Recently, the Apex Court dismissed a public interest litigation seeking to mandate a nationwide menstrual leave policy, noting that such measures fall within the government’s domain and cannot be imposed by judicial fiat.
The bench, led by Chief Justice of India Surya Kant, cautioned that while menstrual pain can be genuine and debilitating, compulsory leave could inadvertently ‘reinforce stereotypes’ that discourage employers from hiring women.
The court observed that mandating such leave might create the impression that women are less capable and less productive, potentially harming their careers. The court urged the authorities to consult stakeholders and devise a balanced way forward. Notably, this judicial observation comes against the backdrop of Dr Jaya Thakur v Union of India, a case that formally recognised menstrual health as a fundamental right.
This judicial stance raises a complex dilemma: do gender-specific interventions advance gender equality, or do they risk reinforcing prejudicial bias? On one hand, acknowledging biological differences can help reduce stigma, as reflected in several state-level policies that grant menstrual leave to large female workforces. These initiatives are grounded in the understanding that women may experience significant pain and discomfort during menstruation, and that providing leave supports their well-being and productivity.
Contrarily, there are concerns that mandatory menstrual leave policies could inadvertently widen gender gaps in hiring. Such outcomes risk entrenching benevolent sexism, where differential treatment, though seemingly protective, is rooted in assumptions about women’s biology. In this view, a policy intended to support women could, in practice, end up harming them.
Sandra Fredman’s substantive equality framework, judicially recognised in cases such as Jane Kaushik v Union of India, helps navigate this complex dichotomy. At its core, the framework goes beyond formal recognition and calls for addressing the structural disadvantages arising from biological differences or social taboos.
Stigma and silence
Menstruation has long been a source of stigma and silence, undermining women’s access to education and work. Recognising it as a legitimate well-being concern is only the first step; Fredman’s four-pronged model calls for a broader approach — providing health support, addressing stigma, and ensuring that women are not penalised for accessing such support. Ultimately, substantive equality requires that women be able to make informed choices without fear of judgement. A fair policy, therefore, should enable them to manage menstrual discomfort without risking their job security.
Combating unintended discrimination requires menstrual leave policies to rest on two essential aspects: health-support accommodations and anti-bias protections. The former includes logistical measures such as stocked restrooms, adjustable workstations and flexible breaks, while the latter entails workplace norms that prevent any punitive measures against women for availing menstrual leave. Without these safeguards, even a well-intentioned policy could end up affecting women adversely.
In the absence of a dedicated framework, menstruating women are compelled to avail themselves of such leaves under the existing medical or sick-leave provisions. Some firms have experimented with alternative measures such as designated wellness days or permitting remote work during this period. Nevertheless, these practices remain either regressive in conception or sporadic in implementation, underscoring the urgent need for a coherent policy framework.
Another major concern in discussions on menstrual leave is the financial strain on organisations. Imposing blanket policy measures without addressing funding risks creating under-resourced and burdensome obligations for employers. In such situations, employers may begin to view these provisions as a costly liability, potentially discouraging the hiring of women and reinforcing workplace bias rather than alleviating it.
To address this, a cost-sharing model could be explored so that the financial burden does not rest solely on employers. In practical terms, if such policies are to be mandated in the country, the government could consider offering tax concessions, reducing employer contributions or subsidising smaller enterprises. Additionally, organisations adopting such measures could be incentivised through ESG (Environmental, Social and Governance) benchmarks, diversity certifications or priority access to government schemes. These steps can help mitigate concerns that menstrual leave constitutes a financial liability.
Global practices
Comparative global practices offer useful guidance on this issue. A handful of countries have implemented menstrual leave policies, including Japan, South Korea, Indonesia, Spain, as well as Zambia and Kenya. Japan, a pioneer in this regard, has had such a policy since 1947, allowing women to take leave, though employers retain discretion over whether it is paid.
Spain became the first European country to legislate on menstrual leave, offering fully paid leave through the public health system to prevent bias; however, the policy is limited to individuals diagnosed with conditions such as endometriosis. India already has the legal and judicial framework to address this issue constructively. It is now time to come together and have a serious discussion on how to ensure gender equality in the workplace.
The situation raises a crucial question: how can this goal be achieved? To answer it, we must turn to the substantive equality framework, which calls for carefully designed, gender-sensitive measures.
In simple terms, achieving equality
sometimes requires acknowledging biological realities, but ensuring that these differences do not become a basis for
discrimination. The best way to understand this is through the example of maternity leave. When such leave was first introduced, similar concerns about employers’ reluctance to hire women dominated the debate.
Over time, however, it became clear that reproductive autonomy and caregiving are essential social functions that cannot be ignored in the name of workplace neutrality. This led to the introduction of maternity leave alongside robust anti-discrimination protections.
Similarly, menstrual leave by itself cannot guarantee equality; it must be paired with robust measures to ensure that women are not perceived as less desirable employees simply because such leave exists. Workplace sensitisation is equally crucial, so that menstruation is recognised as a normal biological process rather than a source of stigma. When these safeguards operate conjunctively, such policies can empower women instead of reinforcing stereotypes.
In conclusion, a comprehensive national menstrual leave policy should acknowledge menstruation as a biological reality without implying that women are less capable or productive. The jurisprudential foundations are already in place, what is now needed is the collective will to turn this vision into social reality.