Top court raps Centre, states for ‘apathy’ towards transgenders

Rapping the Centre and states for exhibiting a “grossly apathetic attitude” towards transgenders by defacing the lived realities of this community with their inaction, the Supreme Court on Friday issued a series of directions to ensure that they were not discriminated against and treated with dignity.

A Bench led by Justice JB Pardiwala ordered the formation of an Advisory Committee, headed by Justice Asha Menon, a former Judge of the Delhi HC, to formulate a practical policy draft and/or report for the consideration of the Centre, so as to further the transgender rights discourse and give effect to the beneficial provisions of the Transgender Persons (Protection of Rights) Act, 2019.

The Bench – which also included Justice R Mahadevan -- directed the Centre to come out with an “equal opportunity policy” within three months of the report submitted by the advisory panel.

The verdict came on a petition filed by a transgender woman aggrieved by the discrimination and humiliation she faced in employment, which allegedly resulted in her termination from two different schools in Uttar Pradesh and Gujarat on account of her gender.

Terming the litigation as an eye-opener for one and all, the top court ordered the Centre, states and the schools to pay her Rs 50,000 each as compensation.

The top court lamented that despite enactment of the 2019 Act to safeguard their rights, transgenders continued to face discrimination. The 2019 Act and its corresponding rules have been “brutishly reduced to dead letters”, and the Centre and the states have exhibited a “grossly apathetic” attitude towards them, it said.

“The community continues to face discrimination and marginalisation, with a scarcity of healthcare, economic opportunities and non-inclusive educational policies adding to their struggles,” the Bench said.

“Effectively, the stance of the Centre was that there was 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 that 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 Bench added.

It ordered 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 of protecting their rights and interests and also facilitating access to schemes and welfare measures as also a dedicated nation-wide toll-free helpline number.

The Bench said 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, in order to monitor cases of offences against transgender persons and to ensure timely registration, investigation and prosecution of such offences.

It suggested that gender-neutral or gender-diverse washrooms should be provided within the premises of all public and private establishments.

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

The SC added, “All establishments under the 2019 Act, especially educational institutions and workplaces, must 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’. Besides, maximum participation of transgender persons should be ensured in such institutions.”

The Bench said, “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 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, it said.