Supreme Court: While considering a writ petition highlighting discrimination faced by the petitioner due to gender identity as a transgender person in employment, which allegedly resulted in the petitioner’s termination from two different schools situated in two different States in the span of a year; the Division Bench of J.B Pardiwala and R. Mahadevan, JJ*., dishearteningly noted the there are several provisions in both the Transgender Persons (Protection of Rights Act), 2019 (2019 Act) and the Transgender Persons (Protection of Rights) Rules, 2020 (2020 Rules) respectively which remain as mere aspirations on paper despite the same being couched in a mandatory language.
Thus, the Court issued following directions in exercise its plenary powers under Article 142 of the Constitution:
-
The appellate authority before which a transgender person may exercise their right to appeal against the decision of the District Magistrate be designated as per Rule 9 of the 2020 Rules in every State/UT.
-
A Welfare Board for the transgender persons as envisaged under Rule 10(1) of the 2020 Rules be created in every State/UT for the purpose protecting their rights and interests and also facilitating access to schemes and welfare measures.
-
A Transgender Protection Cell under the charge of the District Magistrate in each District and under the Director General of Police of the State be set up in each State/UT in accordance with Rule 11(5) of the 2020 Rules, in order to monitor cases of offences against transgender persons and to ensure timely registration, investigation and prosecution of such offences.
-
All States/UTs ensure that every “establishment” designates a complaint officer in accordance with Section 11 of the 2019 Act and Rule 13(1) of the 2020 Rules respectively.
-
In the absence of a forum before which an objection can be raised by a transgender person, who is aggrieved with the decision taken by the head of the establishment under Rule 13(3) of the 2020 Rules, the State Human Rights Commission (SHRC) shall be designated as the appropriate authority to look into such objections.
-
A dedicated nation-wide toll-free helpline number be set up to address the contravention of any provision of the 2019 Act and the 2020 Rules respectively. If any such information regarding the violation of the provisions of the 2019 Act and 2020 Rules respectively, is received by the helpline, it shall immediately report such information to the Transgender Protection Cells under the charge of the District Magistrate in each District and under the Director General of Police of the State, as the case may require. This nation-wide toll-free helpline number would have a wider scope than the grievance redressal mechanism envisioned under Rule 13(5) of the 2020 Rules.
The Court directed the constitution of an Advisory Committee to prepare a comprehensive report and/or policy draft addressing- Formulation of an Equal Opportunity Policy; Study of the 2019 Act and 2020 Rules; Reasonable Accommodation; Grievance Redressal Mechanism; Gender and Name Change; Inclusive Medical Care for Transgender and Gender Diverse Persons; Protections for Gender Non-Conforming and Gender Diverse Persons
Background:
The petitioner stated that she was discriminated for being a transgender person which allegedly resulted in her termination from 2 schools within a single year. The Petitioner completed her undergraduate studies sometime in 2016 from Rajasthan and was the recipient of a First Division. In 2017, she completed her Advanced Diploma in Nursery Teacher Training from Haryana and in 2018, she completed her post-graduate studies in Political Science from Gujarat. Alongside her studies, in 2019, she underwent her Gender Affirmative Surgery. By the year 2020, she was enrolled in a university located in the State of Uttar Pradesh for a Bachelors in Education, to further pursue a career in the noble profession of teaching. The petitioner claimed to have been illegally terminated from two private schools and alleged that she was subjected to name-calling, harassment and body shaming by her colleagues and students for her inability to conform to the gender norms of a ‘female’ body.
The petitioner stated that she was forced to resign on account of her identity as a transgender person.
Issues for determination:
-
Whether a positive obligation is cast upon the Union of India and the States respectively, under the Constitution of India and the 2019 Act along with the Rules thereunder to prevent discrimination against transgender persons?
-
Whether the inaction and omissions on part of the Respondents 1 to 3 respectively led to discrimination against the petitioner?
-
Whether the actions and inactions of the First School and the Second School respectively have led to discrimination against the petitioner on the ground of her gender identity?
-
Entitlement to compensation
Court’s Assessment:
Perusing the case, the Court admitted that present litigation is an eye-opener for one and all and calls for an immediate attention to the plight of the transgender community in the country. The right against discrimination of transgender and gender diverse persons has long been recognised by the Court ever since the judgment in NALSA v. Union of India, (2014) 5 SCC 438. The Court pointed out that the Union of India and the States need to do a lot more to create mechanisms for the transgender persons to translate their rights into reality. “The community continues to face discrimination and marginalization, with a scarcity of healthcare, economic opportunities and non-inclusive educational policies adding to their struggles”.
The Court observed that it appears that the 2019 Act and the 2020 Rules which were enacted as a step towards eradicating discrimination against transpersons, have been brutishly reduced to dead letters. The Union of India and the States have exhibited a grossly apathetic attitude towards the transgender community, by defacing the lived realities of this community with their inaction. “Considering the protraction of this inaction, such an attitude cannot be reasonably considered to be inadvertent or accidental; it appears intentional and seems to stem from deep-rooted societal stigma and the lack of bureaucratic will to effectuate the provisions of the 2019 Act and the 2020 Rules respectively”.
On the issue of Reasonable Accommodation in the Framework of the 2019 Act, the Court the appropriate Government and the “establishments”, have a positive obligation to ensure that there is no discrimination against transgender persons, through affirmative action. There is no gainsaying that the principle of reasonable accommodation is implied in the 2019 Act, yet explicit recognition of the same would enable better implementation of the positive obligations placed on the appropriate Government and the establishments respectively, to ensure that the benefits of the 2019 Act are truly reaped by transgender persons.
Addressing Omission in Discrimination Law, the Court stated that there legislation already in place which recognises and attempts to remedy discrimination against transgender persons. Nonetheless, it is unfortunate that the legislation, i.e., the 2019 Act, is dotted with shortcomings and pitfalls. “The glaring reality remains that, as a statute, it plainly recognises the rights of transgender persons without creating any mechanisms for how the rights can be materialized”. These shortcomings in themselves are an instance of omissive discrimination and in teeth of the principle of substantive equality provided in the Constitution.
Taking note of the stigma and stereotypes faced by the transpersons, the Court emphasised that drawing on stereotypes and stigma associated with the transgender community is impermissible for the purpose of formulating laws, rules and policies as it would be squarely opposed to the principle of substantive equality. Thus, a formalistic view of prohibition of discrimination without taking into account how the stigmas and stereotypes associated with the transgender community or sexual minorities would play out in actual implementation in reality, is rejected by Article 15 of the Constitution. This is because the Constitution envisages equality not only in letter but also in spirit, and stereotyped application of provisions mandating prohibition of discrimination is no different from a provision itself being discriminatory. Therefore, Article 15 seeks to give effect to equality not only facially but also substantively. “What is discernible from the aforesaid is that stigma and stereotypes that form the basis of popular morality cannot be the considerations underlying measures to address discrimination”. Seemingly neutral policies may result in discriminatory results if such policies are viewed and implemented with a stereotypical approach that is detrimental to the interests of a particular section of the society.
Addressing Omission by Legislature resulting in violation of the Right against Discrimination, the Court pointed out that marginalisation of transgender persons is often perpetuated not only by overt acts of discrimination, but also through the silence and gaps in the 2019 Act. In the present case, the appropriate Government failed in reviewing the existing educational and employment schemes to include transgender persons, to protect their rights and interests and facilitate their access to such schemes and welfare measures. The appropriate Government also failed in its duty to formulate educational schemes in a manner that is sensitive to the needs of transgender persons and free from stigma or discrimination. Most importantly, the appropriate Government has not taken any step to prohibit discrimination to ensure equitable access to social and public spaces. Furthermore, the appropriate Government was also under the obligation to sensitize the teachers and faculty in the Respondent Schools respectively.
Addressing the discrimination faced by the petitioner in the schools, the Court stated that though private parties are dutybound under the 2019 Act and 2020 Rules to uphold and promote the fundamental rights that these enactments seek to horizontally apply, yet it cannot, as a matter of course, be expected from private institutions to comply with provisions that do not find strict implementation by the State. In the present case, the State of Uttar Pradesh, the Union and State Ministry of Education as well as the Union and State Ministry of Social Justice, and the Central Board of Secondary Education, ought to have ensured that the provisions of the 2019 Act and the Rules thereto are abided by. By failing to do so, the State has committed omissive discrimination against the members of the transgender community.
Shortcomings of the 2019 Act and the Administrative Lethargy:
The Court highlighted the legislative language fails to provide clear guidance on addressing the specific challenges faced by transgender community, including their specialized healthcare requirements, restricted employment opportunities, and widespread societal stigma from the gender-binary majority. The Act is also criticized for diluting the sanctity of the right to self-determination as envisioned in NALSA (supra).
The Court pointed out that that members of the transgender community continue to encounter systemic barriers in the ordinary conduct of their lives. Their daily existence is marred by a pattern of discrimination that operates across domains: beginning with the hurdles pertaining to recognition in official records, extending to harassment at public spaces, exclusion from educational and employment opportunities, and summing up in social ostracism and violence. “Despite the authoritative pronouncement in NALSA (supra), the reality of the transgender person remains one of stigma. The workplaces question their capability, educational institutions hesitate to include them and the law, though well-intentioned, falters in its implementation”. Discrimination against the transgender community persists at workplaces. Though the 2019 Act has enshrined provisions for job security, the community is rarely accepted in the mainstream, when it comes to substantive access to jobs.
The Court pointed out that one of the biggest hurdles that the transgender persons face is with regard to obtaining a certificate of identity as provided for in the 2019 Act read with the 2020 Rules. Even though the framework recognises the right of the transgender persons to change their names and gender in their documents, there are several practical hurdles involved. Documentary inconsistency can pose a lot of hurdles in claiming social welfare benefits or even in exercising other rights. “We think that this one aspect where the States and its authorities need to strengthen their efforts. The State also has a positive obligation to sensitise its authorities who are responsible for making such changes in documents towards the realities of transgender identity”.
The Court identified that that persons who are in the workforce and wish to undergo Sex Reassignment Surgery (SRS) or change their documents in line with their self-perceived identity are forced to not undergo the same. They are put in fear of their employment being terminated, or they are asked to seek permission from superior authorities. The Court said that We have no hesitation in saying that no transgender or gender diverse person is bound to take permission from their employer to undergo surgical intervention, unless the nature of their work is such that it is based on one’s gender identity. Of course, the employers must be given a reasonable notice, but that should purely be to make the requisite changes and modifications in documents, etc.
Court’s Suggestions:
Terming the petition as an eye opener for one and all and therefore, the Court deemed it necessary to bring to light certain deficiencies in the 2019 Act which require immediate attention of the Parliament and the Union of India:
-
One of the issues arising under the 2019 Act is the accessibility and effective availment of the benefits it guarantees. While the Act takes significant steps towards securing a slew of benefits for the transgender persons, these benefits are made dependent on the possession of an identification card. In this context, the Ministry of Social Justice & Empowerment (MoSJE) may consider simplifying and streamlining the process of issuance of identification cards to the transgender persons.
-
The Court stated that while setting up of ‘Garima Grehs,’ the State-funded and operated shelter homes for transgender persons, established to provide a safe and inclusive living environment across the country, is commendable, merely setting up these shelters is insufficient. The Court urged the Union of India, particularly the MoSJE, together with all State Governments, to earnestly take proactive steps in ensuring adequate funding for the effective functioning of these homes and to further expand their reach, with the aim of establishing such shelters in every district.
-
One of the significant challenges faced by the transgender community, particularly within public institutions such as educational establishments, hospitals, transport hubs and government offices, is the lack of effective measures ensuring reasonable accommodation. In this regard, it is, therefore, suggested that:
-
Gender-neutral or gender-diverse washrooms be provided within the premises of all public as-well as private establishments.
-
All establishments, including workplaces, may endeavour towards cultivating an environment that is gender-inclusive and conducive to the free expression of identity by transgender persons, without fear or stigma.
-
All personnel at these establishments, particularly the employers, be urged to maintain strict confidentiality with regard to the gender identity of transgender employees.
-
All establishments under the 2019 Act, especially the educational institutions and workplaces, must also strive to update their forms for admissions and examinations, especially at the application and entry level, to include and accommodate the category of ‘Third Gender’, to ensure the maximum participation of transgender persons in such institutions.
-
All educational institutions may ensure that they respect the gender identity and right to recreation and participation of transgender persons. They may be inclusively accommodated in the academic, cultural and physical environment of the institution.
-
-
Raising awareness about the realities of the plight of transgender persons can further help in promoting a safe, conducive and inclusive environment for transgender people. Schools, particularly play a crucial role in this regard, as it helps create awareness for generations to come by shaping the perceptions of students from a very young age. It is, therefore, suggested that the Ministry of Education undertake comprehensive programmes aimed at fostering inclusivity and sensitisation towards gender diversity. An inclusive curriculum following the model given by the National Council of Educational Research and Training (NCERT) in its training material on ‘Inclusion of Transgender Children in School Education: Concerns and Roadmap’ (2021) may be devised. The curriculum must ideally foster understanding and respect, along with promoting a positive representation and recognition of transgender persons.
-
The University Grants Commission (UGC), the Central Board of Secondary Education (CBSE), and all State Education Boards may earnestly consider adopting comprehensive policies in institutions under their recognition or affiliation to promote inclusion and equality for transgender, intersex, and gender non-conforming students. Such policies may, inter alia, provide for the modification of application forms, records, and registers to reflect the chosen gender identity; ensure equal access to opportunities in admission, learning, evaluation, extracurricular activities, and student representation; promote the use of gender-sensitive language and recognition of preferred names and pronouns; and facilitate participation in sports and other activities in accordance with students’ self-identified gender.
-
Security check-ins at airports, metro stations, bus stands, sea ports, workplaces, shopping complexes, malls, cinema halls, and other public spaces may create special gender diverse screening points for transgender persons along with the sensitization of security personnels at such security-checks.
-
In view of Section 15(d) of the 2019 Act, the National Medical Commission may consolidate their efforts and come up with a revamped course curriculum with pragmatic pedagogic approach towards equipping the medical students and doctors with knowledge pertaining to gender reaffirming surgeries and specific health issues faced by transgender persons.
-
The Ministry of Home Affairs, Government of India, may also consider formulating and issuing specific directions to ensure that no transwoman is arrested without the presence of a lady officer.
Relief to the Petitioner:
The Respondents were directed to pay Rs 50,000 each by way of compensation to the petitioner for their inaction and lethargy which resulted in lack of redressal mechanisms for the petitioner to avail.
[Jane Kaushik v. Union of INdia, Writ Petition (Civil) No. 1405 of 2023, decided on 17-10-2025]
*Judgment pronounced by Justice J.B. Pardiwala and Justice R. Mahadevan
Advocates who appeared in this case :
For Petitioner(s): Mr. Yashraj Singh Deora, Sr. Adv. Mr. Harshvardhan Jha, Adv. Mrs. Yugandhara Pawar Jha, AOR Mr. Priyesh Srivastava, Adv. Mr. Aman Pathak, Adv. Mr. Sumeet Mishra, Adv.
For Respondent(s): Ms. Aishwarya Bhati, A.S.G. Mr. Santosh Kr., Adv. Mr. Durga Dutt, Adv. Mr. Noor Rampal, Adv. Mr. Varun Chugh, Adv. Mr. B.l.n.shivani, Adv. Mr. Ishaan Sharma, Adv. Dr. N. Visakamurthy, AOR Ms. Deepanwita Priyanka, AOR Mr. Vishwa Pal Singh, AOR Mr. Sanjay Jain, Adv Mr. Ashish Pandey, Adv. Mr. Mukesh Kumar, Adv. Mr. Srikant Singh, Adv. Mr. Akash Gothwal, Adv. Mr. Suraj Pal Singh Mina, Adv. Mr. Akash, Adv. Ms. Aastha Mehta, Adv. Ms. Prerana Mohapatra, Adv. Ms. Prina Sharma, Adv. Mr. Atul Kumar, AOR Mr. Mohit Negi, AOR
Buy Constitution of India HERE
