Supreme Court: No Transgender Or Gender Diverse Person Is Bound To Take Permission From Employer To Undergo Surgical Intervention
The Supreme Court said that educational institutions are spaces which remain heavily binarised and one does not see transgender attendance and in fact, ensuring equal access to these institutions could prove to be a portal for transgender persons to lead a normal life.
Justice J.B. Pardiwala, Justice R. Mahadevan, Supreme Court
The Supreme Court held 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.
The Court held thus in 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 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.”
The Bench said that educational institutions are spaces which remain heavily binarised and one does not see transgender attendance and in fact, ensuring equal access to these institutions could prove to be a portal for transgender persons to lead a normal life.
Senior Advocate Yashraj Singh Deora appeared for the Petitioner, while AORs Mohit Negi and Atul Kumar appeared for the Respondents.
Court’s Observations
The Supreme Court in view of the facts of the case, noted, “Even if we were to give any weight to the argument advanced by the counsel for the Second School, it is pertinent to note that Section 9 prohibits discrimination even in respect of recruitment of a transgender person.”
The Court was of the view that a promise of equal protection of law would also ensure the promise of reasonable accommodation and it is the responsibility of the State to not deny the equal protection of law.
“It bears some reiteration that the expression “equality before law” in Article 14 promises formalistic sense of equality, whereas the expression “equal protection of law” guarantees substantive equality. In other words, the promise of Article 14 not only ensures equal treatment of everyone in the eyes of law, but also recognizes that those who are placed unequally would require positive measures to achieve equal protection of laws”, it added.
The Court emphasised that the right to participation is an embodiment of the constitutional vision of equal opportunity and dignity for all and the said right finds its roots in the right to freedom of expression and is shaped by the constitutional mandate of substantive equality with the end goal of affording the marginalized sections of the society a meaningful life in terms of Article 21 of the Constitution.
“The question as to whom the fundamental rights bind or constrain, would flow as a necessary consequence of the distinction underlying the ‘vertical’ and ‘horizontal’ effect of such rights. When fundamental rights are said to have a vertical effect, they apply only between the individual and the State, thereby, limiting how the State may act towards its citizens. In contradistinction, when rights are understood to have a horizontal effect, they extend to relationships between private individuals or entities, ensuring that constitutional values such as equality, dignity, and non-discrimination are also respected in private interactions, be it in employment, housing, education, or access to public spaces”, it remarked.
Court’s Directions
The Court further said that there are several provisions in both the 2019 Act and the Transgender Persons (Protection of Rights) Rules, 2020 respectively which remain as mere aspirations on paper despite the same being couched in a mandatory language. Thus, it issued the following directions –
(i) That the appellate authority before which a transgender person may exercise their right to appeal against the decision of the District Magistrate be designated as per Rule 9 of the 2020 Rules in every State/UT.
(ii) That a Welfare Board for the transgender persons as envisaged under Rule 10(1) of the 2020 Rules be created in every State/UT for the purpose protecting their rights and interests and also facilitating access to schemes and welfare measures.
(iii) That a Transgender Protection Cell under the charge of the District Magistrate in each District and under the Director General of Police of the State be set up in each State/UT in accordance with Rule 11(5) of the 2020 Rules, in order to monitor cases of offences against transgender persons and to ensure timely registration, investigation and prosecution of such offences.
(iv) That all States/UTs ensure that every “establishment” designates a complaint officer in accordance with Section 11 of the 2019 Act and Rule 13(1) of the 2020 Rules respectively.
(v) In the absence of a forum before which an objection can be raised by a transgender person, who is aggrieved with the decision taken by the head of the establishment under Rule 13(3) of the 2020 Rules, the State Human Rights Commission (SHRC) shall be designated as the appropriate authority to look into such objections.
(vi) A dedicated nation-wide toll-free helpline number be set up to address the contravention of any provision of the 2019 Act and the 2020 Rules respectively. If any such information regarding the violation of the provisions of the 2019 Act and 2020 Rules respectively, is received by the helpline, it shall immediately report such information to the Transgender Protection Cells under the charge of the District Magistrate in each District and under the Director General of Police of the State, as the case may require. This nation-wide toll-free helpline number would have a wider scope than the grievance redressal mechanism envisioned under Rule 13(5) of the 2020 Rules.
“The Union of India and all the State respectively shall ensure that the aforesaid directions are strictly complied with within a period of three months from the date of the pronouncement of this judgment”, it also directed.
Moreover, the Court directed the formation of an Advisory Committee tasked with formulating a practical policy draft and/or a report for the consideration of the Union of India, so as to further the transgender rights discourse and give effect to the beneficial provisions of the 2019 Act.
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)
