The Supreme Court of India, in a significant judgment delivered on October 17, 2025, has castigated the Union and State governments for their “grossly apathetic attitude” and “lethargy” in implementing the Transgender Persons (Protection of Rights) Act, 2019. The bench of Justices J.B. Pardiwala and R. Mahadevan, hearing a writ petition filed by a transgender teacher who faced termination from two different schools, held that the failure to establish a functional grievance redressal mechanism amounts to “omissive discrimination.”
The Court awarded compensation to the petitioner, Ms. Jane Kaushik, for the discrimination she faced and for the State’s failure to protect her rights. It issued a slew of mandatory, time-bound directions to the central and state governments to enforce the 2019 Act and constituted a high-level advisory committee to formulate a comprehensive equal opportunity policy for the transgender community.
Background of the Case
The petitioner, Ms. Jane Kaushik, a transgender woman, approached the Supreme Court under Article 32 of the Constitution after being terminated from two private schools within a year.
Her first employment was as a Trained Graduate Teacher at “the First School” (respondent no. 5) in November 2022. She alleged that during her eight days of work, she was subjected to “name-calling, harassment and body shaming.” After she revealed her transgender identity to a student, she claimed she was forced to resign under threat of her salary being withheld. The school, however, cited “poor performance” as the reason for her termination.
Ms. Kaushik’s second employment opportunity was with “the Second School” (respondent no. 4) in Gujarat, which offered her a position as an English teacher in July 2023. However, the petitioner alleged that after the school authorities learned she was a transgender woman while she was travelling to join, they denied her employment and entry into the school premises. The school contended that the offer letter did not guarantee employment and that the decision was an “administrative action.”
Before approaching the Supreme Court, Ms. Kaushik sought redress from various bodies, including the National Commission for Women (NCW), the National Council for Transgender Persons (NCTP), and the National Human Rights Commission (NHRC), but failed to get effective relief. The NCW’s Inquiry Committee had closed the inquiry, concluding that “no case of discrimination was made out” against the First School.
Submissions of the Parties
On behalf of the Petitioner: Senior Counsel Mr. Yashraj Singh Deora argued that the petitioner faced discrimination due to the State’s failure to implement the 2019 Act and the Transgender Persons (Protection of Rights) Rules, 2020. He submitted that the schools violated Sections 3 and 9 of the Act, which prohibit discrimination in employment. Citing the “but for” test from the U.S. Supreme Court case Bostock v. Clayton County, he argued that “but for” her gender identity, Ms. Kaushik would not have been terminated. He contended that fundamental rights under Articles 15, 17, 19, and 21 have horizontal application and are enforceable against private entities, and sought compensation from both the schools and the State.
On behalf of the Schools: The First School, represented by Mr. Mohit Negi, argued that the Court should not undertake a fact-finding exercise into disputed claims under Article 32 and that the matter was a private employment contract. The Second School, through its counsel Mr. Atul Kumar, submitted that an “offer letter” does not create a contract of service and that the writ jurisdiction could not be invoked to enforce it.
The Court’s Analysis and Findings
The Supreme Court described the litigation as an “eye-opener” and expressed its pain that despite the 2019 Act, the rights of transgender persons “remain only an empty formality.”
On Omissive Discrimination and State Inaction: The Court found that the 2019 Act and 2020 Rules have been “brutishly reduced to dead letters” due to the “grossly apathetic attitude” of the Union and State governments. The judgment noted, “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.”
The Court introduced the concept of “relative legislative omission,” stating that discrimination can result from “institutional legislative inaction.” It held that the legislature’s duty does not end with enacting a right but extends to creating mechanisms for its enforcement. The failure of the State respondents to formulate policies, establish Transgender Protection Cells, and ensure the appointment of Complaint Officers in establishments constituted a violation of the petitioner’s rights.
On Reasonable Accommodation: The judgment significantly expanded the doctrine of “reasonable accommodation” beyond disability law, holding that it is implicit in the 2019 Act and a positive obligation on the State and private establishments. The Court clarified that this does not equate gender identity with disability but recognizes that “the discrimination which is associated with a particular gender identity is a societal disability.” It observed, “Reasonable accommodation is not a matter of charity but a fundamental right flowing from Articles 14, 16, and 21 of our Constitution.”
Findings against the Schools: While the Court found that the First School’s conduct was not “unimpeachable,” it concluded there was insufficient evidence to establish “intentional discrimination.” However, it held the Second School’s actions to be discriminatory. The judgment states, “The only explanation that comes across as reasonable to us is that the school came to know of the fact that the petitioner is a transgender woman and consequently, denied her employment on the said ground.”
On Compensation under Writ Jurisdiction: Reaffirming its power under Article 32, the Court held that it could award monetary compensation in public law for the violation of fundamental rights. Citing precedents like Rudul Sah v. State of Bihar and Nilabati Behera v. State of Orissa, the Court ruled that this was an “appropriate case” for compensation, as a “right, without a remedy, is no right at all.”
Final Decision and Directions
The Supreme Court disposed of the petition with the following key directions:
- Compensation: The Union of India, the State of Uttar Pradesh, and the State of Gujarat are each directed to pay Rs. 50,000 as compensation to the petitioner for their inaction. The Second School is directed to pay an additional Rs. 50,000 to the petitioner. The payments are to be made within four weeks.
- Implementation of 2019 Act: The Court issued a continuing mandamus and directed the Union and all States/UTs to, within three months, establish:
- Welfare Boards for transgender persons.
- Transgender Protection Cells in each district under the District Magistrate and at the state level under the Director General of Police.
- Ensure every establishment designates a Complaint Officer as mandated by Section 11 of the 2019 Act.
- Designate the State Human Rights Commission (SHRC) as the authority to hear objections against decisions of the head of an establishment.
- Set up a dedicated nationwide toll-free helpline.
- Advisory Committee: The Court constituted an eight-member Advisory Committee, chaired by former Delhi High Court Judge, Hon’ble Ms. Justice Asha Menon, and including prominent trans-rights activists and legal experts. The committee is tasked with formulating a comprehensive draft for an Equal Opportunity Policy within six months. The Union Government is directed to formulate its own policy within three months of receiving the committee’s report.
- Initial Funding: The Union of India is directed to deposit Rs. 10 Lakhs with the Supreme Court Registry within two weeks for the committee’s initial operations.
The Court has scheduled the matter to be listed again after six months to review compliance and examine the committee’s report.
