Transgender Persons Act Reduced To Dead Letter; Inaction Seems Intentional : Supreme Court Criticises Apathy Of Union & States

The Supreme Court today(October 17) noted with disappointment that the Rights of Transgender Persons (Protection of Rights) Act, 2019 and Rights of Transgender Persons (Protection of Rights) Rules, 2020 has been reduced to dead letter due to the "grossly apathetic attitude" of the Union Government and the States towards transgender persons.

A bench comprising Justice JB Pardiwala and Justice R Mahadevan made these observations in a writ petition filed by Jane Kaushik, a transgender woman, who was discriminated and terminated from her services from two educational institutions because of her gender-identity. The Court today awarded her compensation.

In deploring how despite the 2014 NALSA judgment recognising rights of transgender persons in every aspect, the provisions of the 2019 Act and the 2020 Rules have not been intentionally effectuated due to deep-rooted societal stigma and lack of bureaucratic will, the Court said :

"Unfortunately, it appears that the 2019 Act and the 2020 Rules respectively have been brutishly reduced to dead letters. The Union of India and the States have exhibited a grossly apathetic attitude towards the transgender community, by defacing the lived realities of this community with their inaction. Considering the protraction of this inaction, such an attitude cannot be reasonably considered to be inadvertent or accidental; it appears intentional and seems to stem from deep-rooted societal stigma and the lack of bureaucratic will to effectuate the provisions of the 2019 Act and the 2020 Rules respectively."

Further, the Court also noted that the Union has violated its order wherein it was directed that they form a policy framework to address the obstacles faced by transgender community in accessing employment opportunities.

Court's direction for formulating policy in avenues of employment ignored

The Court noted that in Shavani Ponnusamy, on September 8, 2022, it directed the Union Government to devise a policy framework in consultation with the National Council of Transgender Persons (NCTP) formed under Section 16 of the 2019 Act, to reasonable accommodate transgender persons in the avenues of employment under establishments covered by the provisions of the 2019 Act.

"Despite the clear directions of this Court in the order dated 08.09.2022 referred to above, the Union of India has feigned ignorance and has chosen not to act on these directions. Their inaction is, therefore, demonstrably continuous."

It added that a response was sought of the Ministry of Social Justice and Empowerment in regards to formulating a policy for providing them suitable jobs in government organisations(a &b) and whether transgender persons face discrimination in private sectors(c).

But the response received from Minister of State for Social Justice and Empowerment, Pratima Bhoumik, on March 29, 2023 was: "(a) & (b) Currently there is no such matter under consideration as the Transgender Persons (Protection of Rights) Act 2019 provide appropriate provisions for welfare of Transgender Persons in the field of employment, education, health and other related areas. (c) Ministry has not received any such information.”

"After more than six months of the directions of this Court vide its order dated 08.09.2022, the official stance of the MoSJE was that there was no policy to reasonably accommodate transgender persons in employment which was under consideration. Effectively, the stance of the Union Government was that there is altogether no need for any policy, as of now, as the 2019 Act provides for appropriate remedies. Such a stance is in blatant disregard to the mandate of Chapter IV of the 2019 Act which obligates the appropriate Government to take steps in order to secure the full and effective participation of transgender persons and their inclusion in society," the Court remarked.

The Court also stated that States except West Bengal, Tamil Nadu, New Delhi have not brough forth any rules along the lines of the 2020 Rules. And except for Orissa and Kerala, respectively, no States have undertaken comprehensive policy measures. All this has led to reinforcing discriminatory against the community.

Pitfalls of the 2019 Act

Further, the Court observed that the 2019 Act has shortcoming in terms of the fact that it lacks mechanism for how the rights can be realised. It notes that this is a case of legislative omission resulting in discrimination.

"Nonetheless, it is unfortunate that the legislation, i.e., the 2019 Act, is dotted with shortcomings and pitfalls. The glaring reality remains that, as a statute, it plainly recognises the rights of transgender persons without creating any mechanisms for how the rights can be materialized. These shortcomings in themselves are an instance of omissive discrimination and in teeth of the principle of substantive equality provided in the Constitution.

The Court has issued following directions under Article 142:

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

These directions have to be complied within 3 months.

In light of these observations, the Court has issued some meaningful suggestions:

1. The MoSJE may consider simplifying and streamlining the process of issuance of identification cards to the transgender persons.

2. We urge, 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(Garima Grehs) and to further expand their reach, with the aim of establishing such shelters in every district.

3. Reasonable accommodation:

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

b. 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.

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

d. 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.

e. All educational institutions may ensure that they respect the gender identity and right to recreation and participation of transgender persons. They may be inclusively accommodated in the academic, cultural and physical environment of the institution.

4. It is, therefore, suggested that the Ministry of Education undertake comprehensive programmes aimed at fostering inclusivity and sensitisation towards gender diversity. An inclusive curriculum following the model given by the National Council of Educational Research and Training (NCERT) in its training material on 'Inclusion of Transgender Children in School Education: Concerns and Roadmap' (2021) may be devised.

The curriculum must ideally foster understanding and respect, along with promoting a positive representation and recognition of transgender persons.

5. 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.

Such policies may, inter alia, provide for the modification of application forms, records, and registers to reflect the chosen gender identity; ensure equal access to opportunities in admission, learning, evaluation, extracurricular activities, and student representation; promote the use of gender-sensitive language and recognition of preferred names and pronouns; and facilitate participation in sports and other activities in accordance with students' self-identified gender.

6. 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.

7. 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.

8. 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.

Case Details: JANE KAUSHIK v UNION OF INDIA AND ORS., W.P.(C) No. 1405/2023