Another Barrier, Why Mandatory Menstrual Leave Without Parity in Recruitment Could Hurt Women
As the Supreme Court Refuses to Entertain a Petition Seeking Mandatory Menstrual Leave, a Delicate Balance Emerges Between Acknowledging Biological Realities and Avoiding Unintended Consequences
When considering a measure to address a work-related need, care must be taken to ensure that it does not inadvertently reduce the employee’s opportunity to work. This was again made evident on March 13, when a two-judge Bench of the Supreme Court, headed by Chief Justice of India Surya Kant, refused to entertain a petition seeking a law providing menstrual leave for women workers and students.
The Court’s caution was not rooted in indifference to the very real challenges that menstruation poses for many women. Rather, it reflected a nuanced understanding of how well-intentioned policies can sometimes produce perverse outcomes—particularly in a labour market where women already face systemic barriers to participation and advancement.
The Court cautioned that mandatory menstrual leave could unintentionally hinder women’s careers and deny them “big responsibilities.” Instead, it encouraged “voluntary” initiatives by States. This approach seeks to balance the acknowledgment of biological realities with the imperative of ensuring that women are not disadvantaged in hiring, promotion, and professional development.
The Existing Landscape
Several Indian states have already moved in this direction. In Odisha, women government employees up to the age of 55 can take an additional day of leave each month. Kerala grants menstrual leave to female trainees in ITIs and universities. Karnataka issued an order that entitles women in the public and private sectors up to the age of 52 to a day’s menstrual leave a month.
The Karnataka order has raised concerns about whether private establishments might be disincentivised from hiring women. This government order has been challenged in the High Court. Such concerns are not hypothetical. If employers perceive that hiring women comes with additional costs or administrative burdens, they may act on those perceptions—consciously or unconsciously—in ways that reduce women’s employment opportunities.
The Supreme Court’s suggestion that the government come up with a menstrual leave policy in consultation with stakeholders—as it had done in 2024 as well—reflects an understanding that these complex issues cannot be resolved through judicial fiat alone. They require dialogue, evidence, and careful policy design.
The Reality of Menstrual Pain
Many women face debilitating menstrual pain and conditions such as endometriosis, polycystic ovary syndrome (PCOS), and polycystic ovary disorder (PCOD). For these women, menstruation is not a minor inconvenience but a monthly experience of significant physical suffering. Acknowledging this reality is essential.
However, the Court’s reasoning rests on another, more universal reality: women are already disadvantaged at work, facing systemic barriers such as unequal pay, discriminatory hiring practices, and the “motherhood penalty” that affects career trajectories. In this context, mandatory menstrual leave could become a form of biological determinism—limiting opportunities, pay, and promotions for women.
The concern is not that menstrual leave is inherently problematic, but that in a labour market already stacked against women, it could become another reason for employers to prefer male candidates. If hiring a woman means potentially losing 12 days of work per year to menstrual leave (in addition to other leave entitlements), some employers might calculate that it is cheaper or more efficient to hire men.
International Experience
The international experience with menstrual leave policies offers cautionary lessons. In countries where such policies exist, they are either poorly enforced or are not opted for by most women.
In Spain, legislation enacted in 2023 and hailed as “historic… for feminist progress” saw few women exercising the right a year later. The gap between legal entitlement and actual uptake suggests that cultural factors, workplace dynamics, and fear of stigma may limit the policy’s effectiveness.
In Zambia, some women reported that the policy was being misused—not necessarily by the women for whom it was intended, but by others who saw an opportunity for additional leave. Such misuse can undermine the legitimacy of the policy and create backlash against the very women it is meant to help.
These international experiences underscore that designing effective menstrual leave policies is not simply a matter of passing legislation. It requires attention to implementation, enforcement, and the broader workplace culture.
The Indian Labour Market Context
In India, the female Labour Force Participation Rate (LFPR) has shown significant improvement in recent years, rising from 23.3 per cent in 2017-18 to 41.7 per cent in 2023-24. This increase has been driven largely by rural women entering work—often due to distress, insecure employment, and unpaid household work.
This context matters. Many of these women cannot afford to lose workdays. In informal employment, which accounts for the vast majority of women’s work, menstrual leave may be unenforceable. A woman working as a daily wage labourer, as a domestic help, or in a small unregistered enterprise has no mechanism to claim such leave and no protection against retaliation if she does.
A blanket menstrual leave policy that applies only to formal sector workers could create a two-tier system—protecting some women while leaving the majority untouched. It could also create incentives for employers to keep women in informal arrangements to avoid the costs of compliance.
The Way Forward
The Supreme Court’s suggestion—providing free sanitary products and medicines at workplaces and allowing time off under existing leave provisions—offers a more nuanced path forward. This approach acknowledges biological realities without creating new barriers to women’s participation.
Providing free sanitary products addresses a real need. Many women, particularly in low-income jobs, cannot afford adequate menstrual hygiene products. Making these products available at workplaces is a tangible benefit that does not carry the same potential for discrimination as additional leave entitlements.
Allowing time off under existing leave provisions—sick leave, casual leave, or special leave that counts against the same pool—avoids creating a separate category that could mark women as different or more costly. If women can use existing leave for menstrual pain, they are not singled out, and employers have no additional reason to prefer male candidates.
The Court’s emphasis on consultation with stakeholders is also crucial. Any policy affecting women’s work must be designed with input from women themselves—from different sectors, different regions, different types of employment. What works for a corporate professional in Mumbai may not work for a farm labourer in rural Bihar or a factory worker in Tamil Nadu.
The Broader Challenge
The menstrual leave debate illuminates a broader challenge in gender equality policy: how to address biological differences without reinforcing stereotypes or creating new disadvantages. This is not a problem with easy answers.
Policies that ignore biological realities can be insensitive and ineffective. Policies that overemphasise biological differences can become tools of discrimination. The art of policy design lies in finding the balance—acknowledging real needs while avoiding unintended consequences.
The Supreme Court’s refusal to mandate menstrual leave through judicial order, combined with its encouragement of voluntary state initiatives and stakeholder consultation, reflects an understanding of this complexity. It is not a rejection of the need to address menstrual pain but a recognition that the solution must be carefully designed to avoid harming the very women it seeks to help.
Conclusion: A Delicate Balance
The debate over menstrual leave is not going away. As more women enter the workforce, as awareness of conditions like endometriosis and PCOS grows, as the conversation about workplace inclusivity evolves, the demand for policies that accommodate women’s biological realities will only increase.
The challenge is to meet this demand in ways that do not inadvertently set back the cause of gender equality. This requires careful policy design, grounded in evidence and informed by the experiences of women themselves. It requires attention to implementation and enforcement. And it requires a willingness to learn from both successes and failures, in India and around the world.
The Supreme Court’s cautious approach—refusing to mandate a one-size-fits-all solution while encouraging voluntary initiatives and stakeholder consultation—offers a sensible path forward. The goal must be to acknowledge biological realities without creating new barriers to women’s participation, to provide support without inviting discrimination, to make workplaces more inclusive without making women more expensive to employ.
That is a delicate balance. But it is one worth striving for.
Q&A: Unpacking the Menstrual Leave Debate
Q1: What did the Supreme Court rule regarding menstrual leave?
A: On March 13, a two-judge Bench headed by Chief Justice Surya Kant refused to entertain a petition seeking a law providing mandatory menstrual leave for women workers and students. The Court cautioned that such mandatory leave could unintentionally hinder women’s careers and deny them “big responsibilities.” Instead, it encouraged “voluntary” initiatives by States and suggested the government develop a menstrual leave policy in consultation with stakeholders.
Q2: What menstrual leave policies currently exist in Indian states?
A: Several states have implemented menstrual leave policies. Odisha grants women government employees up to age 55 an additional day of leave monthly. Kerala provides menstrual leave to female trainees in ITIs and universities. Karnataka issued an order entitling women in public and private sectors up to age 52 to a day’s menstrual leave per month. The Karnataka order has been challenged in the High Court over concerns it may disincentivise private employers from hiring women.
Q3: What are the concerns about mandatory menstrual leave?
A: The primary concern is that mandatory menstrual leave could become a form of “biological determinism” that limits women’s opportunities, pay, and promotions. In a labour market where women already face systemic barriers including unequal pay and discriminatory hiring practices, additional mandated leave could make employers prefer male candidates. The Court noted that such policies might inadvertently hinder women’s careers rather than help them.
Q4: What does international experience teach about menstrual leave policies?
A: International experience offers cautionary lessons. In Spain, 2023 legislation hailed as “historic for feminist progress” saw few women exercising the right a year later. In Zambia, some women reported the policy was being misused. These examples suggest that even well-designed policies may face implementation challenges, cultural barriers, and risk of stigma that prevent women from actually using the leave they are entitled to.
Q5: What alternative approach does the Court suggest?
A: The Court suggests providing free sanitary products and medicines at workplaces and allowing time off under existing leave provisions (such as sick leave or casual leave). This approach acknowledges biological realities without creating new categories of leave that could mark women as different or more costly. It also emphasises stakeholder consultation to ensure any policy is designed with input from women across different sectors and employment types, recognising that one-size-fits-all solutions may not work.
