The judgment establishes the obligation of the government to ensure non-discrimination in employment as per the 2019 Act and the fundamental rights of transgender persons.

ORDER

1. The gist of the case is that the petitioner, a transgender woman, had sought employment as a member of the cabin crew in Air India, pursuant to an advertisement dated 10 July 2017. The advertisement was for recruitment in the 'female category'. No special category for transgender persons was provided. After clearing the Preliminary Medical Examination tests, the petitioner appeared for the Group Dynamic[1] and Personality Assessment Test[2] on 18 August 2017. The GD and PAT for the post of female trainee cabin crew, evaluated the candidates on subjective parameters, including overall personality, self- confidence, service aptitude, and communication/sociability. The petitioner was not selected. Mr K V Viswanathan, senior counsel, states that the rejection of the petitioner was due to the inability of the Petitioner to score the minimum qualifying marks in the GD and PAT (relevant to the SC category).

[1] 'GD'

[2] 'PAT'

2. The petitioner instituted the Writ Petition under Article 32 of the Constitution seeking, inter alia, a direction to the respondents to consider the candidature of the petitioner for the post of cabin crew in Air India.

3. In National Legal Services Authority v. Union of India, (2014) 5 SCC 438, this court recognized the fundamental rights of the transgender population, including the right to self-determination of one's gender as an extension of Article 21 of the Constitution. The Court held that incidental to their fundamental right to live with dignity under Article 21, is the right of equal access to all facilities to achieve full potential as human beings, including proper education, social assimilation, access to public spaces and employment opportunities. On the issue of discrimination faced by transgender persons in matters relating to employment, this Court observed:

'65. Article 16 states that there shall be equality of opportunities for all the citizens in matters relating to employment or appointment to any office under the State. Article 16(2) of the Constitution of India reads as follows:

'16. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.'

Article 16 not only prohibits discrimination on the ground of sex in public employment, but also imposes a duty on the State to ensure that all citizens are treated equally in matters relating to employment and appointment by the State.

66. [....]

67. TGs have been systematically denied the rights under Article 15(2), that is, not to be subjected to any disability, liability, restriction or condition in regard to access to public places. TGs have also not been afforded special provisions envisaged under Article 15(4) for the advancement of the socially and educationally backward classes (SEBC) of citizens, which they are, and hence legally entitled and eligible to get the benefits of SEBC. State is bound to take some affirmative action for their advancement so that the injustice done to them for centuries could be remedied. TGs are also entitled to enjoy economic, social, cultural and political rights without discrimination, because forms of discrimination on the ground of gender are violative of fundamental freedoms and human rights. TGs have also been denied rights under Article 16(2) and discriminated against in respect of employment or office under the State on the ground of sex. TGs are also entitled to reservation in the matter of appointment, as envisaged under Article 16(4) of the Constitution. State is bound to take affirmative action to give them due representation in public services.

68. Articles 15(2) to (4) and Article 16(4) read with the directive principles of State policy and various international instruments to which India is a party, call for social equality, which TGs could realise, only if facilities and opportunities are extended to them so that they can also live wit