Supreme Court Asks Centre To Frame Policy For Employment Of Transgender Persons

The Supreme Court, on Thursday, by way of an interim order,  asked the Central Goverment in consultation with the National Council for Transgender Persons to devise appropriate policy framework in terms of which reasonable accommodation can be provided to transgender persons in seeking recourse to avenues of employment in all establishment covered by the provisions of the Transgender Persons (Protection of Rights) Act, 2019 (2019 Act), within a period of 3 months.

A Bench comprising Justices D.Y. Chandrachud and Hima Kohli also asked the Department of Personnel Training (DoPT), Government of India and Ministry of Social Justice and Empowerment to consult all stakeholders in the process of formulating the policy. 

It noted that the 2019 Act marks a watershed in the rights of transgender persons, but it needs to be implemented in letter and spirit by formulating appropriate policies. The Transgender Persons (Protection of Rights) Act, 2019 was brought into force on 10.01.2020 for protecting the rights of transgender persons and for their welfare. Section 3(b) categorically stipulates that no person or establishment shall discriminate against a transgender person by giving unfair treatment in, or in relation to, employment or occupation or denying, or terminating them from, employment or occupation. In terms of Section 8 an obligation is cast on the appropriate Government to secure full and effective participation and their inclusion in society. Section 9 provides that no establishment shall discriminate against transgender perosns in employment and other related issues.

"Transgender persons routinely face multiple forms of oppression, social exclusion and discrimination, especially in the field of healthcare, employment and education. Gender diverse persons, including transgender persons, continue to face barriers in accessing equal employment opportunities, especially in the formal sector, due to the operation of gender stereotypes. Gender stereotypes in the workplace disproportionately impact transgender persons for not subscribing to societal norms about appropriate 'feminine' and 'masculine' appearances and mannerisms", the bench observed in the order.

The Bench was hearing a plea filed by a transgender woman named Shanavi Ponnuswamy who was refused a cabin crew position by Air India allegedly owing to her gender identity.

Shanavi had completed her engineering from Dr. Aditanar College of Engineerings, Tamil Nadu, in 2010, and underwent a sex reassignment surgery to become a woman in April, 2014. She thereafter worked with Sutherland Global Services (airline sector) for over a year to gain experience in the field. Shanavi then went on to work with Air India customer support (domestic and international) in Chennai. In response to an advertisement published by Air India in the year 2017 for female cabin crew members, she had sent in her application. However her candidature was not accepted. She alleged that she did not make the cut merely because she is a transgender woman and the vacancies in the cabin crew were earmarked only for woman. She has assailed the rejection, on the touchstone of fundamental rights guaranteed under Articles 14, 15, 16 and 21 of the Constitution of India, 1950.

Senior Advocate, K.V. Vishwanathan appearing on behalf of Air India apprised the Bench that Shanavi's application was rejected not because she is a transgender woman, but because she was unable to score the minimum qualifying marks in the Scheduled Caste category.

Justice Chandrachud noted from the petition, that there were allegations that the Airline's norms depict that the cabin crew members are to possess blemish free complexion, and if as a transgender woman the petitioner does not meet the criteria and for the said reason her candidature is refused then it is a blatant disregard of her rights guaranteed by the Constitution.

"Your norms says that blemish free complexion , she says if I do not meet this then this is discrimination."

Mr. Vishwanathan assured the Bench that her application was not rejected because she is a transgender woman.

Advocate, Mr. R. Prabhakaran appearing for the petitioner submitted that representation was made to the Prime Minister's office, and the response says that there was no separate category for transgender persons in the recruitment policy. The petitioner was informed that if a category for transgender person is introduced in the future the same would be advertised.

Mr. Vishwanathan submitted that in a notification issued for female cabin crew members the petitioner had sought a category for transgender persons. He added that the petitioner should have challenged the advertisement in this regard, so that the benefit of a separate category would enure to all transgender persons. But instead, she had waited till her application was refused and assailed the rejection. 

Justice Chandrachud enquired if Air India has a policy regarding recruitment of transgender persons. Mr. Vishwanathan submitted that he would require some time to find out the same. He beseeched the Bench to consider the maintainability of the petition as a preliminary issue. 

Justice Chandrachud asked Mr. Vishwanathan if Air India was ready to consider her candidature afresh in response to any advertisement that the airlines might issue in the future. and not exclude her on the ground that she is a transgender. Mr. Vishwanathan responded in the affirmative. 

ASG, Mr. Sanjay Jain was also asked if there was any Government policy in this regard, to which he responded that 2019 Act is in place. 

Noting that the issues in the petition transcends beyond her claims regarding employment, the Bench passed orders to ensure that the provisions of the 2019 Act is implemented by the Government as well as the establishments covered by it.

"...it raises wider issues on formulation of appropriate policy by the government and implementation of the provision of the Act by all establishments to give effect to the guarantee of non-dicrimination embodied in Sections 3 and 9. Positive obligation has been cast on the appropriate Govt in Section 8(1) and on all establishments under Section 10."

[Shanavi Ponnusamy v. Ministry of Civil Aviation And Anr. WP(C) No. 1033/2017]

Citation : 2022 LiveLaw (SC) 779

Transgender Rights - Transgender persons routinely face multiple forms of oppression, social exclusion and discrimination, especially in the field of healthcare, employment and education. Gender diverse persons, including transgender persons, continue to face barriers in accessing equal employment opportunities, especially in the formal sector, due to the operation of gender stereotypes. Gender stereotypes in the workplace disproportionately impact transgender persons for not subscribing to societal norms about appropriate 'feminine' and 'masculine' appearances and mannerisms (Para 7)

Transgender Persons (Protection of Rights) Act 2019 -it is necessary for the Central Government, in consultation with the National Council, to devise a policy framework in terms of which reasonable accommodation can be provided for transgender persons in seeking recourse to avenues of employment in establishments covered by the provisions of the 2019 Act.The provisions of the 2019 Act need to be implemented in letter and spirit by formulating appropriate policies. The Union Government must take the lead in this behalf and provide clear guidance and enforceable standards to all other entities, including, those of the Union Government, State Governments and establishments governed by the 2019 Act (Para 8)

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