Delhi High Court approached for separate vacancies for transgender persons in public employment

Even after three years of the implementation of the Transgender Persons (Protection of Rights) Act, 2019, the ground reality has not changed much. Transgender persons remain ostracised and are often forced to hide their gender identity in public.

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IN 2014, the National Legal Services Authority (NALSA) judgment of the Supreme Court of India gave legal recognition to the third gender. The court's NALSA guidelines ordered the Union and state governments to ensure the progressive realisation of the civil and socio-economic rights of transgender persons. Five years after these guidelines were laid down, the Transgender Persons (Protection of Rights) Act, 2019 (Transgender Protection Act) came into force. However, time and again, it has been highlighted that there is little to no adherence to the law by states.

On January 20, 2023, Justice Prathibha M. Singh of the Delhi High Court, in the matter of Jane Kaushik versus Lieutenant Governor, NCT of Delhi & Ors. issued a notice to implead the Union Government in a petition that seeks advertisement of separate vacancies for transgender persons in recruitment to teaching positions in schools in the National Capital Territory (NCT) of Delhi (Delhi).

The petitioner, Jane Kaushik, a transgender woman residing in Delhi, contends that she is adequately qualified for a teaching job in a government school in the city. Since 2019, she has been looking for employment in government schools in Delhi, only to face multiple refusals due to her gender identity. Finally, frustrated with the continuous rejections, she agreed to take up a teaching job at a private school on the condition that she will not reveal her gender identity. However, she was compelled to resign from the school last month because some students discovered her gender identity; even though she had been appointed after rigorous rounds of interviews.

According to the petition, all advertised vacancies for teaching staff for government schools are confined only to the binary male-and-female genders, thereby excluding transgender persons as a separate category. Discrimination in employment based on gender identity is prohibited under Sections 3(b) and (c) (prohibition against discrimination) and 9 (non-discrimination in employment) of the Transgender Protection Act as well as Rules 10(4), 11 and 12 of the Transgender Persons (Protection of Rights) Rules, 2020.

During the recent hearing of the petition, the Delhi high court recognised that the "petition raises an important issue in respect of recognition of transgender persons and their rights for employment and recruitments in state departments, schools etc…"

The Leaflet interviewed Jane Kaushik to know more about the issue of discrimination against transgender persons and her fight against it.

Q: Can you tell us about your latest employment and why were you forced to resign?

A: I was appointed as a Trained Graduate Teacher in Social Science and English at the Uma Devi Children's Academy, a private boarding school in the Lakhimpur-Kheri district, on November 25, 2022. I was appointed 'despite' my gender identity but on the condition that I must not reveal it to anyone.

However, on December 3, the school's principal forced me to resign because some students got to know about my gender identity.

When the National Commission for Women took cognisance of my arbitrary termination, the school imposed a Rs. 1 crore defamation notice on me, alleging that I am ruining their reputation. The school claimed that I was not competent to teach the subject I was assigned. A four-member district-level panel was set up to investigate. They gave a clean chit to the school. According to the report, the school did not discriminate against me because they had hired me despite my gender identity.

Although the school has withdrawn the defamation notice after I sent them a reply with the help of lawyers, I cannot forget the humiliating treatment.

Also read: Transgender students and faculty missing from Central Universities

Q: Have similar incidents occurred in the past where you were discriminated against because of your gender identity?

A: Yes, it happens all the time. I am a highly qualified individual, holding bachelor's and master's degrees in Arts, a bachelor's degree in Education, as well as a two-year diploma in Nursery Teacher Training. Despite these qualifications, I lose my job immediately after I reveal my gender identity. There have been instances where I was paid less for the same work as performed by persons of the binary genders. I have never had the opportunity to experience a normal recruitment process.

Q: Can you tell us about the petition?

A: My grievance at the Delhi high court is that notices issued by the Delhi Subordinate Staff Selection Board (DSSSB), notifying vacancies in schools administered by the Directorate of Education of NCT of Delhi for the posts of teaching staff, particularly those for Trained Graduate Teachers, and for Post Graduate Teachers exclude transgender persons from applying for these posts.

The notices circulated by the DSSSB continue to seek applications from only male and female candidates. Two vacancy notices were issued on January 2, 2020, and May 12, 2021. Both excluded transgender persons. The online portal of the DSSSB, that is, the Online Application Registration System (OARS), when accessed, did not permit me to apply under the transgender person's category. So, I had to misgender myself as female.

Moreover, the OARS mandated registration by the name recorded in Class X certificates issued by the Central Board of Secondary Education (CBSE). I was constrained to register my dead name because the CBSE is yet to set up a mechanism to allow transgender persons to change their names. After I underwent sex reassignment surgery, I legally changed my name and gender to align with my self-identity. Although the OARS has now incorporated an option for transgender persons, it is only available to new applicants.

In response to my petition, the respondents had filed a reply which stated: "…[I]t appears that the Petitioner identifies as 'transgender-woman' as the Petitioner's self-identified gender is female only…" This is clearly a violation of my rights under the Transgender Persons (Protection of Rights) Act, 2019. It is also a violation of my fundamental rights guaranteed under Articles 14, 15, 16, 19(1)(a) and (g), and 21.

Also read: Provide specific reservation for transgenders: Madras HC

Q: Did you try approaching the Delhi state authorities?

A: I wrote letters on the issue of exclusion of transgender persons to various state authorities, including the Chief Minister and the Deputy Chief Minister of Delhi in 2021. I have also made representations to the Department of Social Welfare, the Government of NCT of Delhi, and the DSSSB. Through my lawyers, I sent a legal notice, in August 2021, calling upon the Department of Social Welfare and the DSSSB to issue separate vacancies for transgender persons. I have not received any response.

Q: Are there any other prayers in the petition?

A: Yes, I have requested for the court to issue appropriate directions to adopt necessary relaxations in minimum qualification and age for vacancies to be issued to transgender persons, and to frame a policy for their recruitment in all public appointments in Delhi.

I have also requested the court for directions to extend reservations to transgender persons in all public appointments in the NCT of Delhi. But the respondents to this prayer replied: "… [O]nly men and women are recognised by almost all states and the Central Government, transgender persons are not identified for the purpose of creating reservation. The Constitution of India is also silent as to providing reservation to the third gender, as it is only limited to men and women."

As the matter is sub judice, I remain unemployed.

Also read: Karnataka clears transgender reservation; now other states must too

The Delhi High Court continues to hear this matter, and the next hearing is scheduled on March 28.