In a petition filed by a transgender woman before the Supreme Court, a Division Bench of Justice J.B. Pardiwala and Justice R. Mahadevan perused the statutory provisions and directed the respondents to pay compensation to the transgender woman for being discriminated against.
The petitioner appeared before the Court aggrieved by the discrimination and humiliation that she faced in her employment as a transgender person, which led to her being terminated from two different schools in two different states within a year.
Along with her studies, the petitioner underwent her Gender Affirmative Surgery. In 2020, she was enrolled in a University in Uttar Pradesh to attain a degree of Bachelor’s in Education to pursue a career in teaching. The petitioner alleged to have been illegally terminated from respondent school 4 (second school) and respondent school 5 (first school).
On 22-11-2022, the petitioner received an appointment letter from the first school where she worked for a total of 8 days. It is alleged that she was subjected to name-calling, harassment, and body shaming by her colleagues and students since she did not conform to the gender norms of a female body. On 1-12-2022, the petitioner informed the principal about the harassment, who assured her that the management would take care of the matter. However, on 3-12-2022, the petitioner was forced to resign because she revealed her identity to one of the students at school. On 5-12-2022, the petitioner received an email acknowledging the resignation, and it was also mentioned that she was terminated for her poor performance in Social Sciences.
The petitioner’s termination was reported in the newspapers, and a defamation notice was sent by the first school claiming Rs. 1 crore as compensation. In a press note issued by the principal, it was mentioned that the school was unaware of the petitioner’s identity. After having failed to secure any job, the petitioner wrote to the first school for re-hiring her, subject to an assessment test. Even though a test was scheduled, the petitioner did not show up, but later inquired regarding vacancies, to which the first school replied that there were no open positions.
The first school submitted an affidavit stating that the candidature of the petitioner was initially rejected, but she was employed after repeated insistence. It was mentioned that since the petitioner’s documents suggested that she underwent a gender affirmation surgery, she was treated as a biological woman in all manners possible. The affidavit also stated that the petitioner was unable to meet the teaching standards and included incidents of misbehavior as well as temperamental issues.
On 25-08-2023, the petitioner sent an application in response to an advertisement by the second school, and she was eventually offered a position vide letter 24-07-2023. Upon being asked for identity proofs from the petitioner, she informed the authorities that she was a transgender woman, and thereafter, the second school denied her employment without receiving any formal termination letter.
The second school submitted an affidavit stating that the offer letter made it clear that all relevant documents would have to be submitted and that her employment would be confirmed only after completion of the probation period.
The Court noted that the petitioner had approached different forums for redressal of her grievances since the mechanism mandated by the 2019 Act was not operational. Still, none of the forums came to her aid. On 8-12-2022, the National Commission for Women (NCW) took suo motu cognizance of the allegations. Thereafter, the petitioner filed a criminal complaint against the first school. The petitioner then approached the National Council for Transgender Persons (NCTP), but did not receive any reply. Lastly, the petitioner filed a complaint with the National Human Rights Commission (NHRC), which was closed by stating that the NCW was looking into the issue.
The NCW’s Inquiry Committee concluded that no case of discrimination was made out and that the allegations leveled by the petitioner were not well-founded. The petitioner contended before the Court that the lack of enforcement and implementation of the 2019 Act and the 2020 Rules had led to discrimination.
It was also contended that the petitioner was subjected to both direct and indirect manifestations of discrimination and that the acts of both schools deprived her of earning a livelihood, which amounted to sentencing her to ‘economic death’.
The Court framed the following issues for consideration:
• 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 the part of the respondents nos. 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 grounds of her gender identity?
• If the answer to issues (b) and (c) is in the affirmative, whether the petitioner is entitled to any compensation?
The Court observed that there had either been a superficial or a complete lack of implementation of measures to ensure the prevention of discrimination against transgender persons in various spheres of life, both public and private. It was stated that the right against discrimination of transgender and gender diverse persons had long been recognized ever since the judgment in National Legal Services Authority v. Union of India (2014) 5 SCC 438.
The Court noted that the 2019 Act sought to prevent several issues, including discrimination, lack of educational facilities, and unemployment faced by transgender persons that came as a consequence of the recognition and normalization of the traditional binary understanding of gender, by both the State and society at large.
The Court said that the Transgender Persons (Protection of Rights) Act, 2019, and the Transgender Persons (Protection of Rights) Rules, 2020, have been brutally reduced to dead letters as the Union as well as the States had exhibited a grossly apathetic attitude towards the transgender community by their inaction.
Further, the Court noted that despite the clear directions of this Court in Shanavi Ponnusamy v. Ministry of Civil Aviation 2022 SCC OnLine SC 1581, the Union had feigned ignorance and chosen not to act on said directions. It was also stated that after more than six months of the directions passed by this Court, the official stance of the Ministry of Social Justice and Empowerment was that there was no need for any policy, as the 2019 Act provided for appropriate remedies. This, the Court said, was a blatant disregard for Chapter IV of the 2019 Act.
The Court opined that even though the principle of reasonable accommodation is implied in the 2019 Act, explicit recognition of the same would help enable the positive obligations placed on the Government and establishments to ensure that transgender persons truly reap the benefits of the 2019 Act.
The Court discussed the international scenario and held that transgender persons also have a right to be reasonably accommodated. Further, while addressing the omission in law, the Court said that recognizing and remedying such gaps is crucial for realizing substantive equality. It was clarified that ensuring a viable framework of reasonable accommodation is a positive obligation, and failing to fulfill it also amounts to discrimination.
Further, the Court said that the concept of substantive equality is contained in the spirit of Article 14 of the Constitution, and the Constitution has placed a positive obligation upon the State to redress disadvantages faced by the marginalized sections of society. The Court also discussed the concept of ‘relative legislative omission’ and clarified that the Constitution does not permit judicial inaction when dealing with violations of fundamental rights that stem from legislative omission.
The Court said that the appropriate government had failed in its duty to formulate education schemes that are sensitive to the needs of transgender persons and are free from stigma or discrimination, and had not taken any steps to ensure equitable access to social and public spaces. Further, the Court highlighted the steps that the appropriate government, as well as both the schools, ought to have taken as per the statutes.
The Court noted that the first school attempted to meet the needs of the petitioner as best as possible, and said that the conduct of the school authorities was not sufficient to establish intentional discrimination by the school. Further, it said that though private parties are duty-bound under the 2019 Act and 2020 Rules, it cannot be expected from private institutions to comply with the provisions that the State does not strictly implement.
The Court did not find any force in the arguments of the second school regarding the absence of a contract of employment. It was also stated that since the petitioner was denied employment only when she revealed her identity as a transgender woman, it reflected mala fide intention on the part of the school.
Regarding the relief sought by the petitioner, the Court discussed various cases and held that this Court could grant compensation in writ petitions under Article 32 on the condition that the Court finds it to be an ‘appropriate case’. Thus, the Court awarded compensation of Rs. 50,000/- payable by the second school and Rs. 50,000/- payable by the Union. The State authorities (respondents 2 and 3) were also directed to pay Rs. 50,000/- each to the petitioner.
The Court then moved on to highlight the shortcomings of the 2019 Act and also discussed the problems faced by the transgender community in day-to-day life. Further, the Court suggested that the MoSJE consider simplifying and streamlining the process of issuance of ID cards to transgender persons. The Court then urged the Union, along with all State governments, to take proactive steps in ensuring adequate funding for the functioning of ‘Garima Grehs’.
The Court suggested that gender-neutral or gender-diverse washrooms be provided within all public and private establishments. All establishments were urged to be gender-inclusive and for all personnel to maintain strict confidentiality regarding the gender identity of transgender employees. All establishments under the 2019 Act were urged to update their forms to include the category of ‘Third Gender’ and to accommodate transgender persons in the academic, cultural, and physical environment.
The Ministry of Education was suggested to have programs aimed at fostering inclusivity and sensitization towards gender diversity and to devise a curriculum on ‘Inclusion of Transgender Children in School Education: Concerns and Roadmap’ (2021) as per NCERT’s model. The UGC, CBSE, and other State Education Boards were asked to consider adopting comprehensive policies.
Security check-ins at all public spaces were suggested to create a gender diverse screening point, and the National Medical Commission was asked to come up with a curriculum with a pragmatic approach to equip medical students with knowledge regarding gender reaffirming surgeries and health issues faced by transgender persons. Lastly, the Ministry of Home Affairs was asked to issue specific directions so that no transgender woman is arrested without the presence of a lady officer.
The Court directed the Union and the State to comply with the following directions within three months:
• The appellate authority before which a transgender person may exercise their right to appeal against the decision of the District Magistrate shall 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 protecting their rights and to facilitate access to schemes and welfare measures.
• A Transgender Protection Cell should be set up in accordance with Rule 11(5) of the 2020 Rules, to monitor cases of offences against transgender persons and to ensure timely registration, investigation, and prosecution of such offences.
• All States/UTs must 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 nationwide toll-free helpline number should be set up to address the contravention of any provision of the 2019 Act and the 2020 Rules, respectively.
Further, the Court directed the formation of an advisory committee to formulate a practical policy draft and/or a report for the Union to consider and to further the transgender rights discourse while giving effect to the beneficial provisions of the 2019 Act. The MoSJE was directed to fund the said committee. The Union was directed to deposit Rs. 10,00,000/- with the Registry within two weeks for the initial operations of the Committee.
Thus, the petition was disposed of.
