Right in Question:
Whether the termination or denial of employment of a transgender woman by private educational institutions amounts to discrimination, and whether the government has complied with its obligations to effectively implement the Transgender Persons (Protection of Rights) Act, 2019?
Facts:
The Petitioner, a qualified transgender woman teacher, was appointed in a private school in Uttar Pradesh, after having disclosed her gender identity to the authorities. Within eight days of work, she faced harassment and stigma from staff and students due to her gender identity and was compelled to resign. The school justified the resignation claiming poor performance by the Petitioner and deficiencies in her attitude. Subsequently, she was selected for a teaching position in a private school in Gujarat. However, once the school obtained her identity documents, the appointment offer was withdrawn, and she was denied employment before she could start work. The Petitioner approached various authorities for redress, since the statutory grievance mechanisms under the Transgender Persons Act had not been implemented, however was unable to secure any relief.
Court Decision and Reasoning:
The Court traced the evolution of transgender rights from NALSA v. Union of India through to the enactment of the TG Act in 2019 and its Rules in 2020 and found that the rights guaranteed to transgender persons remain “empty formalities.” It held that the inaction of the Union and State Governments had allowed non-State entities to disregard statutory obligations, resulting in continued discrimination and marginalization.
The Court drew from disability jurisprudence to hold that the principle of “reasonable accommodation” captures the positive obligations of both State and non-State actors to provide additional support to vulnerable persons to facilitate effective participation in society. It held that reasonable accommodation was a facet of substantive equality under Article 14, and must necessarily extend beyond disability to address discrimination on all grounds, including gender identity.
Next, the Court examined the substantive equality framework through an analysis of Indian constitutional jurisprudence, holding that the four dimensions of the framework – (1) redressing disadvantage; (2) addressing stigma and stereotypes; (3) enhancing voice and participation; and (4) accommodating difference for structural change, were already recognised within our constitutional rights. It established that the Constitution demands not just formal equality but transformative action, and the State must dismantle systemic barriers to enable meaningful participation of the transgender community.
The Court also articulated the concept of “omissive discrimination”, where State inaction or negligence themselves amount to discrimination. It found the 2019 Act to be weakly enforced, lacking mechanisms for its effective materialization. Incorporating Sandra Fredman’s four-dimensional framework of substantive equality, the Court found that the existing legal regime had failed to meet all four objectives.
The Court also examined the liability of private establishments under the TG Act. It affirmed the horizontal application of fundamental rights, noting that the 2019 Act extends duties not only to the State but also to “establishments,” including private entities. Sections 9 to 11 and Rules 12 and 13 require all employers to prevent discrimination, ensure facilities, and appoint Complaint Officers. However, widespread non-compliance persisted due to State inaction.
Applying these principles to the facts, the Court found no deliberate discrimination by the First School, though it acknowledged harassment and the absence of a Complaint Officer. The failure was attributed primarily to the State’s inaction. In contrast, the Second School was found to have discriminated against Ms. Kaushik based on her gender identity by denying her employment after discovering her transgender status. The Court held that even recruitment decisions fall within the scope of Section 9 of the 2019 Act, which prohibits discrimination in employment.
On compensation, the Court invoked its powers under Articles 32 and 142, reaffirming precedents like Rudul Sah v. State of Bihar, Nilabati Behera v. State of Orissa, and Jeeja Ghosh v. Union of India, to hold that monetary compensation is a valid public law remedy for violations of fundamental rights, distinct from private damages. It concluded that the Second School had discriminated based on gender identity and that the Union and State Governments were equally liable for their omissive discrimination and failure to implement statutory redress mechanisms.
Consequently, the Court directed the Union of India and the concerned State Governments to each pay 50,000 to the petitioner as compensation for their inaction. The Second School was directed to pay an additional 50,000 for discriminatory denial of employment. These payments were to be made within four weeks.
Exercising powers under Article 142, the Court issued detailed directions for implementation of the 2019 Act and 2020 Rules, including the appointment of Complaint Officers in all establishments (Rule 13), establishment of Transgender Protection Cells (Rule 11(5)), creation of Welfare Boards (Rule 10), designation of appellate authorities under Rule 9, and establishment of a nationwide toll-free helpline, all within three months.
Further, the Court directed the formation of an Advisory Committee chaired by Justice Asha Menon (Retd.), comprising trans-rights activists, academicians, and legal experts, to draft a comprehensive policy within six months on equal opportunity, reasonable accommodation, grievance redressal, name and gender change processes, and inclusive healthcare.
Finally, the Court directed the Union of India to formulate a national Equal Opportunity Policy within three months of receiving the Committee’s report, to be enforceable across establishments lacking their own policies. A continuing mandamus was issued, requiring the Union to monitor compliance and report back after six months.
In conclusion, the Supreme Court recognized both active discrimination (by the Second School) and omissive discrimination (by the Union and State authorities), reaffirming the horizontal applicability of fundamental rights and the positive constitutional duty to secure substantive equality and dignity for transgender persons.
Significance:
This is a landmark judgment, in which government apathy stemming from stigma and prejudice against transgender persons was strictly called out as violative of their rights to equality, livelihood and dignity. Further, in establishing the transformative objective of substantive equality it sets out to operationalize the Transgender Persons (Protection of Rights) Act, 2019 in letter and spirit. The judgment reiterates the role of non-state actors in securing the fundamental rights of transgender persons and strengthens the framework of reasonable accommodation. The ruling marks a shift in transgender rights from mere recognition to practical enforcement of rights and remedies.