On October 17th, the Supreme Court addressed the Centre and States regarding the need for improved implementation of laws protecting transgender rights and affirmed by the 2014 NALSA ruling.
On October 17th, the Supreme Court expressed concerns regarding the Centre and States' inefficient implementation of legal provisions protecting transgender rights. In 2014, the National legal Services Authority (NALSA) ruling legally recognized transgender individuals as the 'third gender' and cemented their fundamental rights under Articles 14, 15, 16, 19, and 21 of the Constitution. The Court emphasized the need for improved implementation of existing legal frameworks and protections for transgender persons.
Issues faced by Transgender People
The Supreme Court acted on the petition of Ms. Jane Kaushik, a transgender teacher who faced systemic discrimination in Uttar Pradesh and Gujarat. She was forced to resign in 2022 and later denied a job in 2023 due to her gender identity.
During her tenure, she endured harassment, body shaming, and threats. The Court directed the Centre, Uttar Pradesh, Gujarat, and the Gujarat school to each pay ₹50,000 as a judicial penalty for failing to implement mechanisms to prevent such discrimination against transgender individuals.
Ms. Kaushik's experience brought to light several persistent challenges faced by transgender persons:
- Workplace discrimination: Denial of employment opportunities and forced resignations based on gender identity, despite legal protections under the Transgender Persons Act, 2019.
- Harassment and hostile work environment: Transgenders face deep-rooted societal stigma, verbal abuse, body shaming, and intimidation in professional settings.
- Lack of institutional support mechanisms: Negligence of grievance redressal systems such as the National Council for Transgender Persons (NCTP) and absence of Transgender Protection Cells to be established under the 2019 Act.
- Non-implementation of anti-discrimination provisions: Despite clear legal prohibitions against discrimination in employment, educational institutions and government bodies, adequate safeguards have not been created.
- Accessibility of benefits: The 2019 Act links availing of benefits to possession of an identification card, making the process complex and may result in exclusion of beneficiaries.
The Court noted that apart from Kerala and Odisha, which have undertaken comprehensive policy measures, most states exhibited "serious inertia" in implementing mandated protections.
Legal Landscape: From NALSA to the 2019 Act
NALSA ruling 2014
To understand the reasons behind the persistence of discrimination endured by transgenders, we need to trace the evolution of transgender rights jurisprudence in India. The National Legal Services Authority (NALSA) v. Union of India (2014) judgment established foundational principles that were revolutionary and clear in their mandates.
The Core Directives included:
- Recognition of the right to self-identify one's gender as an "innate perception," prohibiting mandatory medical examinations for gender recognition
- Direction to Union and State Governments to recognize transgender persons as a "socially and educationally backward class" entitled to reservations in educational institutions and public employment
- Mandate to establish social welfare schemes addressing healthcare, education, and employment gaps
Transgender Persons (Protection of Rights) Act, 2019
The Transgender Persons (Protection of Rights) Act, 2019 and its subsequent Rules (2020) were enacted to provide a legal framework for ensuring protection and welfare of transgender persons in India. The Act defines transgender persons as individuals whose gender identity does not align with their assigned gender at birth and recognizes their right to self-perceived gender identity.
It prohibits discrimination in education, employment, and residence among others, and mandates the establishment of a National Council for Transgender Persons. The Act requires certification through the District Magistrate, and obtaining a revised certificate for gender change requires proof of medical intervention.
However, implementation challenges persist. Many states have not established Transgender Protection Cells, and linking benefits to identification cards has created accessibility issues. The Court has noted a significant gap between legislative provisions and ground-level implementation, affecting transgender persons' access to their constitutional rights.
Judicial Directives: Enforcing Accountability Through Article 142
Invoking its plenary powers under Article 142 of the Constitution, the Supreme Court issued a continuing mandamus with specific, time-bound directives designed to break the cycle of institutional inaction.
All States and Union Territories must:
- Designate Appellate Authorities to hear appeals against District Magistrate orders regarding identity certificates
- Establish Transgender Welfare Boards to monitor welfare schemes and safeguard rights
- Create Transgender Protection Cells at district and state levels under the supervision of District Magistrates and Directors General of Police respectively to monitor offenses and ensure prompt legal action
- Launch a nationwide toll-free helpline to report violations of the 2019 Act
- Ensure all establishments appoint Complaint Officers as mandated under the law
Justice Asha Menon Advisory Committee
The Court constituted a committee headed by retired Delhi High Court Judge Justice Asha Menon to formulate a comprehensive Equal Opportunity Policy (EOP) within six months. The committee's composition includes Transgender rights activists, Legal scholars and medical experts. It also includes Ex-officio members comprising Secretaries from key Ministries including Social Justice and Empowerment, Women and Child Development, Health and Family Welfare, Education, Labour and Employment, Personnel and Training, and Legal Affairs
By mandating participation of high-level bureaucratic leadership alongside experienced activists, the Court has structured the committee to address the identified "lack of bureaucratic will." The Union Government must give due consideration and take a firm policy decision on the EOP within three months of receiving the committee's report.
Learning from Progressive Initiatives and State Models
While condemning administrative inefficiency, the Court acknowledged that certain states have demonstrated what genuine commitment looks like.
Kerala's Holistic Welfare Approach includes financial assistance of up to Rs. 2 lakh for Sex Reassignment Surgery, Rs. 50,000 for self-employment initiatives, and educational schemes like SABHALAM (for professional courses) and SAMANWAYA (for continuing education), alongside skill development programs.
Odisha's "Sweekruti" (Acceptance) Program focuses on healthcare, scholarships, legal aid, and skill training, supported by a multi-departmental Transgender Welfare Board ensuring cross-sectoral policy integration.
Also, on a national level, initiatives like the National Portal for Transgender Persons, ‘Garima Greh’ shelter homes and the SMILE (Support for Marginalized Individuals for Livelihood and Enterprise) Scheme strive towards comprehensive welfare and rehabilitation of transgenders.
Conclusion
The Supreme Court condemned the failure of governance and deep-rooted social stigma, directing creation of a policy-drafting body with strict deadlines and enforcement mechanisms.
This move compels the executive to secure substantive rights for transgender citizens. The real test lies in taking proactive initiative in policy strengthening and implementation. The Justice Asha Menon Committee’s mandate for formulating the Equal Opportunity Policy is a step in the right direction. It will ensure dignity and substantive equality are finally realized in lived experience.
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Supreme Court Transgender Rights Ruling FAQs
1. When was the Transgender Persons (Protection of Rights) Act passed?
Ans. 2019
2. When was the NALSA judgment for transgender rights in India passed?
Ans. 2014
3. What penalty did the Supreme Court impose for transgender discrimination?
Ans. Compensation of ₹50,000 from each respondent (Centre, UP, Gujarat, and school).
4. Which states have implemented transgender welfare policies effectively?
Ans. Kerala and Odisha.
5. What constitutional article did the Supreme Court invoke for transgender directives?
Ans. Article 142.