The Madras High Court had on Wednesday dismissed a petition seeking special reservations for transgender persons, after the Tamil Nadu government submitted that they were already getting reservation benefits under MBC quota.

A view of the Madras High Court building
news Transgender rights Sunday, July 03, 2022 - 18:53

The Madras High Court’s decision to dismiss a petition seeking reservations for transgender persons in government jobs has come as an upsetting setback to activists in Tamil Nadu, who have been fighting for separate reservations for the transgender community for years. Chief Justice Munishwar Nath Bhandari and Justice N Mala had on Wednesday, June 29, disposed of the plea filed by activist P Sudha, after the Tamil Nadu government submitted that people of the community have already been listed under the Most Backward Classes (MBC) category, and that they can hence get reservation benefits under the MBC quota. In the petition, the activist had pointed out that while the Supreme Court has recognised transgender persons and ordered to provide them with voter ID cards, passports, admission to educational institutions etc, they were yet to get any welfare assistance or reservation. 

As the petition was being heard, Advocate General R Shunmugasundaram, representing the Tamil Nadu government, stated in court that “if the person concerned belongs to a Scheduled Caste (SC) or Scheduled Tribe (ST), they are entitled to get reservation under those respective categories”. He also presented in court a government order that made trans women entitled to the 30% reservation provided to cisgender women in the state for government employment. The Madras High Court recorded his submission and dismissed the petition, which Sudha had filed after the Uttarakhand High Court in 2018 directed the state government to provide reservation to transgender persons in educational institutions and public appointments.

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Sudha, a Chennai-based trans rights activist and a former member of the Tamil Nadu Transgender Welfare Board, had approached the High Court seeking separate reservation for trans persons four years ago after her requests for the same were denied by the Board. Speaking to TNM, Sudha reiterated the need for at least 1-2% separate reservation for transgender people, considering the heavy competition within the already existing quota. “It would be difficult for people in the community to get reservation via the existing quota. Separate reservations are the only way to empower them,” she said.

The activist pointed out that the High Court too had earlier recommended the government to consider providing separate reservation to transgender people. “But now, the judges have just accepted the state government's submission. I hope this government will consider our demands and provide separate reservations,” she added. 

It was on March 2 that a Madras HC judge strongly urged the state government to adopt a specified percentage of special reservation for trans persons in public employment, apart from other relaxations and concessions extended to the socially and economically backward classes. Justice MS Ramesh had observed that clubbing transgender candidates who identify themselves as ‘female’ along with women candidates, and those who identify themselves as ‘male’ or ‘third gender’ under the general category, was an infringement on their right to equality.

After the HC disposed of the petition on Wednesday, trans rights activist Grace Banu took to Twitter to point out that "Not all the trans are MBC. SC/ST Trans is also there. How do we access the MBC category? Is this your social justice? not at all (sic)". In another tweet, she tagged Tamil Nadu Chief Minister MK Stalin along with a hashtag calling for horizontal reservation for trans persons. Horizontal reservation refers to the equal opportunity provided to other categories of beneficiaries such as women, veterans, the transgender community, and individuals with disabilities, cutting through the reservation for vertical categories such as SC, ST, and OBC.

“The fight for horizontal reservation for trans people started in 2013. This observation by the court is never going to stop us from continuing this fight,” Grace Banu told TNM. It was after many legal fights that members of the trans community were even able to participate in the Tamil Nadu Public Service Commission (TNPSC) and Tamil Nadu Uniformed Services Recruitment Board (TNUSRB) exams, she pointed out. 

“In 2016, the Madras HC had asked the state government to decide on providing reservations for trans people. The then AIADMK government too had categorised the entire transgender community under the MBC category, in accordance with the NALSA Vs Union of India judgment, which states that trans people can be recognised as a ‘socially and educationally backward class of citizens’. But that doesn't mean that they have to compete with the castes listed under the MBC category for reservation,” Grace said. 

In 2017, Grace had approached the Madras HC as well as the Supreme Court of India seeking horizontal reservation for trans persons. “The hearing of that petition is still underway in the HC. In (Wednesday’s) hearing, the Tamil Nadu government has only reiterated the details of a decision already made by the former AIADMK government. The party (DMK) which always speaks of social justice has nothing of its own to say in the court now,” she said.

Grace added that regarding the empowerment of cis women, Chief Minister MK Stalin had said that education was the only powerful tool that would empower them. “Is it not the same for transgender persons? Welfare measures alone would take the trans community nowhere. What we need is a rights-based approach towards empowerment,” she said.

Jaya, General Manager of the Sahodaran organisation, which works for the empowerment of transgender persons, noted that the current DMK government has introduced many good initiatives to empower and improve the lives of trans people. “But the government’s reply to the HC on Wednesday was a disappointment for us. It sounded like a hasty decision. We expect this DMK government to make things easier for us, as it has always done in the past,” she told TNM. “The decision might have been made based on the NALSA vs Union of India judgment. But that was in 2014. Trans persons had welcomed the move at the time because they had not received any recognition before that. But now, we are expecting proactive actions from the state government to empower the community,” she said. 

The DMK government had also submitted in the court that trans women are entitled to the 30% reservation that exists for cis women, Jaya pointed out. “But the underprivileged and marginalised trans community has to fight very hard to win such a competition for reservation benefits. Even a BJP-governed state like Karnataka has introduced separate reservation for trans people,” she said. She demanded that the DMK government, which has introduced many schemes for the betterment of the community, also take measures to provide separate reservations for trans persons. “It would be the only way to empower the community,” she added.

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