| COURT | SUPREME COURT OF INDIA |
| CASE NO. | WRIT PETITION (CIVIL) NO. 1405 OF 2023 |
| CITATION: | 2025 INSC 1248 |
| BENCH | JUSTICE J.B. PARDIWALA AND JUSTICE R. MAHADEVAN |
| DATE OF JUDGEMENT | 17 OCTOBER 2025 |
| PETITIONER | JANE KAUSHIK |
| RESPONDENTS | UNION OF INDIA & ORS. (INCLUDING TWO PRIVATE SCHOOLS AND STATE GOVERNMENTS OF UTTAR PRADESH AND GUJARAT) |
| AMICUS CURAE | JAYNA KOTHARI, SENIOR ADVOCATE, SUPREME COURT OF INDIA |
BACKGROUND OF THE CASE:
This case is a landmark judgment given by the Supreme Court of India on October 17th, 2025, marking a defining moment in the evolution of the jurisprudence of transgender rights in India. This case arose from the personal and professional experience of Ms Jane Kaushik, a qualified, trained transgender woman teacher who was subjected to discrimination in employment by two private schools, one in Uttar Pradesh and another in Gujarat.
Ms Kaushik, having completed both her undergraduate and post-graduation, along with mandatory teacher training, and have undergone gender-affirming surgery, to build a career in the field of education. She was appointed as a trained graduate teacher of English and Social Science in a school in Uttar Pradesh. However, within 8 working days, she faced extreme transphobic harassment from both students as well as her colleagues, including body shaming, name-calling and mockery of her gender identity. She approached the school principal for the same, but no such response was made by them. Subsequently, she was forced to resign under the threat of withheld wages. The school gave a completely different reason, like “poor performance”, for her leaving the school, and also issued a defamation notice against her, when the matter grabbed the media’s attention.
The situation at the second school, i.e. the Gujarat school, was equally horrendous. After clearing the required selection test as well as the interview in July 2023, she was offered a teaching post. As soon as the school’s management discovered that she was transgender, they immediately withdrew her appointment letter, denying her the opportunity to join the said offer as merely a ‘probationary period’ letter, a claim transparently contradicted by the facts.
After this incident, Ms Kaushik sought relief from several statutory bodies like the National Commission for Women (NCW), the National Council for Transgender Persons, and the National Human Rights Commission, but received no meaningful redressal. Accordingly, the NCW ordered an inquiry into her performance rather than the discrimination she faced and found no gender – based discrimination, effectively closing the case. This institutional failure left her with no other remedies available to her, and she reached the Supreme Court directly under Article 32 of the Indian Constitution, challenging both the private discriminatory conduct of the schools and the larger systematic failure of the Union and State Governments to implement the Transgender Persons (Protection of Rights) Act, 2019.
ISSUES INVOLVED:
The Supreme Court combined all the legal questions raised in the Petition into four main principal issues:
(i) Whether the Union of India and the State Governments had constitutional and statutory obligations to prevent discrimination against transgender persons in private and public establishments, and whether they had fulfilled those obligations.
(ii) Whether the inaction and omissions of the State authorities in implementing the Transgender Persons (Protection of Rights) Act, 2019 and the Rules of 2020 amounted to ‘omissive discrimination’ actionable in law and violative of the petitioner’s fundamental rights.
(iii) Whether the conduct of the two private unaided schools — forcing the petitioner’s resignation and withdrawing the employment offer — constituted unlawful discrimination based on gender identity under the constitutional and statutory regime, including whether private non-State actors could be held accountable under Article 32.
(iv) Whether the petitioner was entitled to compensation and what further structural and institutional directions the Court should issue to ensure effective implementation of the legislative framework for transgender rights.
RULES/ LEGAL PROVISIONS APPLIED:
CONSTITUTIONAL PROVISIONS:
Article 14: While reading Article 14 as establishing a substantive standard of equality, the Court rejected the notion that equality requires only a denial of discrimination but active measures of accommodation and inclusion for transgender people.
Article 32: Right to Constitutional Remedies: Court drew original writ jurisdiction and restated that constitutional remedies may be called upon to be remedies against private parties where there was a statutory obligation under which they were engaged.
Article 15: Prohibition of discrimination based on sex reads widely to include the grounds of gender identity.
Article 17: The Court said that the harassment and social ostracism suffered by Ms Kaushik were “essentially” forms of untouchability.
Article 19: Right to practise any profession or carry on any occupation: Denial of employment was found to encroach on the existence of any means to earn a living.
Article 21: Right to Life and Personal Liberty: Add the right to livelihood, dignity, and bodily autonomy, including access to gender affirming surgery without permission from the employer.
STATUTORY PROVISIONS:
Transgender Persons (Protection of Rights) Rules, 2020 — which directed the setting up of grievance redressal systems, Transgender Protection Cells and Welfare Boards at the State level.
Transgender Persons (Protection of Rights) Act, 2019 – especially its Section 9 that bars discrimination in employment, including in recruitment, and provisions that call for Complaint Officers in each establishment;
PRECEDENTS RELIED UPON:
Shanavi Ponnusamy (2022), in which the Court ordered the formulation of an equal opportunity policy, which was inexcusably not done.
NALSA v Union of India (2014) 5 SCC 438: The seminal case in which transgender persons’ rights to identity and dignity as equal citizens were acknowledged.
Writ of government jurisdiction was expanded to include private actors in specific situations, in Kaushal Kishore v. State of Uttar Pradesh, (2023) 4 SCC 1.
Affirmation of the power of the Court to give monetary compensation in cases about a denial of fundamental rights: Rudul Sah v. State of Bihar, Nilabati Behera v. State of Orissa, Jeeja Ghosh v. Union of India.
REASONING OF THE COURT:
THE ISSUE OF STATE INACTION AND ‘OMISSIVE DISCRIMINATION’
The Court censured the apathetic actions of the Union and State Governments and noted that the latter has failed to take any action on the 2019 Act, with only West Bengal, Tamil Nadu and Delhi having framed rules; only eleven States have established Transgender Protection Cells; and the Union has not formulated an equal opportunity policy. Such a failure of action amounted to ‘omissive discrimination’ — failing to do what is required by the law is a denial of the rights granted under the law and, therefore, is a violation of the Constitution, the Court ruled.
ON SUBSTANTIVE EQUALITY
The Court rejected the concept of formal equality and took the stance of substantive equality, implementing Sandra Fredman’s four lenses of redressing disadvantage, addressing stigma and stereotypes, increasing the voice and participation of individuals and accommodating difference for structural change. Article 14 requires the State’s active non-discrimination, which is a transformation by the State, to break down the barriers to transsexuals and allow them to meaningfully participate in social and economic life.
ON REASONABLE ACCOMMODATION
The Court brought in the concept of ‘reasonable accommodation’, which was later developed in disability law, into the equality context of transgender people. The laws require both State and private actors to change policies, facilities and attitudes to accommodate transgender people. In fact, this is not a charitable act but a binding law of nature.
ON LIABILITY OF PRIVATE ACTORS
The Court did not accept the conclusion that there was no constitutional duty that was binding on private unaided schools. There is something unique and intriguing, however, with the 2019 Act, which directly affects private establishments, requiring horizontal obligations to be enforced under Article 32. It, based on Kaushal Kishore’s arguments, held that constitutional principles apply to private entities such as companies and other corporations providing public services in the context of a law that assigns those activities to the private sector.
CONCLUSION/JUDGMENT
COMPENSATION
* Second School: Rs. 50,000 for discrimination at the recruitment stage.
* Union and State Government: Rs. 50,000 each for omissive discrimination.
STRUCTURAL DIRECTIONS
* A multi-stakeholder Advisory Committee constituted to submit a report within six months on policy gaps and grievance procedures. Review petition dismissed.
* Immediate establishment of Transgender Welfare Boards, Protection Cells, and Complaint Officers across all establishments.
* State Human Rights Commissions are designated as interim complaint forums.
* Gender-diverse infrastructure, identity certification streamlining, awareness programmes, revised medical curricula, and a nationwide toll-free helpline are mandated.
CRITICAL ANALYSIS
The cases of Jane Kaushik vs the Union of India are some of the most important transgender rights judgements since NALSA (2014). The idea of ‘omissive discrimination’ moves not just away from legal intent to a focus on implementation responsibility, but also challenges the narrative of implementation in the constitution. Growth of judicial tendency to break down the public/private separation, by recognising private entities with constitutional duties. Gender identity makes for a welcome term of ‘reasonable accommodation’, but having no definitions may lead to user inconsistency. The biggest hurdle so far is implementation: India’s transgender rights history is one full of legislative promise and executive failures.
THIS ARTICLE IS WRITTEN BY AKANSHA KUMARI FROM CHANDIGARH UNIVERSITY