Supreme Court Warns Imposition Of Cost On States Over Not Responding To PIL For Transgender Welfare Boards

While warning imposition of cost of Rs.20,000/- in the event of failure, the Supreme Court today gave 6 weeks' time to non-compliant states to file their responses to a PIL seeking establishment of Transgender Welfare Boards.

A bench of Justices Hrishikesh Roy and SVN Bhatti passed the order, noting that multiple adjournments had been granted on earlier occasions. The order was dictated thus:

"Ld. counsel for the petitioner says that some of the states have constituted Transgender Welfare Board, but few other states are yet to do so. The matter accordingly is deferred by 6 weeks for response by the concerned states and the Union of India. Multiple adjournments were granted earlier to the concerned states. If the response, as directed, is not filed within 6 weeks, the concerned states will be [burdened] with the liability of deposit of Rs.20,000/- cost to be deposited to the account of the concerned Legal Services Authority."

During the hearing, counsel for petitioner-Kinner Maa Eksamajik Sanstha Trust informed the court that states of Tamil Nadu, Maharashtra, Uttar Pradesh, Assam and Rajasthan have constituted the Welfare Boards. However, few others remain to do so and the Union of India's response is also awaited.

Background

The PIL highlights the suffering and harassment that trans people have to go through in matters of housing, health, education and employment, thereby depriving them of social and cultural participation.

"The discrimination suffered by them emanates from the social stigma and isolation that they suffer from lack of resource which were provided for transgender people. The transgender community faces stigma and discrimination and therefore has fewer opportunities as compared to others", it states.

It is claimed that due to lack of participation and social ostracization, trans people are subjected to restricted access to education, health care and public places which further deprive them of the Constitutional guarantee of equality before law and equal protection from laws. Despite the passing of the Trans Act, the problems faced by the community has only been partially addressed and there has been no initiative from the State to fulfil its intention of protecting basic rights that are accorded to everyone, states the petitioner.

The plea goes on to underline that "living without fear of discrimination and violence and being supported and affirmed in being who they are is critical for allowing transgender people to live healthy, safe and fulfilling lives".

It is further submitted that there exist various contradictions in the Trans Act, which was passed in pursuance of the Supreme Court's directions in the historic NALSA judgment, such as bestowing power on the District Magistrate to recognize a person as trans (the judgment allowed self-identification of gender), and how, to identify as male or female, one must supply proof of surgery to the Magistrate (the judgement states that insistence on sex reconstruction surgery is illegal).

"India's parliament passed a bill 2019 to protect transgender rights, but the new law is inadequate on several fronts. Trans activists and allied human rights groups have critiqued the various trans rights bills since the first one was introduced in 2016. In the end, lawmakers failed to consider the concerns the activists raised. As a result, India's new law will violate the rights of trans people rather than respect and uplift long-persecuted communities."

As such, the petitioner prays for the establishment of Transgender Welfare Boards to address social welfare issues of trans persons, and for the appointment of a Standing Committee comprising Station House Officers and human rights and social activists to promptly investigate reports of gross abuse by police against trans persons.

Case Details: KINNER MAA EKSAMAJIK SANSTHA TRUST v. UNION OF AND ORS., W.P.(C) No. 319/2021 

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