The Madras High Court, in a recent judgement, directed the Tamil Nadu government to provide horizontal reservation to the transgender community in education and employment. The court also struck down a 2015 state government order (GO) that said that a trans person will be classified under the most backward class (MBC) if they don’t have a community certificate. Justice GK Ilanthiraiyan was hearing a petition filed by Rakshika Raj, a trans woman nurse belonging to a Scheduled Caste community, seeking to quash the GO that considers her gender as her caste identity and to direct the state government to provide horizontal reservation.
The judge ruled that the GO was violative of Articles 14 (equality before law), 15 (prohibition of discrimination), 16 (equality of opportunity in matters of public employment), 19 (protection of certain rights regarding freedom of speech) and 21 (protection of life and personal liberty). GO Ms No 28 dated April 6, 2015 was passed by the Backward Classes, Most Backward Classes and Minorities Welfare (BCC) Department. The GO states that ‘transgender’ was added as a category in the MBC list as per the recommendation of the Tamil Nadu Backward Classes Commission.
The petitioner Rakshika stated that according to this amendment, all trans persons who do not possess a community certificate are designated as MBC persons irrespective of their caste and contended that it was “discriminatory” and in violation of the Supreme Court’s judgement in the 2014 NALSA vs Union of India case. The landmark judgement gives individuals the right to self-identification of their gender.
Rakshita, in her petition, said that she is a qualified nurse and was classified as an MBC candidate when applying for jobs in government-run institutions. “I have been provided vertical reservation, treating the transgender community as a caste, instead of horizontal reservation by treating my transgender identity as a gender identity. I state that I am aggrieved by the same…,” she said. Horizontal reservation would provide a quota within quota for trans and intersex persons, which means they can avail separate reservation in the Scheduled Caste (SC), Scheduled Tribe (ST), Other Backward Classes (OBC), and general categories.
In his judgement, Justice Ilanthiraiyan noted that in the NALSA case the SC had directed the Union and state governments to take steps to treat trans persons as socially and educationally backward class of citizens and extend all kinds of reservation in case of admission to educational institutions and for public appointments. “Despite such clear determination that transgender identity is a gender identity, the respondents ought not to have treated ‘transgender’ as caste under the MBC category,” the judge said.
Further, he observed that if the petitioner chose to assert her identity as a transgender person, she will have to forgo the constitutional protections that she is granted as a Scheduled Caste person. “In India, the degree of discrimination faced by an individual is an intersection of their gender identity and caste identity… Any reservation provided to the transgender community will not be effective unless this intersection of these identities is addressed,” he added.
Observing that ‘transgender’ is gender identity and only granting horizontal reservation can give effect to the directions issued by the SC in the NALSA judgement, the court struck down the GO and directed the Tamil Nadu government to provide horizontal reservations to trans persons in education and employment. The court also noted that the Karnataka state government has implemented 1% horizontal reservation for trans persons in public employment.
It is to be noted that horizontal reservation for trans and intersex persons was one of the primary clauses in the policy for LGBTQIA+ communities developed by the Tamil Nadu State Planning Commission. As per the draft policy document accessed by TNM, horizontal reservation of 1% is recommended in the fields of education and employment to both communities. Besides horizontal reservation, the draft also recommends the inclusion of trans and intersex persons in the Chief Minister’s health insurance scheme.
