Like all laws and policies related to gender rights and persons of diverse genders, there are anxieties about the implication of a menstrual leave policy. The biggest fear is that such a move could lead to covert discrimination in hiring practices and add to women’s already declining workforce participation in the organised sector. Unless strong affirmative actions are enforced, a progressive policy may end up becoming a hurdle for women workers and enforce an invisible burden on the hiring of women, especially in the private sector and among lower-income groups.

Such concerns are not without basis. Even while dismissing the petition, the apex court appeared to give some weight to the anxiety that any compulsory provision might disincentivise the hiring of women. Yet, experience shows that the global tide on this subject is shifting in the opposite direction — in favour of a growing movement helmed by young people endorsing the right of people to bleed with dignity.

Earlier this month, Spain became the first European country to entitle workers to paid menstrual leave. Spanish women now have the right to three days of menstrual leave a month — with the option of extending it to five days — if they experience painful periods. Women are not full citizens without such rights, Irene Montero, the country’s equality minister, said in Parliament.

Period pain, or dysmenorrhea, is common; more than half of menstruating women experience pain for one or two days every month. For some, the pain is so severe that they cannot perform normal activities for days, according to the American College of Obstetricians and Gynaecologists.

In a recent poll with a cross-section of young women, most favoured period leaves and welcomed such a policy even though they knew that its implementation would face hurdles from employers and society. Yet, most respondents felt it is high time employers did their bit to make workplaces gender sensitive. Some even went as far as to say that this could become a factor to determine their loyalty and commitment to an organisation.

The respondents admitted that not all line managers would be sensitive and may even pose a threat to large sections of women employees, especially those who do contractual work. Yet, they felt it was worth securing period leave as a right and an obligation of the employer to drive home the point that if a woman discloses her menstrual problem, it does not mean she can be retrenched.

Securing such a right may be difficult for women working in the unorganised sector because many work in the convoluted sub-contractual system of paid and piecemeal work, and a day’s leave would mean a loss of income. This challenge is more acute in the post Covid-19 phase because ensuring such piece-rate and seasonal work has become tougher, especially in unorganised sectors where rules are lax and almost never implemented.

Still, this fight is important.

For the first time, like in the case of sexual harassment in the workplace, we are witnessing a paradigm shift wherein the obligation to advance gender equality is no more the responsibility of women and persons of diverse genders and their private ecosystem (family and society) but the wider public sphere of the State and employers. It is important to remember that this fight did not begin today — the issue first came up before the apex court in 1992, and the same year, Bihar made the first, albeit hesitant step, towards paid menstrual leave.

The apex court has now dismissed the PIL, saying the matter is in the policy domain. The government, therefore, should consider framing rules that encourage flexible work, expand treatment for endometriosis, strengthen menstrual health services across institutions, particularly in schools and colleges so that girls do not discontinue schooling, and make these services pivotal to the package of reproductive health services that the State provides to its citizens.

Akhila Sivadas is executive director, Centre for Advocacy and ResearchThe views expressed are personal