Transgender and Horizontal Reservations, Litigation and Advocacy in India

Session Report
Krishti Khandelwal

Decoding the prevailing conditions of the litigation related to the transgender community in India, Vyjayanti Vasanta Mogli, an LGBT rights activist and co-founder of Telangana Hijra Intersex Transgender Samiti (THITS) shared with the attendees her own encounters with the LGBTQIA+ individuals on the fourth day of  “Beyond Binaries: Understanding Sexual Identities and Queer Rights Issues in India” – a  Five-Day Immersive Online Certificate Training Course by the Gender Impacts Study Centre (GISC) on behalf of IMPRI Impact and Policy Research Institute of India on the instance of Pride Month.

Enlightening the attendees with the actual conditions of transgenders and other minorities in India, Vyjayanti Vasanta Mogli presented the audience with some facts and figures about what really happening in the country and how far the legal system is helpful in ensuring a fair, just and equal treatment of the minorities specifically the transgenders in India.

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Vyjayanti Ji began the session by defining the horizontal and vertical reservations in the context of India. ‘Vertical reservation’ is the term used to describe the reservation of Scheduled Castes, Scheduled Tribes, and Other Backward Classes.

For each of the outlined classes under the legislation, it applies independently. Vertical reservation is contemplated under Article 16(4) of the constitution.

In contrast to vertical categories, horizontal reservations relate to the equal opportunity given to other beneficiaries, such as women, veterans, members of the LGBTQ community, and people with disabilities. It includes both vertical as well as horizontal reservations and thus is two-dimensional. Horizontal reservation is contemplated in Article 15(3) of the constitution.

How has advocacy impacted the Transgender Community

Beginning with the minority section as a whole, Vyjayanti Ji briefed the audience about the two significant cases that framed the entire course of history for the citizens of India. The Mandal Commission case, also known as the Indira Sawhney v. Union of India case (November 1992), looked at the topic of social and economic-based reservations in government employment and educational institutions. The Supreme Court introduced the idea of the creamy layer exclusion while upholding the idea of quotas of not more than 50%.

The second significant case happened relatively recently in December 2020. The Saurav Yadav against State of Uttar Pradesh 2020 case focused on problems relating to how various reservation classes were to be implemented during the state’s selection procedure for constable positions.

According to the court’s decision, the person would be considered qualified and cannot be excluded from the horizontal quota in the general category if they are from an intersection of the vertical-horizontal reserved category and obtained scores high enough to qualify without the vertical reservation.

Coming particularly to the transgender litigations, Vyjayanti Ji talked in length about the historic Nalsa Judgement. The lawsuit attempted to discuss transgender people’s rights and well-being. The court acknowledged the “third gender” status of transgender persons, and their fundamental rights, including the right to gender self-identification, were upheld.

It demanded equal chances and protection from discrimination, pleading with the government to provide access to social assistance programmes, healthcare, education, and jobs. The judgement also emphasised the necessity of establishing a comprehensive framework to enhance the rights of transgender people and their integration into society.

Though the judgement was an important step in the right direction, the judgement itself suffered with flaws and contradictions. Vyjayanti Ji pointed out that while the Supreme Court ruled that transgender persons would be given a separate identity as the third gender, on one hand, it put them in the category of ‘socially and educationally backward classes’ and were subjected to their reservations regulations.

Thus while steps are being taken, they have to be more clarified and precise to be able to be actually beneficial to the transgender community. In addition to this, just like women minorities are divided into several classes so are transgenders. Not everyone is the same, thus different horizontal reservations must be given to them.

Giving some more examples, Vyjayanti Ji informed the audience about Swapna and others Vs Chief secretary case in which to request racial discrimination in work and education, Swapna, Grace, Selvi, Living Smile Vidya, and Selvam filed a petition. This petition instructed the respondents to establish a distinct class or group for transgender individuals in all educational and job possibilities and to allow transgender people to appear in all examinations under the female category and transman under the male category. As a result, it intended to establish a 3% reserve for transgender people in the areas of employment and education. 

Moving on to interim orders,  Vyjayanti Ji gave pieces of evidence of the whole series of orders that transgender activists have managed to wrestle out of high courts in the past 8 or 9 years. Recalling an incident where five applicants, transgender persons applied to police constable jobs in May 2022. However, while filling out the forms they were mandated to fill in the gender on the basis of the information in their tenth-class marksheet.

A major loophole in this was that many of the transgender persons didn’t even realise their identity by that time, so they have to forcefully put their gender categories as their ‘dead gender’ before going through with the surgery. The drawback of this was that for clearing the physical exam they now have to compete with the traditional male and female categories even when they did not qualify for those biologically. As a result, they failed the examination because of the gender discrimination they had to face.

Ultimately, the case was taken to court and There were 4 respondents, the Chief Secretary, Home Secretary, Principal Secretary, Home Chief Secretary of the State Director General of Police, and the Chairperson, telling a State Level Police Recruitment Board to come up with a comprehensive Policy and Reservation for transgender persons with immediate effect.

Concluding Remarks

Referring to this example,  Vyjayanti Ji gave her final remarks that every time, in every single case transgender persons have to resort to legal actions to get the fair treatment and opportunity they deserve. There are no clear structural changes and ramifications for them and the existing rules are oversimplified without paying attention to the multiple marginalization, diversity and vulnerabilities that exist within the transgender as well.

When asked about the private sector,  Vyjayanti Ji, stated that it is very important for queer people to know their rights and responsibilities so that they fight for it. Moreover, sensitization, training and spreading awareness about the issue in workplaces and the education system will go a long way in ensuring a safe and just society for all of us.

A vote of thanks and closing remarks by the chairperson, Professor Vibhuti Patel, marked the fruitful and enriching end to day four of the programme.

Read more session reports from Day 1 of Beyond Binaries: Understanding Sexual Identities and Queer Rights Issues in India: