The Union government, in a recent affidavit filed before the Supreme Court, denied separate reservations for transgender persons in the country stating that they can avail of the existing reservations for the Scheduled Caste (SC), Scheduled Tribe (ST), Socially and Educationally Backward Communities (SEBC), and Economically Weak,er Sections (EWS) of the society. The affidavit was submitted in response to a contempt petition alleging that the government has failed to provide reservations to the transgender community as mentioned in the 2014 Supreme Court order in the National Legal Services Authority v Union of India (NALSA) case, were the apex court upheld the rights of trans persons to self-identify their gender identity.
In its affidavit, the Union government has submitted that it provides reservation “for the purpose of mainstreaming the poor and marginalised,” and that the benefits of reservation in direct recruitment in Union Government Services and in admissions to Union Government Higher Educational Institutions are 15% for people belonging to Scheduled Castes (SC) community, 7.5% for Scheduled Tribes (ST) community, 27% for Socially and Educationally Backward Classes (SEBC) and 10% for Economically Weak,er Sections (EWS). Further, it added that the benefits of any of the reservations provided by the government, including these, can be availed by any eligible persons, including trans persons.
Responding to this, trans rights activist Grace Banu says that it is not surprising that the Union government has taken this stand. “They have been telling us the same during Parliamentary sessions when questions on these were raised. They are asking us to use the existing reservation, but what we are asking is a separate horizontal reservation for transgender persons, like the ones provided for women or Persons with Disabilities,” she says.
In the NALSA judgment, the SC had said that the transgender community belongs to the Socially and Educationally Backward Classes (SEBC) of citizens and is “legally entitled and eligible to get the benefits of SEBC”. It also said that the government must make provisions for the education, health, and employment of transgender persons, citing how trans persons are “systematically denied” their rights, with no special provisions for their advancement. “State is bound to take affirmative action to give them due representation in public services. We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments,” the judgment reads.
Grace says that while the Supreme Court, in the NALSA judgement, asked the government to consider transgender persons under SEBC, the community kept opposing it and demanded horizontal reservation because they face discrimination in the names of both gender and caste. “So, horizontal reservation is the only way through which social justice and equality can be ensured,” says Grace, who has been standing at the forefront in the fight for horizontal reservation.
Horizontal reservation cuts across reservations provided for all communities, which means that if implemented, persons belonging to the transgender community can avail of separate reservations within the Scheduled Caste (SC), Scheduled Tribe (ST), Other Backward Classes (OBC), and general categories, based on their individual caste locations.
Grace also says that the existing reservation system has been there for years, and asks how many trans persons were able to utilise it. “You are asking us to compete with cisgender persons. I have had no rights for all these years and I was further marginalised on multiple fronts. Reservation should be given for our upliftment, and it should be a horizontal reservation,” she adds.
Replying to the contempt petition, the Union government has also said that several steps have been taken to “ameliorate the problems of the transgender community and offer them a dignified living”. The affidavit listed some of the actions taken in this regard, including that of launching the National Portal for Transgender Persons in 2020, the enactment of The Transgender Persons (Protection of Rights) Act, in 2019, and the constitution of the National Council for Transgender Persons in 2020, to advise the government on policies, programmes, legislation, and projects for the welfare of the trans community.
The Union government further added that transgender persons belonging to SC/ST /SEBC communities are already entitled to reservations earmarked for these communities. In case those in SEBC have parents with annual income more than Rs 8 lakh, they fall in the category of the creamy layer, and so they cannot avail of reservation. However, they can get the 10% EWS reservation, the affidavit said. Hence, the government concluded that “the marginalised and eligible population of the country (including transgender [person]s) is at present covered under any one of the above 4 categories”.
Advocate Kanmani R, a savarna transgender woman and lawyer practising in Chennai, says that the problem here is about transgender persons having to compete with cisgender persons in employment and education. “Most people don’t have access to education in the first place. Even if they have access, they are not able to utilise it due to discrimination. Without providing us with horizontal reservation, the government is saying to use the existing reservation schemes. The problem is that the government is not recognising the discrimination faced by trans persons. Even within community-based reservation categories such as SC, ST, OBC, trans persons are further marginalised. They face both caste-based discrimination and gender-based discrimination,” Kanmani says.
She also points out that while the apex court, in the NALSA judgement, recommended reservation to be extended to trans persons, it wrongly clubbed them with the SEBC category. “Now, the Supreme Court is a judicial body, a constitutional court, and it does not explicitly decide which category is correct for whom. Even if the court makes the recommendation and the government makes the decision. Then, the court can test it on grounds of constitutionality. Reservation is ultimately a policy decision as per our Constitution. When it is not implemented and when someone’s fundamental rights have been violated, then the court steps in,” she says, adding that the court did recommend reservation and that it was the government’s onus to implement it.
“The government can keep saying that the existing reservation for SC, ST, OBS, EWS, etc., covers trans persons. But it is not a charity to provide that reservation. All citizens are Constitutionally entitled to it. If they do not provide horizontal reservation to trans persons, it means that they don’t care about the representation of trans persons. Because reservation fundamentally means an affirmative action that is taken by the government to ensure that an underrepresented community is represented adequately,” she says, further adding that this would echo in the decisions of state governments also.
Rohin Bhatt, a human rights litigator and queer rights activist, points out that the Supreme Court’s NALSA judgement recommending to consider transgender persons under the SEBC category means that the trans community members were seen as a sub-set of a caste identity and not a gender identity. “That is where NALSA was wrong. Be that as it may, it is the court’s order and the Union government is bound to follow the law. The Union government currently says that trans persons will be covered under any existing categories, which is in direct violation of the law of the land as was declared by the NALSA judgement,” he says. Rohin also adds that there is a lack of clarity on how reservation should be provided for transgender persons and that this affidavit further causes confusion.
Rohin also points out that these proceedings are happening in a contempt petition. “The mandate regarding contempt petitions is clear; that is, no laws will be interpreted, and no new arguments will be taken. The purview of contempt petition before the Supreme Caourt is restricted to whether a judgement of the court is being followed or not,” he says. He also says that the affidavit creates a smokescreen with regard to how reservations for trans persons are going to be seen by the government.