|Case No.||Writ Petition No. 6052/2019 (PIL)||Date of Filing||18/02/2019||Status||Pending||Petitioners||Grace Banu Ganesan||Respondents||State of Tamil Nadu through Ministry of Social Welfare; State of Tamil Nadu through Department of School Education; State of Tamil Nadu through Department of Higher Education; State of Tamil Nadu through Department of Labour and Employment; State of Tamil Nadu through Department of Law; Tamil Nadu Transgender Welfare Board, Social Welfare Department|
This Public Interest Litigation seeks the implementation of horizontal reservations for transgender and intersex persons in admission into educational institutions and public appointment in the State of Tamil Nadu.
In NALSA v. Union of India in 2014, the Hon’ble Supreme Court of India recognised that transgender persons have been denied their rights under Articles 15 and 16 of the Constitution of India, 1950. Accordingly, the Court directed the Central and State Government to treat transgender persons as a socially and educationally backward class. Further, it directed the State to provide them with reservations in education and employment.
In Tamil Nadu, transgender persons are provided reservations under the Most Backward Classes (MBC) category. The Government Order (Ms) No. 28 dated 06.04.2015 issued by the Backward Classes, Most Backward Classes and Minorities Welfare Department carried out an amendment to the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of seats in Educational Institutions and of appointments or posts in the services under the State) Act, 1993. This amendment included “Transgender or Eunuch (Thirunangai or Aravani)” under the Schedule containing the list of MBCs. Therefore, the reservations provided are vertical reservations, similar to reservations provided to various caste groups.
While transgender persons have been included under the MBC category, there is no clear policy on the scope of the term ‘transgender’ and on implementation of reservations. The Petition seeks the implementation of horizontal reservations for transgender and intersex persons under a ‘transgender’/ ‘woman’ category and not under the MBC category. This would be similar to reservations provided for women and persons with disabilities. In fact, various decisions of the High Court of Madras such as Nangai v Superintendent of Police, T. Thanasu v Secretary, Government of Tamil Nadu, have permitted transgender women to seek employment under the ‘woman’ category.
Horizontal reservations would cut across the reservations provided based on vertical caste categories. This would ensure that transgender persons who come from marginalised caste groups need not give up their caste status and access reservations under the MBC category. Horizontal reservations take into account the intersection of caste and gender identity.
The Petition relies on two decisions of the High Court of Madras. In Swapna v. Chief Secretary, the Hon’ble Court had held that reservations should be provided to transgender persons on a percentage or post-based system and not under the MBC category. Significantly, in Tharika Banu v. Secretary to the Government & Ors, the Hon’ble Court directed the State Government to issue guidelines on reservation in employment for transgender persons in order to streamline the procedure.
Finally, the Petition also places reliance on CLPR’s policy brief ‘Making Rights Real’ on implementing reservations for transgender persons.
The Petition is currently pending before the Division Bench of the High Court of Madras. The Hon’ble Court issued notice to the Respondents. Further, it passed directions to take instructions on the status of implementation of the previous orders of the Hon’ble Court.
– This post was authored by Deekshitha Ganesan, Research Associate