Landmark Ruling On The Implementational Vacuum Of Laws On Protection Of Transgender People

On October 17, 2025, the Supreme Court of India ("Court") delivered scathing remarks against the State and the private sector for not taking appropriate measures to ensure protections and equal opportunity in employment to transgender persons. The Court's views in Jane Kaushik v Union of India,¹ transcends the immediate facts of employment discrimination to expose systemic failures in protecting transgender persons' rights.

The concerned transgender person ("petitioner") underwent gender affirmation surgery in 2019 while pursuing her educational qualifications. In November 2022, she secured employment as a teacher at a private school in Uttar Pradesh, only to face harassment and body-shaming from colleagues and students such that within eight (8) days, she was forced to resign after her transgender identity became known to students. The school later claimed her termination was due to poor performance, yet contradictorily expressed willingness to rehire her for teaching another subject ("first school"). In July 2023, a second school in Gujarat extended her an offer letter, only to later revoke the letter and deny her employment upon learning of her gender identity during document verification process.

Pursuant to this, the petitioner approached various State-level bodies/agencies such as the National Commission of Women and the National Council for Transgender Persons due to the absence of any grievance redressal mechanisms at the schools as was required under the law. However, this was to no avail and the petitioner did not get adequate redressal, which led to her invoking the writ jurisdiction of the Court eventually. This case is set apart from ordinary employment disputes due to the fact that the Court has highlighted not only inaction on part of private organisations but also the Government authorities for the absence of implementation of any effective mechanisms for complaints as envisioned by the Transgender Persons (Protection of Rights) Act, 2019 and Transgender Persons (Protection of Rights) Rules, 2020 ("Act and Rules") and neglect of other anti-discriminatory provisions.

The Doctrine of Omissive Discrimination

This judgment also discusses the transformative principle of Indian anti-discrimination jurisprudence: the recognition of omissive discrimination. The Court articulated that discrimination occurs not merely through affirmative acts of exclusion but also through inaction (i.e., the failure of State machinery to create the institutional mechanisms necessary for rights to transition from text to reality). This conceptual framework draws from substantive equality theory, which the Court sought to apply into a four-dimensional approach: 'redressing disadvantage', 'addressing stigma and stereotypes', 'enhancing voice and participation', and 'accommodating difference to achieve structural changes.

The Court's analysis of omissive discrimination operates on two levels. First, it identifies absolute legislative omission, i.e., the complete absence of a legal framework to address discrimination. Second, and more relevant to this case, it recognizes relative legislative omission i.e., situations where legislation exists but contains gaps that perpetuate disadvantage. The Act and Rules, despite its progressive thought, is an example of the latter category. The Court observed that the Act "plainly recognises the rights of transgender persons without creating any mechanisms for how the rights can be materialized". This institutional void is not accidental but reflects, as the Court noted, intentional inaction stemming from "deep-rooted societal stigma and the lack of bureaucratic will".

The practical implementation of this omission is stark. Except for Kerala and Odisha, the Court observed that most States exhibited serious inertia in implementing mandated protections. Only eleven States and Union Territories (UTs) had established Transgender Protection Cells as of 2024, despite the Rules requiring their creation in all States and UTs. The National Council for Transgender Persons, established under the Act, failed to respond to Kaushik's complaint. Even the National Commission for Women's inquiry focused on the petitioner's teaching performance rather than investigating gender discrimination, by concluding that providing her with hostel accommodation meant for women demonstrated non-discrimination.

Concept of Reasonable Accommodation

The judgment's key contribution is its clear recognition that reasonable accommodation is an implicit obligation under the Act and Rules. However, the Court also remarked that the Act and Rules have been "brutishly reduced to dead letters", given that enforcement has been very low. The Court drew parallels from India's disability rights jurisprudence to explain that reasonable accommodation is necessary to achieve substantive equality, i.e., not just formal equality, but taking positive steps to level the playing field for disadvantaged groups, including transgender persons.

The Court emphasized that individuals who face unequal social conditions, such as transgender persons, require proactive measures to secure equal protection under the law. This means that it is not enough to simply prohibit overt discrimination; institutions must make adjustments and accommodations that take into account the unique challenges faced by these persons.

The Court pointed out that seemingly neutral policies can still lead to discrimination if they are implemented with stereotypical or rigid mindsets. For transgender persons, this manifests in official forms that lack a "third gender" option, medical services that ignore gender-affirming healthcare needs, and employers who demand permission before allowing sex reassignment surgery. Such policies, although neutral on paper, end up perpetuating structural disadvantage.

The Court also compared India's stance with international best practices. In countries like Canada, reasonable accommodation extends broadly across various grounds of discrimination, with the only limitation being an undue hardship on the accommodating party. In the United States, although reasonable accommodation was originally limited to disability and religion, courts have expanded it to include gender dysphoria under the Americans with Disabilities Act. The European Union similarly emphasizes positive duties on employers to accommodate differences.

Horizontality and the Constitutional Obligations of Private Establishments

The judgment navigates the horizontal application of fundamental rights, i.e., the question of how constitutional rights extend to relationships between private individuals or entities. The Court explained how the Act and Rules act as a vehicle to ensure indirect horizontal effect. Section 3 of the Act prohibits discrimination by any "establishment," which is defined broadly to include private institutions. The Court reasoned that this legislative framework "extends the guarantees of equality, dignity, and non-discrimination² into the private sphere," effectively operationalizing a social duty in relationships between private persons.

Critically, the Court held both private schools and the State respondents accountable but distinguished their failures. While the schools violated statutory prohibitions on discrimination, the ultimate fault was attributed to the States as the discrimination stemmed from their failure to create the institutional mechanisms, Transgender Protection Cells, complaint officers, grievance redressal systems, that would have given the petitioner meaningful recourse.

Remedies by Court: Compensation, Committees, and Compliance Mandates

The Court considered the facts to determine whether the first school and the second school were discriminatory towards the petitioner in their conduct. With respect to the first school, the Court realised that while the petitioner had alleged instances of discrimination by the school, yet the school itself was observably accommodative of the petitioner's requests and attempted to make her stay and make the school environment as conducive for her as possible. However, the Court also pointed out the school's negligence in failing to appoint a Complaints Officer as per the Act and Rules, although any act of discrimination was observed to have been not intentional or actively done by the first school. The liability for inaction was ultimately attributed by the Court to the lack of implementation and vigilance by the State.

With respect to the second school, given that it was unable to justify the reason for denial of employment to the petitioner, the Court determined that the only explanation for the second school to deny the petitioner employment was her transgender identity which they did not know while issuing the offer letter. The Court awarded compensation totalling INR 0.2 million to the petitioner, i.e., INR 50,000 each from the second school, the Union government, and the States of Uttar Pradesh and Gujarat for lack of implementation.

Beyond awarding compensation to the petitioner, the Court issued extensive directions under Article 142 of the Constitution, invoking its power to do complete justice and implement the intent of the Act and Rules. These mandates include designating appellate authorities for transgender persons in every State; creating welfare boards; establishing Transgender Protection Cells under District Magistrates and Directors General of Police; appointing complaint officers in all establishments; designating State Human Rights Commissions as appellate fora in the absence of internal mechanisms; and creating a nationwide toll-free helpline for reporting violations. These directions must be implemented within three months.

The Court also constituted an Advisory Committee chaired by a retired Delhi High Court to formulate an equal opportunity policy and recommend measures for non-discrimination, reasonable accommodation, and inclusion. The Committee includes transgender rights activists, alongside legal experts and healthcare professionals. This composition ensures that real-life experiences of transgender persons inform policy design, a recognition that bureaucratic discussions detached from community input and public participation perpetuate rather than diminish marginalization. The Committee must submit its report within six (6) months, after which the Union government has three (3) months to formulate a national policy.

The judgment concludes with pointed suggestions reflecting the Court's understanding that formal legal compliance is insufficient without cultural and practical transformation. These include simplifying the issuance of identity certificates, providing gender-neutral washrooms in all establishments, cultivating gender-inclusive environments free from fear or stigma, maintaining confidentiality regarding transgender employees' gender identity, and updating admission and employment forms to include a "third gender" option. These seemingly mundane administrative measures constitute, in aggregate, the infrastructure of dignity.

The judgment arrives at a moment when the gap between constitutional aspiration and lived experience for transgender persons has become indefensible. More than eleven years after the NALSA judgment³ of the Court which legally recognised the third gender, and six years after the Act and Rules, the judgment is directed not at legal inadequacy but at implementation failure. By recognizing omissive discrimination, demanding reasonable accommodation, and holding both State and non-State actors accountable, the Court has bolstered the jurisprudence surrounding transgender rights litigation.

Footnotes

1. W.P. (Civil) No. 1405 of 2023, Supreme Court of India, dated 17 October 2025.

2. Articles 14, 15, 21 of Constitution of India.

3. National Legal Services Authority v. Union of India & Ors, W.P. (Civil) No. 400 of 2012, Supreme Court of India, dated 15 April 2014.

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