Supreme Court Orders UP-Gujarat Govts to Pay Compensation to Discriminated Transgender Teacher, Mandates Inclusive Policy Overhaul

New Delhi- The Supreme Court of India has issued a comprehensive set of directives to enforce the rights of transgender persons, condemning the "grossly apathetic attitude" and "administrative lethargy" exhibited by the Union and State governments. The verdict, spanning 176 pages, emerged from the case of Jane Kaushik, a transgender woman who faced discrimination and termination from two private schools, exposing the vast chasm between legislative promises and ground reality.

The bench of Justices J.B. Pardiwala and R. Mahadevan pulled no punches, stating that the Transgender Persons (Protection of Rights) Act, 2019, and its corresponding 2020 Rules have been "brutishly reduced to dead letters." The Court expressed profound dismay that despite the law being in place for over half a decade, its implementation has been superficial or non-existent, leaving the transgender community in a state of continued marginalization.

"The lethargy exhibited on part of the concerned Government has also led the non-state establishments to put the compliance... in a cold freeze. This abeyance of rights is a matter of serious concern," the judgment observed.

Holding both private entities and the state accountable, the Court awarded compensation to petitioner Jane Kaushik. The Second School in Jamnagar, Gujarat, was directed to pay Rs. 50,000 for its discriminatory act of revoking a job offer after discovering her gender identity. Furthermore, in a significant move, the Court also held the governments responsible for their failure to create support systems. The States of Uttar Pradesh and Gujarat were each directed to pay Rs. 50,000 to Kaushik for their "inaction and lethargy which resulted in lack of redressal mechanisms."

The Background of the Case

In Writ Petition (Civil) No. 1405 of 2023, Jane Kaushik alleged wrongful dismissal from two private schools in different states due to her gender identity. Having graduated from Rajasthan in 2016, she completed a Nursery Teacher Training diploma in Haryana in 2017 and a postgraduate degree in Political Science from Gujarat in 2018. In 2019, she underwent gender-affirming surgery and enrolled in a B.Ed. program at a university in Uttar Pradesh in 2020 to pursue her passion for teaching. In November 2022, she was selected as a Trained Graduate Teacher for English and Social Science at the first school (Respondent No. 5) in Uttar Pradesh.

However, after just eight days, she faced name-calling, harassment, and body-shaming from colleagues and students for not conforming to traditional female gender norms. Upon complaining to the principal on December 1, 2022, assurances were given, but on December 3, she was coerced into resigning after revealing her identity to a student. The school accepted the resignation citing poor performance in Social Science but later issued a Rs 1 crore defamation notice after media reports exposed her transgender identity.

At the second school (Respondent No. 4) in Jamnagar, Gujarat, she received an offer letter for an English teacher position on July 24, 2023, following video interviews. However, while en route, calls demanding identity proofs led to her denial of entry upon revelation of her transgender status. The school claimed it was an administrative decision based on comparing candidates' merits, but the court deemed it discrimination on gender identity grounds.

The bench noted that Section 9 explicitly prohibits discrimination even in recruitment. Prior to approaching the Supreme Court, Kaushik sought redress from the National Commission for Women (NCW), National Human Rights Commission (NHRC), and National Council for Transgender Persons (NCTP), but received no relief. The court viewed this as a failure of the grievance redressal mechanisms under the 2019 Act.

A Blueprint for Substantive Equality and Reasonable Accommodation

In the judgment, the bench expressed profound sorrow over the transgender community's plight. The court stated, "It has been more than half a decade since the Transgender Persons (Protection of Rights Act), 2019... However, the reality is that these rights remain only an empty formality." Referencing the NALSA (2014) judgment, it emphasized recognition of transgender persons as the 'Third Gender' with rights to equality and dignity, yet lamented the state's and private institutions' lethargy in implementation. The bench underscored reasonable accommodation as integral to substantive equality, declaring it a positive obligation beyond mere negative prohibitions, essential for mainstream integration of transgender individuals.

The bench also addressed 'omission' in discrimination law as discriminatory itself. Drawing on Sandra Fredman's four-dimensional framework, it outlined equality as redressing disadvantage, confronting stigma and stereotypes, enhancing voice and participation, and accommodating differences for structural change. The court remarked, "The transgender community faces problems ranging from social exclusion to discrimination, lack of educational facilities, unemployment, lack of medical facilities and so on." Criticizing the 2019 Act for diluting self-determination rights as envisioned in NALSA, the bench highlighted its over-reliance on medicalization. It bolstered the concept with precedents from Canada, the US, and the EU.

A pivotal section of the verdict critiques the 2019 Act's deficiencies. The bench noted the absence of effective grievance mechanisms, leaving transgender individuals vulnerable. Only 11 states have established Transgender Protection Cells, and most have not framed rules. On employment discrimination, it observed, "Transgender persons routinely face multiple forms of oppression, social exclusion and discrimination, especially in the field of... employment." The court supported indirect horizontal application of fundamental rights to private entities via the Act.

Stringent Directives for Immediate Compliance

To translate these principles into action, the Supreme Court issued a series of binding directives under Article 142 of the Constitution, giving the Union and States a three-month deadline for compliance.

Acknowledging the complex, multi-faceted nature of the issue, the Court constituted an 8-member Advisory Committee, chaired by former Delhi High Court Judge Justice Asha Menon, to draft a comprehensive equal opportunity policy and suggest legislative improvements. The committee, which includes prominent transgender rights activists like Akkai Padmashali and Grace Banu, as well as legal and medical experts, has been given a six-month timeline to submit its report. The Union of India is then expected to formulate its final policy within three months of receiving the committee's recommendations. The Court has initially sanctioned Rs. 10 lakh for the committee's operations.

The judgment also provided "meaningful suggestions" to foster a more inclusive environment. It recommended the creation of gender-neutral washrooms in all public and private establishments, updating all application forms to include a 'Third Gender' option, and sensitizing security personnel at airports and other public spaces. It urged educational bodies like the UGC and CBSE to adopt inclusive policies respecting students' self-identified gender. The Court also suggested that the National Medical Commission revamp its curriculum to include training on gender-affirming care.

In a scathing conclusion, the Court emphasized the state's constitutional obligation, stating, "The promise of equality under the Constitution is not a passive assurance but an active obligation, one that demands continuous vigilance and affirmative measures." By placing the issue under a continuing mandamus, the Supreme Court has ensured that its directives will be monitored, signaling a firm resolve to bridge the gap between law and life for India's transgender community.