The Supreme Court on Thursday, September 8, directed the Union government to make an appropriate policy framework to provide "reasonable accommodation" to transgender persons in employment in the establishments covered under the Transgender Persons (protection of rights) Act, 2019, within a period of three months. The top court said the Transgender Persons (protection of rights) Act, 2019, which was brought into force with effect from January 10, 2020 marked a "watershed" in the evolution of the rights of trans persons.
The court issued the direction in an interim order on a plea of a trans woman, who had undergone gender affirmation surgery in 2014, challenging Air India's decision to deny her a job as a cabin crew member. A bench of Justices DY Chandrachud and Hima Kohli said it was of the view that the Union government, in consultation with the national council which has been provided for in the law, should make an appropriate policy framework in terms of which reasonable accommodation can be provided for transgenders in seeking employment.
It said, "The enactment by Parliament marks a watershed in the evolution of the rights of transgender persons. The provisions of the Act need to be implemented in letter and spirit by formulating an appropriate policy." The bench said the Union government must take a lead on this behalf and clearly provide guidance to all other entities including the state governments and establishments covered by the Act. "Under section 16 of the Act, the national council has been constituted by notification dated August 21, 2020. The Union government shall adopt suitable measures after collaborating with the national council and place the considered position of policy on record of these proceedings," the bench said and posted the matter for further hearing in the first week of December.
It directed that the department of personnel and training (DOPT) and Ministry of Social Justice and Empowerment will consult all the stakeholders on the issue. At the outset, the court referred to various provisions of the Act and said under section 8, an obligation has been cast on the appropriate governments to secure the full and effective participation of transgender persons and their inclusion in the society.
It said that under section 9, no establishment shall discriminate against any transgender person in any matter related to employment including but not limited to recruitment, promotion and other related issues. "Every establishment under section 10 is required to comply with the provision of the Act," the bench said, while noting that the petitioner has sought employment as a member of the cabin crew of Air India pursuant to an advertisement of July 10, 2017. It noted the advertisement was for the recruitment of women cabin crew members.
"The issues, which have been raised in the petition consent to the claim of the petitioner for employment in Air India in pursuant to the above advertisement. The petition, however, raised wider issues with regard to the formulation of appropriate policies by the government on the one hand and the implementation of the provisions of the enactment by all establishments to give effect to the guarantee of non-discrimination embodied in sections 3 and section 9," it said.
Senior advocate KV Vishwanathan and advocate Fauzia Shakil appearing for Air India, which has now been privatised, claimed the rejection of the petitioner was not due to the fact that she was a trans woman, but because she did not meet the criteria of qualifying marks.
Additional Solicitor General Sanjay Jain, appeared for the Union government and said he will assist the court in coming to a pragmatic solution.
In 2017, the top court had issued notice and sought responses from Air India and the Civil Aviation Ministry to the plea of the woman, who claimed that to pursue her dreams she had worked for 13 months in Sutherland Global Services in the airline sector and even at Air India's customer support, both domestic and international, in Chennai.
She underwent a gender affirmation surgery in April 2014 and this information was published in the state government gazette. She said she had learnt about an advertisement on July 10, 2017 by Air India for the post of a woman cabin crew member for its Northern Region office in Delhi on a fixed term engagement basis for an initial period of five years.
She said she got the call letter, appeared for various tests and after four attempts, she was not short-listed for the post in question even though she fared well in the tests. In her petition, she said she could not get short-listed as she was transgender. She said that despite representations to the Prime Minister's Office and the Ministry of Civil Aviation, there was no redress. She had sought the court's direction to Air India and the ministry for consideration of her candidature.