Published On: June 7th 2026
Authored By: Devyani Shashank Kulkarni
SVKM, Pravin Gandhi College of Law
Case Details
Full Case Name: Jane Kaushik v. Union of India & Ors.
Citation: 2025 INSC 1248
Bench: Justice J.B. Pardiwala and Justice R. Mahadevan
Date of Judgment: 17 October 2025
Facts and Issues
Facts
Ms. Jane Kaushik is a transgender woman who completed her undergraduate studies in 2016, an advanced diploma in nursery teacher training in 2017, and a postgraduate degree in political science in 2018. In 2019, she underwent gender affirmative surgery, and by 2020 was enrolled in a B.Ed. programme to pursue a career in teaching.
She filed a writ petition under Article 32 of the Constitution of India, alleging discrimination and humiliation in employment resulting in her termination from two different private schools within the span of a single year.
Termination from the First School
In November 2022, Ms. Kaushik was selected as a trained graduate teacher in English and political science, receiving an appointment letter dated 22.11.2022. She worked for only eight days (25.11.2022 to 02.12.2022), during which she allegedly faced name-calling, harassment, and body shaming by colleagues and students for not conforming to female gender norms. She reported the harassment to the principal, who acknowledged one specific faculty member’s hostile behaviour and assured support.
On 03.12.2022, she claimed she was forced to resign after revealing her gender identity to a student, with threats that her salary for those eight days would be withheld. Her resignation letter itself cited that the school was unwilling to employ an “openly transgender” person. The school, on 05.12.2022, sent her an email attributing her departure to poor performance in social science, while commending her English skills. Following media coverage of the incident on 08.12.2022, the first school issued a defamation notice for ₹1 crore and issued a press statement claiming it was unaware of her gender identity until the coverage appeared in national newspapers.
Ms. Kaushik sought re-employment. The school agreed, subject to an assessment test. She failed to appear for the rescheduled test on 25.02.2023 and resurfaced after four and a half months, citing mental health issues. She was ultimately told there were no vacancies.
The first school contended that she was selected conditionally after initially failing to meet the criteria, that she was accommodated in the women’s hostel and given access to female washrooms, and that her termination was due to poor teaching standards, temperamental issues, and a specific misbehaviour incident involving a staff member’s charger and a student complaint.
Termination from the Second School
On 24.07.2023, Ms. Kaushik was offered a position as an English teacher at a school in Jamnagar, Gujarat, following video call interviews. While travelling to join, she was asked to share identity documents. Upon revealing her transgender identity, the school denied her employment and refused her entry without issuing any formal termination letter. She served a legal notice on 29.07.2023, which went unanswered.
The second school contended that the offer letter was conditional and subject to document verification and a probationary month, that it had issued offer letters to multiple candidates for comparative assessment, and that no documentary evidence linked gender identity to the denial of employment.
Failure of Grievance Redressal Mechanisms
Before approaching the Supreme Court, the petitioner attempted relief through multiple forums:
National Commission for Women (NCW): The NCW took suo motu cognizance, constituted an inquiry committee, and conducted an on-site investigation. The committee concluded that no discrimination was made out, citing that the school knew her identity and had provided hostel accommodation and cab service. Ms. Kaushik objected that the inquiry focused on her performance rather than gender discrimination.
Criminal Complaint: Filed with the police on 09.12.2022.
National Council for Transgender Persons (NCTP): Complaint filed on 29.12.2022; no reply received.
National Human Rights Commission (NHRC): Closed the matter on 12.02.2023, noting that the NCW was already seized of it.
The grievance redressal mechanism mandated under the Transgender Persons (Protection of Rights) Act, 2019 was not operational, compelling her to approach the Supreme Court under Article 32.
Issues
Four questions were framed for consideration:
Issue (a): Whether a positive obligation is cast upon the Union of India and the States under the Constitution of India and the Transgender Persons (Protection of Rights) Act, 2019 to prevent discrimination against transgender persons?
Issue (b): Whether the inaction and omissions on the part of respondent Nos. 1 to 3 (Union of India and the concerned States) amounted to discrimination against the petitioner?
Issue (c): Whether the actions and inactions of the first school (respondent No. 5) and the second school (respondent No. 4) respectively constituted discrimination against the petitioner on the ground of her gender identity?
Issue (d): If the answers to Issues (b) and (c) are in the affirmative, whether the petitioner is entitled to compensation?
Submissions
On Behalf of the Petitioner (Sr. Adv. Mr. Yashraj Singh Deora)
The 2019 Act and 2020 Rules impose a positive obligation on the State and all establishments; both were entirely unimplemented. Articles 14, 15, 17, 19, and 21 protect transgender persons against discrimination. “Sex” under Article 15 includes gender identity, as held by the Supreme Court in NALSA v. Union of India (2014). The Supreme Court in Kaushal Kishor v. State of Uttar Pradesh (2023) ruled that fundamental rights, particularly Articles 19 and 21, can be enforced horizontally against private entities, not just the State.
The “but for” test (as applied in Bostock v. Clayton County) established causation: the petitioner was terminated or denied employment solely because of her gender identity. She suffered economic deprivation of her livelihood, and as a member of a marginalised group she is entitled to compensation for violation of her fundamental rights, which can be claimed against private parties as held in Jeeja Ghosh v. Union of India (2016).
On Behalf of the Respondents
First School (Adv. Negi): Disputed facts are not amenable to summary writ proceedings under Articles 32 and 226 of the Constitution. The NCW inquiry had already found no discrimination. The relationship is purely contractual; no element of public law is present, making the matter not actionable through a writ petition under Article 226.
Second School (Adv. Kumar): An offer letter does not create a contract of service, and reinstatement prayers are purely contractual. Sections 3 and 9 of the 2019 Act impose only negative duties on private schools, not a positive duty to appoint. Positive employment duties under Rules 10 and 11 of the 2019 Act bind the Government, not private establishments. No documentary evidence links the denial to gender identity.
Judgment and Ratio
Issue (a): State’s Positive Obligation
Article 14’s guarantee of “equal protection of law” demands substantive equality, which includes reasonable accommodation; this constitutes a positive duty on the State and all establishments. Drawing from disability jurisprudence (Vikash Kumar, Kabir Paharia, and NALSA), the Court held that this doctrine now extends to transgender persons. Gender identity is not equated with disability; the real disability is society’s refusal to move beyond the gender binary.
Issue (b): State Discrimination by Omission
The 2019 Act and rules had been effectively reduced to dead letters: only three States had framed rules, only eleven States had formed protection cells, no employment policy existed, and the NTCP had never responded to the petitioner. The Court held that this constituted omissive discrimination; inaction that disproportionately burdens a marginalised group is as impermissible as active discrimination.
Issue (c): School-Level Discrimination
First School: The school had accommodated the petitioner from the outset (providing hostel access, washroom facilities, and transport), agreed to re-hire her, and communicated respectfully throughout. She missed the rescheduled test without explanation for four and a half months. While the school’s conduct was not unimpeachable, it fell short of intentional discrimination.
Second School: Employment was cancelled immediately upon disclosure of the petitioner’s transgender identity. Applying the “but for” test, no other reasonable explanation existed. Section 9 of the 2019 Act prohibits discrimination even at the recruitment stage. The school’s reliance on St. Mary’s Education Society was distinguished; the right here flows from Articles 14, 15, and 21, applied horizontally through the 2019 Act, not from contract law.
Issue (d): Compensation
Article 32 is both injunctive and remedial. Compensation under writ jurisdiction is a public law remedy, distinct from private damages, and is payable by State and non-State actors alike in appropriate cases (Rudal Sah, Nilabati Behera, Jeeja Ghosh). A total of ₹2,00,000 was awarded as compensation, divided as follows:
Union of India: ₹50,000
State of U.P.: ₹50,000
State of Gujarat: ₹50,000
Second School: ₹50,000
Directions Issued by the Supreme Court (Article 142)
All States and Union Territories were directed, within three months, to designate appellate authorities, constitute welfare boards, set up transgender protection cells, appoint complaint officers in all establishments, designate State Human Rights Commissions (SHRCs) as grievance appellate forums, and establish a national toll-free helpline. A continuing mandamus was issued, and an advisory committee was constituted under Justice Asha Menon to submit a comprehensive equal opportunity policy within six months.
Critical Analysis
The most significant contribution of this judgment is the extension of reasonable accommodation (previously limited to disability law)[1] to transgender persons as a positive constitutional obligation under Articles 14, 15, and 21. By grounding this in the Constitution rather than in statute alone, the Court makes it enforceable independent of legislative will; this is a crucial safeguard given Parliament’s demonstrated inaction.[2]
The treatment of omissive discrimination is analytically bold. Holding prolonged State non-implementation of the 2019 Act as discrimination under Article 15 aligns with Sandra Fredman’s four-dimensional substantive equality framework[3] and advances the transformative constitutionalism of NALSA and Navtej Singh Johar. The horizontal application finding, rather than resolving the theoretical debate directly, pragmatically routes constitutional norms through the 2019 Act, consistent with Kaushal Kishor.[4]
However, the judgment has a notable weakness: the compensation of ₹2,00,000 in total is disproportionately low given the petitioner’s documented harm (lost employment, public humiliation, and three years without any functional grievance mechanism). Jeeja Ghosh[5] yielded substantially higher relief for a single incident of disability discrimination. The Court’s characterisation of the harm as “economic death” sits uncomfortably alongside what amounts to a token remedy.
The differential application of the “but for” test[6] to the two schools, while superficially inconsistent, is defensible on closer examination. The first school had affirmatively accommodated the petitioner’s gender identity from the outset (providing women’s hostel accommodation, washroom access, and transport), indicating acceptance rather than hostility. The resignation letter reflects the petitioner’s own characterisation rather than a formal admission. Under Apparel Export Promotion Council v. A.K. Chopra,[7] discrimination findings require assessment of the totality of conduct, and the school’s willingness to re-employ and its four-month wait before filling the vacancy collectively negate an exclusive causal link to gender identity. Judicial deference to the NCW’s on-site inquiry was therefore appropriate.[8]
Finally, the advisory committee directions edge toward judicial legislation. While Article 142 justifies structural relief, prescribing the content of a future equal opportunity policy goes beyond compelling implementation of existing law. This is a tension the Court acknowledges but does not resolve.
Overall, the judgment is doctrinally significant and morally unambiguous. Its weakness lies in the gap between the Court’s constitutional language and its remedial modesty; this risks the compensation being absorbed as an administrative cost rather than functioning as a genuine deterrent.
References
[1] Vikash Kumar v. Union Public Service Commission, (2021) 5 SCC 370 (India).
[2] Shanavi Ponnusamy v. Union of India, W.P. (C) No. 1286 of 2020 (India).
[3] Sandra Fredman, ‘Substantive Equality Revisited’ (2016) 14 International Journal of Constitutional Law 712 <https://doi.org/10.1093/icon/mow043>.
[4] Kaushal Kishor v. State of Uttar Pradesh, (2023) 4 SCC 1 (India).
[5] Jeeja Ghosh v. Union of India, (2016) 7 SCC 761 (India).
[6] Bostock v. Clayton County, 590 U.S. 644 (2020) (persuasive authority).
[7] Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759 (India).
[8] Sumedha Nagpal v. State of Delhi, (2000) 9 SCC 745 (India).
