Image Courtesy: livemint.com
On February 7, 2023, the Social Justice Ministry of the Union of India, informed the Lok Sabha that the government is not considering any proposal to bring in reservations for transgender persons in education or employment. Multiple MPs, mostly from Maharashtra, had asked the Ministry of Social Justice and Empowerment asked to provide details regarding the number of people from the transgender community that are employed in Government and private jobs. In response to this, Minister of State for Social Justice A. Narayanaswamy said that the Ministry had no information even on the number of transgender people that are employed in the government and private sector, adding that so far, just 10,635 people had registered on the national portal.
On the inquiry regarding whether the ministry is planning to provide reservations to transgender persons, and the policy that in place to deal with discrimination against them, the minister said that a law is already in place which prohibits discrimination against transgender persons and that there is no proposal to pro-actively introduce reservation in jobs and education for trans people.
The Ministry’s statement comes even as the Delhi High Court has admitted a petition seeking reservation for transgender people in jobs and education and issued a notice to the Union government on it.
The complete answer can be read here:
Courts & Reservation and Employment for Transgenders
Delhi High Court:
In January 2023, a petition filed sought notification of special vacancies for transgender people in public posts. The Delhi High Court demanded a response by the Union Government. A bench of Justice Prathiba M Singh even impleaded the Ministry of Home Affairs as a party to a transgender person’s plea and permitted six weeks to submit a reply.
It was argued in court that merely mentioning and adding ‘transgender’ as a separate gender in the application form would not be sufficient compliance with the Transgender Persons (Protection of Rights) Act, 2019, since the individuals belonging to the transgender community would be “forced to apply in a vacancy, which is either for male or female candidates or for vacancies where no gender is mentioned.” (Para 7) The petitioner’s grievance was that the vacancies advertised by the Delhi Subordinate Service Selection Board (DSSSB) on January 2, 2020 had mentioned the requirement of male or female genders. In respect of some posts, no identification of gender was mentioned.
The petitioner had filed for DSSSB recruitment and had been looking for work in government schools since 2019. Aside from requesting the implementation of the requirements of the Transgender Persons (Protection of Rights) Act, 2019 and its Rules, the plea also urges the formulation of a policy for the recruitment of transgender people in all public positions.
The petitioner’s counsel relied on the Supreme Court’s ruling in NALSA v. Union of India, which acknowledged the rights of a transgender person. “Both the Centre and State are mandated to recognise my identity and act accordingly,” the counsel, representing the petitioner, submitted before the court during the hearing on January 20, while contending that the Delhi Government cannot have “gender segregation,” as has been provided by LiveLaw.
In response, the DSSB argued that all three genders, male, female, and transgender, can now apply for jobs on its web site. However, the petitioner’s counsel contended that this would not be sufficient conformity with the law. The counsel further stated that the Delhi Government’s Department of Social Welfare has proposed granting transgender people a 5-year age relaxation and a 5% qualifying mark. The letter, dated February 8, 2021, addressed to the Additional Chief Secretary, was placed on record.
Counsel for the Delhi Government further stated that its Department of Social Welfare has written to the Under Secretary (UT) and Joint Secretary (UT) of the Ministry of Home Affairs with reference to the implementation of the 2019 law on March 2, 2022 and December 2, 2021, respectively.
After reviewing the communications, Justice Singh stated that a notification in the central gazette has been sought to authorize the Administrator or Delhi Lieutenant Governor to design State Rules in accordance with the Transgender Act, in terms with the Article 239(1) of the Indian Constitution.
“Considering these communications, which are on record, it is deemed appropriate to implead the Union of India, Ministry of Home Affairs through Under Secretary (UT), Government of India as the Respondent No.5 in the present case” (Para 11)
The court also ordered the LG and the Delhi Government’s Directorate of Education to record their stance on the Department of Social Welfare communications. The court stated that the petitioner may file applications for the vacancies created by this judgment, which will be evaluated and processed on March 28, 2023.
The order can be read here:
Kerala High Court
In January 2023, transgender people were allowed to apply for the positions of house keeper (Female) in the Homeopathic Medical College department and sub inspector of police (Trainee) in the Armed Police Battalion by the Kerala Administrative Tribunal in Thiruvananthapuram. The bench, which included Judicial Member Justice P.V. Asha and Administrative Member Rajesh Dewan, allowed the applicants to submit their applications and stated that the Kerala Public Services Commission should “process the application purely on a provisional basis, subject to further orders” in both cases.
The Commission had previously issued a notification soliciting applications for the position of House Keeper (Female) under the Homeopathic Medical College department. A transgender woman named Aneera Kabeer C. told the tribunal that the notification allowed only female candidates to apply for the position, and the applicant was declared to be disqualified on the PSC’s official website owing to her gender identity.
The petitioner claimed that the notification is thus unfair and discriminatory based on gender, which is disallowed by Articles 15 and 16 of the Constitution.The counsels for the applicants submitted that the arbitrary exclusion of transgender women from the ambit of the post is violative of the Transgender Persons (Protection of Rights) Act, 2019; the Transgender Persons (Protection of Rules), 2020; various apex court judgments and State Policy for Transgender in Kerala, 2015.
Case- AneeraKabeer C. v. State of Kerala &Ors.
In a similar application submitted by Arjun Geetha, permission was sought to submit application for the post of Sub Inspector of Police (Trainee) in Armed Police Battalion. A further directive had been requested to guarantee that the transgender category is included as a separate category, and that separate notifications for transgenders for postings in other categories are sent in subsequent notifications.
Case- Arjun Geetha v. State of Kerala &Ors.
Bombay High Court
In December 2022, the Maharashtra government informed the Bombay High Court that, in addition to men and women, third gender options will be included in online applications for police constable recruitment by the end of December 13, 2022. It also informed the court that it would develop guidelines for transgender candidates within three months.
The court ordered the state to draft guidelines in accordance with the Central Government’s Transgender Persons (Protection of Rights) Rules, 2020, and to complete physical exams for all candidates other than transgender candidates within two and a half months, or by February 28, 2023.The physical examination of candidates belonging to the transgender community will then take place, according to the court. The state shall not proceed with the written examinations for all candidates until the rules are drafted and the physical tests are conducted, the court noted in its judgment.
A division bench of Chief Justice Dipankar Datta and Justice Abhay Ahuja was hearing the state’s appeal against the Maharashtra Administrative Tribunal’s (MAT) directive to include transgender people in all Home Department employment.
While handling with applications from two transgender people aspiring to be police constables, MAT had also asked the state to establish physical norms and exams for transgender candidates.
The order can be read here:
Conclusion
Even while courts are taking cognisance of petitions filed by the transgender community, demanding equal opportunity and acknowledgement of the existence of more genders than the two binaries, the government is yet to take any pro-active steps in that direction. While the government dismisses any accountability on this issue by showcasing the mere existence, on the statute books, of the Transgender Persons (Protection of Rights) Bill 2016 discrimination is prohibited against a transgender person, including unfair treatment or denial of service in relation to employment, education, healthcare, access to public goods and facilities, etc. This stance fails to recognise and consider the systematic oppression and otherisation that is faced by a transgender person that needs active policy level interventions.
The government needs to take calculated actions to ensure opportunities for the transgender population, such as extending the reserve afforded to women under Article 15(3) to transgender and intersex people as special reservations and horizontal reservations. Since the Court ruled in NALSA that ‘sex,’ a protected feature under Articles 15 and 16 of the Constitution, includes ‘gender identity,’ sex-based protections should be extended to transgender and intersex people. The government should also evaluate how caste, gender, economic situations, and religion intersect and formulate special category of reservations for the community.
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