Justice GK Ilanthiraiyan “Despite clear directives that transgender identity should be treated as a gender identity, the authorities were incorrect to classify ‘transgender’ as a caste under the MBC category.”
Chennai: The Madras High Court directed the Tamil Nadu Government to mandatorily provide horizontal reservation for all persons identifying as transgender in the State.
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In an order passed on April 8 this year, Justice GK Ilanthiraiyan quashed an existing Government order (GO) that provided horizontal reservation to transgender individuals who identified as women and vertical caste-based reservation for the rest.
The court invalidated a 2015 state government order which stipulated that a transgender individual would be categorized under the most backward class (MBC) if they lacked a community certificate.
Justice GK Ilanthiraiyan presided over the case brought by Rakshika Raj, a transgender woman and nurse from a Scheduled Caste background, who challenged the Government order that conflated her gender with her caste identity, seeking a directive for the state to enforce horizontal reservations.
“Horizontal reservation” refers to allocation that cuts across vertical reservation categories, such as those for Scheduled Castes and Scheduled Tribes (SC/STs), and is typically given to groups like persons with disabilities or women.
For instance, if there is a 10% vertical reservation for SC/STs and a 5% horizontal reservation for transgender persons, then 5% of the seats reserved for SC/STs must be allocated to transgender individuals from those communities.
READ ALSO: SC Seeks Response From Centre On Reservation For Transgender
The judge criticized the existing GO as arbitrary and unconstitutional and instructed the state to provide horizontal reservation for the transgender community in line with the Supreme Court’s NALSA judgment within 12 weeks.
“Once transgender identity is recognized as a gender identity like man or woman, it is clearly arbitrary and violates Article 14 to give horizontal reservation to women while treating transgender persons similarly to men. Therefore, if gender identity warrants horizontal reservation, then the transgender community, being socially and educationally backward and discriminated against on the basis of gender identity, should also receive similar reservation. In fact, Karnataka implemented the Supreme Court’s judgment by providing 1% horizontal reservation for all transgender persons in public employment, amending the Karnataka Public Servants Conditions of Service Act to reflect this across all community reservations like SC, ST, and MBC,” the Court stated.
The case was brought by Rashika Raj, a qualified nurse who identified as transgender. Although she was granted reservation benefits, they were categorized under Most Backward Class (MBC) as vertical reservation, treating the transgender community as a caste rather than recognizing transgender as a gender identity. Her counsel, NS Tanvi, argued that this was highly arbitrary.
The Court concurred, stating that reservation for the transgender community would be ineffective without addressing the intersection of identities.
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“In view of the above discussion, the impugned government order is liable to be struck down for being manifestly arbitrary and thereby violative of Articles 14, 15, 16, 19, and 21 of the Constitution of India. Accordingly, G.O.Ms. No. 28, Backward Classes, Most Backward Classes, & Minorities Welfare (BCC) Department, dated April 6, 2015, issued by the second respondent, is hereby quashed. The second respondent is directed to provide horizontal reservation to the transgender community in compliance with the judgment of the Hon’ble Supreme Court of India in NALSA v. Union of India reported in (2014) 5 SCC 438, within twelve weeks from the date of receipt of a copy of this order,” the Court ordered.
In her petition, Rakshita, a qualified nurse, mentioned that she was categorized as an MBC candidate while applying for positions in government-run institutions. She stated,
“I have been granted vertical reservation, where the transgender community is treated as a caste, instead of horizontal reservation that would acknowledge my transgender identity as a gender identity. This has caused me grievance.”
Horizontal reservation would create a quota within quotas for trans and intersex individuals, allowing them separate reservations under the categories of Scheduled Caste (SC), Scheduled Tribe (ST), Other Backward Classes (OBC), and general categories.
Justice GK Ilanthiraiyan, in his ruling, referenced the NALSA case where the Supreme Court had instructed both Union and state governments to recognize trans persons as a socially and educationally backward class, thereby extending all forms of reservations in educational admissions and public appointments. He stated,
“Despite clear directives that transgender identity should be treated as a gender identity, the authorities were incorrect to classify ‘transgender’ as a caste under the MBC category.”
Advocate NS Tanvi represented Rashika Raj, the petitioner, while Additional Government Pleader E Vijay Anand represented the Tamil Nadu government.
Case Title: Rashika Raj Vs. State of Tamil Nadu
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