The Supreme Court heard Shanavi Ponnusamy versus Ministry of Civil Aviation and Anr on August 10. Senior counsel Anand Grover arguing on behalf of the petitioner informed the Hon’ble court that the petitioner was“discriminated by the Respondents on the ground of gender violating her rights under Article 14 to 16 and 21 of the Constitution of India”. He further argued that Air India did not comply with the historic NALSA judgment delivered by the Hon’ble Court by not providing a separate category for transgender persons to apply.
ShanaviPonnusamy who identifies herself as a woman applied in the women’s category for a job in the Air India cabin crew. In the historic NALSA judgment, Supreme Court of India, recognising the right to self-determination of one’s gender as an extension of Article 21, said that Article 21 “is the heart and soul of the Indian Constitution”. It further goes on to say that the“right to life is a fundamental right and not even the state has the authority to violate or take away that right. Article 21 protects the dignity of human life, one’s personal autonomy, one’s right to privacy etc…the recognition of one’s gender identity lie at the heart of the fundamental right to dignity. Gender, as already indicated, constitutes the core of one’s sense of being as well as an integral part of a person’s identity. Legal recognition of gender identity is, therefore, part of the right to dignity and freedom guaranteed under our constitution.”
The historic judgment concludes that“Article 21 as already indicated, protects one’s right of self- determination of gender to which a person belongs is to be decided by the person concerned.” However, in dissonance to the Supreme Court judgment, Shanavi was forced to disclose the identity she was born in because most education boards, in violation of the NALSA judgment, have not changed the names and genders on the educational documents of people identifying with gender they are not born in to reflect their preferred name and gender.
Twenty-six-year-oldShanavi, an engineer by education, is the first graduate from her family hailing from Tiruchendur in Thoothukudi district of Tamil Nadu. A statement issued by WSS condemning the transphobia by Air India and in support of Shanavi states that “she had been denied employment almost 24 times because of her gender identity before she managed to secure a job with a private company, Sutherland Global Services (airline sector).” She worked in the company for a year where she also served for the customer care services for Air India in Chennai. She has applied for the post of cabin crew four times in Air India. Despite faring well in the test conducted she was not shortlisted for the post in question. Intrigued by the non-acceptance despite meeting the qualification criteria and experience she visited the Office of the Ministry of Civil Aviation. Despite her efforts, she could not meet the Chairman and Managing Director of Air India. Aghast by the lack of mechanism to redress her problem, she wrote a letter addressing the Prime Minister of India which was forwarded to the ministry of Civil Aviation. Ministry of Civil Aviation, instead correcting the wrong, went on to say that there was no transgender category in the recruitment policy and hence her case was closed. She finally filed a writ petition in the Supreme Court asking the court to recognise her rights as a person whose identity has been prejudiced againstand stereotyped and historically marginalised. She also requested that the Court demands that others respect her right to self-determine her own gender identity.
Air India has denied all allegations in its counter affidavit and stated that she was rejected because she scored 51 marks in the group dynamics and personality assessment test(GD and PAT), as against the required 55 marks. However, both GD and PAT were outsourced to a private agency.
Shanavi was made to believe that she did exceedingly well in her Group Discussion. Senior CounselAnand Grover argued before the Supreme Court that the Personality Aptitude Test (PAT), which is specifically for women and not transgender as is evident from the fact that Cosmetic appearance is required to be “Clear complexion, without any noticeable blemish and no odd scars or birthmarks” which cannot be applied for a transgender person.” He further said that “the PAT, is purportedly tested on the basis of how one walks, stands and smiles to come to an assessment of ‘Overall Personality’, ‘Self Confidence’, ‘Service Aptitude’, and for ‘Communication/Sociability’ for women which would be inherently flawed when applied to Transgender persons.”
He went on to say that there are no objective standards for assessing the “Overall Personality”, “Self Confidence,” “Service Aptitude,” and for “Communication/Sociability” and as they are subjective and therefore completely arbitrary and cannot form the basis of selection in consonance with fair, just and reasonable procedure in consonance with Articles 14, 15 and 16 of the Constitution. In any way, “these factors remain unrelated to the function of the crew”, he argued.
Grover went on to argue that Air India has “failed to consider that the discrepancy/incongruency in marking is obvious when subjective evaluation is done for two separate class of persons by criteria which is valid only for one”.
NALSA judgment takes account of the historical injustice meted out against the transgender community. The Supreme Court directed “the Centre and the State Governments to take steps to treat them as Socially and Educationally Backward Classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.” As absence of a transgender section in the application form goes against the directions given by the Supreme Court.
Adhering to the true spirit of the Constitution and the NALSA judgment, Shanavi should be entitled to self-determine her gender and should also be able to avail the benefits of the affirmative actions. The Civil Aviation Ministry dismissing her letter on the grounds that it is only open for “women” is going against the value of the judgment.