Statement demanding horizontal reservation for transgender persons

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The Trans Rights Now Collective has released a statement demanding horizontal reservation for transgender persons rather than clubbing transgender individuals under OBC category.

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In its landmark NALSA vs. Union of India judgment in 2014, the Supreme Court recognised the constitutional rights of equality, liberty, and dignity for transgender persons and noted that they should receive affirmative action, including reservations in public employment and education.

In December 2014, Rajya Sabha MP from the DMK, Tiruchi Siva, piloted a private member’s bill, which provided for reservation in employment and education for the transgender and intersex persons and was passed by the Rajya Sabha unanimously.

The bill proposed a scheme of horizontal reservation for transgender and intersex persons – which meant that these persons would get benefits as a separate class within already existing reservation slabs, similar to the way reservation exists for women or people with disabilities. 

The subsequent Transgender Persons (Protection of Rights) Bill 2016, which did away with many progressive provisions in the private member’s bill did not mention reservation. This was met with wide spread protests from transgender communities. Now, media reports have suggested that the Union Government has moved a cabinet note proposing to add transgender persons to the list of Other Backward Classes (OBCs).

The new government move, if implemented, will amount to providing transgender persons ‘vertical reservations’ within the OBC category, and be detrimental to large sections of the communities. As transgender persons and community leaders, we believe that this will be a retrograde decision that will adversely affect many transgender persons from marginalised sections and deny them opportunities and benefits.

We believe that including all transgender persons under the OBC category will not recognise the caste status of transgender and intersex persons. The present proposal is not cognisant of whether a transgender person is SC or ST, OBC or “Unreserved” thereby making transgender persons from the first three categories choose between reservations on the basis of their caste status or on gender identity.

This neglect of caste operating within the transgender and intersex communities can be detrimental for persons from these communities who belong to marginalised sections, because it refuses to acknowledge that transgender persons who are also Dalit or Adivasi face historical disadvantage because of their caste and tribe status as well as discrimination, oppression and marginalisation because of their gender identity. 

With vertical reservation, transgender and intersex persons already belonging to the OBC category will not gain anything, even though they face further discrimination on the grounds of gender identity compared to other OBC candidates. We further believe that a scheme providing vertical reservation to transgender persons is harmful because within the OBC category, the chances of a transgender person getting a post or seat is very slim as they will be competing with other members of the OBC category.

Therefore, we appeal to the Union government that reservations for transgender persons should be provided as ‘horizontal reservation” —  as a separate category within already existing classes like SC, ST, OBC, like the reservation provided for women and persons with disabilities. Horizontal reservations are interlocking and cut across vertical reservations, and take into account the distinctions that may exist within one community or group based on different caste status. 

We ask the Union Government to look at already existing legislations with respect to reservation for transgender and intersex communities in other states.

In Karnataka, for example, horizontal reservation has been implemented for transgender persons in the state civil services across all caste categories. The Karnataka State Government enacted the Karnataka Civil Services (General Recruitment) (Amendment) Rules, 2021 which provides for 1 per cent separate reservation for transgender persons within each ‘vertical’ SC/ST/OBC/Unreserved category.  This mode of reservation ensures that there will be at least 1% of seats taken by transgender persons, provided there are enough candidates.

In Tamil Nadu, the state government included transgender persons within the backward classes category being known as Most Backward Classes (MBC) which is equivalent to the OBC category. However the Madras High Court, in several judgements, directed that horizontal reservation be provided instead for transgender persons. In a 2016 decision, in Swapna v The Chief Secretary, the Madras High Court specifically held that reservations be provided to transgender persons in education and employment on a percentage or post basis where at least one post be made available for transgender persons in the different categories of SC, ST, MBC etc., within a period of six months.

Therefore, we ask the Union Government to institute a mechanism of providing horizontal reservations for transgender persons within SC/ST/OBC categories. Such an approach will account for the intersectional nature of the discrimination and bias that transgender and intersex persons face, and ensure benefits to the most marginalised persons who are being oppressed both on account of their caste or tribal identity, and their gender identity.

It will also ensure that transgender and intersex candidates have some seats truly reserved for them within these categories in education and employment. Only such a mechanism of horizontal reservations will truly guarantee the rights of transgender persons as guaranteed under the Constitution of India.


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