The Supreme Court directed the Central Government on Thursday to frame a policy, in consultation with the National Council for Transgender Persons, regarding employment avenues for transgender persons under the provisions of the Transgender Persons (Protection of Rights) Act, 2019 (2019 Act).
The Bench of Justice D.Y. Chandrachud and Justice Hima Kohli further asked the Department of Personnel Training (DoPT), Government of India and the Ministry of Social Justice & Empowerment to consult all stakeholders in formulation of the policy.
The top court of the country noted that the 2019 Act marked a watershed in the rights of transgender persons, but the same needed to be implemented in letter and spirit by formulating appropriate policies.
The Apex Court passed the order on a petition filed by transgender Shanavi Ponnuswamy, who was allegedly denied the cabin crew position by Air India, due to her sexual orientation.
Shanavi contended that she had completed her engineering from Dr. Sivanthi Aditanar College of Engineering, Tamil Nadu in 2010 and underwent a sex reassignment surgery to become a woman in April, 2014.
She then worked with Sutherland Global Services (airline sector) for over a year to gain experience in the field. The petitioner said she then went on to work with Air India customer support (domestic and international) in Chennai.
In response to an advertisement published by Air India in 2017 for female cabin crew members, the petitioner sent her application. However her candidature was not accepted. She alleged that she did not make the cut merely because she was a transgender woman and the vacancies in the cabin crew were earmarked only for woman.
The petitioner contended that this amounted to violation of her fundamental rights guaranteed under Articles 14, 15, 16 and 21 of the Constitution.
Representing Air India, Senior Advocate, K.V. Vishwanathan apprised the Bench that Shanavi’s application was rejected not because she was a transgender woman, but because she was unable to score the minimum qualifying marks in the Scheduled Caste category.
Justice Chandrachud, while reading the petition, noted that the Airline’s norms depicted that the cabin crew members were to possess blemish-free complexion, and if as a transgender woman the petitioner did not met the criteria and for the said reason her candidature was refused, then this was a blatant disregard of her rights guaranteed by the Constitution.
Vishwanathan replied that her application was not rejected because she of her being a transgender woman.
The Counsel for the petitioner submitted that a representation was made to the concerned authorities and they had responded saying that the advertisement was for female cabin crew members only and there was no separate category for transgenders.
Justice Chandrahcud asked Air India if it was possible to consider the representation afresh.
The Counsel replied that in a notification issued for female cabin crew members, the petitioner sought another category for transgender persons.
If her representation was accepted, then the posts would have to be re-notified for all transgender women. He indicated that since the jobs were notified in 2017, it was not be possible to re-notify them, he added.
The Bench then directed that the provisions of the 2019 Act should be implemented by the government as well as the establishments covered by it.
The Transgender Persons (Protection of Rights) Act, 2019 came into force on January 10, 2020. It ensured protection of rights of transgender persons and their welfare.
Section 3(b) of the Act categorically stipulated 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 was 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.
Case title: Shanavi Ponnusamy vs Ministry of Civil Aviation And Anr WP(C) No 1033/2017