In April 2014, the Supreme Court of India formally acknowledged that transgender rights protected people as part of NALSA v. Union of India. The Court recognized the right to decide for oneself gender identity, whether transgender, male or female regardless of medical change. 2 It cited the guarantee of equality and anti-discrimination in Articles 14-15 16, 193 and 16 of the constitution that protect transgender people. In Article 15, the Constitution that bolsters equal rights, mentions “sex” as an unlawful reason for discrimination.
Article 15 imposes an obligation of a negative nature on the state to not discriminate based on the identified protected characteristics, and an obligation to make steps to ensure the advancement of specific classes of individuals. In light of this mandate in Articles 15 and 16, and 16, the Supreme Court held that ‘sex encompasses ‘gender identity’ so discrimination based in the context of gender identity’ could be considered as discrimination based on sexual orientation. In addition, the court was noted that transgender people are systematically denied the rights to be able to enter public spaces and aren’t protected under specific clauses that are part of the Constitution i.e. article 15(4) as well as 16(4) and 16(4), which serve to advance education and socially backward classes.
In addition, the Supreme Court also invoked Article 19(1)(a) to recognize “liberty,” and in particular, the rights of transgender individuals to express their feelings, regardless of whether or not they’ve had medical procedures.4 The Court referred to the rights in expressing gender in respect in accordance with Article 21 as a fundamental “part of autonomy for individuals and self-expression”5 and reaffirms that there exists an obligation for the State to refrain from excessive interference and an obligation of a positive nature to ensure the right to freedom, autonomy for individuals as well as self-determination and human dignity.
The Supreme Court issued nine directions to the Centre and State governments to clarify the rights of social, economic rights, political and cultural that are recognized in NALSA and to provide a framework to protect Transgender rights individuals. The directions covered everything from acknowledging that the rights of self-identification gender identity to operating HIV zero-surveillance facilities to developing social welfare programmes to improve their effectiveness and raising public awareness in order to incorporate transgender individuals into the mainstream of society. Importantly, one of the directives is for “…the Center and state governments to take actions to treat transgender persons as educationally and socially marginalized citizens, and to extend all forms of reservation for admission into educational institutions and for appointments in public offices.” In the Supreme Court, Supreme Court held that transgender individuals are entitled to reservation in the field of education and public work as members of a socially and academically backward class, and ordered the State to provide for this.
After the decision of NALSA The legislative process was taken on an Central level. In the year 2014 the Rights of Transgender Persons Bill”2014 Bill” (“2014 Bill”), was introduced as a private member’s legislation in Rajya Sabha. It stipulated the requirement that 2 percent of total seats in the Government and government-aided institutions of secondary, primary and higher education, as also all Government institutions are designated for transgender people. In the following year, there was a Central Government, through the Ministry of Social Justice and Empowerment has introduced the Transgender Persons (Protection of Rights) Bill, 2016 (“2016 Bill”) in the Lok Sabha. This Bill did not include any admissions restrictions in education institutions or in the public sector.
Before the approved 2016 Bill The National Commission for Backward Classes also suggested that transgender people are treated as members of an educationally and socially backward class. In July 2018, Kerala introduced an ad-hoc system of reservation for transgender people and announced two spots’ reserved for transgender students across all university courses or associated Arts and Science colleges, provided they meet the criteria required. The first effort of any government in a state to make provision the transgender community with reservations.
Although a number of cases concerning transgender people working in public positions have been taken through the High Courts, they have been cases that have involved transgender women who are seeking government positions as women. In a majority of these cases, High Courts have affirmed such jobs for candidates who are women. In 2016 it was the High Court of Madras in the form of a brief order in a writ pleading for reservation for transgender people who reside in Tamil Nadu, directed the Tamil Nadu Social Welfare Department to look into the possibility of a percentage or post-based reservation for transgender people and not to provide reservations in the ‘Most Backward Class category. It is unclear whether the order was applied or it has not been implemented.
WHO ARE THE BENEFICIARIES?
One of the most important aspects of making reservations is to identify and define an established group that is qualified to reserve. The problem is that NALSA doesn’t provide any clear definition of the people who are classified as transgender individuals who are eligible for reservations. Although it does discuss a myriad of gender identities, while affirming the right of self-determination in determining gender identity in a specific section of the judgment’s text, NALSA refers to “hijras and eunuchs”. The phrase is found the first of the nine directives issued in the Supreme Court. The second directive8 upheld the rights of transgender individuals to self-identify as male female or a third gender.
It also required to the Central and State Governments to recognize the legal acceptance of the gender identity.9 A clarification was sought from the Ministry of Social Justice and Empowerment regarding whether the term “transgender” encompasses gay bisexual, lesbian, and gay people or is confined to the people commonly referred to by the name of “hijras/eunuchs” 10, the Supreme Court held that this issue was clarified in the ruling itself.11 This issue regarding identity is important for reservations, and must be enacted. Although NALSA gives the right to self-identify one’s gender, whether male transgender, female, or male but it did not set any self-identification procedure.
This absence of clarity can lead to inconsistencies between States regarding self-identification. For example, Chhattisgarh has established a Third Gender Welfare Board which is charged with the issue of identity cards like the Karnataka as well as the Kerala transgender policy. Identity cards issued by the board can later be used to implement modifications to gender and name markers on different identity documents.12 On the contrary the case in West Bengal, it has been noted there is a requirement that exists there is a requirement that in West Bengal, documentation of the sex-reassignment surgery is required to be published as changes in gender on the Official Gazette, despite the guidelines in NALSA that have eliminated the requirement for SRS to self-identify gender.
All these attempts have tended to entail the constitution of a board of medical officers, psychologists/psychiatrists, social welfare officers, government officials and members of the transgender community for issuing identity cards to transgender persons. When we look at the experience and difficulties of being issued identity cards to any group like in the case of people who have disabilities, for whom getting a disability ID card has proven to be extremely complicated, bureaucratic, and not allowing reservations that are based on identity cards of transgender individuals is not advised.
Within a self-identification framework reservations are not limited and should be extended to all transgender individuals regardless of the fact that they identify as male, female, or any other gender only based on the transgender identity card issued by an authority constituted pursuant to a law. The question of who should issue these identification cards for transgender people will be discussed in the next section about how to legally justify reservation.
LEGAL BASIS FOR RESERVATIONS FOR TRANSGENDER PERSONS: HOW SHOULD IT BE IMPLEMENTED?
In determining who has access to reservations at educational institutions and jobs in the public sector, the following question is whether reservations are applied through the Union or by the relevant States by way of a legislative enactment or an executive or executive. While the Union can provide reservations for public employees in positions that fall under its control, reservations on State positions are entirely in the control of the States.
Reservations for transgender people could also be made by this method. The central law will be able to define “transgender persons”, recognise the right to self-identification as a gender identity and set the quotas for reservation. This will ensure uniform government actions throughout the country, and bring together the different policies of the state for transgender individuals that have been developed to date. A statute that provides for reservations for transgender individuals could comprise the following:
(i) Establishing the process of self-identification gender identity with or without medical change of gender.
(ii) Providing a minimum proportion of seats to be reserved for educational institutions as well as the percentage of jobs which are open to public employment.
The legislation would put the responsibility upon the government at the top to establish an environment for transgender individuals to self-identify, being eligible for reservations instead of inconsistent and haphazard procedures across the nation. It is likely that allowing States to define their own methods of identity could lead to certain States imposing more stringent requirements that must be met to obtain “transgender” status.
This would limit the right of self-identification of gender identity as defined in NALSA. The law should protect the right of self-identification by allowing transgender individuals to self-identify as male or female, as well as third gender and should not require tests that are biological and physical, which interfere with the privacy and dignity of transgender people as they aren’t required under the NALSA decision. It would also provide the chance to examine whether state-wide transgender welfare boards could be helpful, what their function is and whether they should issue identification cards.