Fredman’s four dimensions and the Supreme Court’s pursuit of Transgender Equality
**Gurmehar Bedi & Ashwath Ram
Recently, in Jane Kaushik v. Union of India, the Supreme Court of India attempted to reinterpret the framework of equality for transgender persons. The case was brought by Jane Kaushik, a transgender woman and qualified teacher, who alleged that two private schools denied her employment because of her gender identity and that both the central and state governments failed to implement the Transgender Persons (Protection of Rights) Act, 2019 [hereinafter “2019 Act”] and the Transgender Persons (Protection of Rights) Rules, 2020 [hereinafter “2020 Rules”]. The petition compelled the Court to examine and, consequently, rectify the persistent gap between constitutional guarantees for transgender persons compared to their lived reality. Interestingly, the Court adopts Sandra Fredman’s four-dimensional model for substantive equality to re-imagine equality and discrimination by imposing positive obligations on the State and private actors. While the Court refers to Fredman’s approach in order to reconceptualise the concept of discrimination, it fails to apply the framework effectively, as envisioned by the author.
The Story behind Jane Kaushik
The petitioner, Jane Kaushik is a transgender teacher with a Master’s degree in political science and English and a Bachelor of Education, who faced discrimination when two private schools (First School and Second School) terminated her and rescinded a job offer, respectively, after discovering the petitioner’s gender identity. While there was insufficient evidence against the First School, the Court held the Second School guilty of denying opportunities based on gender identity. This is indicative of systemic concerns which perpetuate discrimination against an already marginalised group, i.e., transgender persons. These concerns are further exacerbated by the absence of functional grievance‑redressal mechanisms, which stifles their ability to have an active voice and participate in society.
Mapping Substantive Equality: Fredman’s four-dimensional framework
Before delving into these dimensions, it is imperative to understand substantive equality – a concept arising from a simultaneous reading of Articles 14, 15, and 16 of the Constitution. Sandra Fredman envisions substantive equality as going beyond treating unequal citizens equally; instead, it seeks to eliminate structural disadvantages by redressing historical detriments. It recognises that genuine equality requires proactive measures – recognising dignity, participating in decision-making, and accommodating differences. We attempt to bridge the gap between the author’s intended effect of the framework and the Court’s application of the same.
Redressing Disadvantage
Redressing disadvantage, as explained by Sandra Fredman, demands more than just a formal recognition of rights. Instead, it requires an active intervention to dismantle structural inequities and compensate for the antiquated subordination of marginalised groups. This necessarily means that mere equal treatment within unequal circumstances simply reproduces inequality. The axis of redressing disadvantage is adopting inherently asymmetric methods that deliberately rectify historical wrongs. The imperative, therefore, is to identify and counterpoise the structural disadvantages, whether material, institutional, or social, that keep the marginalised trapped in a self-sustaining cycle of deprivation.
In the present case, the Supreme Court attempts to fulfil this redistributive function by invoking its powers under Article 142 to bridge the implementation gap within the 2019 Act and the 2020 Rules. It creates welfare boards, protection cells, appellate authorities, and even a national helpline in the hope of giving operational force to the skeletal framework adopted in the provisions. It suggests providing gender-neutral washrooms and cultivating gender-inclusive work environments, among other measures. In theory, these measures do recognise that transgender persons have been discriminated against and systematically excluded from society..
However, such measures remain more administrative rather than transformative. They do little to amend the historical injustice perpetuated against them. Further, the suggestive nature of the measures means that the burden of implementation remains discretionary. While providing guidelines for workplaces, the Court omits mandating any measurable outcomes or timelines, which takes away from the sternness of the measures. Further, there is a jarring absence of affirmative action, meaning that transgender persons are still forced to compete within structured environments traditionally suited for cisgender majorities. This buys into the idea of “ommissive discrimination”, which is the absence of positive measures in the form of affirmative action and reasonable accommodation.
Addressing stigma and stereotypes
The second dimension is on addressing stigma, stereotyping, humiliation, and even violence, thereby targeting the injuries of inequality. It begins with the understanding that discrimination stems from certain identities being socially constructed as inferior, deviant, or threatening. Therefore, there is an insistence on widening equality beyond the mere redistribution of material resources to recognising our shared humanity. This is achieved by shifting equality from abstract dignity to relational recognition because individuals derive self-worth from how society perceives and affirms them.
In the present case, the Supreme Court acknowledges that prejudice against transgender persons is entrenched in institutional neglect. It observes that the 2019 Act and the 2020 Rules remain “mere aspirations on paper”, thereby affirming that, ultimately, it is bureaucratic indifference that perpetuates stigma. The Court’s directions are an effort to shift from mere passive tolerance to institutional acknowledgement, thus ensuring that transgender persons are not only visible but also protected within the state structures. Similarly, the instruction to create “reasonable accommodation” measures while maintaining privacy signals that the Court understands that self-identified gender is one of the most essential facets of human dignity.
However, the Court fails to address the historical ‘othering’ of transgender persons adequately. Its engagement with prejudice and stigma, though far-reaching, remains limited to mere acknowledgements rather than a solution-oriented rectification. More crucially, the Court fails to acknowledge the intersectional nature of discrimination that transgender persons may be subjected to if they belong to a lower caste. This exacerbated form of discrimination removes from transgender persons their ability to articulate their concerns, politically, socially, and even at the inter-personal level. The significance of this becomes apparent when grappling with questions about the dual nature of stigmatisation and therefore warrants an acknowledgement. This ties into the third dimension that Fredman envisages, i.e. the enhancement of voice and participation.
Enhancement of voice and participation
Fredman has analysed the dimension of participation in two aspects: political and social. While examining the political element of participation, she postulates that laws must not only compensate for the deprivation of an active political voice but also create avenues for greater involvement of marginalised communities in politics going forward. With respect to the social aspect, she argues for the active integration of marginalised members into society.
The Court highlights that enhancing voice and participation are a “fundamental requirement of substantive equality” for achieving true integration of historically marginalised communities in social settings. The Court observes that institutional discrimination ought to be eliminated for the true political and social participation of marginalised communities. It further refers to a Kenyan High Court judgment to identify principles of public participation and distils them into two broad principles embodied in the Indian legislative framework: ensuring the public’s right to information and granting an “effective” opportunity to exercise the right to political participation. The Court further observes that the right to participation is not merely a procedural requirement but a constitutional embodiment of dignity, freedom and equality. It concludes its analysis by equating the right to participation with Article 19 and Article 21, to demonstrate its importance.
However, the Court fails to provide any recommendations to enhance the right to information available to the transgender population and to improve their participation in the political arena. It is important to note that only a small fraction of transgender population was eligible to vote in the 2024 Lok Sabha elections. Several reports have indicated that the community faced bureaucratic hurdles during the elections, further reducing actual voter turnout. The Court also acknowledges the barriers faced by the transgender community in their social and political life, but fails to provide a direction or recommendation in this regard. Therefore, while the analysis of this dimension was well-reasoned, it misses an opportunity to translate its analysis into concrete recommendations to improve the voice and participation of the transgender community in the political arena.
Accommodating differences to achieve structural changes
The final dimension of Feldman’s framework on substantive equality focuses on addressing the detriments faced by a group rather than eliminating differences between groups. She criticises the formal equality approach, which seeks to judge an individual entirely on merit and regards race, sex and other aspects of an individual’s identity as irrelevant. She highlights that the detriment attached to an individual’s identity, not the identity itself, is the core issue and such detriments ought to be removed in order to truly achieve substantive equality.
Herein, the Court observes that accommodating a marginalised group ought to be a natural course of events rather than a mere obligation. The Court refers to the accommodative measures suggested in the NALSA judgement to integrate transgender citizens into society. The Court proceeds to observe that the obligation to accommodate differences is not just the prohibition of stereotypical and prejudicial attitudes, but also a positive obligation by way of affirmative action and reasonable accommodation. The Court uses this reasoning to criticise the failure of the government to formulate educational schemes in a manner sensitive to the needs of the transgender community, and further remarks that marginalisation is not necessarily a consequence of overt acts of discrimination but also a product of legislative omission. Last, it requires that the government ensure the accommodation of differences between transgender groups and cisgender groups. For instance, it suggests that employers maintain confidentiality about the gender identity of an employee and that educational institutions formulate policies to promote the inclusion of transgender students in classrooms. It further directs the designation of an appellate authority for transgender persons to appeal against a district magistrate’s decision.
However, a majority of these measures do not seek to remove the detriments faced by the transgender community but merely offer remedies after an overt act of discrimination occurs. Measures that seek to improve the lives of transgender persons, such as inclusive educational policies and gender-inclusive workplaces, remain suggestive. The binding measures adopted by the court are remedial, not affirmative, except for the creation of a welfare board and the formation of an advisory committee. More crucially, the Court does little to vitiate the systemic advantage attributable to cisgender persons in daily life. Thus, although the Court engages with Feldman’s accommodating differences approach analytically and makes several suggestions to integrate transgender citizens into society, it does not adequately utilise its powers to do complete justice under Article 142 of the Indian Constitution.
The Road beyond Jane Kaushik
The judgment pronounced in Jane Kaushik v Union of India, albeit with a few shortcomings, signals an emphatic step in the ripening of India’s equality jurisprudence. It is one of the few decisions that adopts Fredman’s four-dimensional model to interpret Article 14. The Court’s stipulation of positive obligations, recognition of omissive discrimination, and emphasis on reasonable accommodation are a welcome shift from formal, negative liberty to proactive state responsibility. Yet, while the judgment maps the contours of all four dimensions and conducts a substantial analysis of the same, it does not go the distance along the path it lays down. The Court shies away from adopting a transformative approach and limits itself to administrative directions without genuinely embedding redistributive measures that could recalibrate social identity and relations. The judgment opens the door but stops short of walking through it.
Nonetheless, Jane Kaushik is a landmark in its vision. It rethinks equality as a living ornament, one that ought to bind both public and private actors, and situates dignity at the core of addressing prejudice prevalent in society. By expanding Article 15 to encompass failures of implementation, the Court moves toward a more encompassing understanding of state responsibility, one that treats inaction as a form of inequality. However, for the promise of Jane Kaushik to be materialised, future courts and policymakers must build upon its foundations: the transformation of bureaucratic compliance into genuine redistribution, the change of recognition into social respect, and the guarantee that the four facets of substantive equality operate not just as jurisprudential ideals but as tangible guarantees of justice.
**Gurmehar Bedi & Ashwath Ram are from the Batch of 2028 at the National Law University, Jodhpur
**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.