The rights of the people belonging to the LGBTQI+ have recently started gaining the much-needed attention that they have always needed. The community faces a lot of discrimination and ill-treatment just for the way they are. They are seen as “deviant” and as somebody who is not normal. Moreover, in the Indian context, people believe that they are non-conforming to the “normal” gender norms. Discrimination is faced even more so if a person subscribes to the transgender community. Transgender people have a gender identity that is different from that they were assigned at birth. They have a different forms of gender and sexual expression. However, transgender people are not supposed to be confused with homosexuals only. They can identify as heterosexual, bisexual, asexual or, homosexual as well. The notion of them only being homosexual should not be held. They can identify themselves in whichever way they want to. Either they can identify as feminine transgender or masculine transgender among many other identifying tags.
The Madras High Court observed on the 2nd of march, 2022 that transgender persons identifying themselves as females cannot be clubbed under the women quota. Instead, the right thing to do would be to give them a special reservation for their identity. This would amount to discrimination which is indirect in nature and it is unconstitutional. The constitution of India is a document that enshrines upon people the right to equality under Article 14. Article 15 of the constitution also ensures that no person is discriminated against their caste, class, religion, sex, or gender. Most importantly, this violates Article 16(1) of the Indian Constitution which mentions that each person is entitled to an equal opportunity of employment at any office which comes under the state or the government body. There is something known as the horizontal and the vertical reservation. Vertical reservation includes the reservation for the Scheduled Castes, Schedules Tribes, Other Backward Classes, etc. Whereas, horizontal reservation includes equal opportunity for other categories like women, people with disabilities, transgender, etc. The Rajasthan High Court had also given an order to the state government to implement the reservation of the transgender in government bodies as per the supreme court order. The parliament had passed a bill in 2019 called the Transgender Persons (Protection of Rights) Bill, 2019. It was introduced to uphold the social, economic, and educational empowerment rights of the transgender. Clubbing transgender people under the category of women would not only be an encroachment of their freedom of expression, but also a denial of a special policy that they deserve. This would also be a question of their dignity. Moreover, the transpeople who have identified themselves as under the male category, have been denied the right to reservation.
However, the problem here arises is whether the transgender should be provided with the horizontal reservation or vertical reservation. This is because if the horizontal reservation is provided to them in terms of public employment, then it would be assumed that they are only being provided with this form of reservation as they belong to a particular set of strata forming the society. If they are put under the ambit of vertical reservation, then it would be assumed that they come just under the purview of socially and educationally backward classes or any other class where there are high levels of illiteracy and lack of proper amenities. But, it should not be forgotten that most of the transgender forming the composition of the population in India come from very humble backgrounds and they do need this form of reservation as well. Hence, deciding whether they require a horizontal form of the reservation or a vertical form of the reservation is a question that is open to debates and discussions. The above-mentioned paragraph mentions humble backgrounds as there are a lot of social stigmas attached to transgender people which prevent them from achieving the rights that they deserve. Many transgender people are forced to drop out of schools and colleges because they face an incessant amount of discrimination. Dropping out of educational institutions is surely not a good sign for a good future. Hence, the future starts looking a little bleak for them after this. If they are fighting off all the odds and working way too hard to go and study, then they surely deserve a special reservation for their hard work. Being discriminated against at educational places and then at the workplace is not fair at all. Hence, a robust mechanism is needed to accommodate all of their interests, and the concerned interest is a separate reservation in public employment spaces.
How to provide a reservation?
Forcing transgender people to undergo medical reassignment should not be the only criteria. Options of gender identity without medical reassignment should also be provided to transgender people for their comfort. After this has been done and a number is recorded in the census and when proper data is available, a percentage of posts or reservations should be kept reserved in the governmental institutions.
When it comes to Karnataka, it has been the only state which has been exceptionally forward-thinking for the rights of the LGBT and in that, the transgender in particular. The Karnataka government is the first state to reserve 1% of government jobs for transgender. The reservation would be provided to transgender belonging to the general category and as well as from the reserved category. This happened due to the judgment in Sangama v. State of Karnataka. This small legal victory is a huge step towards more progress and development in the future for the transgender community. The right to live with dignity and the right to liberty and integrity of this community should be respected and protected. It should be ensured that their rights are not discriminated against. It would be an even bigger victory for India if the other states start following in the footsteps of the Karnataka High Court. A more comprehensive system and an approach would be needed to provide reservations for the educational institutions and it should be ensured that they are not clubbed under the women’s reservation quota. Hence, India is becoming modern, but a lot more has to come!
Author(s) Name: Zarana Samanta (Institute of Law, Nirma University, Ahmedabad)