The International Transgender Day of Visibility is a yearly awareness day held on March 31. It recognises the bravery of transgender and non-binary people worldwide who do not conform to heteronormative societal standards prevailing in our society, as well as pay a tribute to those who died before, paving the way for the younger generations.
On a daily basis, starting from a young age, the transgender and the non-binary community are forced to face systematic discrimination and prejudice based on their gender or sexual orientation in different spheres of life. Thus, to create a high degree of awareness including promoting their livelihood and cultural rights and advocating the struggles of the community, March 31 is marked as the International Transgender Day of Visibility.
Even though, legally, India has accepted the transgender community as the “third gender” and given them legal recognition through the National Legal Services Authority (NALSA) judgment (NALSA v Union of India), the rights guaranteed to them still remain on paper. Through the said judgment, the courts had, for the first time, held that transgender persons have the right to self-identify their gender identity as male, female or a transgender person, and also recognised that they had been discriminated historically and excluded from mainstream life. The Supreme Court had then recommended that transgender persons should be provided reservations in public employment and education. It is the year 2023 now, and this direction of the Supreme Court is yet to be implemented at all.
Has the government and the judiciary failed to respect transgender person’s rights and added to their struggles and marginalisation?
1. Lack of Reservation for Transgender community:
On March 27, 2023, the Supreme Court refused to hear an application seeking clarification on providing transgender persons with reservations. According to the application, the applicant had urged the Supreme Court to clarify that the reservation meant for transgender persons under the 2014 NALSA decision is horizontal reservation, and not vertical reservation.
The bench, led by Chief Justice of India DY Chandrachud, expressed reservations about hearing the said application in a disposed off case. The bench did, however, allow the applicant to pursue other legal remedies (such as filing a separate substantive petition) for the reliefs sought.
Grace Banu, a transgender rights activist, had filed the said application. The applicant was represented by Senior Advocate Jayna Kothari. The applicant stated in the application that in NALSA judgment, the Supreme Court had directed the Union and the States to treat transgender persons as a socially and educationally backward class and to provide them with special treatment in education and public employment. The Court, however, did not specify how the reservation should be implemented. As a result, according to the applicant, many states have yet to implement such reservations.
According to the applicant, the NALSA decision gives the impression that transgender persons will be treated as OBCs, and thus their reservation will be vertical. If the reservation for transgender persons is treated as a vertical reservation, several issues will arise, which were also pointed out by the applicant in the application and is as follows:
Because transgender persons will be granted vertical reservation, they will have to choose between SC/ST and OBC quotas. If such individuals choose SC/ST quota, they will forfeit the benefit of transgender quota and will be forced to compete with others in the SC/ST category, putting them at a disadvantage. However, if such people are already in the OBC category, they will not be eligible for affirmative action as transgender person.
The applicant contended that reservations for transgender and intersex people should be made on the basis of gender and disability, as has been done for women and people with disabilities, which has not been done yet. The application had also highlighted that the Ministry of Social Justice moved a cabinet note in September 2021 to include transgender persons in OBC category. Even after this, the Supreme Court bench refused to entertain the plea.
It is pertinent to highlight here that in the year 2021, Karnataka became the first state, and till now the only state, where the transgender community have been given horizontal reservation to the extent of 1%.
Horizontal reservation in the state of Karnataka: In September 2021, the Karnataka State Government became the first state to provide 1% reservation for transgender persons in civil service jobs across caste categories. On August 18, 2021, the Karnataka High Court had also issued orders for the government to consider issuing an advisory to all state public corporations and statutory bodies to make similar reservations.
This decision came as a result of an intervention filed by Jeeva, an organisation dedicated to the rights of transgender persons and sexual minorities, in the case of Sangama v. State of Karnataka. The case began with a challenge to a notification for recruitment to the State Police, which called for men and women to fill positions and did not include a ‘transgender’ category.
During the course of this litigation, the State Government stated that it was in the process of granting reservations to transgender persons in the Other Backward Classes (OBC) category. Instead, Jeeva intervened and asked for horizontal reservations across castes. The State Government then issued an amendment allowing for horizontal reservations.
According to the new Rule 9(1D) inserted by the Karnataka Civil Services (General Recruitment) (Amendment) Rules, 2021, transgender persons will be given 1% reservation in civil service posts filled through direct recruitment. The reservations will be 1% in each of the categories of posts: General Merit, Scheduled Castes, Scheduled Tribes and in each category among Other Backward Classes. This reservation applies to posts from any Group (A, B, C or D).
Along with male and female gender categories, the 2021 Amendment requires an “Others” category. It also prohibits the Appointing Authority from discriminating against transgender persons in selection.
With this amendment, the state of Karnataka became the first state to provide for reservations in public employment. It is worth noting that this amendment provides for horizontal reservations rather than vertical reservations. This means that reservations will be guaranteed across caste categories, and no one group will be able to dominate reservations for transgender persons. However, unlike other reserved categories, the aforementioned amendment does not provide for relaxations in age, fees, cut-off marks, and other standards.
Importance of horizontal reservation: Horizontal reservations would cut across all caste categories. It would allow for separate reservations within each vertical SC/ST/OBC/General category. Transgender persons would be given 1% of ST, SC, OBC, and General Merit seats. Currently, reservation for women and people with disabilities works in this way. This means that they provide separate reservations to transgender communities in addition to the SC/ST/OBC category. The idea of implementing horizontal reservations fosters greater equality and uniformity in society, which is why it is supported by a large segment of the population.
States with special policies for the transgender community: On March 20, the Bombay High Court directed the Maharashtra government to formulate a policy for transgender community in government-funded educational institutions and for government jobs until June 7, 2023. As a matter of fact, the Court questioned the Advocate General for Maharashtra as to why such a policy had not been implemented in the state. This decision was given in the case of Vinayak Kashid [Vinayak Kashid v. MSETCL & Ors], a transgender person with an undergraduate degree in Electrical Engineering and a postgraduate degree in Technology (Electrical Power System Engineering). He had filed a petition against MahaTransco this year, requesting a change in the organisation’s advertisement because their mass recruitment did not include a special reservation category for the transgender community.
The Madras High Court had ruled in the month of October of 2022 that transgender persons are entitled to admission to educational institutes under the third gender category. According to Justice R Suresh Kumar, the State government is obligated to provide special reservation in educational institutions for those who identify as transgender or third gender, regardless of the number of such people.
Similarly, in March last year, a single-judge of the Madras High Court had strongly recommended that the State government ought to provide a specific percentage of separate reservation for transgender persons in matters of future public employments. The Court had held that the State’s decision to combine transgender persons who identified as females, with the 30 per cent vacancies reserved for women candidates without extending a special reservation for them, was violative of Articles 14 and 16(1) of the Constitution as well as the directions in the NALSA judgment.
In January 2021, the Bihar Government had informed the Patna High Court that, vide notification dated 14th January, 2021, it has taken a decision for providing reservation in appointment to the post of Constables/Sub-Inspectors, for the persons belonging to the Transgender Community.
2. Discriminatory policies barring blood donation:
In March 2023, the Union government defended its guidelines on permanently prohibiting transgender community, female sex workers, and gay men from donating blood, claiming that scientific evidence clearly shows that they are globally recognised as population groups with a higher prevalence of HIV (human immunodeficiency virus) and other transfusion-transmitted infections. (TTIs). The Union Ministry of Health and Family Welfare filed an affidavit to that effect in response to a notice issued by the Supreme Court in March 2021. Santa Khurai, a transgender community member, had filed a petition in this case, claiming that the exclusion of transgender persons, gay men, and female sex workers from being blood donors and permanently prohibiting them from donating blood solely on the basis of their gender identity and sexual orientation was entirely unjust, irrational and prejudiced, as well as unscientific.
The petition, filed through Advocate-on-Record Anindita Pujari, claimed that such a classification was based on negative stereotypes, and should be held to be a violation of Articles 14 and 15 of the Constitution.
In its response defending the exclusion, the government argued that the issues raised by the petitioner are within the purview of the executive, who are aided by medical, scientific, and other technical experts, who are guided by evidence as well as their own professional experience. Thus, according to the reply, such issues raised should be judged through the lens of public health, not just individual rights, taking into account the practical realities of unequal a treatment.
According to the affidavit, those considered “at risk” for HIV and Hepatitis B or C infection are exempt from the guidelines. In this category of individuals, certain population groups have been specifically included.
3. Lack of protection under criminal laws:
Following the NALSA decision, further steps in the form of decisive legislative action were required to ensure adherence to constitutional principles. To achieve this, a comprehensive statute based on the aforementioned principles and providing equality of status and recognition to members of the transgender community was necessary. In the year 2019, Transgender Persons (Protection of Rights) Act, 2019 received the assent of the President of India, and came into force and became the governing law relating to transgender women in India. However, it fell far short of the expectations that were set for it and added to the already existing issues in India’s socio-legal sphere. There had hardly been a conscious effort in the six or so years since the pronouncement to grant the long-overdue fair treatment, and then the 2019 Act also failed to bind together these unresolved problems, and is still failing. It is the year 2023, 9 years after the NALSA decision and 4 years since the adoption of the 2019 Act, and transgender women have yet to achieve the right to equality before the law and equal protection under the law.
The punishments and provisions provided by the 2019 Act are unfair and unjust because they do not provide transgender women with the same legal protection as cis-gender women under various penal laws, such as the Indian Penal Code. Section 18 of the 2019 Act states that anyone who harms, injures, or endangers the life, safety, health, or well-being of a transgender person, whether physically, mentally, or emotionally, will face a minimum of six months in prison, which may extend to two years, and a fine. Even if the degree of cruelty is identical in both cases, the punishment provided by the Act is less severe than the punitive sanction provided by section 498A of the IPC. As a result, any act of violence or abuse committed against a transgender woman will have less significance and lower weight associated with it in the eyes of the law than any act of crime committed against cis-women. It is clear that within the circles of marginalization, transgender women face two levels of discrimination based on their gender identity, first as a woman and then as a transgender woman. Even with the internalization of such prejudice and institutionalized discrimination, victims from the community face numerous roadblocks to access to justice.
Furthermore, Section 5 of the Act requires transgender persons to obtain a certificate of identity from the District Magistrate after going through a legally arduous procedure, thereby undermining the right to self-perceived gender identity specified under Section 4 of the said Act. Thus, section 5 gives provides for the issuance of certification based on detailed examination. This section also contradicts the spirit and directions of self-determination without medical intervention outlined in the NALSA decision. Thus, attempts to dilute the NALSA judgment has resulted in further oppressing the already ignored, oppressed and marginalised.
Recent Small Victories for the transgender community
In March 2023, in the case of Jasmine Kaur Chhabra v. UOI & Ors., the Delhi High Court directed the Delhi government to ensure that public toilets for transgender persons are constructed in the national capital within eight weeks, failing which it will direct personal appearance of top officials. The bench also took note of the response filed by the New Delhi Municipal Council (NDMC) and said that while the affidavit indicates existence of paper work, the ground reality is that nothing has been done in the matter.
This decision was given by the High Court while hearing a public interest litigation filed by Jasmine Kaur Chhabra through Advocate Rupinder Pal Singh. The plea sought directions for necessary action in compliance of Swacch Bharat Mission guidelines dated October 15, 2017, specifying the need to make separate toilets for transgender community. Directions were also sought by the court for maintaining hygiene of public washrooms so that the rights of transgender community are protected in terms of the NALSA judgment. It was stated in the plea that every human being, irrespective of the gender, has basic human rights including use of separate public toilets, the plea submits that not providing such facilities to transgender or third gender persons violates Article 14 and 21.
In January 2023, the National Council of Education Research and Training (NCERT) informed the Madras High Court that it has notified a gender inclusive draft manual, and that suggestions, recommendations and ideas from the relevant stakeholders were welcome. The submission was made before Justice Anand Venkatesh’s bench, which has been issuing a series of directives in an effort to remove the stigma associated with the LGBTQ community and to ensure the welfare of its members.
NCERT also informed the court that the draft manual titled “Integrating Transgender Concerns in Schooling Processes” aims to make schools more inclusive by creating awareness and safe spaces. It was further stated that this manual included, among other things, gender-inclusive curriculum, gender-neutral uniforms, secure restrooms, washrooms, and steps to prevent gender-based violence. The Department of Gender Studies, NCERT, had previously notified them of a draft module titled “Inclusion of Transgender Children in School Education: Concerns and Roadmap.” However, this was removed in response to concerns raised by the National Commission for the Protection of Child Rights. (NCPCR). The new policy focuses upon transgender persons by birth.
While official and legal recognition for the transgender community as a separate gender category has broken the impregnable wall of ignorance and discrimination that had existed before, India still has a long way to go before the long-oppressed minority gender is finally considered “equal.” Even four years after the Transgender Persons (Protection of Rights) Act of 2019, the ground reality has not changed by much. The Transgender community continue to be marginalised and are frequently forced to conceal their gender identity in public. While the community is fighting this oppression and is willing to engage in the long fight, it is critical that the judiciary and government support the community members rather than remaining silent, blind and ignorant.
The government and the judiciary must collaborate to turn the wheels of this regressive society into one that is forward-thinking and grants acceptance to every individual. Because the dynamism of law is rooted in its ability to reflect socio-cultural changes, there is an urgent need to gradually interpret and amend penal codes in order to ensure true inclusivity for transgender persons. The union and state government need to do better by the transgender community by providing them the required attention and support. Even in the Union Budget of 2023, the transgender community have been left out and excluded.
For every basic right, the transgender community have had to start a discourse, flood the courts with petitions, and even then, most of the time, the battles take too long to yield positive results. Today, the structural failure of all three branches of the Indian State (legislature, judiciary, and executive) in treating transgender persons as equal citizens in this plural democracy is reflective in the state of the transgender community.
While these recent small developments and victories, though late, provide a beacon of hope to the transgender community and give a forward push to achievement of transgender rights; however, without granting them the legal capacity to enjoy their socioeconomic rights, the systematic marginalisation associated with their status will continue indefinitely. It is critical that we move away from being a system that fails to recognise the vulnerable conditions of many transgender persons, who exist in a perpetual state of helplessness and powerlessness, providing them ad-hoc protection and work toward mainstreaming transgender community’s rights, welfare, protection and well-being.