Author: Shreya Gupta, Dharmashastra National Law University
TO THE POINT
This case of Jane Kaushik v. Union of India is an eye-opener for all of us because it brings our attention to the plight of the transgender community in our country. It is painful for us to observe that there has been a complete lack of implementation of measures to ensure the prevention of discrimination against transgender persons in various spheres of life, including both private and public life. The transgender community is one of the most marginalised communities in the country because they do not fit into the general categories of gender of male or female. As a consequence of their unfitness to the society’s rigid gender norms, they are repeatedly faced with social exclusion, lack of education, and unemployment, which further leads to multiple forms of oppression, social exclusion, and discrimination. Despite the guarantees under Articles 14, 15(1), 15(2), 16(2), and 19(1)(a) of the Constitution, it was recognised that these fundamental rights were made alien to the transgender community due to the void created by the lack of adequate laws. Hence, the Parliament has enacted the Transgender Persons (Protection of Rights) 2019 to ensure their dignity, equality and inclusion. The 2019 Act is a major step forward towards giving horizontal application to constitutional rights in India. It imposes enforceable duties on both the State and private establishments to prevent discrimination against transgender persons.
ABSTRACT
This article employs a doctrinal research methodology to analyse the legal position of transgender persons in India through the lens of Jane Kaushik v. Union of India. It looks at the constitutional guarantees of equality, dignity, and nondiscrimination and assesses how they apply to situations where transgender people are excluded from public life and the workforce. The article emphasises how discrimination against transgender people occurs through both overt acts and institutional omissions by critically analysing Jane Kaushik’s legal reasoning. The study emphasises the judiciary’s role in imposing positive obligations on the State and private actors and enforcing substantive equality. In order to guarantee that transgender people’s constitutional rights are realised in reality rather than just being formal guarantees, it concludes by highlighting the necessity of effectively implementing current legal frameworks.
USE OF LEGAL JARGON
Equality under Article 14 encompasses equality before the law and equal protection of law, and this concept also includes reasonable accommodation within its scope. This doctrine requires modifications or adjustments to be made to a job or work environment to enable qualified individuals with disabilities to perform essential job functions. This doctrine would eventually lead to the quest for substantive equality. The doctrine of reasonable accommodation would effectively lead to addressing the barriers arising from the inherent characteristics of the individuals, which later on becomes a manifestation of discrimination on account of “religion, race, caste, sex, place of birth, or any of them” and hinders their active participation in society. It becomes a measure to ensure that the beneficiary exercises their constitutionally guaranteed fundamental freedoms at par with others. Further, the principle of reasonable accommodation captures the positive obligation of the State and private parties to provide additional support to persons with disabilities to facilitate their full and effective participation in society. Hence, Equality of opportunity and choice of participation enables transformation by way of which accommodation of marginalised sections remains not an obligation but becomes a natural course of events.
THE PROOF
When we discuss the marginalisation of the transgender community and the inequality faced by them, we primarily focus on the acts of commission and such explicit instances where individuals or institutions actively discriminate. However, discrimination also operates through omission: through the silences, exclusions, and failures of the law to protect certain groups or to recognise particular forms of disadvantage. The transgender community faces challenges in being able to gain employment because of biased societal norms, as a disregard for the ‘masculine’ and ‘feminine’ views is considered negatively. To concisely address the omission in the discrimination law, we have to examine the systemic inconsistencies, such as the narrow drafting of statutes or the failure of institutions to fulfil their positive duty to prevent overt discrimination and see the horizon beyond the conspicuous unequal act. The marginalisation of transgender persons is often perpetuated not only by overt acts of discrimination, but also through the silence and gaps in the statute, i.e., the 2019 Act. The right to equality not only implies a prohibition against discrimination but also requires rectifying the systemic discrimination against marginalised groups. It is also to ensure the paramountcy of the Constitution, which includes the protection of the rights guaranteed therein.
CASE LAWS
Jane Kaushik v. Union of India (2025) – Jane Kaushik, a transgender woman possessing adequate teaching qualifications, was excluded from employment by two private unaided schools, one in Uttar Pradesh and the other in Gujarat. In the former school, she was appointed as a Social Science and English teacher. There she was harassed by the students and the staff itself for not conforming to the traditional, stereotypical gender norms and identities, and following this, she was expelled from the job, citing her inadequacy to teach well. The latter school withdrew the appointment letter offer after Ms Jane’s identity was verified, a change from Rahul Kaushik. The Supreme Court has acknowledged such exclusion as unconstitutional and has ordered each of the respondents to pay Rs. 50,000 in compensation to the petitioner. This judgment was crucial in understanding that administrative inefficiency can itself violate the equality, justice and dignity of many persons.
NALSA v. Union of India (2014) – National Legal Service Authority filed a writ petition in the Supreme Court on behalf of members of the transgender community in the context of their violation of fundamental rights and non-recognition by society. This was a historic judgment when the courts recognised the rights of transgender persons as a third gender and also the right of a person to determine their sexual orientation under Article 15(1). It reaffirmed the judgment of Naz Foundation v. NCT of Delhi, which was previously overturned by Suresh Koushal v. Naz Foundation. The Nalsa judgment reaffirmed that gender identity was integral to life and would be protected under Article 19 – Freedom of speech and expression and Article 21 – Right to Life and Personal Liberty.
Kantaro Kondagri v. State of Odisha (2022) – The petitioner, an unmarried transgender woman whose father served in the State Department, sought family pension as an “unmarried daughter” after the death of both her parents. Despite a favourable recommendation by the competent authority, the Principal Accountant General, Odisha, denied disbursement. The Orissa High Court held that a transwoman is entitled to claim family pension as an unmarried daughter and ruled that such denial amounted to impermissible discrimination.
CONCLUSION
It’s been more than half a decade now since the enactment of the Transgender Persons (Protection of Rights) Act, 2019 and more than a decade since the historic judgment of NALSA. Still, the quest for equality and dignity of transgender persons has long been awaited. The question being forever raised now is how long they have to beg for their dignity and respect in society. The answer seems only to be underlined in the laws and statutes, but finds no genesis in reality. This highlights the reality that such rights remain only an empty formality. This does not seed the need for the Union and the State Governments to create more mechanisms for the transgender community to translate their rights into reality. Rather, the focus should be imparted into the sincere exhibition and compliance with such acts, rules, and articles. Without the implementation on the grassroots level, the community would continue to face discrimination and marginalisation, with a scarcity of healthcare, economic opportunities, and non-inclusive educational policies adding to their struggles. The State and non-state actors must ensure the safety and protection of transgender persons and prevent at all costs their subjection to unfair and dehumanising treatment.
FAQS
QUESTION 1- HOW HAS JANE KAUSHIK V. UNION OF INDIA REDEFINED DISCRIMINATION AGAINST TRANSGENDER PEOPLE?
Jane Kaushik v. Union of India expanded the understanding of discrimination by recognising that it is not limited to explicit acts of exclusion. The Court acknowledged that institutional silence, administrative apathy, and failure to address prejudice can themselves operate as discriminatory practices. Such indirect forms of discrimination disproportionately affect transgender persons who are already marginalised. This approach highlights the structural nature of inequality faced by the community.
QUESTION 2 – WHAT CONSTITUTIONAL APPROACH TO EQUALITY DID THE COURT APPLY IN THE CASE?
The Court adopted the doctrine of substantive equality rather than a narrow, formal interpretation of equality. It emphasised that equal treatment in law is insufficient if it fails to account for social realities and lived experiences. By prioritising dignity, inclusion, and real opportunities, the judgment ensured that constitutional protections have a meaningful effect for transgender persons.
QUESTION 3 – WHY IS THE APPLICATION OF FUNDAMENTAL RIGHTS TO PRIVATE INSTITUTIONS RELEVANT IN THIS SITUATION?
An important aspect of this ruling was the expansion of accountability through the constitution to private, unaided institutions. The Court held that fundamental rights can be applicable in a horizontal dimension when persons in private capacity wield power which impacts an individual’s dignity and equality. The impact of this would be that no private institution could escape accountability for practising discrimination against anyone.
QUESTION 4 – IN WHAT MANNER DOES THE VERDICT AFFECT THE ENFORCEMENT OF TRANSGENDER RIGHTS IN INDIA?
The ruling enhances the enforceability of the rights of transgender individuals, as it offers an effective remedy for violations of their rights. The ruling recognises that material and dignity damages occur due to exclusion. The ruling presents a vital precedent in tackling institutionally founded discrimination against transgender individuals. The ruling offers redress for transgender individuals discriminated against in employment and education.
