Reservations to Transgender Persons

Kabeer C v. State of Kerela and Others

“The Government cannot delay the implementation of the rights of the transgender persons in providing the reservations to them.”

Justice A Muhamed Mustaque and Justice P Krishna Kumar

Source: Kerela High Court

A bench of Justice A Muhamed Mustaque and Justice P Krishna Kumar directed the State Government to provide reservation to transgender persons.

The Kerela High Court held this in the case of Kabeer C v. State of Kerela (2024).

The petitioners in this case were transgender persons.
They sought for the relief of mandamus directing the Government of Kerela to provide reservations to transgender persons in education and public employment.
These writ petitions were filed in light of the declaration of law laid down in National Legal Services Authority v. Union of India and Othrs (2014).
The petitioners in this case were aspirants of public employment and in none of the public employment notifications a reservation was made for transgenders and hence they have filed the writ.

The Court observed that ordinarily this Court will not interfere in the policy domain of the Government in cases involving fundamental rights, the judicial role in enforcing the same is imperative.
The continued inaction by the Government, despite clear legal and constitutional obligations, leaves this Court with little choice but to consider issuing appropriate directions to ensure compliance with the constitutional and legal mandate.
The law declared by the Supreme Court is essential to ensure that transgenders are treated equally along with other gender groups.
In pursuance of the Transgender Persons (Protection of Rights) Act, 2019 enacted by the Parliament, the Government of Kerela also framed rules to effectuate the goals and objectives of statutory provisions.
The Court observed in this case that education is a fundamental human right and our Constitution provides equal rights as a part of fundamental rights.
The Court granting the relief in favour of petitioners held that the Government cannot delay the implementation of reservation for transgender persons and must implement the measures to provide reservations within six months.

The transgender community is a diverse group of individuals whose gender identity differs from the sex they were assigned at birth.
Gender identity refers to a person's internal sense of their own gender, which may be male, female, a combination of both, or neither (non-binary).
It's important to recognize that transgender people are a diverse group with varied experiences, identities, and backgrounds.
They face unique challenges related to societal stigma, discrimination, and access to healthcare, among other issues.

In the case of National Legal Services Authority v. Union of India and Othrs (2014) the Court laid down the following guidelines:

S. No.	Guidelines
1.	Hijras, eunuchs, apart from binary genders, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution.
2.	Transgender person’s right to decide their self-identified gender is also upheld
3.	The Centre and State Government must take steps to provide reservations to such persons.
4.	The Centre and State Governments are directed to operate separate HIV Sero surveillance centers.
5.	The Centre and State Governments should seriously address the problems being faced by hijras/transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc.
6.	The Centre and State Governments should take proper measures to provide medical care to Transgenders in the hospitals and also provide them separate public toilets and other facilities.
7.	The Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.
8.	The Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables.
9.	The Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life.

The legislation enacted by the Parliament in this regard is The Transgender Persons (Protection of Rights) Act, 2019.
Transgender is defined in Section 2 (k) of the Act as the one whose gender does not match the gender assigned at birth. It includes transmen and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.
The Salient features of the Act are as follows:
- Non-discrimination: Prohibits discrimination in education, employment, healthcare, and public facilities, and affirms rights to movement, property, and office.
- Certificate of identity: Grants the right to self-perceived gender identity and requires district magistrates to issue certificates without medical exams.
- Medical care: Ensures HIV surveillance, access to medical care, sex reassignment surgeries, and therapy with insurance coverage.
- National Council for Transgender Persons: Established to advise the government and address grievances.
- Offences and penalties: Punishes offences like forced labor, abuse, and denial of rights with imprisonment (6 months to 2 years) and fines.

R Anushri v. The Secretary TNPSC and Others.(2024)
- The Madras High Court directed the Tamil Nadu government to establish separate criteria for transgender individuals in employment and education, criticizing the state's continued confusion in categorizing transgender individuals.
- The court ruled in favor of a transwoman who was denied certificate verification despite qualifying, emphasizing the need to recognize transgender individuals as a special category and provide them with equitable opportunities.
Navtej Singh Johar v. Union of India (2018):
- On 6^th September 2018, a five-judge bench of Chief Justice of India (CJI) Dipak Misra, Justices Rohington Nariman, D Y Chandrachud, A M Khanwilkar and Indu Malhotra partially decriminalized Section 377 of the IPC.
  - Section 377 of IPC criminalizes Unnatural Offences.
- The provision was decriminalized to the extent it was criminalizing homosexual relations.
- The bench found it violative of freedom of expression under Article 19(1)(a) and right to life and personal liberty under Article 21 of the Constitution of India, 1950.