Written by Husain Aanis Khan
Last month, the Supreme Court bench comprising Chief Justice B R Gavai and Justice K Vinod Chandra issued legal notices to the central government, NCERT, and state governments of Maharashtra, Andhra Pradesh, Telangana, Punjab, Tamil Nadu, and Karnataka, asking them to explain why school curricula are non-inclusive for transgender students. A public interest litigation before the SC triggered the Court’s response.
Essentially, the Court asked the governments and the regulatory authority to justify why they are not fostering — what I term “postadmission inclusion”— for transgender students.
Postadmission inclusion, a normative constitutional principle, is grounded in legal doctrine. The educational journey of a student comprises three phases: Preadmission, postadmission, and post-completion. The postadmission phase starts after a student has been admitted to an educational institution. The constitutional principle of postadmission inclusion refers to students’ educational experience that should be based on non-discrimination, reasonable accommodation, and freedom.
Political and educational institutions prematurely celebrate access (and representation) of students from equity-deserving groups in their classrooms. But access does not guarantee postadmission inclusion. For example, in the case of female students, some educational institutions enhance their access to education by introducing quotas for female applicants. Yet most of them have a differential sex-based hostel curfew timing. That can be called postadmission discrimination based on sex.
Following the measures to enhance transgender students’ access to educational institutions, there should be a mechanism to ensure their postadmission inclusion. It requires a radical change in the culture of the institution.
Article 46, the Directive Principle of State Policy (DPSP) obligates the states (legislature and executive) to “promote with special care the educational and economic interests of the weaker sections.”
Postadmission inclusion becomes a foothold for governments to discharge their Article 46 obligations towards transgender students. Fostering postadmission inclusion also promotes the educational and economic interests of those who deserve equity.
Deborah Zalesne rightly notes, “Society (and the law) has learned to view biological sex as the determinant of gender.” Postadmission discrimination based on sex occurs due to biological differences among trans persons, women, and men — particularly citing differences in their external genitalia. Non-provision of separate toilets in schools for transgender students is nothing but discrimination based on sex.
Thus, without inclusive curricula, access of students from equity-deserving groups remains a half victory.
However, we must not rely solely on the public interest litigations and the judicial process. The political branches must understand their constitutional postadmission inclusion obligations. After all, political branches have resources at their disposal. They are capable of making laws that could extend their inclusive capacities from the pre-admission stage to the post-admission stage. Such efforts would also benefit women, non-privileged caste groups, and religious minorities.
Husain is an Assistant Professor at OP Jindal Global University and Alex Chernov Scholar at Melbourne Law School
