Madras HC suggests 1 percent horizontal reservation for transgender persons in TN

Even a decade after the monumental judgment in National Legal Services Authority versus Union of India, which granted legal recognition to transgender persons, there remains a disparity in the implementation of reservation benefits for the community. 

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ON January 9, 2024, the Madras High Court asked the Tamil Nadu government to explore the possibility of implementing a 1 percent horizontal reservation for the transgender community across all caste categories in education as well as public employment in the state.

This move has the potential to be a crucial step towards fostering inclusivity and recognition for the transgender community.

Purpose of the policy

Discrimination can be both positive and negative. Reservation in India entails the allocation of seats in government jobs, educational institutions and even legislative bodies to specific sections of society. 

Known as affirmative action, this practice represents a form of positive discrimination sanctioned by government policy and backed by the Constitution of India.

The primary objective of this policy is the upliftment of Scheduled Castes (SC) and Scheduled Tribes (ST), as well as educationally disadvantaged classes of citizens, including Other Backward Classes (OBC) and Economically Weaker Sections (EWS).

Furthermore, it aims to ensure adequate representation of any backward class of citizens or EWS in State services. The reservation policy in India is divided into two parts: vertical and horizontal.

Vertical reservations are specifically designated for SCs and STs, operating independently for each group as outlined in Article 16(4) of the Constitution.

On the other hand, horizontal reservations encompass categories such as women, veterans, the transgender community and individuals with disabilities, intersecting across the vertical classifications. Article 15(3) of the Constitution exemplifies this inclusive approach.

Also read: A top-notch primer on reservations in India

The implementation of the horizontal quota is distinct for each vertical category, ensuring that individuals, such as transgender persons from marginalised caste groups, retain their caste status and access reservations under categories such as Most Backward Classes (MBC). This approach recognises the intricate interplay between caste and gender identity.

Crucially, by cutting across vertical reservations, horizontal reservations permit the allocation of reservations not solely based on a single identity, such as gender. Instead, they facilitate the provision of reservations for individuals with multiple significant identities, including transgender status belonging to SCs, STs and OBCs.

This nuanced approach acknowledges and addresses the intersectionality of various identity markers in the context of affirmative action.

Landmark judgment

In 2014, the National Legal Services Authority (NALSA) filed a case to legally recognise persons who fall outside the male/female gender binary, including persons who identify as 'third gender'.

The Supreme Court had to decide whether persons who fall outside the male and female gender binary can be legally recognised as 'third gender' persons.

In a landmark decision, the Supreme Court affirmed the fundamental right of individuals to self-identify their gender. Emphasising that gender identity transcends biological characteristics, the court defined it as "an innate perception of one's gender".

In its directive to both Union and state governments, the court outlined several crucial measures aimed at advancing the rights of the transgender community, including:

1. 1. Making provisions for legal recognition of 'third gender' in all documents.
   2. Recognising third-gender persons as a 'socially and educationally backward class of citizens' entitled to reservations in educational institutions and public employment.
   3. Taking steps to frame social welfare schemes for the community.

The judgment expressly directed the Union and state governments to protect transgender persons from discrimination in employment and ensure that they have access to welfare schemes.

It held that educational institutions were obliged to provide them with inclusive education. This case is a landmark judgment as it is the first to legally recognise non-binary gender identities and uphold the fundamental rights of transgender persons in India.

Also read: Horizontal reservations for transgender persons: Queering the equality code

However, the Ministry of Social Justice & Empowerment's response highlighted that the directions of the judgment have not been implemented so far.

The ministry said, "The entire marginalised and eligible population of the country, including transgender (persons), is at present covered under any one of the four categories of reservation."

The affidavit revealed that the 'other' category in the 2011 census, which includes transgender persons, shows a population of 4.8 lakh. Of this, 16.16 percent and 6.83 percent were members of SC and ST communities respectively.

Current status in Tamil Nadu

The NALSA judgment was recently mentioned in the case of Grace Banu Ganesan versus State of Tamil Nadu, a pivotal public interest litigation seeking the enforcement of horizontal reservations for transgender and intersex persons in admissions to educational institutions and public appointments in Tamil Nadu.

Transgender persons in the state are provided reservations under the MBC category and there is no clear policy on the scope of the term 'transgender' and on the implementation of reservations.

The petition specifically advocates for the adoption of horizontal reservations for transgender and intersex persons within a distinct 'transgender' or 'women' category, rather than placing them under the existing MBC category.

Previous decisions by the Madras High Court, including cases such as Nangai versus Superintendent of Police and T. Thanasu versus Secretary, Government of Tamil Nadu, have granted transgender women the eligibility to seek employment under the 'woman' category.

Drawing support from two key judgments of the Madras High Court, the petition cites Swapna versus Chief Secretary & Others, where the court emphasised that reservations for transgender persons should be established on a percentage or post-based system, not under the MBC category.

Notably, in Tharika Banu versus Secretary to the Government & Others, the court directed the state government to formulate guidelines for reservation in employment, aiming to streamline the process for transgender persons.

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The petition is presently under consideration by the division Bench of the Madras High Court. It reflects the ongoing efforts to delineate and uphold the rights of transgender and intersex individuals in the realm of education and public appointments in Tamil Nadu.

Senior counsel Jayna Kothari, representing transgender activist Grace Banu Ganesan, highlighted a disparity in the current policy concerning transgender persons.

Those identifying as women among transgender persons benefit from the horizontal reservation intended for women across all caste categories.

In contrast, those declaring themselves as either men or as third gender are categorised either under their respective caste or the MBC, depending on which is more advantageous to them.

Advocate Kothari's submission brought attention to the Karnataka government's policy, which provides a 1 percent horizontal reservation for transgender persons across all caste categories.

The Order by the Madras High Court has granted time until March 4, 2024, for Advocate General R. Shunmugasundaram to take instructions from government officials.

The court has given the Tamil Nadu government time to explore the possibility of implementing a 1 percent horizontal reservation for the transgender community across all caste categories in education as well as public employment, and this must be diligently implemented by the government.

This directive holds significance as it liberates transgender persons from intricate policies and categorisations, allowing them to be recognised beyond the constraints of the SC or ST categories.

The 1 percent horizontal reservation policy in education and public employment serves as a crucial step towards affording the transgender community a distinct identity.

Notably, Karnataka has emerged as the pioneer state by implementing the 1 percent horizontal reservation policy in jobs.

However, the reservation of posts in public employment, while a commendable stride, represents only a partial achievement in the ongoing campaign for transgender rights.

The ultimate recognition will be the extension of all concessions and relaxations, encompassing age limits, cut-off marks and physical requirements, in examinations and public employment for transgender individuals by the State.