Transgender persons have long been marginalized and discriminated against in India. They have faced discrimination in education, employment, healthcare, and other areas of life. In recent years, there has been a growing movement to recognize the rights of transgender persons and to ensure that they have equal opportunities. One of the key ways to achieve this is through reservation. Reservation is a system of affirmative action that provides historically disadvantaged groups with representation in education, employment, and other areas. In India, reservation is already in place for other marginalized groups, such as Scheduled Castes and Scheduled Tribes. The reservation for transgenders is a recent development, but it is a significant step forward in the recognition of the rights of transgender persons in India. The reservation is designed to help transgender persons overcome the discrimination they face and to ensure that they have equal opportunities in education and employment.
Introduction:
The reservation for transgenders in India started in 2014, with the landmark judgment of the Supreme Court in the National Legal Services Authority (NALSA) vs Union of India case. In this judgment, the Supreme Court ruled that transgender persons are a “third gender” and have the same rights as other citizens, including the right to reservation. The first state to implement the NALSA judgment was Tamil Nadu, which in 2015 categorized transgender persons as “most backward classes” (MBCs). In 2021, Karnataka became the first state to offer 1% horizontal reservation to transgender persons in civil services posts. In April 2023, Madhya Pradesh included transgender persons in the Other Backward Classes (OBC) category. However, the implementation of reservation for transgenders in India is still in its early stages. There are many challenges that need to be addressed, such as the lack of clear guidelines on how to implement the reservation, the lack of awareness about the reservation among transgender persons, and the discrimination that transgender persons face in society. Despite these challenges, the reservation for transgenders is a significant step forward in the recognition of the rights of transgender persons in India. It is hoped that the reservation will help to improve the social and economic status of transgender persons and to ensure that they have equal opportunities in education and employment.
Here are some of the key events in the history of reservation for transgenders in India:
- 2014: The Supreme Court of India rules in the NALSA vs Union of India case that transgender persons are a “third gender” and have the same rights as other citizens, including the right to reservation.
- 2015: Tamil Nadu government categorizes transgender persons as “most backward classes” (MBCs).
- 2021: Karnataka government offers 1% horizontal reservation to transgender persons in civil services posts.
- 2023: Madhya Pradesh government includes transgender persons in the Other Backward Classes (OBC) category.
Context Discussion:
In cities such as Chennai, Mumbai, and Delhi, transgender people and rights activists have been holding peaceful protests for horizontal reservation. Nine years of the Landmark National Legal Services Authority (NALSA) vs. Union of India judgment in 2014, transgender people are still fighting for their basic rights, highlighting the lack of progress made in the last decade. Since the NALSA judgement wherein the Supreme Court recognised their constitutional rights of equality, liberty, and dignity, the fight for horizontal reservation has been a priority for transgender persons. In the judgement, the Court directed state governments to take steps to treat transgender people as “socially and educationally backward classes of citizens and extend all kinds of reservations in cases of admission in educational institutions and for public appointments”.
In December 2014, a private member’s bill presented by Rajya Sabha MP from the DMK, Tiruchi Siva, proposed horizontal reservation which would mean that persons would get benefits as a separate class within the reservation categories similar to how it exists for women or people with disabilities, according to The Wire. The bill proposing this was passed unanimously in Rajya Sabha. This judgement was followed by the Transgender Persons (Protection of Rights) Bill 2016 which excluded reservation, sparking widespread protests led by transgender communities. In 2021, the Centre moved a Cabinet note to include transgender persons in the list of OBCs. This move would invisible caste differences and ignore the diversities that exist within the trans community, as pointed out by trans activists such as Banu. The clubbing of with OBCs is also a refusal to acknowledge that they are also Dalit and Adivasi trans and intersex persons who face a historical disadvantage due to discrimination and oppression because of their caste and gender identity. The inclusion of transgender persons in the OBC category refers to vertical reservations which remain inaccessible to large sections of the trans community. For instance, those who belong to Scheduled Caste and Tribe (SC/ST) categories won’t be able to access their right to reservation under SC/ST and transgender person, even when they belong to both. Those who are already in the OBC category, will not be able to access affirmative action under the transgender quota. Furthermore, trans persons will have to compete with other OBCs for the reservation, reducing their chances of getting a seat or a post. On March 27, 2023, Banu filed an application in Supreme Court seeking clarification on reservations for transgender people. However, the bench led by Chief Justice of India DY Chandrachud refused to hear, as reported by Live Law. The applicant asked for the Court to clarify that the reservation under 2014 NALSA is horizontal, and not vertical reservation. “My petition was dismissed and we were told that we can continue our advocacy with the state governments, which is what we are doing right now,” Banu says. Talking about horizontal reservation, Banu says without horizontal reservation there is no talk about equality. “Implementation of horizontal reservation ensures everyone has a right to participate in the public space. Otherwise, only certain communities will have access to reservation that is not social justice.”
Why the issue came into light now
On February 14, 2022, the Rajasthan High Court directed the state government to provide reservation to transgenders in government jobs as per the Supreme Court order. A bench of Justice Madan Gopal Vyas and Justice Manindra Mohan Srivastava rejected the contention of the Rajasthan government that it was the prerogative of the state to give reservation in jobs or how much. The Jodhpur bench of the High Court directed the government to fix quota for transgenders in state government jobs. Along with this, the related processes were asked to be completed in four months. The High Court delivered its judgment on a plea by a member of the transgender community who aspired to become a sub-inspector of police and participated in the recruitment process related to it. It is noteworthy that the Supreme Court in its judgment in the case of the National Legal Services Authority has given a decision regarding the rights of transgenders in appointment in public services and admission in educational institutions. It is worth noting that the Karnataka government had decided to provide one percent reservation in government jobs for the people of the transgender community and it is the first state in the country to do so. Transgender is a person who lives as the opposite sex of their birth sex, when the development of a man’s genitals and brain does not correspond to the sex determined by his birth, then the woman begins to feel that she is a man and the man begins to feel that she is a woman. In the year 2019, Parliament had passed the Transgender Persons (Protection of Rights) Bill, 2019, a bill for social, economic and educational empowerment of transgender persons.
National Legal Services Authority (NALSA) vs Union of India Case.
Introduction:
The National Legal Services Authority (NALSA) vs Union of India case was a landmark judgment of the Supreme Court of India in 2014. In this judgment, the Supreme Court recognized transgender persons as a “third gender” and granted them the same rights as other citizens, including the right to equality, the right to non-discrimination, and the right to a dignified life. The NALSA case was brought by the National Legal Services Authority, a statutory body under the Ministry of Law and Justice, on behalf of the transgender community in India. The NALSA petition challenged the discrimination faced by transgender persons in education, employment, healthcare, and other areas of life.
Facts:
The NALSA petition highlighted the discrimination faced by transgender persons in India. The petition argued that transgender persons were denied access to education, employment, healthcare, and other opportunities. The petition also argued that transgender persons were subjected to violence and harassment.
Issues:
The NALSA case raised a number of important issues, including:
- The legal status of transgender persons in India
- The right to equality for transgender persons
- The right to non-discrimination for transgender persons
- The right to a dignified life for transgender persons
Judgement:
The Supreme Court ruled in favor of the NALSA petition and granted transgender persons the same rights as other citizens. The Supreme Court held that transgender persons are a “third gender” and that they are entitled to the same rights as men and women. The Supreme Court also held that the government must take steps to protect the rights of transgender persons and to ensure that they have equal opportunities. The Supreme Court directed the government to formulate a comprehensive policy for the welfare of transgender persons.
Conclusion:
The NALSA case was a landmark judgment that has had a significant impact on the lives of transgender persons in India. The judgment has helped to raise awareness about the rights of transgender persons and has led to some improvements in the treatment of transgender persons. However, there is still much work to be done to ensure that transgender persons have the same rights and opportunities as other citizens. The NALSA case is a reminder that the Supreme Court of India is committed to protecting the rights of all citizens, regardless of their gender identity. The judgment is a powerful tool for the transgender community and can be used to challenge discrimination and to demand equal rights.
Reservation for transgenders a complex and controversial issue in India.
There are a number of arguments for and against reservation, and the debate is likely to continue for some time. The below are the Arguments Stated for and against reservation:
Arguments for reservation:
- Transgender persons are a marginalized group that has faced discrimination for centuries. They have been denied access to education, employment, and other opportunities. Reservation will help to level the playing field and give transgender persons a fair chance to succeed.
- Transgender persons are often poor and economically disadvantaged. Reservation will help to improve their social and economic status. It will give them access to education and employment, which will lead to better job opportunities and higher incomes.
- Reservation will help to raise awareness about the rights of transgender persons. It will show that the government is committed to protecting the rights of transgender persons and to ensuring that they have equal opportunities.
Arguments against reservation:
- Reservation can lead to reverse discrimination. If transgender persons are given a quota in education and employment, it could mean that other marginalized groups, such as Scheduled Castes and Scheduled Tribes, would lose out on opportunities.
- Reservation could create a dependency culture. If transgender persons are given a quota, they may become reliant on the government for their livelihood. This could discourage them from working hard and achieving success on their own.
- Reservation could be seen as a token gesture. If the government does not take other steps to address the discrimination faced by transgender persons, reservation will be seen as a superficial solution.
The debate over reservation for transgenders is complex and there are valid arguments on both sides. Ultimately, the decision of whether or not to implement reservation is a political one. However, it is important to have a nuanced discussion about the issue and to consider all of the arguments before making a decision.
Conclusion:
Reservation for transgenders in India is that it is a complex issue with no easy answers. There are strong arguments on both sides of the issue, and it is important to weigh the pros and cons carefully before making a decision. Ultimately, the decision of whether or not to implement reservation for transgenders is a political one. There is no right or wrong answer, and the decision will likely vary from state to state. However, it is important to have a thoughtful and informed discussion about the issue before making a decision.
It is important to remember that reservation is not a silver bullet. It can help to increase access to jobs and education, but it cannot solve all of the problems faced by transgender persons. It is also important to consider the long-term effects of reservation. Will it help to break down the barriers that prevent transgender persons from participating fully in society? Or will it create new barriers? The decision of whether or not to implement reservation for transgenders is a complex one, but it is one that deserves careful consideration.
Reference:
https://iasscore.in/current-affairs/prelims/reservation-for-transgender-in-india
https://www.iasparliament.com/current-affairs/daily-news/reservation-for-transgender-community
https://www.drishtiias.com/state-pcs-current-affairs/reservation-for-transgender-in-government-jobs
https://www.thequint.com/explainers/trans-people-fight-for-horizontal-reservations-across-castes
(2014) SCC 438
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ARTICLE WRITTEN BY: JANGAM SHASHIDHAR.
