Reservation For Transgender Community

Context:  The Maharashtra government is facing difficulties in providing additional reservations to transgender persons in education and Public Employment.

PYQ:  Q. The reservation of seats for women in the institution of local self-government has had a limited impact on the patriarchal character of the Indian political process”. Comment (2019).

 Genesis of Reservation: Affirmative Action:

• Reservation is a system of affirmative action in India that provides historically disadvantaged groups representation in education, employment, government schemes, scholarships and politics.
• Based on provisions in the Indian Constitution, it allows the Union Government and the States and Union Territories of India to set reserved quotas or seats, for “socially and educationally backward citizens.”

About Affirmative action: Affirmative action refers to policies and practices aimed at promoting equal opportunities for historically disadvantaged groups in areas such as employment, education, and business.

Constitutional Provisions Governing Reservation in India: Part XVI deals with reservation of SC and ST in Central and State Legislatures. Article 15(4) and 16(4) of the Constitution enabled the State and Central Governments to reserve seats in government services for the members of the SC and ST. Article 330 and 332 provides for specific representation through reservation of seats for SCs and STs in the Parliament and in the State Legislative Assemblies respectively. Article 243D provides reservation of seats for SCs and STs in every Panchayat. Article 233T provides reservation of seats for SCs and STs in every Municipality. Article 335 of the constitution says that the claims of STs and STs shall be taken into consideration constituently with the maintenance of efficacy of the administration.

Reservation in India:

• SC/ST Reservation: Scheduled Castes (SC) are given 15% quota in jobs/higher educational institutions while Schedule Tribes (ST) are given 7.5% quota in jobs/higher educational institutions.
• OBC Reservation: Reservation for Other Backwards Classes (OBC) was introduced based on the Mandal Commission Report (1991).
  • The quota for OBCs is 27% in government jobs and higher educational institutions.
• Economically Weaker Sections (EWS)Reservation: 10% quota is provided for the Economically Weaker Sections (EWS) among General Category candidates in government jobs and educational institutions.
  • This was done by adding clauses for the same in the Indian Constitution (103rd Constitution Amendment Act, 2019).

About Economically Weaker Sections (EWS):  The 103rd Amendment to the Indian Constitution inserted Articles 15(6) and 16(6), which provide up to 10% reservation to Economically Weaker Sections (EWS) who do not belong to backward classes, Scheduled Castes (SCs), or Scheduled Tribes (STs). This amendment empowers State governments to grant reservation based on economic backwardness. The EWS reservation was implemented based on the recommendations of a commission led by Major General (retired) S R Sinho.

 Judiciary Perspective on Transgender Reservation:

• NALSA v Union of India (2014): In this case, the Supreme Court recognizes transgender persons as socially and educationally backward.
  • It recognised transgender persons as a third gender and issued directions to protect their rights and dignity.
  • The judgement directed the Centre and the State governments to provide trans people “all kinds of reservation” in admissions to educational institutions and in employment.
  • It does not, however, mention the nature of reservations – whether they are to be vertical or horizontal.

Understanding Vertical and Horizontal Reservations:

• In India, historically oppressed and disadvantaged communities have a right to affirmative action policies.
• Reservation in education and employment can be divided into two broad categories, namely, vertical and horizontal.
  • Vertical reservations address social asymmetry and backwardness based on caste hierarchy. These include reservations for Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Classes (OBC).
  • Horizontal reservations cut across vertical categories to provide affirmative action for disadvantaged groups. For example, disabled persons are guaranteed horizontal reservation in all the aforementioned vertical categories, general and reserved (vertical) alike, by the Central government.

Demand for Horizontal Reservation by Transgender Community:

• Transgender community seeks reservation to address marginalization and recognize their social identity.
• NALSA verdict is often seen as directing reservations for transgender individuals in the Other Backward Classes (OBC) category.
• No significant implementation progress has been made thus far.
• Concerns raised about the potential trade-off for Dalit, Bahujan, and Adivasi transgender individuals.

Progress on Transgender Reservations: The Central government has not provided clear guidelines on transgender reservations.

• 2015: Rights of Transgender Persons Bill (2015) was presented to the Rajya Sabha in line with the NALSA judgement.
  • It had provisions for reservation for trans persons — in the public and private sector. 
  • After being passed in the Rajya Sabha, the Bill was rejected in the Lok Sabha. 
• 2016: The Transgender Persons (Protection of Rights) Bill, 2016 was introduced by the Centre.
  • It had no provision for reservations.
  • Alternatively, Rights of Persons with Disabilities Act, 2016, ensures horizontal reservations for disabled individuals under the central government.
• In 2018: A parliamentary standing committee under the Ministry of Social Justice was set up.
  • The committee, in line with the NALSA judgement, recommended reservations for transgender persons.
• 2019: Transgender Persons (Protection of Rights) Act, 2019, did not include any mention of reservations – vertical or horizontal.

State Initiatives for Transgender Reservations:

• In 2015, Tamil Nadu categorized transwomen under the Most Backward Classes (MBC) category.
• Karnataka became the first and only state to offer one per cent horizontal reservation to transgender persons in 2021.
• Madhya Pradesh includes transgender persons in the OBC category in 2023.

Challenges in Horizontal Reservation for Transgender People:

• Ambiguity in NALSA judgement: Since the NALSA judgement called for trans people to be treated as ‘Socially and Educationally Backward Classes’, which ran the risk of clubbing them with OBCs.
• Lack of Clarity and Implementation: The lack of clear guidelines and policies from the central government on transgender reservations hinders effective implementation.
  • Despite recognition by the courts, there is no specific legislation or framework outlining the nature and extent of reservations for transgender individuals.
• Trade-off with Caste and Tribal Identity: Transgender persons from Dalit, Bahujan, and Adivasi communities face a dilemma as they have to choose between availing reservation based on their caste or tribal identity or their gender identity.
  • This trade-off potentially limits their access to benefits and reinforces exclusion within marginalized communities.
• Limited Political Will: The Transgender Persons (Protection of Rights) Act, 2019, which does not mention reservations, reflects the lack of political will to prioritize horizontal reservations for transgender individuals.

Way Forward:

• Policy Reforms: Develop comprehensive policies that explicitly address the reservation needs of transgender individuals, considering their specific challenges and identities.
  • Engage transgender communities and organizations in the policy-making process to ensure their voices and perspectives are represented.
• Awareness and Sensitization: Conduct awareness campaigns and sensitization programs targeting government officials, policymakers, and society at large to foster understanding and empathy towards transgender individuals and their rights.
• Data Collection and Research: Conduct comprehensive research and data collection on the experiences and challenges faced by transgender individuals from Dalit, Bahujan, and Adivasi backgrounds to inform evidence-based policies and interventions.
• Representation and Advocacy: Encourage greater representation of transgender individuals in decision-making bodies, committees, and forums at both the state and national levels.

Additional Information: Initiatives for Transgender Persons: Transgender Persons (Protection of Rights) Act, 2019: The Act aims to end discrimination against transgender persons in accessing education, employment and healthcare and recognise the right to self-perceived gender identity. National Portal for Transgender Persons: It is a portal by the Ministry of Social Justice and Empowerment. The portal assists persons of the transgender community in applying for a Certificate and Identity card digitally from anywhere in the country. Garima Greh Scheme: Aims: To provide shelter with basic amenities like shelter, food, medical care and recreational facilities. To provide support for the capacity-building/skill development. National Council for Transgender Persons: In exercise of the powers conferred under Transgender Persons (Protection of Rights) Act, 2019 the Central Government has constituted a National Council for Transgender Persons. Chairperson (ex-officio):  The Union Minister of Social Justice & Empowerment Vice-Chairperson (ex-officio): The Union Minister of State for Social Justice & Empowerment. The National Council shall perform the following functions, namely:— To advise the Central Government on the formulation of policies, programmes, legislation and projects with respect to transgender persons; To monitor and evaluate the impact of policies and programmes designed for achieving equality and full participation of transgender persons; To review and coordinate the activities of all the departments of Government and other Governmental and non-Governmental Organizations which are dealing with matters relating to transgender persons; To redress the grievances of transgender persons; and To perform such other functions as may be prescribed by the Central Government.

Additional Information:  About Section 377: In 2018, the Supreme Court (SC) decriminalised homosexuality by striking off parts of Section 377 of the Indian Penal Code (IPC) which were held violative of Fundamental Rights of LGBTQ Community.

 News Source: The Indian Express