New Delhi, Oct 17 (PTI) In a significant verdict, the Supreme Court on Friday expressed concern over the discrimination faced by transgenders despite the enactment of a law in 2019, and directed the Centre to come out with an “equal opportunity policy” within three months of a report submitted by an advisory panel.
A bench of Justices J B Pardiwala and R Mahadevan said the Transgender Persons (Protection of Rights) Act of 2019 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.
“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.
Expressing dismay over the discrimination, the bench said that despite more than 10 years of this court’s judgment in the NALSA case in 2014 that prompted Parliament to bring in place a statute in 2019, the transgender community has to preponderantly resort to the writ jurisdiction of high courts and this court to redress their grievances.
On discrimination in employment and professional spaces, the bench said that despite the enforcement of the 2019 Act and the 2020 rules, the transgender community faces entry barriers in employment and professional spaces.
“Systemic barriers like the absence of the option of a ‘third gender’ make the entry of transgender persons in the organised workforce impossible. Even if they are hired, they are expected to keep their identity hidden, which is grossly violative of one’s right to dignity under Article 21,” the bench said.
The top court delivered its verdict on a plea filed by a transgender woman who was aggrieved by the discrimination and humiliation she faced in employment, which allegedly resulted in her termination from two private schools in Uttar Pradesh and Gujarat.
The court directed the Centre, Uttar Pradesh and Gujarat governments and the school in Gujarat to pay Rs 50,000 each to the petitioner for the discrimination she faced.
The bench constituted an advisory committee to address the concerns of the transgender community headed by former Delhi High Court judge Asha Menon, saying, “The issue at hand requires a more incisive study by a dedicated committee, well-equipped to recommend a viable equal opportunity policy that ought to be introduced by the Union and state governments as well as provide insightful suggestions on other aspects affecting the lives of the transgender community.” The bench asked the panel to prepare its report and/or draft policy within six months from the date of judgment and directed the Centre to “bring forth its own equal opportunity policy in place, within three months from the date the committee submits its report and/or policy draft”.
In case any establishment does not have a policy of its own, the policy that the Union would bring in place shall be enforceable at such an establishment, it said.
The top court, in its 177-page verdict, made some suggestions, saying it was disheartened to note that there are several provisions in both the 2019 Act and the 2020 Rules, which remain mere aspirations on paper despite the same being couched in a mandatory language.
Exercising its plenary powers under Article 142 of the Constitution, the top court directed that the appellate authority before which transgender persons may exercise their right to appeal against the decision of the district magistrate be designated as per Rule 9 of the 2020 Rules in every State and Union territory.
It also said a welfare board for transgender persons, as envisaged under the 2020 Rules, be created in every state and UT for the purpose of protecting their rights and interests and also facilitating access to schemes and welfare measures.
The top court directed the setting up of a Transgender Protection Cell under the charge of the district magistrate in each district and under the director general of police in each state and UT to monitor the prosecution of cases of offences against transgenders.
“The Union of India and all the states shall ensure that the aforesaid directions are strictly complied with within a period of three months from the date of the pronouncement of this judgment,” the bench said, adding that a dedicated nation-wide toll-free helpline number be set up to address the contravention of any provision of the 2019 law.
It made various suggestions, including asking the Centre to consider formulating and issuing specific directions to ensure that no transwoman is arrested without the presence of a female officer.
The bench said that members of the transgender community face challenges within public institutions such as educational establishments, hospitals, transport hubs and government offices due to the lack of effective measures ensuring reasonable accommodation.
It suggested that all establishments, including workplaces, may endeavour towards cultivating an environment that is gender-inclusive and conducive to the free expression of identity by transgender persons, without fear or stigma.
“Security check-ins at airports, Metro stations, bus stands, sea ports, workplaces, shopping complexes, malls, cinema halls, and other public spaces may create special gender diverse screening points for transgender persons along with the sensitisation of security personnel at such security checks,” it said. PTI MNL ABA MNL ARI ARI
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