The Supreme Court recently dismissed a petition that sought a direction to all states to form a menstrual leave policy stating that it would be more appropriate to approach the Ministry of Women and Child Development. The Draft National Menstrual Hygiene Policy, 2023, formulated by the Ministry of Health and Family Welfare, envisions supporting “flexible working arrangements, such as work from home or support leave”. Despite this, Smriti Irani, the Minister for Women and Child Development recently came out in opposition to the menstrual leave policy fearing denial of “equal opportunities just because somebody who does not menstruate has a particular view towards menstruation.”
What she says is the harsh reality of gender discrimination in the workplace, but whether we must flow with it or against it is a choice we must make. Many employers would allude to Aristotle’s idea that “equality consists in the same treatment of similar persons”. Catherine A Mackinnon has highlighted that here the eligibility for equality is similarity. But are we all the same?
Girls from around 12 years old to women in their 40s or 50s menstruate every month experiencing a varying degree of pain in the form of abdominal cramps, back pain and headaches, among other symptoms. Men don’t. But in line with everyone’s adoption of Aristotle’s equality, the quest for “equal opportunities” requires, encourages, and rewards women if they become “similar” to men. Success and this “equality” are only accessible to those who can afford to hide the difference, either because they feel no pain, painkillers work for them or because they can power through it if they want to avoid the possible side-effects of such painkillers. But is it equality if the burden is put on only one-half of the population?
Menstruation is not a mere difference but a disadvantage if the workplace is a space made only for and by the gender that does not menstruate.
The Canadian Supreme Court understood the flaws in Aristotle’s approach and observed in Andrews v Law Society of British Columbia (1989) that a similarly situated test could have been used to justify the Nuremberg laws of Adolf Hitler and the “separate but equal doctrine” of the racial segregation case of Plessy v Ferguson. Section 15(2) of the Canadian Charter of Rights and Freedoms provides that “equality before and under law” does not preclude any law, programme or activity that has as its object the amelioration of conditions of disadvantage because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. In recognition of this, their supreme court in Andrews asserted that “the promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognised at law as human beings equally deserving of concern, respect and consideration.” In this approach, the threshold for seeking equality is not similarity to the advantaged group.
Our own Constitution, in Article 15, while dealing with the prohibition of discrimination, asserts that the state shall not be prevented from making special provisions for women and children. Should then the state still promote a society where the pursuit of equality is not unequal? By speaking against menstrual accommodations for the fear of being worried about discrimination from employers, are we working against inequality or with it?
The writer is a Delhi-based lawyer and an LLM Candidate at Harvard Law School
