Madras HC issues notice in petition calling for Transgender Reservation, ID based on self-identification

The Madras High Court has issued notice in a Public Interest Litigation (PIL) petition calling for horizontal reservation for transgender persons in public employment and educational institutions.

The plea moved by transgender activist Grace Banu Ganesan also prays for the issuance of government identification cards to transgender and intersex persons in accordance with the principle of self-identification. Grace also happens to be the first transgender engineering graduate in the state.

According to a Bar and Bench report,the plea filed by Grace points out that the Tamil Nadu government does not have clear policy guidelines when it comes to reservation for transgender and intersex persons. This, despite the call for reservation for transgender persons in the 2014 landmark NALSA judgment of the Supreme Court.

Further, in 2017, the Madras High Court had also directed the Tamil Nadu government to frame policy guidelines on this aspect in the case of Tharika Banu v. The Secretary to Government.

The state presently only has a system of vertical reservation in terms of a 2015 government order, the petition points out. By this order, transgender persons are included in the category of Most Backward Classes (MBCs). However, Banu argues that such vertical reservation is not sufficient to address the systemic discrimination faced by transgender and intersex persons in matters of employment and education. The petition states:

This would mean that SC and ST transgender persons or transgender persons from other backward classes would not be able to seek the benefit of reservation…Within the MBC category, the chances of transgender persons getting the posts would be very slim, as they would have to compete with other members of the MBC category…

Instead of providing reservation to transgender persons by including the under the MBC category, which is a form of vertical reservation, the reservation should be horizontal as a separate category for transgender and intersex persons on the basis of gender identity.

The petition goes on to argue that such horizontal reservation benefits should be availed on the basis of possession of government-issued Transgender/intersex ID cards. Importantly, such ID cards should be issued in accordance with the principle of self-identification and without the requirement of undergoing Sex Reassignment Surgery. 

The prayers made by the petitioner before the Court include the following.

  • That the Tamil Nadu government be directed to frame and implement a reservation policy for transgender and intersex persons in public employment and educational institutions
  • The reservation in this regard must be horizontal reservation
  • That the Tamil Nadu government be directed to empower the Tamil Nadu State Transgender Welfare Board to issue identity cards to transgender and intersex persons in order to avail these reservation benefits
  • The ID should be issued on the basis of the principle of self-identification of gender identity and not on biological examination. In other words, it should not require medical re-assignment, mental health assessment, hormone or other treatment as a precondition.
  • That directions be issued to empower the Tamil Nadu State Transgender Welfare Board to ensure adequate representation from the transgender and intersex community. The Board should also be empowered to implement welfare schemes for the transgender and intersex community.

The plea came up before a Bench of Justices S Manikumar and Subramonium Prasad on Wednesday. Senior Counsel Jayna Kothari appeared for the petitioner. The Court has issued notice in the matter, returnable by March 21.

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