On September 8, the Supreme Court issued an interim order directing the Centre to make an appropriate policy framework to provide reasonable accommodation to transgender people in employment in the establishments covered under the Transgender Persons (Protection of Rights) Act, 2019. According to the directions issued, the Central government has to do the same in consultation with the National Council for Transgender Persons within a period of three months.
The Bench comprising Justices DY Chandrachud and Hima Kohli asked the Department of Personnel Training (DoPT), Government of India and Ministry of Social Justice and Empowerment to consult all stakeholders in the process of formulating the policy. The top court said the Act, which was brought into force with effect from January 10, 2020, was formulated with the aim of protecting the rights of transgender people, their welfare and other connected matters.
Section 3(b) of the Act categorically stipulates that no person or establishment shall discriminate against a transgender person by giving unfair treatment in, or in relation to, employment or occupation or denying, or terminating them from, employment or occupation. In terms of Section 8 an obligation is cast on the appropriate Government to secure full and effective participation and their inclusion in society. Section 9 provides that no establishment shall discriminate against transgender persons in employment and other related issues.
This comes after a plea was filed by a transgender woman, named Shanavi Ponnuswamy, challenging the national carrier Air India’s decision to deny her a job as a cabin crew member owing to her gender identity.
While senior advocate, K.V. Viswanathan, representing Air India, submitted that the petitioner’s application was rejected as she could not score the minimum qualifying marks in the Scheduled Caste category, the petitioner’s counsel contended there was no separate category for transgender people as authorities said the advertisements were issued for female cabin crew.
The petitioner further claimed that the airline’s norms say that cabin crew members should possess blemish free complexion, and if she did not meet this, then this is discrimination and a disregard to the rights guaranteed to her under the Indian Constitution. Advocate Viswanathan then assured the top court that petitioner’s application was not rejected because she is a transgender woman, reported LiveLaw.
The petitioner, Shanavi, graduated engineering from Dr. Aditanar College of Engineering, Tamil Nadu, in 2010. She underwent a gender reaffirming surgery in April, 2014. She thereafter worked with Sutherland Global Services (airline sector) for over a year to gain experience in the field. Shanavi then went on to work with Air India customer support (domestic and international) in Chennai. She applied for a job in response to an advertisement published by Air India in the year 2017 for female cabin crew members. However, her candidature was not accepted.
She later filed a petition, claiming that the positions in the cabin crew were exclusively intended for (cis)women, and that the only reason she did not get the job was because she is a transgender woman. She has challenged the rejection of her candidature based on the basic rights protected by Articles 14, 15, 16, and 21 of the Constitution of India.
The petitioner said that she eventually heard back from Air India in September 2017 and was informed that the company had no policies in place to engage trans women. Transgender people were not given a separate category in the recruitment policy, according to the response from the Prime Minister’s office, according to the petitioner’s attorney, Mr. R. Prabhakaran. The petitioner was informed that if a category for transgender person is introduced in the future, the same would be advertised.
The top court then asked whether there was a chance that Air India might reconsider its representation. The attorney for Air India stated that it was not possible to consider her representation at this time and that a new notification of the position would be required if her case were to be taken back into consideration. He beseeched the Bench to consider the maintainability of the petition as a preliminary issue. He further stated that in order for all transgender people to benefit from a different category, the petitioner should have challenged the advertising in this respect. Instead, she waited until her application was turned down before criticizing the decision.
When questioned if the government had a policy in this area, ASG Mr. Sanjay Jain said that the 2019 Act was in effect. The Bench issued instructions to guarantee that the 2019 Act’s requirements are carried out by the Government and the enterprises it covers, noting that the petition’s difficulties go beyond the petitioner’s allegations about employment. According to LiveLaw, the bench said that “…it raises wider issues on formulation of appropriate policy by the government and implementation of the provision of the Act by all establishments to give effect to the guarantee of non-discrimination embodied in Sections 3 and 9. Positive obligation has been cast on the appropriate Govt in Section 8(1) and on all establishments under Section 10.”
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