The Supreme Court on Friday expressed concern about the “grossly apathetic attitude” shown by the Centre and the state governments towards integrating transgender persons into the mainstream and formed a committee to formulate a national equal opportunity policy, The Hindu reported.

Justices JB Pardiwala and R Mahadevan were hearing a petition filed by a transwoman who alleged that she had been discriminated against and terminated from her services from a school in Uttar Pradesh in December 2022 and another one in Gujarat in July 2023 because of her gender identity.

The court directed the Union government, the Uttar Pradesh and Gujarat governments, and the school in Gujarat, to pay Rs 50,000 each to the petitioner for discriminating against her, PTI reported.

The bench observed that the 2019 Rights of Transgender Persons Protection of Rights Act and the 2020 Rights of Transgender Persons Protection of Rights Rules had been “brutishly reduced to dead letters”.

It added that the transgender community continued to face discrimination and marginalisation, with a scarcity of healthcare, economic opportunities and non-inclusive educational policies adding to their struggles.

The court also referred to its 2014 judgement in the National Legal Services Authority v Union of India matter, or NALSA case, which had formally created the “third gender” category for transgenders that recognised them as a socially and economically backward class.

The judgement had issued directions to the government to ensure transgender community gets job quotas, admission in educational institutions, health benefits, separate public toilets and a host of other safeguards against discrimination.

On Friday, the bench noted that it had been more than 10 years since the 2014 judgement, which had further prompted the Union government to bring in place the statute in 2019, PTI reported.

However, the transgender community still had to approach the courts to find redressal of their grievances, it added.

The court further said that despite the enforcement of the 2019 Act and the subsequent rules in 2020, the transgender community faced entry barriers in employment and professional spaces, PTI reported.

“Systemic barriers like the absence of the option of a ‘third gender’ make the entry of transgender persons in the organised workforce impossible,” the news agency quoted the bench as saying. “Even if they are hired, they are expected to keep their identity hidden, which is grossly violative of one’s right to dignity under Article 21.”

The court constituted an advisory committee headed by Asha Menon, a former Delhi High Court judge, to address the concerns of the community.

“The issue at hand requires a more incisive study by a dedicated committee, well-equipped to recommend a viable equal opportunity policy that ought to be introduced by the Union and state governments as well as provide insightful suggestions on other aspects affecting the lives of the transgender community,” the bench said.

The committee was asked to submit a report along with a draft policy within six months, PTI reported.

The court also directed the Union government 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”.

Court suggestions

In its 177-page verdict on Friday, the bench also made several suggestions, PTI reported. It noted that there were several provisions in the 2019 Act and the 2020 rules that remained mere aspirations on paper despite it being couched in a mandatory language.

The court said that a welfare board for transgender persons, as envisaged under the rules, be created in every state and Union Territory to protect their rights and also facilitate access to schemes and welfare measures.

It also ordered the setting up of a Transgender Protection Cell under the charge of the district magistrate in each district and under the director general of police in states and Union Territories to monitor the prosecution of cases of offences against transgender persons, PTI reported.

A dedicated nationwide toll-free helpline number should also be set up to address the contravention of any provision of the 2019 law, it added.

“The Union of India and all the states 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,” PTI quoted the bench as saying.

Critics have said that the 2019 Rights of Transgender Persons Protection of Rights Act and the subsequent rules fail to fulfil the provisions of the 2014 NALSA judgement.

Under the Act, a transgender person must apply to the District Magistrate for a certificate of identity indicating their gender as “transgender”. If a transgender person undergoes surgery to change their gender either as a male or female, a revised certificate may be obtained.

Bureaucratic red tape, insensitive verification processes and the absence of systemic accountability make it nearly impossible for many trans individuals to secure essential identity documents such as the transgender ID card, which is also a crucial document for accessing healthcare, employment and education.

This is a direct violation of the NALSA judgement, which affirmed the right to self-determination of gender as male, female or transgender without the mandate of any medical certificate or sex-reassignment surgery.

Critics have also noted that the Act categorises trans persons as legally distinct from cisgender people in ways that are unreasonable and unconstitutional. For instance, it provides a maximum punishment of two years for crimes against trans people, which may include rape. On the other hand, the rape of a cisgender woman is punishable with life in prison.

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