The Madras High Court has yet again reiterated that gender identity is self-identified and directed the Tamil Nadu government to initiate steps to grant reservations to transgender persons in local body elections. Justice SM Subramanian made the observation on Wednesday, August 23, while dismissing a petition of a panchayat president from Cuddalore district that sought the cancellation of land patta given to trans persons. The petition filed by the Nainarkuppam panchayat president ND Mohan claimed that “allowing” trans persons in the village would cause “destruction of culture”. The court also directed the district administration to initiate steps under the Panchayat Act 1994 to remove the panchayat president and members for passing an illegal resolution against the granting of pattas to trans persons.
The Cuddalore district administration had identified land in Nainarkuppam panchayat to be handed over to trans persons with house land pattas. On April 7, the Nainarkuppam panchayat unanimously passed a resolution that no patta for house land should be provided by the district administration to trans persons. The resolution said that as the land to be allotted to trans persons is near a bus stand, students “will be affected”. It also said that allotting that land to trans persons “would be detrimental to the future life of the youngsters in the village” as other villagers reside near the land.
The Panchayat also requested the District Collector to not grant patta to trans persons. It then filed a petition at the Madras High Court seeking a direction to the District Collector not to grant patta to the transgender persons in their village under the government schemes.
On August 16, the court directed the panchayat president to explain the legal basis on which the resolution was passed. The judge noted that the resolution and the representation to the district collector revealed hatred towards transgender persons, which is unconstitutional and against their fundamental rights. Following this, the district administration had issued a show cause notice to the president.
In response to this order, the president submitted an affidavit on August 18, asking to be allowed to withdraw the petition. However, the court did not allow it. The court said that allowing the petitioner to withdraw the writ petition would result in acceptance of the social evil, i.e., the illegal resolution, caused at the instance of the elected body, and the constitutional court would fail in its duty to protect the Constitutional mandates, philosophy, and ethos. “Therefore, the petitioner cannot be allowed to walk away simply by withdrawing the writ petition,” the court said.
The petitioner had argued that the resolution of the panchayat may be considered valid as the government provides free patta land only to inhabitants of the village in question, on the basis of identity records. The court refused to accept it, saying that such contentions were being made to “circumvent the illegal resolution” passed by the panchayat.
Justice Subramanian observed that even though the rights of transgender persons have been discussed for a long time, the social stigma attached to them is yet to be removed. He also said that steps taken by the government to implement welfare measures, such as legislation and policies to support the trans community, do not reach the bottom rung of the Executive. “The bottom rung of the Executive structure, who are in direct contact with the members of the transgender community, fail to implement these welfare schemes in letter and spirit,” he said.
Stating that “gender is what we believe ourselves to be, it is a self identified factor,” he added that accepting this requires education and awareness centred on harmonious living. “Education must be such that it should transcend appearances, colour, physique, and gender stereotypes. No one should make another feel less accepted in society. This is the worst form of discrimination. In no way is one less than the other and under no circumstance shall one be made to feel less than another,” Justice Subramanian said.
Pointing to the historic National Legal Services Authority (NALSA) vs Union of India and Others case which upheld the rights of trans persons, and that the Transgender Persons (Protection of Rights) Act, 2019, the Madras HC said that the rights of trans persons can be upheld only if they are given a platform to voice their needs and rights. It directed the Tamil Nadu government to initiate appropriate steps to grant reservations to transgender persons in the local body elections as an initial measure to integrate transgender persons with mainstream society.
“The reservation for transgender [persons] must extend to forums of law making institutions. It is in these law making forums where transgender persons can express their views and discuss their rights. More so, transgender persons have a Right to Reservation, owing to the fact that they are a socially Backward Class. It is the right time for the state of Tamil Nadu to initiate steps to provide reservations to transgender persons in the local body elections as a welfare measure, with a view to include transgender [persons] in mainstream society and for their democratic participation,” the court said.
Justice Subramanian also directed the district collector to ensure that the transgender persons are allowed to worship in all religious institutions and to participate in all village ceremonies, and that they are provided free land pattas based on their eligibility.