Is women’s reservation for trans women?

In the latest edition of The Next Wave, Sayantan Datta delves into the issue of reservations of transgender persons - and whether trans women will be considered under the ambit of 'woman' in the flawed Women's Reservation Bill passed by Parliament. Sign up here to receive The Next Wave in your inbox every other Thursday. .In 2000, when the then version of the Women’s Reservation Bill was being debated in the Parliament, feminist scholar Nivedita Menon argued that the debates around the Bill had transgressed the immediate question of “women’s rights” and revealed more fundamental questions around “citizenship, representation, and the subject of feminist politics.”For Menon, the question of citizenship and its relation to feminism arose from the observation that those who were vehemently opposed to caste-based reservations were generally accepting of reservations for women. In other words, as Menon put it, “women” as a category had become “acceptable to ruling elites as a counter-measure to rising backward caste presence in Parliament.” Further, recognising that “women” as a category was not homogenous in its identity or ideology, Menon saw the Bill as a moment that re-invokes an age-old feminist question: who is this “woman” that is deployed in political projects of representation?More than two decades later, with the most recent version of the Women’s Reservation Bill having made it through both the houses in the Parliament, these questions are being revisited. Writing about how the implementation of the 2023 Bill will change the caste and class composition of the Parliament, Surbhi Karwa has argued for Behanbox that it may precipitate the replacement of lowered caste men with upper caste women, thus cementing a certain caste homogeneity in the Parliament. Yet, the question, once again, is not one of representation alone. Taking Menon’s cue, one must ask again who are the “women” that the Bill speaks of, and who does it choose to represent? Most importantly, do transgender women fall under the ambit of the Bill?.The trans question in Indian politics.When the 2023 Bill was being debated in the Parliament, queer writer and translator Anish Gawande demanded that the Bill “explicitly recognise trans women as women and allow trans women to contest on seats reserved for women.” Echoing Gawande’s call, writer Shalin Maria Lawrence also wrote for The Quint that, “We need to have reservation within the Women’s Reservation Bill for OBC [Other Backward Classes], Dalit, and Adivasi women, along with horizontal reservation for the gender marginalised like trans women, trans binary, trans-non binary, and intersex people.”Gawande’s and Lawrence’s concerns are well-founded in light of the abysmal presence of transgender persons in Indian politics. In 1998, Shabnam Bano (a.k.a Shabnam Mausi) became the first transgender person to be elected into a public office when she became a member of the Legislative Assembly in Madhya Pradesh. Seventeen years later, in 2015, Madhu Kinnar, a Dalit transgender person, was declared the mayor of Raigarh, Chhattisgarh. The only other names that come to mind (and this is a potentially non-exhaustive list) include: Apsara Reddy, who held positions with the All India Anna Dravida Munnetra Kazhagam (AIADMK) and the Congress; Disha Pinky Shaikh, who was declared as the state spokesperson for Vanchit Bahujan Aghadi in 2019; Priya Patil, who was inducted into the Congress’s state working committee in Maharashtra; M Radha, who contested the 2019 Lok Sabha and 2021 Assembly elections from Mylapore, Chennai; Chirpi Bhawani, who contested from Prayagraj in 2019 as an Aam Aadmi Party candidate; Kajal Kinnar, who contested from Korei, Odisha in 2019 from the Bahujan Samaj Party; Chinju Aswathi, an intersex person who contested in 2019 Lok Sabha polls from Ernakulam, Kerala, as an independent candidate; Anannyah Kumari Alex, who contested in 2021 Assembly elections in Kerala from Vengara, Mallapuram, as a candidate from the Democratic Social Justice Party; Ganga Nayak, who contested – and won – from Vellore, Tamil Nadu, in 2022 urban local body polls as a candidate from the Dravida Munnetra Kazhagam; Jaya Devi, who contested from Teynampet, Chennai, in 2022 urban local body polls as an AIADMK candidate; and, Rajamma, who contested from Thiru Vi Ka Nagar, Chennai, in 2022 urban local body polls as a Bharatiya Janata Party candidate. Then, there are those who were elected into office but their posts nullified once their gender identity was declared invalid. Instances include Kamla Jaan, Asha Devi, and Kamla Kinnar, who were elected as mayors from Katni, Madhya Pradesh (1999); Gorakhpur, Uttar Pradesh (2003); and Sagar, Madhya Pradesh (2009) respectively. All three had to step down after their opponents challenged their election into posts reserved for women candidates.(Kamla Kinnar also belongs to a Scheduled Caste; Disha Pinky Shaikh and Chinju Aswathi are Dalit.)What happened with the trio might look hard to repeat, given that the Supreme Court of India in its 2014 NALSA v. Union of India judgement gave transgender persons the right to self-identify their gender. And yet, with the 2023 Women’s Reservation Bill leaving the term “women” undefined, the risk of the Bill ignoring transgender women remains. More so, because in 2022, the Madras High Court declared that self-identifying transgender women cannot be “clubbed under the women quota”; they must be granted a separate reservation, the court added..Conundrums.Transgender persons recognise that reservation is critical to their representation in Indian politics. Despite praising the passing of the 2023 Women’s Reservation Bill, Kaushalya Nand Giri (a.k.a Tina Maa), senior member of the Kinnar Welfare Board, Uttar Pradesh, asked that transgender persons be given a separate reservation in the Parliament.In the past, however, the Union and state governments have been quite uninspiring in their responses to transgender persons’ demands for separate reservations. In February this year, the central Ministry of Social Justice and Empowerment told the Lok Sabha that it did not intend to propose any reservations for transgender persons. In July, the Union government responded to a show-cause notice by the Supreme Court with its declaration that transgender persons can seek reservations under existing categories.The state of Karnataka is a welcome exception, where transgender persons have been granted a 1% horizontal reservation in civil services after a litigation in the Karnataka High Court. Further, a draft policy from the Tamil Nadu State Planning Commission accessed by The News Minute earlier this year also mentions horizontal reservations for transgender and intersex persons.While there is no question that the Women’s Reservation Bill must recognise transgender women no differently than it does cisgender women, the demand for a separate reservation for transgender persons appears to be an important move. It will enable transgender people, and not just transgender women, who are more visible as compared with other non-normative genders in the country, to be represented in the Parliament. These reservations, keeping in line with the demands of transgender persons from marginalised caste backgrounds, must be horizontal and compartmentalised.And yet, the fixity of the term “transgender” itself must be questioned. Legal scholars Dipika Jain and Kimberly Rhoten wrote in a 2020 paper that the NALSA v. Union of India judgement set in stone the terms “transgender” and “third gender”. As a result, intersex people, and different indigenous gender-diverse groups have had to assimilate and collapse themselves into these broad categories in order to seek the same civil and substantive rights. Terming this phenomenon as a kind of “hermeneutical injustice”, Jain and Rhoten argue that courts – and I add, governments – must expand their frames to see beyond the trinary of male, female, and transgender.Jain and Rhoten reach the same conclusion as sociologist Myra Hird did in a 2002 paper: that the real possibility of transformation lies in “transcending sex and gender altogether”. Debates around the recent Women’s Reservation Bill provide an opportunity to engage with critiques of fixed categorization, either of “women” or of “transgender”. Is the government listening?Sayantan Datta (they/them) is a science journalist, writer and communicator. They currently teach at the Centre for Writing and Pedagogy, Krea University, and tweet at @queersprings.