Opinion Supreme Court order on trans rights highlights government failures

Over 10 years after the landmark NALSA judgment — it recognised a “third gender”, affirmed trans persons’ fundamental rights and the right to self-determination of gender identity — and five years after the Transgender Persons (Protection of Rights) Rules, 2020 came into effect, trans persons in India continue to face discrimination. On October 17, the Supreme Court pulled up the Centre and state governments for “brutishly” reducing the Transgender Persons (Protection of Rights) Act, 2019 and its corresponding rules to “dead letters” and exhibiting “a grossly apathetic attitude towards the transgender community”. Jane Kaushik, a transgender woman, petitioned the Court after allegedly facing discrimination and the forceful termination of her employment at two private schools in Uttar Pradesh and Gujarat in the span of a year. The SC bench hearing the matter constituted an advisory committee to assess the implementation of the Trans Act and recommend a “viable equal opportunity policy… to be introduced by the Union and state governments” within three months of the draft’s submission. For establishments lacking their own policies, the Centre’s policy will be enforceable.

The creation of a panel to operationalise protections guaranteed in law is a welcome step. But it speaks of a larger failure — the lack of political will to ensure that transgender citizens can live a life of dignity and equality as guaranteed by the Constitution and affirmed by the SC. The NALSA judgment and the Trans Rules mandate protections against discrimination in employment, medical care and education for transgender persons. Yet, implementation has been abysmal. For example, the Rules require governments to build separate washrooms and wards in hospitals. Over three years past the deadline, however, this remains a pipe dream. The Rules also mandated the constitution of transgender welfare boards, which only 19 states and Union Territories had done as of 2024; fewer still are reportedly functional. Across states, transgender persons have had to move high courts and the SC after being denied access to medical care, employment opportunities, and documents such as passports and graduation certificates due to bureaucratic apathy and/or insensitivity.

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The fact that courts have had to step in repeatedly to ensure that the rights of a vulnerable section of the citizenry are not violated, reflects poorly on the executive. It is up to the state now to ensure the implementation of the Rules and the committee’s policy recommendations.