Madras HC Directs Horizontal Reservation For Transgender Community In Compliance With NALSA Judgment
The Madras High Court directed horizontal reservation for the transgender community in compliance with the Supreme Court's judgment in NALSA v. Union of India recognising transgender as a third gender identity.
The petitioner, a transgender individual qualified in B.Sc Nursing, challenged the legality of a Government Order (G.O.) issued by the Backward Classes, Most Backward Classes & Minorities Welfare Department (Department). The petition was filed before the Court to direct the Department to provide horizontal reservation to the transgender community in line with the Supreme Court's directive in NALSA v Union of India [(2014) 5 SCC 438].
Single Bench of Justice G.K. Ilanthiraiyan observed, “Once the transgender identity is a gender identity like man or woman, it is manifestly arbitrary and in violation of Article 14 to give woman horizontal reservation and treat transgender persons similar to men. Therefore, if once gender identity is given horizontal reservation, it follows that the transgender communty, being a socially and educationally backward community discriminated on the basis of gender identity, should also be entitled to similar reservation.”
Advocate N.S. Tanvi represented the petitioner, while AGP E. Vijay Anand appeared for the respondents.
The petitioner was accorded reservation as a transgender under the category Most Backward Class (MBC) and provided vertical reservation, treating the transgender community as a caste, instead of horizontal reservation by treating transgender as gender identity.
The classification of transgender persons under the Most Backward Class (MBC) category was challenged contending that it was discriminatory and violated the fundamental rights under Articles 14, 15, 16, 19, and 21 of the Constitution. The petitioner argued that the transgender community should be recognised as a gender identity rather than a caste, as mandated by the Supreme Court.
“Like every other person in India, the degree of discrimination faced by an individual is an intersection of their gender identity and caste identity. The discrimination faced by a Dalit woman is the result of intersecting identities of being a woman from the Dalit caste. This will be lesser than the discrimination faced by an upper caste woman. Similarly, the discrimination faced by a transgender Dalit person is worse than the discrimination faced by an upper caste transgender person. Therefore, any reservation provided to the transgender will not be effective unless this intersection of these identities is addressed,” the Court remarked.
The Court pointed out that the State and Central Governments were instructed to treat transgender individuals as socially and educationally backward citizens and provide reservation in education and public appointments. Despite the Supreme Court's clear determination that transgender identity is a gender identity, the Bench criticised the respondents for categorising transgender individuals under the MBC caste category.
The Bench declared the impugned G.O. as "manifestly arbitrary thereby, violative of Article 14, 15, 16, 19 and 21 of Constitution". It quashed the G.O. and directed the respondents to provide horizontal reservation to the transgender community in accordance with the directives of the Supreme Court in NALSA (supra).
Accordingly, the High Court allowed the petition.
Cause Title: Rakshika Raj v. State of Tamil Nadu & Ors.
Appearance:
Petitioner: Advocate N.S.Tanvi
Respondents: AGP E. Vijay Anand