Tanisha Rana
Published on: September 9, 2022 at 20:40 IST
The Supreme Court ordered the Centre to create an adequate policy framework on Thursday in order to “reasonably accommodate” transgender persons who are employed in enterprises that are subject to the 2019 statute that was passed to safeguard them.
The Supreme Court said that the Transgender Persons (Protection of Rights) Act of 2019—which went into effect on January 10, 2020—marked a “watershed” in the development of these individuals’ rights.
According to the law, transgender people’s rights, welfare, and other related issues were all to be protected.
The court gave the instruction in an interim judgment after receiving a petition from a transgender person who had had sex change surgery in 2014 and was contesting the decision of then-national carrier Air India to deny her employment as a member of the cabin crew.
A bench of Justices DY Chandrachud and Hima Kohli expressed their opinion that the Centre should develop an appropriate policy framework so that reasonable accommodations can be made for transgender job seekers in accordance with the law, in consultation with the national council that has been established.
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.”
According to the bench, the union government must take the initiative in this matter and explicitly lay down guidelines for all other bodies, including the state governments and enterprises 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 declared and set a new hearing date for the first week of December.
It mandated that all interested parties be consulted on the matter by the Ministry of Social Justice and Empowerment and the Department of Personnel and Training (DoPT).
The court began by citing a number of Act provisions, stating that section 8 of the Act places a duty on the relevant governments to ensure the full and effective involvement of transgender people and their integration in society.
Section 9 of the law stated that no business was allowed to discriminate against transgender people in any situation involving work, including but not limited to hiring, promoting, and other relevant matters.
The bench stated, “Every institution under section 10 is obligated to comply with the provisions of the Act,” adding that the petitioner had applied for a position as a member of the Air India cabin crew in response to an advertising published on July 10, 2017.
It was mentioned that the posting was for hiring female cabin personnel.
“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 Section 3 and Section 9,” it said.
The petitioner was rejected, according to senior attorney KV Vishwanathan and counsel Fauzia Shakil representing Air India, which has since been privatised, not because she was transgender but rather because she fell short of the required benchmark of grades.
Sanjay Jain, the Centre’s Additional Solicitor General, stood in court and promised to help the judge reach a reasonable decision.
About the Case:
In response to a transgender person’s petition in 2017, the Supreme Court issued a notice and requested responses from Air India and the Civil Aviation Ministry.
The transgender person claimed that in order to pursue her dreams, she had worked for 13 months at Sutherland Global Services in the airline industry and even at Air India’s domestic and international customer support in Chennai.
1989 Tamil Nadu native, she claimed to have earned an engineering degree in 2010.
In April 2014, she had gender reassignment surgery to become a woman, and the state government gazette reported this.
She said that on July 10, 2017, Air India posted an advertising for a female cabin crew on a fixed-term engagement basis with a five-year initial commitment for its Northern Region office in Delhi.
Because she had successfully had sex reassignment surgery in Bangkok, she applied in the female category.
She said that after receiving the call letter, showing up for many exams, and making four attempts, she was not selected for the role in question, despite performing well on the examinations. Further, she appealed that because she is transgender and the cabin crew positions are limited for women, she will not be shortlisted.
She said that no resolution had been reached despite complaints being made to the Prime Minister’s Office and the Ministry of Civil Aviation. She had pleaded with the court to order Air India and the government to examine her candidacy.