MAKING

RIGHTS
REAL
POLICY BRIEF

Implementing Reservations for

Transgender & Intersex Persons in
Education and Public Employment

CENTRE FOR
LAW & POLICY www.clpr.org.in
RESEARCH
MAKING
RIGHTS
REAL
POLICY BRIEF

Authors:
Jayna Kothari, Executive Director, CLPR is the lead author.

Deekshitha Ganesan, Saumya Dadoo and J Mandakini,

Research Associates at CLPR, conducted extensive background
legal research and wrote several portions of the brief.

Sudhir Krishnaswamy, Managing Trustee of CLPR, reviewed

numerous drafts and provided his expert inputs.

Acknowledgements:
This publication of the Centre for Law and Policy Research
(CLPR) is supported by the Friedrich Naumann Foundation.
A draft of this publication was discussed at a consultation
organized by CLPR where Grace Banu, Anindya Hazra, Selvam,
Amulya, Harish, Swamy, Dr. Sangita Saksena and Ashika Shetty
made several important recommendations.

Cite as: Jayna Kothari, Deekshitha Ganesan, Saumya Dadoo,

J Mandakini and Sudhir Krishnaswamy (or) Jayna Kothari et al,
Making Rights Real: Providing Reservation for Transgender &
Intersex Persons in Education and Public Employment (CLPR,
Bangalore, 2018).

Design & Layout: Design Brew, Bangalore

 Table of Contents

Acknowledgements

ONE Introduction 3

TWO Who are the Beneficiaries? Legal 4

Definitions of Transgender and Intersex
Persons

/1 Definitions of "Transgender" and "Intersex" Persons 4

/2 Mechanism for legal recognition and self-identification 7

THREE How Should Reservations for 11

Transgender and Intersex Persons be
Implemented?

/1 Transgender and Intersex Persons' Reservation under 11

the 'Transgender' category

/2 Transgender and Intersex Persons' Reservation under 15

the 'Woman' category

/3 Extent of Reservations for Transgender and 15

Intersex Persons

FOUR Conclusion and Recommendations 19

NALSA v UoI*
was a watershed moment as
the Court held that that the
right to gender identity is
inherent to one’s right to

LIFE, AUTONOMY
AND DIGNITY.

* National Legal Services Authority of India v Union of India (2014) 5 SCC 438.

2
ONE

Introduction
The rights of transgender and intersex persons in Brief is the implementation of this direction of the
India have been given constitutional status since Supreme Court to provide reservations in educational
2014. In April 2014, in NALSA v. Union of India 1
institutions and public employment for transgender
(“NALSA”), the Supreme Court of India recognised and intersex persons. These reservations have not
that transgender persons have constitutional been implemented till date and there is no clarity as
rights as equal citizens. NALSA was a watershed to how such reservations ought to be implemented.
moment as the Court held that the right to gender Reservations for transgender and intersex persons
identity is inherent to one’s right to life, autonomy in education and employment are crucial for their
and dignity. It held that transgender persons have social and economic inclusion because only 46%
the right to self identify their gender as male, of transgender persons in India are literate and 94%
female or transgender, irrespective of medical sex are either unemployed or employed in the informal
reassignment and have the right to expression sector.4
of their chosen gender identity. NALSA gave
momentum to the transgender rights movement in Hence, this Brief develops a comprehensive and
India and paved the way for the Supreme Court to functional strategy for the implementation of
decriminalise Section 377 of the IPC with regard to reservations for transgender and intersex persons in
consensual same sex relationships in Navtej Johar v. educational institutions and public employment. In
Union of India.2
order to implement reservations, we must address
three principal issues: identification of the beneficiaries
Notably the Supreme Court in NALSA issued several of reservation, the legal basis for reservations and the
directions to the Centre and State Governments appropriate form of reservations. We address each of
to advance the economic, social, cultural and these issues in turn and develop a detailed and clear
political rights of transgender persons. These
3
proposal for implementation of reservations.
directions ranged from recognising the right to
self-identification of gender identity, operating HIV
sero-surveillance centres to framing social welfare
schemes for transgender persons and increasing
REFERENCES
public awareness for social inclusion. One of the 1
(2014) 5 SCC 438.
important directions issued by the Court was to 2
[6 September 2018] Writ Petition (Criminal) No. 76/2016.
“…the Centre and the State Governments to take 3
NALSA (n 1) [67].

steps to treat them (transgender and intersex

4
‘Census 2011’ <http://censusindia.gov.in/2011-Common/
CensusData2011.html> accessed 11 December 2018; National Aids
persons) as socially and educationally backward Control Organisation and United Nations Development Programme,
classes of citizens and extend all kinds of reservation Uptake of Social Protection Schemes by Transgender Population in
India (13 February 2017) para 1.2; National Human Rights Commission
in cases of admission in educational institutions and
and Kerala Development Society, Study on Human Rights of
for public appointments.” The focus of this Policy Transgender as Third Gender (February 2017) paras 2.1.2.

3
TWO

Who are the Beneficiaries? Legal

Definitions of Transgender and
Intersex Persons
In order to implement a reservation policy a necessary first step would
be to identify and define a discrete and stable social group that may
benefit from such a policy. As there is considerable variation in the
language of NALSA while addressing gender identity, we begin by
clarifying the scope of the phrase ‘transgender and intersex’ persons.

TWO/ 1 Surgery (SRS) to align their biological sex with their

DEFINITIONS OF "TRANSGENDER" AND gender identity in order to become male or female,
"INTERSEX" PERSONS also called transsexual persons. It also includes
cross-dressers and all other identities.6 Thus,
In NALSA, the Supreme Court used the umbrella while transgender and intersex are two different
term of ‘transgender’ to include several gender categories, the Supreme Court in NALSA used
identities. The Court broadly defined “Transgender” the term ‘transgender’ as a broad term to include
as a term for persons whose gender identity, gender intersex persons as well.
expression or behavior does not conform to their
biological sex.5 It held that “transgender” would Apart from the Supreme Court definition for
include persons who do not identify with their sex ‘transgender’ persons, there were draft legislations
assigned at birth. This would include Hijras or those introduced following NALSA which attempted
who describe themselves as “third gender” and do to provide definitions. In 2014, the Rights of
not identify as either male or female. Hijras were Transgender Persons Bill 2014 was introduced,
described as not having reproductive capacities as which defined a ‘transgender person’ as a person,
either men or women, and as persons who claim whose gender does not match with the gender
to be “third gender” and that this would include assigned to that person at birth and includes trans-
castrated, non-castrated and intersex persons. The men and trans-women (whether or not they have
term transgender was also to include persons who undergone sex reassignment surgery or hormone
intend to or have undergone Sex Reassignment therapy or laser therapy etc.), gender-queers and a

4
number of socio-cultural identities such as kinnars, This is not normally the practice, as internationally
hijras, aravanis, jogtas etc. This definition does not
7
the common term of reference used is
include intersex persons. Thereafter in 2016, the ‘transgender and intersex persons’. Thus as a first
Transgender Persons (Protection of Rights) Bill 2016 step, we propose that by integrating the Indian
(2016 Bill) was introduced. This 2016 Bill defines and international discourse on the definition of
transgender persons as follows: transgender and intersex persons, we settle on the
following definitions for both terms:
“transgender person” means a person who is — (A)
neither wholly female nor wholly male; or (B) a Transgender Person: Transgender
combination of female or male; or (C) neither female persons are persons whose gender
nor male; and whose sense of gender does not match
identity or gender expression does
with the gender assigned to that person at the time
not conform to their biological sex.
of birth, and includes trans-men and trans-women,
This includes persons who intend to
persons with intersex variations and gender-queers.”8
or have undergone Sex Reassignment
While this definition has been severely criticized9, it Surgery (SRS) to align their biological
does include the reference to intersex persons. As sex with their gender identity in order
seen from the approach in NALSA and the draft Bills to become male or female, transsexual
reviewed above, the definition of intersex is not very persons, cross-dressers and all other
clear in the Indian context. The Office of the UN High
identities.
Commissioner for Human Rights used the following
definition for intersex persons:
Intersex Person: An intersex person
“An intersex person is born with sexual anatomy, is born with sexual anatomy,
reproductive organs, and / or chromosome patterns reproductive organs, and / or
that do not fit the typical definition of male or female. chromosome patterns that do not
This may be apparent at birth or become so later in fit the typical definition of male or
life. An intersex person may identify as male or female female. This may be apparent at birth
or as neither. Intersex status is not about sexual
or become so later in life. An intersex
orientation or gender identity.”10
person may identify as male or female
or as neither.
So far in the Indian context, no separate
definition for ‘intersex’ has been
provided and intersex persons have been
included within the term ‘transgender’.
Many cases of transgender reservation
are in fact of intersex persons in India.11

5
"Each person’s self-defined sexual
orientation and gender identity is
integral to their personality and
is one of the most basic aspects
of self-determination, dignity and
freedom and no one shall be forced
to undergo medical procedures,
including SRS, sterilization or
hormonal therapy, as a requirement
for legal recognition of their gender
identity."*

* NALSA (n1) [22].

6
TWO/ 2 Further, there should be no requirement of a
MECHANISM FOR LEGAL RECOGNITION AND mental health assessment to establish a person's
SELF-IDENTIFICATION gender identity. A mental health diagnosis of a
person's gender identity is as unethical as trying
While NALSA guaranteed the right to self- to assess a person's sexual orientation. A person's
identification of one’s gender as male, female or gender identity is a highly personal matter and the
transgender, it did not lay down any method or right to gender recognition must not hinge on a
self-identification protocol. The Central and State medical statement. Requiring a person to submit a
Governments are yet to legislate on this issue and mental health assessment of their gender identity
hence the method for legal recognition and self- violates their human rights, such as the right to free
identification of transgender and intersex persons personality development, the right to dignity, the
remains unspecified. In this section we review the right to be free from unwanted medical treatment
key elements that should guide a self-identification and experimentation, and the right to be free
protocol. from discrimination. This principle is recognized
in several human rights instruments and gender
The Supreme Court in NALSA held that Article 19(1) recognition laws in other jurisdictions.15 Further, the
(a) gives the right to transgender persons to express World Health Organisation (WHO) stated in June
themselves irrespective of whether they have
12
2018 that being transgender does not constitute a
undergone medical procedures. It also related the mental disorder and has removed all trans-related
right to express one’s gender with dignity under diagnoses from the mental health chapter.16
Article 21 as an integral “part of personal autonomy
and self-expression,”13 observing that there exists Human rights institutions have also spoken out
both a negative duty on the State to abstain from against a mandatory medical diagnosis in gender
unnecessary interference, and a positive duty to recognition procedures.17 Professional bodies
provide for freedom, personal autonomy, self- such as the World Professional Association for
determination and human dignity. 14
Transgender Healthcare (WPATH) oppose all
medical requirements that act as barriers to those
The Court held that "Each person’s self-defined wishing to change their legal sex or gender markers
sexual orientation and gender identity is integral on documents. These include requirements
to their personality and is one of the most basic for diagnosis, counseling or therapy, puberty
aspects of self-determination, dignity and freedom blockers, hormones, any form of surgery (including
and no one shall be forced to undergo medical that which involves sterilization), or any other
procedures, including SRS, sterilization or hormonal requirement for any form of clinical treatment or
therapy, as a requirement for legal recognition of letters from doctors.18 Thus, it is evident that there is
their gender identity". Hence, medical procedures no basis either in the medical or in the human rights
or hormone therapy should not be required as a field for a mental health assessment or medical
pre-condition for any legal recognition or identity diagnosis of a person's gender identity for legal
documents for transgender and intersex persons. gender recognition. Many countries such as Malta,

7
Denmark, Norway, Belgium, Ireland, Luxembourg birth certificate, Aadhaar card, for opening bank
have all demedicalised their gender recognition accounts, issuing monthly bus passes or a driving
procedures successfully, without detriment to the license. While this appears to be a good example of a
public or the individual. self identification protocol, it is yet to be implemented
as it was framed only in 2017.
Once there is an accepted definition of transgender
and intersex persons, and clarity that legal Other States follow different practices. States which
recognition of gender identity does not need any do not have policies have set up Transgender Welfare
medical diagnosis, we are ready to spell out the legal Boards which issue identity cards. Chhattisgarh
procedures for self-identification of one’s gender has established a Third Gender Welfare Board
identity. Gender recognition procedures should which is tasked with issuing identity cards,20 similar
be quick, accessible, transparent and based on to the framework under the Karnataka and Kerala
self-determination. If a person requires a change
19
transgender policies. The identity cards issued may
in how their gender is recorded, their expression then be used to effect changes in name and gender
of intent should serve as the sole basis for such a markers in other identity documents. In West Bengal,
change. it has been observed that documentation of sex
reassignment surgery (SRS) is required for publishing
While NALSA advocated for self-identification of a change of gender in the Official Gazette, which
gender identity, it did not offer any mode for legal violates the NALSA guidelines and human rights
recognition. This has led to several inconsistencies standards discussed above.21
in State Government practices with regard to self-
identification. In States where there are policies In general, all these efforts by State Governments to
addressing issues faced by transgender persons, lay down a self-identification mechanism have tended
the policy document lays down the method for to entail the constitution of a committee consisting
self-identification. In Karnataka for instance, the of District officials, medical officers, psychologists/
State policy states that in order for transgender psychiatrists, social welfare officers and Government
persons to access welfare measures, they need to officials. In States where Transgender Welfare Boards
get identity cards. The process outlined is to submit have been set up, the Boards are issuing identity
a self-declaration affidavit to the Child Development cards to the transgender community. It is crucial that
Project Officer (CDPO) of the District. A committee there is sufficient representation of members from
comprising of the CDPO, the Medical Officer and the transgender community in these Committees and
Tahsildar will be constituted at the Taluk level, and Transgender Welfare Boards. This representation is
the Tahsildar will issue identity cards. These identity critical to a self-identification protocol to ensure that
cards should be accepted by all authorities for issuing the identification of transgender persons stays within
official documents such as ration cards, passport, the principles identified above.

The experience and challenges of obtaining identity cards faced by persons with
disabilities alerts us to the inherent challenges for any transgender or intersex
person to navigate the bureaucratic system.

8
The experience and challenges of obtaining identity 11
G. Nagalakshmi v Director General of Police (2014) 7 MLJ 452;
Faizan Siddiqui v Sashatra Seema Bal (2011) 124 DRJ 542; Atri Kar v
cards faced by persons with disabilities alerts us
Union of India [16 March 2017] Writ Petition No. 6151/2017; Ganga
to the inherent challenges for any transgender or Kumari v State of Rajasthan & Ors [13 November 2017] S.B. Civil Writ
Petition No 14006/2017.
intersex person to navigate the bureaucratic system.
Moreover, in the case of persons with disabilities, 12
NALSA (n 1) [69].
obtaining a disability card has been extremely
13
NALSA (n 1) [75].
difficult and bureaucratic as it relies upon medical
certification of disability. These difficulties must be 14
NALSA (n 1) [75]; See also Tarunabh Khaitan, ‘NALSA v Union
of India: What Courts Say, What Courts Do’ (UK Constitutional
removed and the process of obtaining identity cards Law Association, 24 April 2014) <https://ukconstitutionallaw.
by transgender and intersex persons must be based org/2014/04/24/tarunabh-khaitan-nalsa-v-union-of-india-what-
courts-say-what-courts-do/> accessed 10 December 2018.
only on self-identification. Hence we propose that
access to reservations must be based on: 15
‘Yogyakarta Principles plus 10 - Additional principles and State
obligations on the application of international human rights law in
(i) the possession of a transgender identity
relation to sexual orientation, gender identity, gender expression
card which should be available based on self- and sex characteristics to complement the Yogyakarta Principles’
(10 November 2017) <http://yogyakartaprinciples.org/wp-content/
identification
uploads/2017/11/A5_yogyakartaWEB-2.pdf> accessed on 11
(ii) issued by an authority / board established under December 2018; ‘Protection Against Violence and Discrimination
a statute, and which has adequate representation based on Sexual Orientation and Gender Identity’ (UN Human
Rights Council, 15 July 2016) A/HRC/RES/32/2; Gender Identity
from the transgender community, and Law (26743) 2012; Gender Recognition Act 2015. See also ‘Trans
(iii) this should not require medical re-assignment, Legal Mapping Report’ (ILGA, November 2017) <https://ilga.org/
downloads/ILGA_Trans_Legal_Mapping_Report_2017_ENG.pdf>
mental health assessment, hormone or any other accessed on 11 December 2018.
treatment as a pre-condition.
16
Coding Disease and Death (World Health Organisation, 18
June 2018) <http://www.who.int/health-topics/international-
classification-of-diseases> accessed on 17 December 2018.

REFERENCES 17
Nils Muižnieks, ‘Keynote Address’ (6th European Transgender
Council, Bologna, 3 June 2016) <https://rm.coe.int/16806da7f7>
5
NALSA (n 1) [13].
accessed on 11 December 2018.
6
NALSA (n 1) [13].
18
‘WPATH Identity Recognition Statement’ (TGEU, 15 November
2017) <https://tgeu.org/wpath-2017-identity-recognition-
7
The Rights of Transgender Persons Bill 2014 s 2(t).
statement/> accessed on 11 December 2018.
8
Transgender Persons (Protection of Rights) Bill 2016 s 2(i).
19
Council of Europe (Parliamentary Assembly), ‘Discrimination
against transgender people in Europe’ (2015) Resolution 2048.
9
Danish Sheikh, ‘The New Transgender Bill Fails the Community’ (The
Wire, 4 August 2016) <https://thewire.in/gender/failures-of-the-new-
20
‘On the Empowerment of Third Gender Persons’ (Social Welfare
transgender-bill> accessed 11 December 2018; Sampoorna Working
Department, Government of Chhattisgarh, 17 January 2018)
Group, ‘Transgender Persons Bill, 2016’ (2017) 52(48) EPW <https://
<https://sw.cg.gov.in/en/empowerment-individuals-third-gender-
www.epw.in/journal/2017/48/letters/transgender-persons-bill-2016.
community> accessed 10 December 2018.
html> accessed 11 December 2018.

21
Aniruddha Dutta, ‘Contradictory Tendencies: The Supreme
10
‘Frequently Asked Questions: Sexual orientation, gender identity
Court’s NALSA Judgment on Transgender Recognition and Rights’
and intersex status in the Pacific’ (Office of the High Commissioner
(2014) 5 Journal of Indian Law and Society 225, 233.
for Human Rights, 2015) <https://www.ohchr.org/Documents/
Publications/UNFE_PacificCampaignInfoSheet-Aug2015.pdf>
accessed 10 December 2018.

9
 2014
Rights of
Transgender
Persons Bill

This Bill provided that 2% of the

total seats in Government and
Government aided institutions of
primary, secondary and higher
education and 2% of vacancies in
every Government establishment
are to be reserved for transgender
persons.

10
THREE

How should Reservations

for Transgender and Intersex
Persons be Implemented?
In the section above we have addressed how the beneficiaries of a
transgender and intersex persons reservation policy may be identified.
In particular, we have proposed a definition and a protocol of self-
identification to be followed. The next question we address is how
reservations should be implemented by the Union or the State
Governments. More specifically, we outline the categorical basis for
reservation and the extent of reservation that must be provided.

In NALSA, for the first time the Supreme Court THREE/ 1

expanded the scope of ‘sex’ under Article 15 and TRANSGENDER AND INTERSEX PERSONS'
held that ‘sex’ would include ‘gender’. It held that RESERVATIONS UNDER THE ‘TRANSGENDER’
‘gender identity’ is an attribute of ‘sex’ and therefore, CATEGORY
discrimination on the basis of ‘gender identity’
would qualify as discrimination on the basis of sex. In this section we ask how reservations for
It also noted that transgender persons have been transgender and intersex persons may be
systematically denied their right to access public places implemented under a ‘transgender’ category. In
and have not been afforded their rights under special particular, we focus on whether the ‘transgender’
provisions of the Constitution i.e. Articles 15(4) and category should be implemented under a vertical or
16(4), which are for the advancement of socially and horizontal scheme. In this section, we show that the
educationally backward classes. However, the Court
22
‘transgender’ category should be implemented as a
did not spell out how transgender persons should be part of a horizontal and compartmentalized scheme
accommodated under the existing reservation scheme. for the reasons elaborated below.
In order to work this out, a first step would be to clarify
whether a transgender reservation quota would be The basis for permitting special measures like
treated as a vertical or horizontal scheme. reservations in educational institutions and matters

11
of public employment can be found in Articles Article 15(4). Therefore, under Articles 16(4) and
15 and 16 of the Constitution. Article 15(1) of the 15(4), groups can be identified for reservation on
Constitution guarantees that there shall be no the criteria evolved for determining backwardness
discrimination against any citizen on grounds only which include caste along with other factors such
of religion, race, caste, sex, place of birth or any as illiteracy, isolation, poverty, physical and mental
of them, and provides for special provisions to be degradation27 among others.28
made for women and children under Article 15(3).
Articles 15(4) and 15(5) allow for special provisions In Indra Sawhney, the Court further elaborated that
to be made for the advancement of socially there are two kinds of reservation methods that
and educationally backward classes of citizens could be pursued by the State: vertical reservations
in areas including education and other fields
23
and horizontal reservations. The reservations in
such as housing. Article 16(1) provides for equal
24
favour of Scheduled Castes, Scheduled Tribes and
opportunities in public employment and prohibits other backward classes [under Article 16(4)] may
discrimination while Article 16(4) of the Constitution be called vertical reservations whereas reservations
empowers the State to make special provisions for in favour of physically handicapped [under clause
reservations in public employment in favour of any (1) of Article 16] can be referred to as horizontal
backward class of citizens. 25
reservations.29

In NALSA, the Supreme Court held that transgender Reservations in favour of categories like Scheduled
and intersex persons have not been afforded special Castes (SC), Scheduled Tribes (ST) and other
provisions envisaged under Article 15(4) for the backward classes (OBCs) under Article 16(4) were
advancement of the socially and educationally held to be “social reservations”, constituting vertical
backward classes (“SEBC”) of citizens and hence categories. Reservations in favour of women,
are legally entitled and eligible to get the benefits persons with disabilities, freedom fighters, project
of SEBC. Further, it also held that transgender displaced persons were “special reservations”, and
persons are entitled to reservation in the matter of were treated as horizontal categories that would
appointments, as envisaged under Article 16(4) of cut across vertical reservations. In other words, a
the Constitution. special reservation is provided within an existing
category of social reservation.30 This is also a form
Reservations under Article 15(4) for SEBC and for of recognising the intersection of multiple identities
‘backward classes’ under Article 16(4) have been and resulting vulnerabilities.
understood as being similar. Article 16(4) uses the
phrase ‘backward classes’ who are not adequately Quotas for horizontal reservations cut across the
represented in the services under the State. quotas for vertical reservations in a manner that is
called inter-locking reservations.31 For example, if 3%
The criteria for identifying backward classes under of the vacancies are reserved in favour of persons
Article 16(4) was approved by the Supreme Court in with disabilities, this would be a reservation relatable
Indra Sawhney & Ors. v Union of India to identify
26
to Clause (1) of Article 16. The persons selected
‘socially and educationally backward classes’ under against this quota will be placed in the appropriate

12
vertical quota category, namely SC, ST, OBC or the then the proportionate number of seats meant for
open competition (OC) category. transgender candidates get transferred to the OC
category.34 So we recommend that reservation
The distinction between vertical and horizontal for transgender and intersex persons should be
reservations drawn in Indra Sawhney was reiterated compartmentalized to ensure that the intersectional
in Anil Kumar Gupta v. State of Uttar Pradesh discrimination experienced by various groups is
& Ors. More than a decade later, echoing the
32
addressed through the reservation quota policy.
decisions in Indra Sawhney, the Supreme Court
held decisively in Rajesh Kumar Daria v. Rajasthan In the section above, we made a distinction
Public Services Commission & Ors. that social
33
between vertical and horizontal reservations under
reservations in favour of members of SCs, STs and the Indian Constitution. The Supreme Court has
OBCs under Article 16(4) are vertical reservations held that while Article 16(4) is exhaustive on vertical
while special reservations in favour of women and reservations for ‘backward class of citizens’, it is
persons with disabilities under Articles 15(3) and not exhaustive on the scope of reservations under
16(1) respectively, are horizontal reservations. The the Constitution. Article 16(1) which guarantees “…
delineation of this distinction between vertical equality of opportunity for all citizens in matters
and horizontal reservations, starting from Indra relating to employment or appointment to any
Sawhney to Rajendra Kumar Daria, is crucial in office under the State”35 permits horizontal
conceptualising and implementing reservations for reservations for other classes of persons.36
transgender and intersex persons. We recommend
that reservations for transgender and intersex Persons found eligible by the State for reservation
persons should be recognised as horizontal under Article 16(1) would be placed against the
reservation or special reservation for the reasons set relevant quota / category identified under Article
out in the section below. 16(4) forming an intersectional grid. Thus, SC or ST
women would be placed in the horizontal category
Even within horizontal reservations, there are two of ‘women’ and would also fall under the vertical
ways of implementation. Horizontal reservations category of SC or ST, in effect recognising the
could be treated as compartmentalised or overall intersection of caste and sex. The Supreme Court
reservations. For example, if a transgender has held that reservations for women under Article
candidate selected on the basis of reservation 15(3) and for other special groups such as persons
belongs to a Scheduled Caste, she will be adjusted with disabilities in public employment are a form of
against the seat reserved for SCs. This would special reservation or horizontal reservation.37
be a case of compartmentalised reservation.
Alternatively in overall reservation there is an Moreover, a practical and effective way to
emphasis on ensuring that the overall quota for implement reservations for transgender and
the special category is met irrespective of its intersex persons would be to follow the method of
distribution across the social reservation categories. reservation on the basis of gender, and disability, as
Hence, if there are not enough transgender has been done for women under Articles 15(3)
candidates belonging to SC and ST categories and 16(1).

13
Since the Court held in NALSA that ‘sex’, a caste divisions within the transgender community.
protected characteristic under Articles 15 and 16 As a result, transgender persons from different caste
of the Constitution, includes ‘gender identity’, this backgrounds would be placed in the same pool to
would mean that sex based protections should compete for the same positions.42
extend to transgender and intersex persons.38
Conversely, such a separate vertical category would
Therefore, the reservations extended to women require transgender persons to give up their caste
under Article 15(3) should be extended to identities and associated protections and benefits
transgender and intersex persons, as special they may otherwise secure without disclosing their
reservations and horizontal reservation. Ideally, transgender identity.
transgender persons, like women and persons with
disability, should also be given reservation under Categorising transgender persons as
Articles 15(3) and 16(1), as a horizontal category for a ‘socially and educationally backward
the purpose of reservation.
class’ further assumes homogeneity
in their social position and ignores the
It has been argued rightly by Mohan Gopal that the
social politics of caste that are at play
Supreme Court in NALSA "...mixed up the cases
of horizontal and vertical kinds of reservation... within the transgender community.43
(and) erred in assuming both kinds of reservation
flow from Articles 15(4) and 16(4)".39 Similarly, As transgender rights activist Living Smile Vidya
P.S. Krishnan took the view that like persons with has noted, Dalit transgender persons face
disability, reservation for transgender persons must enhanced discrimination and exclusion and a dual
be traced to Articles 15(1) and 16(1) as "Articles “occupational fixity” (i.e: the limitation placed on
15(4) and 16(4) pertain to what has continued options for employment) on the basis of belonging
for ‘generations’...". As disability and transgender to the Dalit community as well as belonging to
discrimination does not arise from the traditional the transgender community, and attributes the
caste-based social system they "...could not claim disenfranchisement of their rights to pursue any
benefits from the kitty meant for OBCs". Hence,
40
other occupation to extant power structures.44
they rightly conclude that the Supreme Court’s Grace Banu, the founder of Trans Rights Now
inclusion of transgender persons within the SEBCs Collective, has argued that the concerns of
in NALSA was flawed and goes against the previous transgender and intersex people from Dalit or
pronouncements of the Supreme Court. 41
Adivasi communities tend to be overlooked in the
mainstream narratives around caste and gender
Further, reservations for transgender and intersex identity.45 If reservation is provided to transgender
persons should be horizontal and not vertical in persons as social reservation as a separate class in the
order to address the intersectional character of form of vertical reservation, it would fail to address
discrimination faced by Dalit or Adivasi transgender discrimination that occurs at the intersections of
persons. Creating an additional vertical category for gender and other identities, such as caste.46
transgender and intersex persons would ignore the Therefore, horizontal reservations for transgender

14
persons on the basis of a special reservations, will surely be an infringement of the rights of the
cutting across vertical reservations that exist on the petitioner guaranteed under Articles 14, 15, 16,
basis of caste identity, will better account for the 19(1)(a) and 21 of the Constitution of India.…….the
diverse social positions that transgender persons petitioner was born as a female, recognised by the
occupy, coming from different caste and class society as a female, she choose to identify herself
backgrounds. It would ensure that transgender and
47
as a female for all purposes. Therefore, I hold that
intersex persons, particularly from SC, ST and OBC she is a female in the legal parlance and thus, she
communities are not required to give up their caste is eligible for appointment as a Woman Police
status while accessing reservations in educational Constable.”50
institutions and public employment.
In this case, the Court also declared the petitioner as
Finally, in order to fully respond to the experience female and held that she has the right to retain such
of discrimination at the intersection of non- sexual / gender identity and the liberty to choose a
normative gender identity and caste status, different sexual / gender identity as a third gender
horizontal reservations should be provided which in the future. Other High Courts have also passed
should be compartmentalised. This would mean orders upholding the right of transgender and
that transgender and intersex candidates should intersex persons who chose to identify as ‘female’
be selected on the basis of merit lists under the to seek employment and reservation in the women
categories of SC, ST, OBC and OC to which they category.51 Therefore, transgender persons who
belong. For example, if a transgender candidate wish to identify only as ‘women’ and do not wish to
belongs to the SC category, they will be assessed avail reservation relying on their transgender identity
by the merit lists prepared within that category thus card should be permitted to avail reservations under
ensuring fair competition to all the candidates. the distinct horizontal category of ‘woman’ that is
currently in place.
THREE/ 2
TRANSGENDER AND INTERSEX PERSONS' THREE/ 3
RESERVATIONS UNDER THE ‘WOMAN’ CATEGORY EXTENT OF RESERVATIONS FOR TRANSGENDER
AND INTERSEX PERSONS
High Courts have already recognised the rights of
transgender and intersex persons who identify as We conclude this section with a review of the
women, to apply for public employment seeking extent of reservations for transgender and intersex
reservation as women. This has been done as in
48
persons. While NALSA directed the Central and State
NALSA, the Supreme Court specifically recognised Governments to provide reservations, it did not lay
the right to self-identify one’s gender as male, down the exact percentage of reservation. Shortly
female or transgender. In Nangai v. Superintendent after NALSA, the Rights of Transgender Persons
of Police, the Madras High Court held that:
49
Bill, 2014 (“2014 Bill”), was introduced as a private
‘treating the petitioner as not a female on the basis member bill in the Rajya Sabha. This Bill provided
of medical declaration that she is a transsexual that 2% of the total seats in Government and
and forcing her to accept the said sexual identity Government aided institutions of primary, secondary

15
and higher education and 2% of vacancies in every REFERENCES
Government establishment are to be reserved for
transgender persons.52 Thereafter, through the 22
NALSA (n 1) [67].

Ministry of Social Justice and Empowerment, the 23

“Article 15 – Prohibition of discrimination on grounds of religion,
race, caste, sex or place of birth –
Central Government introduced the Transgender
…
Persons (Protection of Rights) Bill, 2016 (“2016 (4) Nothing in this article or in clause (2) of article 29 shall prevent
the State from making any special provision for the advancement
Bill”) in the Lok Sabha. The 2016 Bill, however, did of any socially and educationally backward classes of citizens or for
not provide for any reservations in admission in the Scheduled Castes and the Scheduled Tribes.
(5) Nothing in this article or in sub-clause (g) of clause (1) of article
educational institutions and public employment. 19 shall prevent the State from making any special provision,
by law, for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes or the
Some petitions were filed in different High Courts Scheduled Tribes in so far as such special provisions relate to their
admission to educational institutions including private educational
to implement the requirement for reservation as institutions, whether aided or unaided by the State, other than the
provided for in the NALSA decision. The Madras minority educational institutions referred to in clause (1) of article
30.”
High Court in Swapna v. Chief Secretary53 directed
24
Marc Galanter, ‘Protective Discrimination” for Backward Classes in
the State Government to provide a scheme for
India’ [1961] 3 Indian Law Institute 39, 47.
reservation for transgender persons within 6 months,
25
“Article 16 - Equality of opportunity in matters of public
but this is yet to be done. In a similar manner, the employment –
High Court of Uttarakhand, in Rano and Ors. v. ...
(4) Nothing in this article shall prevent the State from making any
State of Uttarakhand and Ors.,54 directed the State provision for the reservation of appointments or posts in favour of
any backward class of citizens which, in the opinion of the State, is
Government to provide reservations in educational
not adequately represented in the services under the State.
institutions and public employment. More recently, in …”

July 2018, Kerala implemented an ad hoc system of 26

1992 Supp (3) SCC 217.
reservations for transgender persons and announced
27
ibid [268].
‘two additional seats’ for transgender persons in all
28
The Supreme Court also noted that the term ‘backward class’ in
courses in Universities and affiliated Arts and Science
Article 16(4), referring to social backwardness, is wider than ‘socially
colleges, subject to fulfilment of the qualifications and educationally backward classes’ in Article 15(4) and in fact,
Scheduled Castes and Scheduled Tribes indubitably fall within the
prescribed.55 This is the first attempt by any State term ‘backward class of citizens’ under Article 16(4).
Government to provide for transgender reservations.
29
Indra Sawhney (n 26) [812].

Rajesh Kumar Daria v. Rajasthan Public Services Commission &

30
In this Brief, we do not propose a definite extent
Ors. (2007) 8 SCC 785.
of reservation to be provided by the States or the
31
Indra Sawhney (n 26) [812].
Central Government. Such a proposal must rest on
a detailed and nation-wide empirical assessment of 32
(1995) 5 SCC 173.

the size of the transgender and intersex population 33

Rajesh Kumar Daria (n 30) [9].

in India. As we have proposed that the ‘transgender’ 34

Anil Kumar Gupta (n 32) [15].
category be treated as a horizontal reservation, it will
35
Constitution of India 1950 art 16(1).
not breach the 50% limit set by the Supreme Court
on the extent of vertical reservations. 36
Indra Sawhney (n 26) [860].

37
Rajesh Kumar Daria (n 30) [7] - [9]; Anil Kumar Gupta (n 32).

16
38
NALSA (n 1) [66]. 49
(2014) 4 Mad LJ 12 as accessed on SCCOnline.

39
V. Venkatesan, ‘Flawed Reading’ (Frontline, 17 April 2015) <https:// 50
ibid [40].
frontline.thehindu.com/the-nation/flawed-reading/article7048598.
ece> accessed 10 December 2018. 51
See n 48.

40
ibid. 52
The Rights of Transgender Persons Bill 2014 s 21, 22.

Sakshi Parashar, ‘Inclusion of Transgender Community within

41 53
[5 July 2016] Writ Petition No. 31091/2013. The Madras High
Socially and Educationally Backward Classes: Examining the Court directed the Tamil Nadu Social Welfare Department to
Deeper Concerns’ (2017) 2 ILI Law Review 105, 113. consider reservation for transgender persons, rather than providing
for reservations under the ‘Most Backward Classes’ category.
42
The Supreme Court has, on more than one occasion, emphasised
that the total reservations cannot exceed 50%. An additional 54
[28 September 2018] Writ Petition No. 1794/2018.
vertical category of transgender persons would disturb the current
structure of vertical reservation of Scheduled Castes, Scheduled 55
Order 2018, G.O. (Ms) No. 153/2018/HEDN [3 July 2018].
Tribes and Other Backward Classes and may not result in fair or
adequate representation for the transgender community.

43
Shalini Nair, ‘No quota provision under OBC in transgenders
Bill’ (Indian Express, 19 March 2018) <http://indianexpress.com/
article/india/no-quota-provision-under-obc-in-transgenders-
bill-5102661/> accessed 10 December 2018; Gee Imaan Semmalar,
‘Gender Outlawed: The Supreme Court judgment on third gender
and its implications’ (Round Table India, 19 April 2014) <https://
roundtableindia.co.in/index.php?option=com_content&view=
article&id=7377:because-we-have-a-voice-too-the-supreme-
court-judgment-on-third-gender-and-its-implications&catid=
120:gender&Itemid=133> accessed 10 December 2018; Dutta,
‘Contradictory Tendencies: The Supreme Court’s NALSA Judgment
on Transgender Recognition and Rights’ (n 20) 234.

44
Kaveri Karthik and Gee Ameena Suleiman, ‘(Trans)gender and
caste lived experience – Transphobia as a form of Brahminism: An
Interview of Living Smile Vidya’ (Sanhati, 26 January 2013) <http://
sanhati.com/excerpted/6051/> accessed 10 December 2018.

45
Grace Banu, ‘Where are the archives of our Dalit Trans
foremothers and forefathers’ (The Print, 29 April 2018) <https://
theprint.in/opinion/dalit-history-month/dalit-trans-resilience-is-a-
fight-against-caste-and-patriarchy-though-we-are-missing-from-
written-archives/53509/> accessed 10 December 2018.

46
Also see Shreya Atrey, ‘Through the Looking Glass of
Intersectionality: Making Sense of Indian Discrimination
Jurisprudence under Article 15’ (2016) 16 Equal Rights Review 160.
Atrey discusses intersectionality jurisprudence in the context of
Articles 15(4) and 16(4).

47
Dutta, ‘Contradictory Tendencies: The Supreme Court’s NALSA
Judgment on Transgender Recognition and Rights’ (n 20) 234.

48
K Prithika Yashini v The Chairman, Tamil Nadu Uniformed Services
Recruitment Board (2015) 8 MLJ 734; Ganga Kumari v State of
Rajasthan & Ors [13 November 2017] S.B. Civil Writ Petition No
14006/2017; T.Thanasu v Secretary to the Government of Tamil
Nadu [3 July 2014] Writ Petition No 16539/2014. In Sangeetha
Hijra v State of Bihar [5 July 2017] Civil Writ Jurisdiction Case No.
8164/2017, the High Court of Patna permitted a transgender person
to contest elections under the category of ‘woman’.

17
Reservations for
transgender and
intersex persons
should be horizontal
and not vertical in
order to address the
intersectional character
of discrimination faced
by Dalit or Adivasi
transgender persons.

18
FOUR

Conclusion and
Recommendations
In NALSA, the Supreme Court recognised that transgender persons
are discriminated against and have been denied access to social,
economic, political and cultural rights as well as special measures
under Articles 15 and 16 of the Constitution and it directed the Central
and State Governments to provide for reservations for transgender
persons in educational institutions and public employment.

As the Supreme Court did not lay down the manner been implemented through Central legislation.
in which these reservations are to be implemented The history of disability reservation is instructive on
and the Central and State Governments are yet to act the preferred approach for transgender reservation.
on this judicial direction, there is an urgent need to Prior to 1996, a few State Governments had
address this issue. This Policy Brief comprehensively addressed disability discrimination and provided
reviews the central issues to be resolved before reservations, but the legal landscape was scattered
a policy on reservations may be implemented. and haphazard. The Central Government enacted
Further, we propose the key steps to be taken so the Persons with Disabilities (Equal Opportunities,
that a legally defensible and sustainable reservation Protection of Rights and Full Participation) Act
policy that fully responds to the livelihood concerns 1995 which defined ‘disabilities’ and provided for
of transgender and intersex persons is adopted. In 3% reservation in public employment across India.
this section, we focus on the legal form that these The Rights of Persons with Disabilities Act 2016
proposals should take - namely, the need for a (RPD Act) now imposes an obligation on all States
Central legislation. to reserve 4% posts for persons with disabilities in
public employment. The PWD Act and RPD Act
Reservation policies across India have been have together created a common approach for
implemented in two modes. While caste based defining disability and ensuring significant social
reservations have been implemented primarily transformation through a minimum obligation to
through executive orders issued by the State and provide employment opportunities to persons with
Central Governments, disability reservations have disabilities.

19
Currently, the status of law and policy to protect B) Secondly, the statute should provide for the
transgender and intersex persons resembles the establishment of Committees or State Transgender
state of disability law prior to 1996. Different States Welfare Boards to issue identification cards based
have adopted varied definitions of transgender on the principle of self-identification. At least 50% of
persons and a wide range of institutional formats such Committees or Boards should be transgender
to identify them. Further, not all State policies and intersex persons. Further, these bodies must
provide for reservation for transgender and intersex conduct periodic surveys and studies on the state of
persons in public employment or education. In affairs of the transgender community and the extent
order to ensure the adoption of inclusive definitions to which reservation and supporting policies are
for transgender and intersex persons, non- improving their conditions.
invasive methods of identification and a method
of reservation that responds to the intersectional C) Thirdly, the Statute should specifically provide for
experience of discrimination, we propose that the horizontal reservations for transgender and intersex
Central Government enact a single comprehensive persons in education and public employment either
legislation on reservation for transgender and under the ‘transgender / gender identity’ or ‘woman’
intersex persons. Such legislation should bind categories. A horizontal compartmentalized
both the Central and State Governments to adopt approach would be sensitive to the intersectional
policy measures oriented towards ensuring that the experience of discrimination on the basis of gender
community benefits in a sustainable manner over the identity and caste. Moreover, reservation under the
long term. ‘transgender/gender identity’ category should be
accessible solely on the possession of an
In this Brief, we considered three critical identity card.
implementation issues: who would be the beneficiaries
of reservations, the legal basis for reservations and the D) Finally, the Statute must specify the extent of
form that reservations should take. the reservation quota based on a time-bound
nationwide empirical survey carried out by the
To enact a central legislation: Central Government. Such a survey must estimate
The proposed Central law should respond to these the number of transgender persons and their
issues in the manner discussed in this Brief and current living and social conditions so that it forms
summarized briefly below: a comprehensive basis for legal intervention in the
near future.
A) First, the statute should clearly define “transgender
and intersex persons” building on the right to self-
identification of gender identity and laying down
a process of self-identification of gender identity,
without any medical diagnosis or mental health
assessment. The statute should discard physical and
biological examinations which would encroach on
the dignity and privacy of transgender persons.

20
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