Reservation for Transgender community

IN NEWS:

• In response to a clarification sought by the Bombay High Court, the Maharashtra government said that it will be difficult to provide “additional reservations” to transgender persons in education and public employment, given the reservation that exists so far for various communities in India.

WHO ARE TRANSGENDERS:

• According to World Health Organization, Transgender is an umbrella term for people whose gender identity and expression does not conform to the norms and expectations traditionally associated with the sex assigned to them at birth.
• According to the 2011 census, there were close to 4.88 lakh transgender people living across India. Uttar Pradesh accounts for the largest share of their population followed by Andhra Pradesh, Maharashtra and Bihar.
• Despite their significant population, they are arguably the most marginalized section of people in India.

NALSA JUDGEMENT:

• In 2014, the Supreme Court passed a judgement in National Legal Services Authority v. Union of India.
• In this landmark ruling, also known as the NALSA Judgement, Justice K.S Radhakrishnan observed that “recognition of transgender as a third gender is not a social or medical issue, but a human rights issue”.
• The Judgement:
  • Declared transgender people to be a 'third gender'. All the important identity documents such as birth certificate, passport and driving license would recognize the third gender.
  • Affirmed that the fundamental rights granted under the Constitution will be equally applicable to transgender people.
  • Gave them the right to self-identification of their gender as male, female or third-gender.
  • Required the Centre and States to take steps to treat them as socially and educationally backward classes and extend reservation for admission in educational institutions and for public appointments.

RESERVATION FOR TRANSGENDERS:

• The NALSA judgment entitles trans persons to reservations on constitutional grounds. However, the verdict has largely been interpreted as directing reservations for transgender people in the OBC category. This perhaps stems from the bench identifying the community as “a socially and educationally backward class”.
• However, the judgement does not mention the nature of reservations – whether they are to be vertical or horizontal.
  • Vertical reservations:
    • These are provisions aimed at addressing social asymmetry arising out of caste hierarchy, and in the case of OBCs, social and educational backwardness.
    • These include reservations for Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Classes (OBC).
  • Horizontal reservation:
    • Such reservations cuts across all vertical groups to provide affirmative policies for disadvantaged groups within categories. For example, disabled persons are guaranteed horizontal reservation in all the aforementioned vertical categories, general and reserved (vertical) alike, by the Central government.
    • Uttarakhand and Bihar have rolled out policies that guarantee horizontal reservation for women. This means that a woman who belongs to the SC category should be able to avail reservation based on both caste and gender.

REASONS BEHIND THE DEMAND:

Trans persons in India have been fighting for the right to horizontal reservation for a long time. The demand arises from the following reasons:

• Discrimination:
  • Transgender persons have been historically subjected to discriminations, denial of property rights and an overall apathy towards issues such as their education, accommodation, health and employment. This discrimination is even severe in case of persons from marginalised groups like SC/ST/women.
• Loss of opportunity:
  • Without horizontal reservation, there is a loss for Dalit, Bahujan and Adivasi transgender persons, as they will have to make a choice between availing reservation either based on caste and tribal identity or gender identity.
• Lack of livelihood options:
  • A study conducted by the National Human Rights Commission revealed that in 2017, only 6% of transgender people were formally employed.
  • A significant portion of the community is engaged in begging, forced labour and sex work, which have been criminalised under various Acts and laws.
• Lack of identity:
  • Till recently, transgender was not considered a third gender and many were denied documents like electoral IDs and address proofs. As a result, they are denied access many services like healthcare and education.
• Harassment, stigma and violence:
  • They are met with ridicule from a society and are considered mentally ill, socially deviant and sexually predatory. They are forced for gender conformism, aversion based pseudo-psychotherapies, forced marriages, physical and verbal abuse.
• Barriers to healthcare:
  • The present health care system does not cater to the specific needs of the transgender people. This has resulted in a host of issues like high levels of HIV, substance abuse, depression and other psychological issues.
• Shortcomings of existing legislations:
  • The transgender Persons (Protection of Rights) Act, 2019 and its 2020 rules makes no mention of specific civil rights and liberties:
    • It is silent on reservations for employment and education, which was directed by the Supreme Court.
    • While the Act seeks to prohibit discrimination, it does not explicitly define what constitutes as discrimination. Also, it makes no mention of an enforcing authority or of remedial measures such as compensations to victims.
• Enable more discussions:
  • Enabling reservation for trans people could attract more attention onto pertinent issues including their right to marriage, inheritance, adoption, social security and protection from violence.

EFFORTS TOWARDS RESERVATION:

• In 2015, Rajya Sabha DMK MP Tiruchi Siva presented the Rights of Transgender Persons Bill. This Private Member’s Bill, in line with the NALSA judgment, had provisions for reservation for trans persons in the public and private sector. After being passed in the Rajya Sabha, the Bill was rejected in the Lok Sabha.
• In 2018, a parliamentary standing committee under the Ministry of Social Justice was set up. The committee, again in line with the NALSA judgment, recommended reservations for transgender persons. Yet, the Transgender Persons (Protection of Rights) Act, 2019 did not have any mention of reservation — vertical or horizontal.
• In 2015, the Tamil Nadu government decided to categorise “transgender or eunuch (thirunangai or aravani)”, that is, only transwomen under the Most Backward Classes (MBC) category.
• In 2018, Kerala government directed universities to reserve two seats for transgender students in undergraduate and post graduate courses subject to fulfilment of qualification.
• In 2021, Karnataka became the first and only state to offer one per cent horizontal reservation to transgender persons in 2021.
• In April 2023, transgender persons were included in the OBC category in Madhya Pradesh.

CONCLUSION:

Transgender people have faced discrimination for years, and it is dehumanizing for them to be denied their dignity, personhood and, above all, their basic human rights. The unfairness with which history has dealt its hand would only be corrected through an active effort of the state and providing for reservation would be an ideal effort to start this effort.

PRACTICE QUESTION

Q. While the Transgender Persons (Protection of Rights) Act is a start, there's a long way to go in ensuring justice and wellbeing of the transgender community. Discuss?