Transgender Persons Act Reduced To Dead Letter; Inaction Seems Intentional : Supreme Court Criticises Apathy Of Union & States

The Supreme Court today(October 17) noted with disappointment that the Rights of Transgender Persons (Protection of Rights) Act, 2019 and Rights of Transgender Persons (Protection of Rights) Rules, 2020 has been reduced to dead letter due to the "grossly apathetic attitude" of the Union Government and the States towards transgender persons.A bench comprising Justice JB Pardiwala and Justice R Mahadevan made these observations in a writ petition filed by Jane Kaushik, a transgender woman, who was discriminated and terminated from her services from two educational institutions because of her gender-identity. The Court today awarded her compensation.In deploring how despite the 2014 NALSA judgment recognising rights of transgender persons in every aspect, the provisions of the 2019 Act and the 2020 Rules have not been intentionally effectuated due to deep-rooted societal stigma and lack of bureaucratic will, the Court said :"Unfortunately, it appears that the 2019 Act and the 2020 Rules respectively have been brutishly reduced to dead letters. The Union of India and the States have exhibited a grossly apathetic attitude towards the transgender community, by defacing the lived realities of this community with their inaction. Considering the protraction of this inaction, such an attitude cannot be reasonably considered to be inadvertent or accidental; it appears intentional and seems to stem from deep-rooted societal stigma and the lack of bureaucratic will to effectuate the provisions of the 2019 Act and the 2020 Rules respectively." Further, the Court also noted that the Union has violated its order wherein it was directed that they form a policy framework to address the obstacles faced by transgender community in accessing employment opportunities. Court's direction for formulating policy in avenues of employment ignoredThe Court noted that in Shavani Ponnusamy, on September 8, 2022, it directed the Union Government to devise a policy framework in consultation with the National Council of Transgender Persons (NCTP) formed under Section 16 of the 2019 Act, to reasonable accommodate transgender persons in the avenues of employment under establishments covered by the provisions of the 2019 Act. "Despite the clear directions of this Court in the order dated 08.09.2022 referred to above, the Union of India has feigned ignorance and has chosen not to act on these directions. Their inaction is, therefore, demonstrably continuous."It added that a response was sought of the Ministry of Social Justice and Empowerment in regards to formulating a policy for providing them suitable jobs in government organisations(a &b) and whether transgender persons face discrimination in private sectors(c).But the response received from Minister of State for Social Justice and Empowerment, Pratima Bhoumik, on March 29, 2023 was: "(a) & (b) Currently there is no such matter under consideration as the Transgender Persons (Protection of Rights) Act 2019 provide appropriate provisions for welfare of Transgender Persons in the field of employment, education, health and other related areas. (c) Ministry has not received any such information.”"After more than six months of the directions of this Court vide its order dated 08.09.2022, the official stance of the MoSJE was that there was no policy to reasonably accommodate transgender persons in employment which was under consideration. Effectively, the stance of the Union Government was that there is 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 which 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 Court remarked.The Court also stated that States except West Bengal, Tamil Nadu, New Delhi have not brough forth any rules along the lines of the 2020 Rules. And except for Orissa and Kerala, respectively, no States have undertaken comprehensive policy measures. All this has led to reinforcing discriminatory against the community.Pitfalls of the 2019 ActFurther, the Court observed that the 2019 Act has shortcoming in terms of the fact that it lacks mechanism for how the rights can be realised. It notes that this is a case of legislative omission resulting in discrimination."Nonetheless, it is unfortunate that the legislation, i.e., the 2019 Act, is dotted with shortcomings and pitfalls. The glaring reality remains that, as a statute, it plainly recognises the rights of transgender persons without creating any mechanisms for how the rights can be materialized. These shortcomings in themselves are an instance of omissive discrimination and in teeth of the principle of substantive equality provided in the Constitution.The Court has issued following directions under Article 142:1. That the appellate authority before which a transgender person may exercise...

Transgender Persons Act Reduced To Dead Letter; Inaction Seems Intentional : Supreme Court Criticises Apathy Of Union & States

Gursimran Kaur Bakshi

The Court also observed that the Act hd shortcomings as it did not provide for mechanism to enforce rights.

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