Transgender Persons Also Have A Right To Be Reasonably Accommodated: Supreme Court Directs Authorities To Pay Compensation Over Discrimination

While granting compensation to a transgender employee, the Supreme Court has held that transgender persons also have a right to be reasonably accommodated.

The Court was hearing a Writ Petition preferred by a transgender woman who was aggrieved by the discrimination and humiliation she faced in employment which allegedly resulted in her termination from two different schools of different States in the span of a year.

The two-Judge Bench comprising Justice J.B. Pardiwala and Justice R. Mahadevan observed, “… we may with a view to obviate any confusion, clarify at the very threshold, that in no way do we say that gender identity by itself is to be equated with disability. That is not the intention of this Court at all. In fact, the discrimination which is associated with a particular gender identity is a societal disability, i.e., the inability of the society at large to break free from its regressive norms. Furthermore, a lot of jurisprudence has evolved around taking the beneficial jurisprudence of disability rights to the broader themes of human rights.. It is with this intention that we hold that transgender persons also have a right to be reasonably accommodated. In the subsequent paragraphs we have discussed the international scenario.”

The Bench emphasised that the appropriate Government and the ‘establishments’, have a positive obligation to ensure that there is no discrimination against transgender persons, through affirmative action.

“There is no gainsaying that the principle of reasonable accommodation is implied in the 2019 Act, yet we are of the considered opinion that explicit recognition of the same would enable better implementation of the positive obligations placed on the appropriate Government and the establishments respectively, to ensure that the benefits of the 2019 Act are truly reaped by transgender persons. This is because unless we adopt a purposive interpretation to beneficial statutes which are riddled with inadequate implementation measures, we run the risk of leaving the statute toothless and the rights enshrined therein inutile”, it added.

Senior Advocate Yashraj Singh Deora appeared for the Petitioner, while AORs Mohit Negi and Atul Kumar appeared for the Respondents.

Facts of the Case

The Petitioner completed her undergraduate studies sometime in 2016 from Rajasthan, and was the recipient of a First Division. In 2017, she completed her Advanced Diploma in Nursery Teacher Training from Haryana and in 2018, she completed her post-graduate studies in Political Science from Gujarat. Alongside her studies, in 2019, she underwent her Gender Affirmative Surgery.

By the year 2020, she was enrolled in a university located in the State of Uttar Pradesh for a Bachelors in Education, to further pursue a career in the profession of teaching. She claimed that she was illegally terminated from two private schools. She approached multiple forums but received no effective redressal. Hence, the case was before the Apex Court.

Court’s Observations

The Supreme Court in the above regard, remarked, “It has been more than half a decade since the Transgender Persons (Protection of Rights Act), 2019 (the “2019 Act”), came to be enacted and it has been more than a decade since this Court rendered the judgment in National Legal Services Authority v. Union of India (“NALSA). … However, the question whether the transgender persons are living a life with dignity continues to beg for an answer. One may get to read a lot about their rights in the statute books, but the reality is that these rights remain only an empty formality.”

The Court culled out the following key principles –

a. Article 32 has a very wide ambit, and its power is not merely injunctive, i.e., to prevent violations, but is also remedial, i.e., to address infringements that have already occurred.

b. One of the key remedies the Court can provide is monetary compensation. It is crucial to note that compensation awarded under Article 32 is a public law remedy and is fundamentally different from a claim for damages in private law.

c. The Court does not grant compensation in every case involving the violation of a fundamental right.

d. The grant of compensation is especially important when the Petitioners are from disadvantaged sections of society, the “have nots”.

e. Courts should exercise their power to grant compensation in petitions under Article 32 with caution, taking into account the specific facts and circumstances of each case.

The Court said that it can grant compensation to Petitioners seeking relief through a Writ Petition under Article 32, on the condition that the Court considers it to be an ‘appropriate case’.

“In such view of the matter, we are inclined to award compensation of Rs 50,000/- to the Petitioner, payable by the Second School. Moreover, we also direct the Union of India to pay a sum of Rs 50,000/- to the Petitioner by way of compensation for failure to provide the relevant mechanism which disabled her to seek appropriate redressal. Likewise, the Respondent Nos. 2 and 3-States respectively are also directed to pay a sum of Rs 50,000/- each to the Petitioner”, it directed.

Shortcomings of the 2019 Act and the Administrative Lethargy

The Court highlighted few shortcomings of the Transgender Persons (Protection of Rights) Act, 2019 as under –

• Problems Faced by the Transgender Community in Day-to-Day Life: It is a matter of grave constitutional concern that members of the transgender community continue to encounter systemic barriers in the ordinary conduct of their lives.

i) Surveillance and Hyper-Vigilance

ii) Discrimination in Employment and Professional Spaces

iii) Practical Denial of Legal Recognition and Identity Documentation

iv) Exclusion from Educational Institutions

v) Social and Political Exclusion

vi) Safety, Protection and Social Prejudice

Suggestions

The Court further gave the following suggestions –

• The MoSJE (Ministry of Social Justice and Empowerment) may consider simplifying and streamlining the process of issuance of identification cards to the transgender persons.

• The Court urged the Union of India, particularly the MoSJE, together with all State Governments, to earnestly take proactive steps in ensuring adequate funding for the effective functioning of these homes and to further expand their reach, with the aim of establishing such shelters in every district.

• Gender-neutral or gender-diverse washrooms be provided within the premises of all public as-well as private establishments.

• All establishments, including workplaces, may endeavour towards cultivating an environment that is gender-inclusive and conducive to the free expression of identity by transgender persons, without fear or stigma.

• All personnel at these establishments, particularly the employers, be urged to maintain strict confidentiality with regard to the gender identity of transgender employees.

• All establishments under the 2019 Act, especially the educational institutions and workplaces, must also strive to update their forms for admissions and examinations, especially at the application and entry level, to include and accommodate the category of ‘Third Gender’, to ensure the maximum participation of transgender persons in such institutions.

• All educational institutions may ensure that they respect the gender identity and right to recreation and participation of transgender persons.

• Raising awareness about the realities of the plight of transgender persons can further help in promoting a safe, conducive and inclusive environment for transgender people.

• The University Grants Commission (UGC), the Central Board of Secondary Education (CBSE), and all State Education Boards may earnestly consider adopting comprehensive policies in institutions under their recognition or affiliation to promote inclusion and equality for transgender, intersex, and gender non-conforming students.

• Security check-ins at airports, metro stations, bus stands, sea ports, workplaces, shopping complexes, malls, cinema halls, and other public spaces may create special gender diverse screening points for transgender persons along with the sensitization of security personnels at such security-checks.

• In view of Section 15(d) of the 2019 Act, the National Medical Commission may consolidate their efforts and come up with a revamped course curriculum with pragmatic pedagogic approach towards equipping the medical students and doctors with knowledge pertaining to gender reaffirming surgeries and specific health issues faced by transgender persons.

• The Ministry of Home Affairs, Government of India, may also consider formulating and issuing specific directions to ensure that no transwoman is arrested without the presence of a lady officer.

Accordingly, the Apex Court disposed of the Writ Petition, directed the Respondents to pay Rs. 50,000/- each as compensation to the Petitioner within 4 weeks, and directed the Centre to bring forth its own Equal Opportunity Policy in place, within three months from the date the Committee submits its report and/or policy draft.

Cause Title- Jane Kaushik v. Union of India & Ors. (Neutral Citation: 2025 INSC 1248)

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