Transgender Persons Need Not Take Employer's Permission For Sex Reassignment Surgery Unless Work Is Based On Gender Identity: Supreme Court
The Supreme Court has held that transgender and gender-diverse persons are not required to seek permission from their employers to undergo gender affirmation or surgical intervention, asserting that the right to self-determination of gender is a matter of personal autonomy and dignity.
“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,” the Court observed.
The bench comprising Justice JB Pardiwala and Justice R Mahadevan clarified that while an employee may be required to give prior notice to the employer, it should only serve administrative purposes , such as updating official records and making necessary modifications in documents.
“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 Court added.
The Court made the observation in a writ petition filed by Jane Kaushik who alleged that she was twice terminated from teaching positions due to her gender identity, first from Uma Devi Children's Academy in Uttar Pradesh and later denied joining by JP Modi School in Gujarat.
The Court noted that Section 9 of the Transgender Persons (Protection of Rights Act) 2019 prohibits discrimination even in respect of recruitment of a transgender person.”
The Court observed that it has come across instances of persons who are in the workforce and wish to undergo Sex Reassignment Surgery(SRS) or change their documents in line with their self-perceived identity are forced to not undergo the same. They are put in fear of their employment being terminated, or they are asked to seek permission from superior authorities.
"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 Court observed.
According to the petition, Kaushik, who underwent gender affirmation surgery in 2019, was appointed as a Trained Graduate Teacher in English and Social Science at Uma Devi Children's Academy on November 22, 2022, and worked there for only eight days. She alleged that she was subjected to body shaming and ridicule by colleagues and students because she did not conform to traditional gender norms. After she complained to the Principal about the harassment, her transgender identity was disclosed to others in the school, following which she was allegedly forced to resign on December 3, 2022. The school, however, claimed that her termination was on account of poor performance and classroom indiscipline, citing an incident involving a student complaint and her alleged misconduct. The management also asserted that it had accommodated her gender identity by assigning female hostel accommodation and restroom access.
The controversy was widely reported in the media, prompting the school to issue a defamation notice to Kaushik. Though the school later offered to reappoint her on a conditional basis, she did not appear for the subsequent test scheduled in February 2023, and the position was filled thereafter.
Undeterred, Kaushik applied for a teaching post at JP Modi School in Jamnagar, Gujarat, in July 2023. She cleared the online interview and was issued an offer letter dated July 24, 2023. However, during the joining formalities, after she submitted documents reflecting her gender transition, the school allegedly refused to let her join duty and withdrew the offer without explanation. The institution later contended before the Court that her appointment was only provisional and subject to document verification and probation, and denied that her transgender identity was the reason for the decision.
The Supreme Court, on the facts, the Court concluded that Uma Devi Children's Academy had shown some efforts to accommodate the petitioner,placing her in women's accommodation and permitting use of female washrooms, and that, although the school's handling of incidents of body shaming was blameworthy, the evidence did not establish intentional discrimination by the school. The Court, however, criticised the school for not having the statutorily mandated grievance mechanism in place and for turning a blind eye to harassment.
By contrast, the Court found that JP Modi School's conduct in issuing an offer and then refusing to permit the petitioner to join after her transgender status became known was unexplained and, taken together with the circumstances, amounted to discrimination in recruitment prohibited by the Act and by Article 15. The Court also held the State culpable for omissive discrimination because Union and State education and social justice authorities, and the Central Board of Secondary Education, had failed to ensure implementation of the Act and Rules in schools. After reviewing precedent on the scope of Article 32 and the court's power to award public law compensation, the Court treated the case as an appropriate instance for monetary relief: it awarded Rs 50,000 to the petitioner from JP Modi School and directed the Union and the relevant State authorities to each pay Rs 50,000 by way of compensation for their failure to provide effective redressal mechanisms.
Also from the judgment - Transgender Persons Act Reduced To Dead Letter; Inaction Seems Intentional : Supreme Court Criticises Apathy Of Union & States
Case Details: JANE KAUSHIK v UNION OF INDIA AND ORS., W.P.(C) No. 1405/2023
Citation : 2025 LiveLaw (SC) 1018