The Supreme Court of India has formed a dedicated committee to protect transgender rights, ensuring equal employment opportunities and inclusive medical care. This landmark move aims to secure a safer and more equitable future for the third gender.
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NEW DELHI: In a step toward equality and inclusivity, the Supreme Court of India has delivered a landmark judgment aimed at safeguarding the rights of transgender persons and reinforcing their dignity in society.
The Court has constituted a dedicated committee to facilitate equal opportunities for transgender individuals in workplaces, ensure access to inclusive medical care, and protect gender non-conforming persons. The committee will be headed by retired Justice Asha Menon and includes prominent transgender activists Grace Banu and Akai Padmashali, Gaurav Mandal, a representative from CLPR Bengaluru, Dr. Sanjay Sharma, with Senior Advocate Jayna Kothari as amicus curiae.
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Court’s Observation
The Bench observed:
“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.”
This clear articulation of personal autonomy reinforces the idea that gender identity is an integral part of one’s self-determination and dignity, not subject to employer approval or workplace control.
The Court also acknowledged that educational institutions remain heavily binarized spaces, often excluding transgender persons altogether. It noted that ensuring equal access to education can serve as a gateway for transgender persons to lead a dignified, fulfilling life.
In a profound interpretation of Article 14, the Court explained that:
“The expression ‘equality before law’ promises formal equality, whereas ‘equal protection of laws’ ensures substantive equality.”
This means that the Constitution not only guarantees identical treatment for all but also recognizes that those placed unequally require positive measures to achieve genuine equality.
The Court also emphasized that the right to participation, rooted in freedom of expression and substantive equality, is essential to ensure marginalized communities, including transgender persons, can live a meaningful life under Article 21.
In a notable clarification, the Court discussed the horizontal application of fundamental rights, highlighting that equality and non-discrimination must extend beyond State action and also apply to private relationships, including employment, housing, and education.
This understanding expands constitutional protection into everyday interactions, ensuring transgender persons are safeguarded not just from State oppression, but also from private prejudice.
Highlights of the Judgment
The Court emphasized the importance of institutional safeguards and equal treatment for transgender persons.
“The committee will look at equal opportunities, inclusive medical care, protection for gender non-conforming persons,”
the Bench stated.
Protection Against Discrimination:
Transgender individuals must be provided fair opportunities in employment and other social spheres without facing discrimination based on gender identity.
Inclusive Medical Care:
Institutions are urged to ensure transgender persons receive healthcare that acknowledges and respects their identity.
Equal Opportunities in Employment:
The Court observed,
“We have awarded compensation to the petitioner considering how her services were terminated. We hope the future of the third gender is secure with this.”
The Case
This landmark ruling arose from the case of a transwoman teacher whose appointments at private schools in Uttar Pradesh and Gujarat were terminated because of her gender identity. Although she had been issued letters of appointment, she was allowed to teach for only six days in Uttar Pradesh and was not allowed to join in Gujarat. Recognizing this injustice, the Court awarded her compensation, signaling zero tolerance for discrimination.
The Committee’s Mandate
The committee will:
- Examine measures to ensure equal opportunities in workplaces.
- Advise on inclusive medical and healthcare policies.
- Protect gender non-conforming individuals from discrimination and social exclusion.
- Guide institutions that do not have their own policies, “until the Centre brings a comprehensive policy.”
The Court also ordered the formation of an Advisory Committee to draft a national Equal Opportunity Policy for transgender persons. In addition, it directed the Respondent institutions to pay ₹50,000 each as compensation to the Petitioner within four weeks.
Court’s Directions to Government and States
Recognizing that many provisions under the Transgender Persons (Protection of Rights) Act, 2019 and the 2020 Rules remain unimplemented, the Supreme Court issued a series of binding directions:
- Appellate Authority: Every State/UT must designate an appellate authority under Rule 9 of the 2020 Rules.
- Welfare Board: Establish a Welfare Board in every State/UT under Rule 10(1) to protect transgender rights and facilitate welfare measures.
- Transgender Protection Cells: Create dedicated cells under the District Magistrate and DGP to monitor offences against transgender persons.
- Complaint Officer: Every establishment must designate a complaint officer under Section 11 of the Act.
- State Human Rights Commissions (SHRCs): To act as appellate authorities for transgender persons aggrieved by decisions of establishment heads.
- Nationwide Toll-Free Helpline: Launch a 24×7 helpline to report violations of the 2019 Act and 2020 Rules, with direct coordination with Protection Cells.
The Court directed the Union and all States/UTs to implement these measures within three months.
The Bench of Justices JB Pardiwala and KV Viswanathan noted, “We hope the future of the third gender is secure with this,” reflecting the Court’s intent to create lasting protections for transgender individuals. By framing clear guidelines, the judgment ensures that transgender persons can live with dignity, access opportunities without fear of discrimination, and receive the protections every citizen deserves.
Case Title:
JANE KAUSHIK V UNION OF INDIA AND ORS.
W.P.(C) No. 1405/2023
READ JUDGMENT