MENSTRUAL LEAVE - A STEP TOWARDS SUBSTANTIVE EQUALITY

Abstract

This paper looks at menstrual leave policies from the lens of discrimination law and argues that such policies promote substantive gender equality. There is a need for providing menstrual leave to improve India’s falling female labour force participation rate as well as to recognize the inherent physiological differences between men and women and accommodate for the same. A genderneutral sick leave policy would not be more suitable than a gendered policy to fulfil these objectives because it would still lead to unequal outcomes and opportunities for women. The equal treatment principle in the case of menstrual leave would also encounter the problem of having no suitable male comparator for menstruation, as for pregnancy. Accordingly, there is a need to move beyond the formal approach to equality, i.e., mere gender neutrality or gender blindness, and adopt the substantive approach to gender equality, which takes into account the special needs of women. Further, menstrual leave does not breach the antistereotyping principle under sex discrimination law because it fits into the principle’s exception that classifications can be made based on the real differences between men and women for legitimate objectives such as promoting equality of opportunities for women. Nonetheless, measures must be taken to address the possibilities of any stigma or other disadvantages women may face while availing the menstrual leave, like ensuring their privacy and dignity, shifting some of the cost of paid menstrual leave from the employers to the State, and designing a flexible menstrual policy which can accommodate all women’s diverse menstruation experiences.