Supreme Court directs state action, awards compensation and sets up advisory committee after finding systemic failure to protect transgender rights
A bench of Justices J.B. Pardiwala and R. Mahadevan heard a writ petition by Jane Kaushik, a transgender woman, challenging alleged discrimination in employment by two private schools and the Union and State governments’ failure to implement the Transgender Persons (Protection of Rights) Act, 2019 and the Transgender Persons (Protection of Rights) Rules, 2020. The Court addressed both the private-school actions and the larger statutory and administrative omissions that frustrated statutory protections.
The Court held that the statutory framework intended to operationalise transgender rights had largely failed in execution and that state omission itself constituted actionable discrimination. It found that the respondent no. 4 (the Second School) denied employment after learning the petitioner’s gender identity and awarded compensation; it did not find deliberate, proven discrimination by respondent no. 5 (the First School) on the record before it. The Court observed a pattern of “inaction” and “administrative lethargy” by the Union and many States and directed specific institutional measures, timelines and an advisory committee to remedy systemic gaps. The Court ordered monetary relief and issued continuing mandamus to ensure compliance.
The Court, in its reasoning, observed: The judgment emphasised that the 2019 Act must be implemented in letter and spirit, and that “the 2019 Act and the 2020 Rules respectively have been brutishly reduced to dead letters.” It also recorded the Court’s disquiet: “rights remain only an empty formality,” and cited authority that “reasonable accommodation is not a matter of charity but a fundamental right.”
Background
The petitioner completed higher studies and underwent gender-affirmative surgery; she alleged illegal termination by two private unaided schools within a year. At the First School she worked eight days; she alleged name-calling, body-shaming and harassment, and said she was forced to resign after a student learned her identity. The school produced contemporaneous communications, said it had accommodated her (female hostel placement, access to female washrooms) but complained of poor performance and misconduct; an NCW inquiry closed the matter as not well-founded. The parties exchanged offers and an assessment test was arranged; the petitioner did not attend the scheduled test and later cited mental-health issues. The First School later filled the vacancy.
At the Second School the petitioner alleged an offer letter was issued but she was denied entry/employment after her identity was revealed; the school said offers to other candidates meant selection was not final until document verification and probation. The Court found that denial of employment to the petitioner after disclosure of her gender identity amounted to discrimination under the 2019 Act.
The Court detailed systemic failures: many States had not framed rules under Section 22 of the Act; Transgender Protection Cells and complaint officers mandated by the 2020 Rules were not in place in most States; the Ministry of Social Justice and Empowerment informed Parliament that no employment policy was under consideration despite earlier Supreme Court directions; and grievance redressal mechanisms in establishments remained largely non‑functional. Applying constitutional doctrine on substantive equality, indirect discrimination and reasonable accommodation, the Court concluded omission by the State and discriminatory act by the Second School warranted relief.
Orders and directions included: compensation of Rs. 50,000 from the Second School to the petitioner; Rs. 50,000 each from the Union and the two State respondents (respondent nos.1–3) to the petitioner; Union to deposit Rs. 10 lakh to fund an Advisory Committee; formation of a multi‑member Advisory Committee to draft an equal‑opportunity policy and report within six months; directions to constitute welfare boards, Transgender Protection Cells, designate complaint officers and set up a national toll‑free helpline; timelines for compliance and a continuing mandamus to ensure substantial compliance.
Case Details: Case No.: Writ Petition (Civil) No. 1405 of 2023 Case Title: Jane Kaushik v. Union of India & Ors. Appearances: For the Petitioner(s): Mr. Yashraj Singh Deora, Senior Counsel For the Respondent(s): Mr. Mohit Negi, counsel for Respondent No.5 (First School); Mr. Atul Kumar, counsel for Respondent No.4 (Second School)