In October 2025, in Jane Kaushik v Union of India, the Indian Supreme Court confronted a form of exclusion that has become routine rather than exceptional. A transgender teacher was denied school employment not because of lack of qualification, but in circumstances where her gender identity was treated as outside the categories the system was prepared to recognise. The Court acknowledged the State’s omissive role and awarded compensation, but its remedial response remains tethered to Jane’s individual injury, leaving intact the administrative machinery through which such exclusion is repeatedly produced.

Background

Jane Kaushik, a transgender woman with formal teaching qualifications, approached the Supreme Court after being excluded from employment by two private unaided schools. In the first, she was appointed and worked briefly before being compelled to resign following harassment linked to her gender identity. In the second, an offer of appointment was effectively withdrawn when identity verification was sought, and she was denied entry without any formal termination. With no effective statutory or administrative remedy available, she invoked the Court’s writ jurisdiction, alleging discrimination under the Transgender Persons (Protection of Rights) Act, 2019.

By the time she approached the Supreme Court, she was no longer asking only for a job, but for recognition that what she faced was not a sequence of private biases but the product of a public system built to exclude, in which recruitment rules, documentation norms and administrative silence work together to render transgender persons perpetually not yet eligible.

Limits of Declaratory Protection

The Court primarily narrates the discrimination as something done to Kaushik by a set of schools. But the deeper problem, made evident by the case record, lies not in isolated refusals but in the state’s own infrastructures of recruitment processes that assume binary gender: some documentation portals do not accept transgender as a category, verification procedures repeatedly misgender applicants, and there is a regulatory vacuum in which schools face no consequences for exclusion.

India’s Supreme Court has previously recognised a constitutional right to gender identity in NALSA v Union of India (2014) and affirmed that dignity and autonomy fall within the guarantee of the right to life under Article 21 of the Constitution, which is a right similar to substantive due process protections in many jurisdictions. Yet the statutory regime created after NALSA has remained largely declaratory. The 2019 Act contains no specialised enforcement authority or penalties against discriminatory institutions. Its safeguards function only when courts are approached, and only for the individual who litigates.

While the Court takes some affirmative steps through the creation of a committee and guidelines, this case presented a unique opportunity to correct a systemic design failure. The Court could have mandated schools to audit their recruitment frameworks, amend application systems to recognise non-binary genders, and create binding anti-discrimination protocols. It could have required periodic compliance reports, as it has done in environmental and prison-rights cases, but stops short of doing so here.

An Incomplete Remedial Turn

The judgment only partially treats the state’s omissions as the source of the harm. The compensation awarded to Kaushik becomes a remedy for her, but not a safeguard for the many transgender teachers who will apply tomorrow and encounter the same hurdles in silence. This is not to deny what the Court did achieve. It recognised that administrative indifference can itself violate equality. It affirmed that employers may not hide behind the absence of formal “categories.” And it located Kaushik’s experience within a constitutional vocabulary of dignity, autonomy and substantive equality that India’s transgender jurisprudence has been slowly constructing.

However, the deeper truth is that rights that require litigation to be activated, are not yet rights capable of reshaping daily life. For many transgender persons, discrimination does not appear as overt rejection but as a procedural impossibility, in the form that bureaucratic exclusion often takes. A job portal that refuses to accept their gender identity; a police verification form that misrecords it; a school that insists it cannot accommodate them – these are the practices that produce second-class citizenship without ever naming it.

The Supreme Court acknowledged that Kaushik’s exclusion was unconstitutional. What it did not yet do is comprehensively re‑engineer the machinery that makes such exclusion routine. Until that machinery changes, discrimination will continue to masquerade as administrative order.