Reflecting on Transgender Rights in 2023: Have Legal Recognition

and Advocacy Efforts Broken the Cycle of Discrimination and

Ostracism? On International Transgender Day of Visibility, CJP
evaluates India's progress in promoting transgender welfare.

The International Transgender Day of Visibility is a yearly awareness

day held on March 31. It recognises the bravery of transgender and
non-binary people worldwide who do not conform to
heteronormative societal standards prevailing in our society, as well
as pay a tribute to those who died before, paving the way for the
younger generations.

On a daily basis, starting from a young age, the transgender and the
non-binary community are forced to face systematic discrimination
and prejudice based on their gender or sexual orientation in different
spheres of life. Thus, to create a high degree of awareness including
promoting their livelihood and cultural rights and advocating the
struggles of the community, March 31 is marked as the International
Transgender Day of Visibility.

Even though, legally, India has accepted the transgender community

as the “third gender” and given them legal recognition through the
National Legal Services Authority (NALSA) judgment (NALSA v Union
of India), the rights guaranteed to them still remain on paper.
Through the said judgment, the courts had, for the first time, held
that transgender persons have the right to self-identify their gender
identity as male, female or a transgender person, and also recognised
that they had been discriminated historically and excluded from
mainstream life. The Supreme Court had then recommended that
transgender persons should be provided reservations in public
employment and education. It is the year 2023 now, and this
direction of the Supreme Court is yet to be implemented at all.

Has the government and the judiciary failed to respect transgender

person’s rights and added to their struggles and marginalisation?

1. Lack of Reservation for Transgender community:

On March 27, 2023, the Supreme Court refused to hear an

application seeking clarification on providing transgender persons
with reservations. According to the application, the applicant had
urged the Supreme Court to clarify that the reservation meant for
transgender persons under the 2014 NALSA decision is horizontal
reservation, and not vertical reservation.

The bench, led by Chief Justice of India DY Chandrachud, expressed

reservations about hearing the said application in a disposed off case.
The bench did, however, allow the applicant to pursue other legal
remedies (such as filing a separate substantive petition) for the reliefs
sought.
Grace Banu, a transgender rights activist, had filed the said
application. The applicant was represented by Senior Advocate Jayna
Kothari. The applicant stated in the application that in NALSA
judgment, the Supreme Court had directed the Union and the States
to treat transgender persons as a socially and educationally backward
class and to provide them with special treatment in education and
public employment. The Court, however, did not specify how the
reservation should be implemented. As a result, according to the
applicant, many states have yet to implement such reservations.

According to the applicant, the NALSA decision gives the impression

that transgender persons will be treated as OBCs, and thus their
reservation will be vertical. If the reservation for transgender persons
is treated as a vertical reservation, several issues will arise, which
were also pointed out by the applicant in the application and is as
follows:

Because transgender persons will be granted vertical reservation,

they will have to choose between SC/ST and OBC quotas. If such
individuals choose SC/ST quota, they will forfeit the benefit of
transgender quota and will be forced to compete with others in the
SC/ST category, putting them at a disadvantage. However, if such
people are already in the OBC category, they will not be eligible for
affirmative action as transgender person.
The applicant contended that reservations for transgender and
intersex people should be made on the basis of gender and disability,
as has been done for women and people with disabilities, which has
not been done yet. The application had also highlighted that the
Ministry of Social Justice moved a cabinet note in September 2021 to
include transgender persons in OBC category. Even after this, the
Supreme Court bench refused to entertain the plea.

It is pertinent to highlight here that in the year 2021, Karnataka

became the first state, and till now the only state, where the
transgender community have been given horizontal reservation to
the extent of 1%.

Horizontal reservation in the state of Karnataka: In September 2021,

the Karnataka State Government became the first state to provide 1%
reservation for transgender persons in civil service jobs across caste
categories. On August 18, 2021, the Karnataka High Court had also
issued orders for the government to consider issuing an advisory to
all state public corporations and statutory bodies to make similar
reservations.

This decision came as a result of an intervention filed by Jeeva, an

organisation dedicated to the rights of transgender persons and
sexual minorities, in the case of Sangama v. State of Karnataka. The
case began with a challenge to a notification for recruitment to the
State Police, which called for men and women to fill positions and did
not include a ‘transgender’ category.

During the course of this litigation, the State Government stated that
it was in the process of granting reservations to transgender persons
in the Other Backward Classes (OBC) category. Instead, Jeeva
intervened and asked for horizontal reservations across castes. The
State Government then issued an amendment allowing for horizontal
reservations.

According to the new Rule 9(1D) inserted by the Karnataka Civil

Services (General Recruitment) (Amendment) Rules, 2021,
transgender persons will be given 1% reservation in civil service posts
filled through direct recruitment. The reservations will be 1% in each
of the categories of posts: General Merit, Scheduled Castes,
Scheduled Tribes and in each category among Other Backward
Classes. This reservation applies to posts from any Group (A, B, C or
D).Along with male and female gender categories, the 2021
Amendment requires an “Others” category. It also prohibits the
Appointing Authority from discriminating against transgender
persons in selection.

With this amendment, the state of Karnataka became the first state
to provide for reservations in public employment. It is worth noting
that this amendment provides for horizontal reservations rather than
vertical reservations. This means that reservations will be guaranteed
across caste categories, and no one group will be able to dominate
reservations for transgender persons. However, unlike other reserved
categories, the aforementioned amendment does not provide for
relaxations in age, fees, cut-off marks, and other standards.

Importance of horizontal reservation: Horizontal reservations would

cut across all caste categories. It would allow for separate
reservations within each vertical SC/ST/OBC/General category.
Transgender persons would be given 1% of ST, SC, OBC, and General
Merit seats. Currently, reservation for women and people with
disabilities works in this way. This means that they provide separate
reservations to transgender communities in addition to the
SC/ST/OBC category. The idea of implementing horizontal
reservations fosters greater equality and uniformity in society, which
is why it is supported by a large segment of the population.

States with special policies for the transgender community: On

March 20, the Bombay High Court directed the Maharashtra
government to formulate a policy for transgender community in
government-funded educational institutions and for government jobs
until June 7, 2023. As a matter of fact, the Court questioned the
Advocate General for Maharashtra as to why such a policy had not
been implemented in the state. This decision was given in the case of
VinayakKashid [VinayakKashid v. MSETCL &Ors], a transgender person
with an undergraduate degree in Electrical Engineering and a
postgraduate degree in Technology (Electrical Power System
Engineering). He had filed a petition against MahaTransco this year,
requesting a change in the organisation’s advertisement because
their mass recruitment did not include a special reservation category
for the transgender community.

The Madras High Court had ruled in the month of October of 2022
that transgender persons are entitled to admission to educational
institutes under the third gender category. According to Justice R
Suresh Kumar, the State government is obligated to provide special
reservation in educational institutions for those who identify as
transgender or third gender, regardless of the number of such
people.

Similarly, in March last year, a single-judge of the Madras High Court

had strongly recommended that the State government ought to
provide a specific percentage of separate reservation for transgender
persons in matters of future public employments. The Court had held
that the State’s decision to combine transgender persons who
identified as females, with the 30 per cent vacancies reserved for
women candidates without extending a special reservation for them,
was violative of Articles 14 and 16(1) of the Constitution as well as
the directions in the NALSA judgment.
In January 2021, the Bihar Government had informed the Patna High
Court that, vide notification dated 14th January, 2021, it has taken a
decision for providing reservation in appointment to the post of
Constables/Sub-Inspectors, for the persons belonging to the
Transgender Community.

Discriminatory policies barring blood donation:

In March 2023, the Union government defended its guidelines on

permanently prohibiting transgender community, female sex
workers, and gay men from donating blood, claiming that scientific
evidence clearly shows that they are globally recognised as
population groups with a higher prevalence of HIV (human
immunodeficiency virus) and other transfusion-transmitted
infections. (TTIs). The Union Ministry of Health and Family Welfare
filed an affidavit to that effect in response to a notice issued by the
Supreme Court in March 2021. Santa Khurai, a transgender
community member, had filed a petition in this case, claiming that
the exclusion of transgender persons, gay men, and female sex
workers from being blood donors and permanently prohibiting them
from donating blood solely on the basis of their gender identity and
sexual orientation was entirely unjust, irrational and prejudiced, as
well as unscientific.
The petition, filed through Advocate-on-Record Anindita Pujari,
claimed that such a classification was based on negative stereotypes,
and should be held to be a violation of Articles 14 and 15 of the
Constitution.

In its response defending the exclusion, the government argued that

the issues raised by the petitioner are within the purview of the
executive, who are aided by medical, scientific, and other technical
experts, who are guided by evidence as well as their own
professional experience. Thus, according to the reply, such issues
raised should be judged through the lens of public health, not just
individual rights, taking into account the practical realities of unequal
a treatment.

According to the affidavit, those considered “at risk” for HIV and
Hepatitis B or C infection are exempt from the guidelines. In this
category of individuals, certain population groups have been
specifically included.

Lack of protection under criminal laws:

Following the NALSA decision, further steps in the form of decisive

legislative action were required to ensure adherence to
constitutional principles. To achieve this, a comprehensive statute
based on the aforementioned principles and providing equality of
status and recognition to members of the transgender community
was necessary. In the year 2019, Transgender Persons (Protection of
Rights) Act, 2019 received the assent of the President of India, and
came into force and became the governing law relating to
transgender women in India. However, it fell far short of the
expectations that were set for it and added to the already existing
issues in India’s socio-legal sphere. There had hardly been a
conscious effort in the six or so years since the pronouncement to
grant the long-overdue fair treatment, and then the 2019 Act also
failed to bind together these unresolved problems, and is still failing.
It is the year 2023, 9 years after the NALSA decision and 4 years since
the adoption of the 2019 Act, and transgender women have yet to
achieve the right to equality before the law and equal protection
under the law.

The punishments and provisions provided by the 2019 Act are unfair
and unjust because they do not provide transgender women with the
same legal protection as cis-gender women under various penal laws,
such as the Indian Penal Code. Section 18 of the 2019 Act states that
anyone who harms, injures, or endangers the life, safety, health, or
well-being of a transgender person, whether physically, mentally, or
emotionally, will face a minimum of six months in prison, which may
extend to two years, and a fine. Even if the degree of cruelty is
identical in both cases, the punishment provided by the Act is less
severe than the punitive sanction provided by section 498A of the
IPC.As a result, any act of violence or abuse committed against a
transgender woman will have less significance and lower weight
associated with it in the eyes of the law than any act of crime
committed against cis-women. It is clear that within the circles of
marginalization, transgender women face two levels of discrimination
based on their gender identity, first as a woman and then as a
transgender woman. Even with the internalization of such prejudice
and institutionalized discrimination, victims from the community face
numerous roadblocks to access to justice.

Furthermore, Section 5 of the Act requires transgender persons to

obtain a certificate of identity from the District Magistrate after going
through a legally arduous procedure, thereby undermining the right
to self-perceived gender identity specified under Section 4 of the said
Act. Thus, section 5 gives provides for the issuance of certification
based on detailed examination. This section also contradicts the spirit
and directions of self-determination without medical intervention
outlined in the NALSA decision. Thus, attempts to dilute the NALSA
judgment has resulted in further oppressing the already ignored,
oppressed and marginalised.
Recent Small Victories for the transgender community

In March 2023, in the case of Jasmine Kaur Chhabra v. UOI &Ors., the
Delhi High Court directed the Delhi government to ensure that public
toilets for transgender persons are constructed in the national capital
within eight weeks, failing which it will direct personal appearance of
top officials. The bench also took note of the response filed by the
New Delhi Municipal Council (NDMC) and said that while the affidavit
indicates existence of paper work, the ground reality is that nothing
has been done in the matter.

This decision was given by the High Court while hearing a public
interest litigation filed by Jasmine Kaur Chhabra through Advocate
Rupinder Pal Singh. The plea sought directions for necessary action in
compliance of Swacch Bharat Mission guidelines dated October 15,
2017, specifying the need to make separate toilets for transgender
community. Directions were also sought by the court for maintaining
hygiene of public washrooms so that the rights of transgender
community are protected in terms of the NALSA judgment. It was
stated in the plea that every human being, irrespective of the gender,
has basic human rights including use of separate public toilets, the
plea submits that not providing such facilities to transgender or third
gender persons violates Article 14 and 21.

In January 2023, the National Council of Education Research and

Training (NCERT) informed the Madras High Court that it has notified
a gender inclusive draft manual, and that suggestions,
recommendations and ideas from the relevant stakeholders were
welcome. The submission was made before Justice Anand
Venkatesh’s bench, which has been issuing a series of directives in an
effort to remove the stigma associated with the LGBTQ community
and to ensure the welfare of its members.

NCERT also informed the court that the draft manual titled
“Integrating Transgender Concerns in Schooling Processes” aims to
make schools more inclusive by creating awareness and safe spaces.
It was further stated that this manual included, among other things,
gender-inclusive curriculum, gender-neutral uniforms, secure
restrooms, washrooms, and steps to prevent gender-based violence.
The Department of Gender Studies, NCERT, had previously notified
them of a draft module titled “Inclusion of Transgender Children in
School Education: Concerns and Roadmap.” However, this was
removed in response to concerns raised by the National Commission
for the Protection of Child Rights. (NCPCR). The new policy focuses
upon transgender persons by birth.

Conclusion

While official and legal recognition for the transgender community as

a separate gender category has broken the impregnable wall of
ignorance and discrimination that had existed before, India still has a
long way to go before the long-oppressed minority gender is finally
considered “equal.” Even four years after the Transgender Persons
(Protection of Rights) Act of 2019, the ground reality has not changed
by much. The Transgender community continue to be marginalised
and are frequently forced to conceal their gender identity in public.
While the community is fighting this oppression and is willing to
engage in the long fight, it is critical that the judiciary and
government support the community members rather than remaining
silent, blind and ignorant.

The government and the judiciary must collaborate to turn the

wheels of this regressive society into one that is forward-thinking and
grants acceptance to every individual. Because the dynamism of law
is rooted in its ability to reflect socio-cultural changes, there is an
urgent need to gradually interpret and amend penal codes in order to
ensure true inclusivity for transgender persons. The union and state
government need to do better by the transgender community by
providing them the required attention and support. Even in the
Union Budget of 2023, the transgender community have been left
out and excluded.

For every basic right, the transgender community have had to start a
discourse, flood the courts with petitions, and even then, most of the
time, the battles take too long to yield positive results. Today, the
structural failure of all three branches of the Indian State (legislature,
judiciary, and executive) in treating transgender persons as equal
citizens in this plural democracy is reflective in the state of the
transgender community.

While these recent small developments and victories, though late,

provide a beacon of hope to the transgender community and give a
forward push to achievement of transgender rights; however,
without granting them the legal capacity to enjoy their
socioeconomic rights, the systematic marginalisation associated with
their status will continue indefinitely. It is critical that we move away
from being a system that fails to recognise the vulnerable conditions
of many transgender persons, who exist in a perpetual state of
helplessness and powerlessness, providing them ad-hoc protection
and work toward mainstreaming transgender community’s rights,
welfare, protection and well-being.