the focus-group data only.

Participants

A total of 80 students participated in the walkabout. Using convenience sampling, the walkabout was conducted on three university campuses to explore the domain and inform possible questions for the survey.

Following the walk-about, first- and fourth-year full-time Bachelors of Education (B.Ed) students from six sites (university campuses) were selected by means of purposive sampling as participants for the survey. In selecting participants, the research team borrowed from stratified and cluster sampling to purposively choose six university sites (campuses) that were representative of:

• diverse linguistic, religious, ethnic and cultural student populations;
• rural and metropolitan areas;
• traditional universities and universities of technology;
• technikons and/or colleges that have merged with universities during the restructuring process of the South African higher education system, 2001 to 2007 (Becker et al., 2014). iii

A total of 1,086 students (551 first-years and 535 fourth-years) participated in the survey, during which they could indicate whether they were willing to participate in focus-group discussions that followed on the survey.

Small focus-group discussions were conducted on the six sites to validate data from the previous two collection strategies and to re-evaluate literature, ontologies and epistemologies. Using a snowball sampling strategy, we invited students on each of the six survey sites, who had indicated their willingness to participate in focus groups during the survey. Some of these students, in turn, invited other B.Ed students from their year-groups who voluntarily joined the discussions. Smaller groups (three to nine) were preferred due to the complex nature of the discussion topics. A total of 68 students participated in focus groups, of whom 29 were first-year and 39 were fourth-year students. Twenty-seven of the focus-group participants were male (14 first-years and 13 fourth-years), and 41 were female (15 first-years and 26 fourth-years). Participants were between 18 and 28 years old and spoke six of the 11 official South African languages. The majority were Christian, while three participants indicated that they were Muslim.

Small focus-group discussions were conducted to elicit dialogue about human rights, probe participants' conceptions and ontology and disrupt fixed meanings and understandings (Becker et al., 2014; Roux & Du Preez, 2013). Focus groups allowed researchers and participants to meet face-to-face in mostly unstructured conversation and dialogue that supported the flow and development of conversation, encouraged debate and conflict, and inspired participants to discuss human rights with one another, rather than with the researchers only (Becker et al., 2014; Creswell, 2009; Nieuwenhuis, 2007b).

Six of the researchers in the research team visited different sites in pairs and conducted a total of 21focus-groupsessions, with 13 different groups of students. Seven of the groups met twice, five met only once, and one group ( S 6 Y 1) met three times. Separate focus-group discussions were conducted with first-years and fourth-years, except for one meeting ( S 6 Y 1&4 M 2) on Site 6, which combined first- and fourth-years. Discussions were prompted by the question: 'do human rights exist?' Conversation flowed easily, with researchers probing further issues as they arose.

In follow-up meetings, discussions were initiated by means of pre-selected scenarios. Four different scenarios drafted by the research team sketched fictitious events regarding diverse socio-cultural, gender and religious contexts, including possible human rights violations within an educational context. After reading the scenarios, participants responded to these in the order they chose, and without any specific probing by researchers.

To uphold ethical protocol in accordance with the hosting universities' policies, we liaised with relevant gatekeepers and stakeholders for permission to conduct research on the respective sites. We took care to uphold the dignity and privacy of our voluntary participants while gathering the data, and also in data management, analysis and dissemination practices.

The data used for this article includes the spoken text from focus-group discussions, which were audio-recorded and transcribed verbatim. For the purpose of this article, the authors analysed the data by means of discourse analyses, which provide the possibilities for exploring social interaction in relation to understandings of dignity, equality and freedom (see Leech & Onwuegbuzie, 2008). The focus-group data was firstly read as a whole, after which words and patterns of speech were selected and analysed in order to determine understandings and applications. Data was allowed to crystallise as it was brought into conversation with and examined in relation to our theoretical framework on dignity, equality and freedom as moral relations (values) and legal claims (rights) within vertical and horizontal applications. All data excerpts are quoted verbatim. The reference style for these quotes is as follows: S1Y2M1, where S refers to the site number (1 to 6), Y refers to the year group (first- or fourth-years) and M refers to the meeting number of a specific group (first or second meeting).

Participating student teachers' understandings of dignity, equality and freedom

In this section, we use a selection of the focus-group data to illustrate participants' understandings of dignity, equality and freedom and the social interaction resulting from it. Our analyses focus primarily on understandings of student teachers related to dignity, freedom and equality as internalised values (moral action) and as legal interests (rights) embedded in contexts characterised by power relations, poverty and marginalisation. We consider how human rights understandings are influenced and shaped by power relations and injustice, while examining how the understandings of student-teachers reflect and influence inter-nalisation and implementation of human rights and human rights values in vertical and horizontal applications.

Patterns of speech pointing to discourses on human rights as a legal construct and its vertical implementation included phrases and words such as constitution, bills and laws: "[Human rights exist] because we have a Constitution" (S2Y1M1) and " a human rights bill, a set of laws that tell you what human rights are" ( S 4 Y 4 M 1). Students see the role of the law as protecting the rights of humans, where, as one student said ".. .the law, it protects us and everyone..." ( S 3 Y 1 M 1), while another noted, ". the law is the thing that surrounds human rights and helps it..." ( S 4 Y 4 M 1) [sic]. From this perspective, the implementation of rights is understood as a function of and the responsibility of government, which has the power and authority to do so (S 4 Y 4a M 1; S 5 Y 1 M 1; S 6 Y 4 M 1 ).

Discussion of human rights as a normative and relational construct and its horizontal application, were constructed by means of patterns of speech or phrases such as responsibility, care, treat you fairly, compassion, ubuntu, iv sacrifice: Student teachers emphasising the normative and relational nature of human rights seem to be more inclined to describe human rights as both a legal interest and normative concept. This is illustrated in the following excerpts:

Everyone is so focused on: 'human rights, human rights, human rights'. No one says anything about responsibilities. I can have all the rights, but it is my responsibility to treat you fairly and to consider your rights as well. Everything is about: 'me, me, me', but I think, what can I do? How can I treat you fairly so that we are equal? ( S 4 Y 4 M 1 a). ...that compassion you have - that ubuntu in you - it supersedes everything, because you are acting in compassion to another human being, protecting their rights. Even if it is against the law. ( S 1 Y 4 M 1) [sic].

Students from the group S 1 Y 4 M 1 used phrases such as "when you do not only think of yourself.", "caring for another person", "sharing things", "compassion to another human being" and "helping others", which illustrate their understandings of human rights as a form of moral action. Personal responsibility towards the other, and specifically the marginalised other, is manifest as internalised values in a horizontal application, in which the dignity, equality and freedom of the other are primary concerns. This seems to be underpinned by understandings of human dignity and equality within a common human ontology: ". they are human. They need to be protected by human rights" ( S 1 Y 4 M 1).

Students argued that human rights need "a well-built foundation for us to step on [sic] and say, 'this is [these are] our rights, we are responsible for this'" ( S 5 Y 1 M 1). v A different group also referred to a 'foundation' and defined it as follows: "... Um, I think if we can start at the foundation, I mean -go all the way back to the morals, I mean - people with good values become good people." ( S 6 Y 4 M 1) [sic]. These students seem to understand the interaction between legal interests and moral action, since dignity, equality and freedom are viewed as both values and rights.

Participants related dignity to respect, but in contrast to the nature of the right to dignity in the Constitution and international human rights law, participants viewed respect as something based on what a person does - "the way they act, they live, they speak" - and that "you make the dignity when you make decisions about your actions ( S 1 Y 1a M 1):

I think when you talk about respect, it is when you respect the human dignity of someone. I think it is when you respect what he or she is doing; what he or she is willing to achieve in future [sic]. You can't respect a street kid although he or she deserves your respect. You can't just give respect.if you do something, you deserve respect.so respect, I will say, is all about the human dignity and respecting.myself and respecting each other ( S 1 Y 1a M 1).

The above indicates horizontal applications of the right to dignity in the light of the (non)internali-sation of dignity as a human rights value. It indicates that although the student knows everyone "deserves your respect" (knowledge), this realisation is not internalised as a normative concept to such an extent that the human dignity of every person is indeed respected (internalisation and implementation).

Discourse around socio-economic inequality emphasised the relation between power, authority, money and the non-realisation of human rights. Phrases pointing to socio-economic inequality included power, money, monetary basis, powerless, scared. The data seems to indicate that participants understand inequality as a result of people with authority or power, violating and abusing human rights. Examples were given of lecturers and campus authorities violating students' rights (s4y4am1; s4y4bm1), police violating the rights of the people (s2y1m1) and government officials abusing their positions (s4y4am1).

Below reference is made to the (non)realisation of socio-economic rights. The first quote refers to vertical application, and the second, to horizontal application:

I think the government should build houses in the rural area because they live in shacks ( S 1 Y 1 M 1b). It [human rights] is governed by a monetary basis because people with power and money, they stand up quickly and say, I know my rights, [while] people that don't have money, they are like scared to say, 'I have the rights to education; I have, you know. They don't take the power because they are actually powerless. That's how I feel ( S 5 Y 1 M 1). vi

Although some participants acknowledged the need for certain agency in order to make human rights an experienced reality (defined as lived experiences of the implementation and the internalisation of human rights and human rights values), they nonetheless hold the view that money (as commodity) and power provide such agency:

...since I am poor, someone will violate my rights. Where I grew up, if someone violate[d] my human rights, I would not have the means to bring that person to book. But if someone has money, if they are rich, they would be able to get lawyers and bring me to book if I violate their rights ( S 1 Y 4 M 1) [sic]. vii

The influence of poverty and inequality on the individual's right to education, dignity, equality and the freedom to choose to exercise those rights is explained by the following student:

...you talk about the right to education, but what about the learners that really stay far away from school and cannot get to school and also do not have the finances to support them [selves]; if that person's human rights are taken away, how can you say in that situation that they have the responsibility to take ownership of the right? ( S 3 Y 4 M 1). viii

Student teachers' understandings of human rights are shaped by power relations and injustices to the extent that they see human rights as merely "a constitutional document that is not respected...that is leaving a gap between it [human rights] and responsibilities" ( S 5 Y 1 M 1) and "just a word...there to decorate a room, decorate the Constitution [sic]" (S5Y1M1). Phrases pointing to powerlessness such as "...they are out to get you" and "...is it only what would be preferable for other people" also featured when it came to discussing freedom, specifically freedom of speech and expression:

Freedom of speech, the greatest...I almost said something rude; it is one of the things that [is] contradicted the most. Because they say it is your freedom of speech, but the moment you say something they are out to get you ( S 3 Y 4 M 2) [sic]. ix Freedom of expression...is it freedom of expression of everything you want to express, or is it only what would be preferable for other people? ( S 4 Y 4 M 2).

In our discussion to follow, we bring the data in conversation with our proposed theoretical framework in an attempt to answer the question: 'could human rights literacy as understandings of dignity, equality and freedom as both rights (legal claims) and internalised values within horizontal and vertical relations aid the continual process of rights-based education and transformative action towards an open and democratic society?'

Data analyses focused on the different ways in which student teachers understand dignity, freedom and equality as internalised values and as legal interests within horizontal and vertical applications, and how their understandings are shaped and influenced by power relations, inequality and injustice.

In terms of understandings related to dignity, equality and freedom as both legal interests (rights) and values (moral action), participants either understand human rights as legal interests, or, in relation to values such as caring, ubuntu, respect, human dignity and equality. However, student-teachers who focused more on dignity, equality and freedom as values or moral constructs, were also more inclined to view human rights as legal constructs, whereas those who emphasised a legal understanding were less inclined to include references to moral action. Understandings related to dignity, equality and freedom as legal claims primarily focused on the vertical implementation and the role of government in this regard. From this perspective, government and state organs are responsible for the realisation and implementation of human rights.

Understandings relating to the internalisation of these rights as values manifesting within horizontal, interpersonal relations mainly focused on dignity and equality. Student teachers relate dignity and equality to the values of respect, care, compassion and responsibility. Within this view, focus is placed on the role of human rights as internalised values within horizontal interpersonal applications. It appears that the internalisation of the values of dignity and equality leading to the implementation of the right to dignity and equality, is supported by student teachers' understanding of a common human ontology.

Understandings of dignity and equality as internalised moral values would contribute to rights-based education as a continual, unconditional reception of others within caring and compassionate relations (see Noddings, 2007). These understandings focus on specific, (inter)personal and concrete experiences of human rights within teaching and learning contexts, towards transformative action and humanising practices. It transcends knowledge of rights as laws and legal claims towards solidarity and caring (moral action).

Our findings further indicate that student teachers understand the interrelatedness of equality and dignity in terms of the socio-economic (non)-realisation of rights. Participants in this study expressed feelings of powerlessness. This revealed how class, money and position within the South African context influence implementation and in-ternalisation of human rights and human rights values, and how this manifests in horizontal and vertical applications. The realities of the South African context were emphasised during discussions on equality/inequality and dignity. Student teachers seem to understand dignity, equality and freedom against the background of the money/power-agency relation, highlighting socioeconomic inequalities, and the resultant loss of dignity.

Socio-economic inequality and the resultant loss of dignity and (non)realisation of rights influence the understandings and applications of human rights as both rights and values in vertical and horizontal applications: although student-teachers understand dignity, equality and freedom within a common human ontology, power relations and injustice influence interpersonal relations and disrupt understandings of dignity, equality and freedom. Dignity is equated to 'good' human action, equality is influenced by power and money, and freedom of speech and expression are limited to "what would be preferable for other people" ( S 4y4 M 2). This indicates understandings that equality, dignity and freedom are only applicable to those who meet certain requirements or norms, be these social or moral; or only amongst those who have power and money.

Our findings in this regard correlate strongly with what Freire (1993:40) described as the perception that "having" is a condition of "being", a worldview which could have devastating consequences for the continual movement towards rights-based education, transformative action and open and democratic societies. The influence thereof on relations with different others (who do not possess equal power or money) will inevitably result in marginalisation. The facilitation of human rights literacy towards the continual process of becoming an open and democratic society is, therefore, even more important. As students gain informed understandings of dignity, equality and freedom as rights and values, marginalisation - as a social construction reflecting power relations -needs to be questioned critically as a dehumanising practice (Dale & Hyslop-Margison, 2010). Student teachers need to understand that the representation of others (or themselves) as "less human" is "partial, interested and potentially oppressive" (Elssworth, 1989:324).

There are many variants within human rights education that may and ought to influence human rights literacy and the movement towards rights-based education and transformative action. Most scholars agree that human rights education, enabling human rights literacy, should include both the content and the processes related to human rights (Bajaj, 2011; Roux, 2010). Although many approaches to human rights education focus on a universal and global stance to human rights in education and rights-based education, scholars have recently also turned towards distinguishing human rights approaches in education from the global towards the local. Different societies, and particular contexts, result in a difference in emphasis on a given set of rights, such as socio-economic rights and/or political and civil rights (Bajaj, 2011).

Our findings from this project clearly indicate a need to focus on socio-economic rights and social and restorative justice in the South African context. To this end, Heyns (2006:3) argues that human rights should be understood in terms of a "struggle approach". This approach emphasises experiences of injustice (such as the non-realisation of socioeconomic rights) as the starting point of understanding human rights or, in the context of our article, understanding dignity, equality and freedom. Following a 'struggle approach' to rights-based education therefore, would require addressing the need for the realisation of socio-economic rights, social justice and restoration within the South African education context.

We argue that a suitable approach for facilitating human rights literacy in the South African context would be Human Rights Education for Transformative Action (Bajaj, 2011). Such an approach would focus on radical action towards inclusion, social justice and restoration, revealing elements of critical theory. It correlates with the conception of human rights as the aspirations of the oppressed and aids understandings of human rights within a "struggle approach" (Bajaj, 2011; Dem-bour, 2010; Heyns, 2006:3).

Thus, we argue that following a Human Rights Education for Transformative Action approach facilitates human rights literacy and emphasises the processes and consequences of human rights implemented both vertically and horizontally, as well as the internalisation of human rights and human rights values. The approach requires an analysis of historical and present conditions, the gap between the guarantee of human rights and realities, and actual power relations that sustain this gap. Such an approach would advocate for collective action in society, schools and the classroom. It requires teachers to enact responsibility for the freedom, dignity and equality of all the children in a classroom through caring and humanising practices and would become possible when human agency and solidarity within open and democratic societies are actively promoted (Bajaj, 2011). In focusing on specific, personal and concrete experiences of human rights violations, the processes and consequences of non-applications of human rights can be both taught and learnt. Exploring personal experiences of the realisation and non-realisation of human rights opens up possibilities for teacher and learner to be received as a subject and not an object, and ultimately to be cared for as someone with equal dignity and worth (Noddings, 2007).

Conclusion and Recommendation

Human rights literacy could aid rights-based education and transformative action towards an open and democratic society, if it moves away from teaching-learning knowledge about human rights, towards acting collectively in solidarity with the marginalised towards a humane society through humanising educational practise (see Bajaj, 2011; Freire, 1993). Within the South African context, education as a transformative humanising practice of freedom ought to focus on teaching-learning, towards a sense of critical consciousness shared by both teachers and children, resulting in the humanisation and transformation of the world they share (Freire, 1993).

Human Rights Education for Transformative Action within a "struggle approach" (Heyns, 2006:3) could aid both the processes of facilitating human rights literacy in teacher training and in teaching-learning, as student teachers will implement their understandings of dignity, equality and freedom in rights-based education. To reach this aim, tertiary institutions need to facilitate human rights literacy as involving understandings of dignity, equality and freedom as both rights (legal claims) and values (normative relations), with horizontal and vertical applications, within the South African socio-political and economic context. This would include knowledge about human rights and understandings of the processes, namely the influence of power relations, historic and on-going poverty and marginalisation on vertical and horizontal applications and the consequences of human rights in terms of the (non)realisation of equality, dignity and freedom.

To this end, working actively from a "struggle approach" (Heyns, 2006:3) towards humanising and understanding human rights within a common human ontology by means of Human Rights Education for Transformative Action, will not only afford student-teachers the opportunity to question marginalisation as a social construct, but likewise with the opportunity to conceive their own responsibility in reconstructing and humanising society (Dale & Hyslop-Margison, 2010).

Acknowledgements

The research embodied in this article has been conducted within the realm of a research project funded by the National Research Foundation of South Africa. The authors wish to acknowledge and thank the Human Rights Literacy research team for collaboration in planning and conducting the research.

i . Yacoob made this statement during his keynote address at the Annual North-West University Human Rights Conference in Vanderbijlpark in 2014. See also S v. Makwanyane 1995 (3) SA 391 (CC) para 230 and 305, where it is noted that constitutional rights are for the protection of everyone, including the "weak, poor and vulnerable".

ii . The South African Schools Act, No 84 (RSA, 1996c), the National Education Policy Act 1996, Act No. 27 of 1996 (RSA, 1996b), White Paper 6 on Inclusive Education (DoE, 2001a), the Manifesto on Values, Education and Democracy (DoE, 2001b), the Guidelines for Inclusive Learning Programmes (DoE, RSA, 2005), the Strategy for Racial Integration (DoE, RSA, 2006) and the Bill of Responsibilities for the Youth of South Africa (DoE, RSA, 2008).

iii . The restructuring of higher education in 2001-2007 aimed to break down apartheid's racial divides, unifying the fragmented systems inherited from the previous dispensation, and eradicating the in equalities and distortions of the inherited systems (Wyngaard & Kapp, 2004). In terms of organisational culture and ethos, the former 'white' universities were perceived as elitist and colonial, while their merger partners were regarded as a place of teaching and learning for the historically disadvantaged - often associated with political and economic oppression.

iv . The term ubuntu is a Southern African concept that refers to 'human-ness', translated as 'humanity towards others' and relating to a belief that all humanity is connected by a universal bond. Also translated as 'people are people through other people' (Nguni) or, from an isiXhosa proverb:' 'umuntungumuntungabantu ' as 'a person is a person through his/her relationship with others'. See Gade (2011:303-322) for a historical development of written discourses on Ubuntu.

v . Verbatim quotation was edited for the publication.

vi . Verbatim quotation was edited for the publication.

vii . Verbatim quotation was edited for the publication.

viii . Verbatim quotation was edited for the publication.

ix . Verbatim quotation was edited for the publication.

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Wyngaard A & Kapp CA 2004. Rethinking and reimagining mergers in further and higher education: a human perspective. South African Journal of Higher Education, 18(1):185-201.         [  Links  ]

Yacoob Z 2014. Address on democratic values at the Annual North-West University Human Rights Conference: "20 Years of Democracy", Quest Conference Estate, Vanderbijlpark, South Africa, 18 March.         [  Links  ]

Young I 1990. Justice and the Politics of Difference. New Jersey: Princetown University Press.         [  Links  ]

Legal Authorities

Prinsloo v. Van der Linde 1997 (3) SA 1012 (CC). S v. Mhlungu 1995 (3) SA 391 (CC).

The President of the Republic of South Africa v. Hugo 1997 (4) SA 1 (CC) para 41.

What you need to know about the right to education

The Universal Declaration of Human Rights affirms that education is a fundamental human right for everyone and this right was further detailed in the Convention against Discrimination in Education. What exactly does that mean?

Why is education a fundamental human right?

The right to education is a human right and indispensable for the exercise of other human rights.

• Quality education aims to ensure the development of a fully-rounded human being.
• It is one of the most powerful tools in lifting socially excluded children and adults out of poverty and into society. UNESCO data shows that if all adults completed secondary education, globally the number of poor people could be reduced by more than half.
• It narrows the gender gap for girls and women. A UN study showed that each year of schooling reduces the probability of infant mortality by 5 to 10 per cent.
• For this human right to work there must be equality of opportunity, universal access, and enforceable and monitored quality standards.

What does the right to education entail?

• Primary education that is free, compulsory and universal
• Secondary education, including technical and vocational, that is generally available, accessible to all and progressively free
• Higher education, accessible to all on the basis of individual capacity and progressively free
• Fundamental education for individuals who have not completed education
• Professional training opportunities
• Equal quality of education through minimum standards
• Quality teaching and supplies for teachers
• Adequate fellowship system and material condition for teaching staff
• Freedom of choice

What is the current situation?

• About 258 million children and youth are out of school, according to UIS data for the school year ending in 2018. The total includes 59 million children of primary school age, 62 million of lower secondary school age and 138 million of upper secondary age.

155 countries legally guarantee 9 years or more of compulsory education

• Only 99 countries legally guarantee at least 12 years of free education
• 8.2% of primary school age children does not go to primary school  Only six in ten young people will be finishing secondary school in 2030 The youth literacy rate (15-24) is of 91.73%, meaning 102 million youth lack basic literacy skills.

  How is the right to education ensured?

The right to education is established by two means - normative international instruments and political commitments by governments. A solid international framework of conventions and treaties exist to protect the right to education and States that sign up to them agree to respect, protect and fulfil this right.

How does UNESCO work to ensure the right to education?

UNESCO develops, monitors and promotes education norms and standards to guarantee the right to education at country level and advance the aims of the Education 2030 Agenda. It works to ensure States' legal obligations are reflected in national legal frameworks and translated into concrete policies.

• Monitoring the implementation of the right to education at country level
• Supporting States to establish solid national frameworks creating the legal foundation and conditions for sustainable quality education for all
• Advocating on the right to education principles and legal obligations through research and studies on key issues
• Maintaining global online tools on the right to education
• Enhancing capacities, reporting mechanisms and awareness on key challenges
• Developing partnerships and networks around key issues

  How is the right to education monitored and enforced by UNESCO?

• UNESCO's Constitution requires Member States to regularly report on measures to implement standard-setting instruments at country level through regular consultations.
• Through collaboration with UN human rights bodies, UNESCO addresses recommendations to countries to improve the situation of the right to education at national level.
• Through the dedicated online Observatory , UNESCO takes stock of the implementation of the right to education in 195 States.
• Through its interactive Atlas , UNESCO monitors the implementation right to education of girls and women in countries
• Based on its monitoring work, UNESCO provides technical assistance and policy advice to Member States that seek to review, develop, improve and reform their legal and policy frameworks.

What happens if States do not fulfil obligations?

• International human rights instruments have established a solid normative framework for the right to education. This is not an empty declaration of intent as its provisions are legally binding. All countries in the world have ratified at least one treaty covering certain aspects of the right to education. This means that all States are held to account, through legal mechanisms.
• Enforcement of the right to education: At international level, human rights' mechanisms are competent to receive individual complaints and have settled right to education breaches this way.
• Justiciability of the right to education: Where their right to education has been violated, citizens must be able to have legal recourse before the law courts or administrative tribunals.

  What are the major challenges to ensure the right to education?

• Providing free and compulsory education to all
• 155 countries legally guarantee 9 years or more of compulsory education.
• Only 99 countries legally guarantee at least 12 years of free education.
• Eliminating inequalities and disparities in education

While only 4% of the poorest youth complete upper secondary school in low-income countries, 36% of the richest do. In lower-middle-income countries, the gap is even wider: while only 14% of the poorest youth complete upper secondary school, 72% of the richest do.

• Migration and displacement

According to a 2019 UNHCR report, of the 7.1 million refugee children of school age, 3.7 million - more than half - do not go to school. 

• Privatization and its impact on the right to education

States need to strike a balance between educational freedom and ensuring everyone receives a quality education.

• Financing of education

The Education 2030 Agenda requires States to allocate at least 4-6 per cent of GDP and/or at least 15-20 per cent of public expenditure to education.

• Quality imperatives and valuing the teaching profession

Two-thirds of the estimated 617 million children and adolescents who cannot read a simple sentence or manage a basic mathematics calculation are in the classroom.

• Say no to discrimination in education! - #RightToEducation campaign

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HerAtlas: Monitoring the right to education for girls and women HerAtlas: Background, rationale and objectives 12 March 2024

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Carving out Transgender Rights in New Indian Labour Codes

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India’s new labour codes are set to take effect soon, however, they fall short of including transgender rights in their scheme. Globally, LGBTQIA+ workplace equality is at the center of this discussion, as was recently emphasised by International Labour Organization (“ILO”) Director-General Guy Ryder. While India recognized transgender rights in 2014 in NALSA v Union of India (“ Nalsa ”), it has been reluctant to enact provisions recognizing transgender rights in existing labour codes, and the government has previously rejected the recommendations of a Parliamentary Committee report which advocated for the explicit inclusion of provisions protecting the rights of transgender people in India’s labour codes. Despite the enactment of the Transgender Persons Act, 2019 (the “Act”) , labour laws remain unchanged. Moreover, a disproportionate emphasis on efforts to include cisgender women in India’s labour codes has left behind the transgender community. The case of India demonstrates that in the Global South, the fight for trans rights, especially in labour law, continues. This exclusion reflects the challenges of intersectionality, where overlapping identities, gender identity among them, can worsen discrimination.

In the Indian context, a 2014 World Bank Report model highlighted that the stigma against transgender people could cost an economy like India $32 billion, or about 1.7% of its GDP at the time, and emphasized that productivity is linked to social inclusion. This issue was highlighted in Shanavi Ponnusamy v Ministry of Civil Aviation , where a trans woman was denied a cabin crew position at Air India. The Supreme Court acknowledged the challenges faced by transgender individuals in the country, and directed the Indian government to create inclusive job policies in consultation with the National Council for Transgender Persons.

(I) Maternity Benefits

The Social Security Code excludes transgender people from maternity benefits in several ways. Eligibility criteria, which require that the beneficiary be a “ woman ,” exclude transgender people who can get pregnant. The code also does not address the needs of transgender couples who cannot adopt due to legal restrictions by the dictum of courts. Even for transgender people considering surrogacy, the definition of “ commissioning mothers ” requires that a “ biological mother ” use their own eggs to create an embryo which is then implanted in another woman, which excludes transgender men who still have female reproductive organs.

To make matters worse, the definition of “ dependents ,” which includes a deceased employee’s family who financially relied on them to receiving benefits, seems to enshrine binary gender norms and traditionally established familial structures. This excludes transgender parents and their children as well as the dependents of same-sex partners. Moreover, the use of terms like “ widow ” and “ daughter-in-law ” specifically denotes cisgender women thereby excluding LGBTQIA+ individuals entirely. Transgender individuals and their families are left vulnerable and without crucial social security benefits.

( II) Transgender Representation on National and State Boards under Sections 6 and 7 of the Social Security Code

A UNDP report paints a grim picture of transgender livelihoods in India, where employment rates are significantly lower for transgender people compared to the general population. Transgender individuals face frequent rejection from job opportunities: up to 96% out of roughly 490,000 transgender people in the Indian workforce , according to the Election Commission and recent census data. The result is that transgender people in the Indian workforce often resort to low-wage and demeaning work, such as street performing, sex work, or begging to sustain themselves. This marginalisation is further compounded by the lack of trans representation on National and State Boards so constituted under the Social Security Code. The inclusion of trans voices in these boards is crucial for creating gender-sensitive policies and ensuring that the needs of transgender individuals are prioritized while securing funding for trans-focused initiatives.

(III) Non-penalty on Violation under Sections 9-11 of the Transgender Persons Act, 2019.

Section 11 of the Transgender Persons Act, 2019 (“TPA”) outlines the role of grievance officers, who are appointed to deal with the complaints in workplaces relating to the violation of the provisions under the TPA. However, sections 9-11 of the TPA mandate that these grievance officers be chosen by employers themselves, which raises concerns about impartiality in handling complaints by transgender employees. This lack of impartiality is compounded by the absence of penalties in the TPA for employer violations of workplace obligations. Transgender employees are left with limited options, often relying on Constitutional remedies, such as the case of Shanavi Ponnusamy , where petitioners relied on Articles 14 and Article 15 of the Indian Constitution and the NALSA judgment to allege discrimination in the selection process for cabin crew in Air India Airlines, instead of resorting to the statutory remedies themselves. The lack of specific enforcement of rules further weakens the TPA’s effectiveness. The Supreme Court’s call in NALSA for affirmative action under the Socially and Economically Backward Communities categories for the transgender community remains unheeded, and there are no consequences for non-compliance with sections 9-11 of the TPA. These loopholes create a situation where the TPA’s protections for transgender workers are significantly weakened.

(IV) Conclusion

Workers’ rights under international human rights law offer a strong framework for India to improve the lives of transgender people. The International Covenant on Civil and Political Rights prohibits discrimination and guarantees equal protection before the law – this includes discrimination on the basis of gender identity (Article 26). Similarly, the International Covenant on Economic, Social and Cultural Rights protects the right to work without discrimination (Article 12). These principles, along with ILO standards on non-discrimination, impose an obligation on India to ensure equal opportunities for all workers. Looking beyond the binary gender system, the Yogyakarta Principles , despite being non-binding, offer a helpful framework for legal recognition of diverse gender identities.

Policy decisions will guide progress in this regime. Policy recommendations that ought to be adopted include adding a transgender identity option on forms, clarifying maternity benefit guidelines, workplace inclusion training and quotas in government boards, and penalties for non-compliance with transgender rights protections.

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