Reasonable Accommodation and Omissive Discrimination: Supreme Court mandates horizontal enforcement of transgender equality under the 2019 Act

Introduction

In Jane Kaushik v. Union of India, 2025 INSC 1248 (Supreme Court of India, 17 October 2025), a two-Judge Bench (J.B. Pardiwala and R. Mahadevan, JJ.) confronted the persistent gap between the rights of transgender persons as guaranteed on paper and their lived reality. The petitioner, a transgender woman and qualified teacher, alleged discriminatory termination/denial of employment by two private unaided schools in different States within a year and highlighted systemic failures in implementing the Transgender Persons (Protection of Rights) Act, 2019 (the “2019 Act”) and the Transgender Persons (Protection of Rights) Rules, 2020 (the “2020 Rules”).

The judgment is both fact-specific and system-transforming. It articulates, with unusual clarity, that:

Reasonable accommodation is a positive constitutional obligation inherent in Article 14’s promise of equal protection, and is implicit in the 2019 Act’s framework;
Omissions by the State in implementing statutory and constitutional guarantees—“omissive discrimination”—violate the equality code and are judicially remediable;
Through the 2019 Act, Parliament has concretised the horizontal application of fundamental rights to private establishments, making anti-discrimination enforceable in private workplaces; and
Courts can and will craft targeted reliefs and structural directions, including compensation, continuing mandamus, and the constitution of an expert Advisory Committee to close the gap between norm and practice.

Key issues included: (a) the extent of the State’s positive duties under the Constitution and the 2019 Act to prevent discrimination against transgender persons; (b) whether State inaction caused the petitioner’s rights-violations; (c) whether the two schools’ conduct was discriminatory under the 2019 Act and constitutional principles; and (d) what remedies and systemic directions are warranted.

Summary of the Judgment

The Court held that:

Positive obligation and reasonable accommodation: Article 14’s “equal protection of the laws” entails substantive equality and therefore positive measures—reasonable accommodation—for transgender persons. Though not textually enumerated in the 2019 Act, reasonable accommodation is implicit in its design (particularly Sections 3, 8–15, 9–11 and Rules 10–13), and must guide its implementation.
Horizontal effect via statute: The 2019 Act gives concrete horizontal application to non-discrimination duties by binding private “establishments” (Section 2(b))—including schools—with enforceable obligations (Sections 3, 9–11; Rules 10–13).
Omissive discrimination by the State: The Union and concerned States failed to operationalise mandated mechanisms (e.g., complaint officers, protection cells, welfare boards, equal opportunity policies) and ignored prior directions (Shanavi Ponnusamy). Such legislative/administrative omissions violate constitutional guarantees (Articles 14, 15, 21).
Application to facts:
- First School (Respondent No. 5): The Court, while admonishing laxity in addressing harassment, did not find sufficient material to conclude intentional discrimination and noted attempts at accommodation. However, it underscored the school’s statutory non-compliance (e.g., absence of a complaint officer) and the State’s failure to enforce the regime.
- Second School (Respondent No. 4): The Court found discriminatory denial of employment following revelation of the petitioner’s gender identity, rejecting the argument that non-formation of a final contract insulated the school. Section 9 covers recruitment; the anti-discrimination mandate attaches even at the offer stage.
Compensation: Exercising public law remedial jurisdiction, the Court awarded:
- Rs 50,000 from the Second School to the petitioner (private discrimination);
- Rs 50,000 each from the Union of India and both concerned States (for omissions that deprived her of a functioning redressal ecosystem).
Structural directions (Article 142): Within three months:
- Designate appellate authorities under Rule 9; constitute State Welfare Boards (Rule 10(1)); establish Transgender Protection Cells at district and State levels (Rule 11(5));
- Ensure every establishment designates a complaint officer (Section 11, Rule 13);
- Designate State Human Rights Commissions as forums to hear objections against decisions taken under Rule 13(3);
- Set up a nation-wide toll-free helpline to report violations of the 2019 Act/2020 Rules, with routing to Protection Cells.
Advisory Committee: Constituted under the Chairpersonship of Hon’ble Ms. Justice Asha Menon, with leading transgender-rights advocates, medical and legal experts, and senior officials as ex officio members, to draft an Equal Opportunity Policy and a comprehensive implementation report within six months; the Union to adopt a policy within three months thereafter. Initial corpus: Rs 10 lakh deposited by the Union. Continuing mandamus issued.

Analysis

Precedents Cited and Their Influence

NALSA v. Union of India (2014) 5 SCC 438: Foundational recognition of transgender persons’ rights; interpreted “sex” in Articles 15 and 16 to include gender identity; endorsed anti-stereotyping and positive obligations. The present Bench deepens NALSA by reading reasonable accommodation into the statutory scheme.
Shanavi Ponnusamy v. MoCA, 2022 SCC OnLine SC 1581: Directed the Union to devise a policy of reasonable accommodation for transgender persons in employment. The Court notes non-compliance, underscoring continuing State lethargy.
Navtej Singh Johar v. Union of India (2018) 10 SCC 1: Anti-stereotyping, dignity, and substantive equality; “sex” includes sexual orientation and gender identity. These threads run through the present reasoning, especially the rejection of stigma-based exclusions.
Nitisha v. Union of India (2021) 15 SCC 125: Indirect discrimination doctrine; structural bias and stereotyping; substantive equality beyond intent. The Court uses Nitisha’s lens to insist on outcome-focused anti-discrimination and to critique facially neutral but exclusionary systems.
Babita Puniya (2020) 7 SCC 469; X v. NCT of Delhi (2023) 9 SCC 433: Explicit repudiation of gender stereotypes in opportunity allocation; the same anti-stereotype norm is applied to transgender inclusion.
Vikash Kumar v. UPSC (2021) 5 SCC 370; Kabir Paharia v. NMC, 2025 SCC OnLine SC 1025: Elaborate the doctrine of reasonable accommodation as a positive duty, not charity, in disability law; the Court purposively transposes this doctrine to transgender equality as a tool of substantive equality under Article 14.
N.M. Thomas (1976) 2 SCC 310; Indra Sawhney, 1992 Supp (3) SCC 217; M. Nagaraj (2006) 8 SCC 212: Affirm the legitimacy of positive measures and the concept that equality requires treating unequals differently to achieve parity in real terms.
Kaushal Kishore v. State of U.P. (2023) 4 SCC 1: Clarifies horizontality. Here, the Court leans on the 2019 Act to operationalise horizontal duties binding private establishments.
Public law compensation line: Rudul Sah (1983), Sebastian Hongray (1984), Bhim Singh (1985), M.C. Mehta (Oleum Gas) (1987), Nilabati Behera (1993) establish that monetary compensation under Articles 32/226 is a public law remedy distinct from private tort claims. The Court follows this to award compensation for State omission and private discrimination (see also Jeeja Ghosh (2016) awarding compensation against a private airline).
Participation and information jurisprudence: Hanuman Laxman Aroskar (2019), ADR (2024 INSC 113), and Rajeev Suri (2022) (Khanna, J., dissent) inform the Court’s emphasis on voice, participation, and access to information—one of the four dimensions of substantive equality discussed below.
Comparative sources: Bostock v. Clayton County (590 U.S. 2020) (“but-for” sex discrimination), Williams v. Kincaid (4th Cir. 2022) (ADA protection for gender dysphoria), Griggs v. Duke Power (401 U.S. 424) (disparate impact), Vriend v. Alberta (Canada SC 1998) (omission can breach equality), Fraser (Canada SC 2020) (two-pronged test for indirect discrimination), EU CRPD-based equality discourse—collectively used to weave a robust anti-discrimination fabric.

Legal Reasoning

1) Reasonable accommodation as a positive constitutional duty

Article 14’s “equal protection” is purposive and remedial: it requires tailoring law and policy to remove barriers. The Bench explicitly frames reasonable accommodation as a tool of substantive equality and a positive obligation flowing from Articles 14, 15 and 21. Though the 2019 Act does not spell out “reasonable accommodation,” the Court reads it into Sections 3, 9–11 and the architecture of Rules 10–13. This purposive reading mirrors disability jurisprudence (Vikash Kumar; Kabir Paharia), while carefully clarifying that gender identity is not a disability; rather, social barriers create a “societal disability” that law must dismantle.

2) Substantive equality’s four dimensions applied

Adopting Sandra Fredman’s framework, the Court structures its equality analysis around four interlocking goals:

Redressing disadvantage: Affirmative measures and accommodation are not exceptions; they are embedded in Articles 14–16. Redress must be responsive to intersectionality (e.g., caste, disability, class), avoiding “neutral” measures that entrench inequality (Nitisha; Joseph Shine).
Addressing stigma and stereotypes: Law cannot validate stigmas (Navtej; Babita; Sabarimala). Stereotype-driven exclusions—explicit or implicit—violate Articles 14 and 15.
Enhancing voice and participation: Equality requires meaningful participation in social, educational, and professional life—rooted in the freedoms of Article 19 and the dignity guarantee of Article 21 (Hanuman Laxman Aroskar; ADR).
Accommodating difference to achieve structural change: The equality code envisages transformation (NALSA; Navtej), not mere non-interference. The 2019 Act’s welfare chapter (Sections 8, 13–15) and Rules 10–11 impose programmatic duties to mainstream transgender persons.

3) Omissive discrimination (legislative and administrative omissions)

The Court develops a vital doctrinal move: omissions (not only commissions) can be discriminatory. Two forms are identified:

Absolute omission: Where there is a complete legislative vacuum to give effect to constitutional rights (e.g., Vishaka guidelines; Aruna Shanbaug). Courts fill gaps to prevent rights from becoming illusory.
Relative omission: Where a statute exists but fails to supply enforcement mechanisms or the executive withholds implementation, resulting in rights becoming inert. That is the 2019 Act’s present malaise: complaint officers not designated; protection cells and welfare boards missing; equal opportunity policies not notified; limited or no sensitisation.

On this basis the State’s lethargy—despite Shanavi Ponnusamy and clear rules with time-bound mandates—is held to violate Articles 14, 15 and 21. The Court’s remedial stance (directions under Article 142 and continuing mandamus) squarely responds to this omission-driven rights deprivation.

4) Horizontality of fundamental rights via statute

Rather than revisiting theoretical debates, the Court locates horizontality in the 2019 Act itself: by defining “establishment” to include private entities (Section 2(b)(ii)) and prohibiting discrimination (Sections 3, 9), Parliament imposes constitutional obligations in the private sphere. Rule 12 operationalises non-discrimination at work (equal opportunity policies, safe environment, infrastructure changes; confidentiality), and Rule 13 creates an internal redressal mechanism (complaint officer with timelines). Failure by private establishments to comply is therefore not a “pure private law” dispute—it is a breach of a statutory regime grounded in constitutional values.

5) Application to the two schools

First School: Though the Court criticises the school for not curbing harassment and for non-compliance with the Act/Rules, the factual record did not establish intentional discrimination. The school’s later willingness to assess and re-hire, coupled with the petitioner’s non-appearance for the assessment (explained later as mental health-related), led the Court to refrain from ordering compensation against it. Nonetheless, the Court underscores that, had Rule 13’s internal complaint mechanism existed, the petitioner would not have been left remediless.
Second School: The volte-face upon learning the petitioner’s identity, coupled with reliance on the “no contract” shield, was rejected. Section 9 expressly covers recruitment, and Section 3’s broad prohibition is engaged at the entry stage. Discrimination found; compensation awarded.

6) Public law compensation and remedies

Following Rudul Sah, Nilabati Behera, and Jeeja Ghosh, the Court affirms that monetary compensation under Articles 32/226 is a public law remedy to vindicate fundamental rights. Here:

Compensation lies against a private respondent where a statute imports constitutional duties into the private sphere and the violation is established (Second School);
Compensation also lies against the Union and concerned States for omissions that made remedies illusory (omissive discrimination).

The Court matches individualized relief with structural orders: helpline; complaint officers; protection cells; welfare boards; designation of SHRC as the appellate forum; Advisory Committee with a time-bound policy-drafting mandate; and a continuing mandamus to monitor compliance.

Impact and Forward-Looking Implications

Immediate legal and institutional consequences

Positive duty to accommodate: Establishments (public and private) must now operationalise reasonable accommodation for transgender employees and applicants—e.g., gender-neutral/diverse washrooms, inclusive infrastructure, confidentiality protocols, updated application forms reflecting “Third Gender,” and clear equal opportunity policies.
Recruitment-stage protections: Discrimination is actionable even at the offer/shortlisting/probation stage (Section 9), shifting HR and recruitment practices across sectors.
Grievance architecture: Every establishment must designate complaint officers; States must set up Protection Cells and Welfare Boards; SHRCs will hear objections where the internal mechanism fails.
National helpline: Creates a single-point intake with automatic routing to Protection Cells, expanding access and accountability.
Advisory Committee and policy harmonisation: A model Equal Opportunity Policy and a comprehensive implementation blueprint are expected within six months. The Union must adopt a policy in three months thereafter—enforceable as a floor standard where establishments lack their own policy.
Continuing mandamus: The Union must report compliance nationwide, embedding judicial oversight into executive delivery.

Sectoral ripple effects

Education: Schools and universities, aided or unaided, must align admissions, records, examinations, sports participation, and campus life with inclusive policies (UGC/CBSE/State Boards encouraged to adopt comprehensive norms). Anti-bullying and sensitisation are integral.
Healthcare: NMC is nudged to revise curricula and clinical protocols to align with gender-affirming care standards; access, counselling, and insurance coverage must reflect Section 15 directives.
Public spaces and security: Gender-diverse screening points and sensitisation at airports, metros, and other high-traffic sites are recommended.
Police and justice delivery: MHA is advised to ensure no transwoman is arrested without the presence of a lady officer; Protection Cells institutionalise monitoring, FIR registration, investigation, and prosecution of offences against transgender persons.

Doctrinal consolidations and open questions

Consolidated doctrine: The judgment fuses substantive equality, anti-stereotyping, indirect discrimination, horizontality-by-statute, and public law remedies into a coherent framework tailored to transgender rights.
Operational contours: While “reasonable accommodation” is affirmed, standards for “undue hardship” (as in Canada/ADA practice) are not expressly defined. The Advisory Committee’s work and subsequent policy may supply operational thresholds and exemplars.
Enforcement culture: The success of this judgment hinges on implementation by States, regulators (UGC, CBSE, NMC), and private establishments. The continuing mandamus and helpline are designed to catalyse a culture shift from paper compliance to lived equality.

Complex Concepts Simplified

Reasonable accommodation: Practical, case-specific adjustments—like allowing access to gender-appropriate facilities, updating forms, ensuring confidentiality, modifying infrastructure—so that a person can participate equally. It is a right, not charity.
Substantive vs. formal equality: Formal equality treats everyone the same; substantive equality recognises that people are situated differently and may need different support to achieve genuinely equal outcomes.
Indirect discrimination: When a neutral rule or practice disproportionately harms a group (e.g., recruitment practices or documentation formats that exclude transgender persons), even without discriminatory intent.
Omissive discrimination: Discrimination by inaction—when the State fails to create or implement mechanisms that are essential to make rights meaningful.
Horizontal application: Applying constitutional values to private actors. Here, Parliament has legislated duties for private establishments via the 2019 Act.
Complaint Officer (Rule 13): A designated officer in every establishment who must investigate complaints within 15 days and facilitate remedial action within a further 15 days.
Continuing mandamus: A judicial order that keeps the case open for periodic review to ensure sustained compliance over time.

Conclusion

Jane Kaushik is a watershed decision in India’s equality jurisprudence for transgender persons. It makes three transformative moves. First, it constitutionalises reasonable accommodation as a positive duty and reads it into the 2019 Act, aligning statutory text with substantive equality. Second, it recognises and remedies “omissive discrimination,” holding governments answerable for implementation gaps that reduce rights to aspirations. Third, it entrenches the horizontal reach of anti-discrimination through a detailed statutory regime and gives victims real-time remedies—compensation, complaint officers, helplines, protection cells, and a time-bound policy architecture under the guidance of an expert Advisory Committee.

While the Court refrains from re-trying contested employment facts in respect of the First School, it unequivocally condemns the Second School’s recruitment-stage discrimination and imposes consequential liability. Beyond individual relief, the Court’s directions are unabashedly structural: they target the State’s compliance deficit and the private sector’s inclusion deficit, knitting both into a single fabric of enforceable equality. In doing so, the Bench reaffirms that equality under Articles 14, 15 and 21 is not a promise of abstract sameness but a mandate to build conditions in which transgender persons can live, learn, work, and participate with dignity.

If implemented in letter and spirit, this judgment will shift the centre of gravity from performative inclusion to operational justice—turning rights on paper into rights in practice for the transgender community across India.