The Madras High Court, led by Chief Justice SV Gangapurwala and Justice Bharatha Chakravarthy, has taken a significant step towards ensuring the rights of transgender and intersex persons. The court has asked the Advocate General to consider implementing a horizontal reservation policy for transgender and intersex persons in public employment and education, with instructions to respond by March 4th.
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This directive came during the hearing of pleas by Grace Banu Ganesan and Rizwan Bharathi, both advocates for the rights of trans persons. They have been seeking to establish and implement a horizontal reservation policy specifically for transgender and intersex persons. Additionally, they requested that the Tamil Nadu State Transgender Welfare Board issue identity cards to transgender and intersex persons. These identity cards should allow individuals to avail these reservations based on the principle of self-identification of gender identity, without necessitating medical re-assignment, mental health assessment, hormone treatments, or any other treatment as a precondition, and without any biological examination.
The petitioners highlighted that while transgender persons were included in the Most Backward Class (MBC) category, there were no clear guidelines on how they should be provided reservation in public employment and education or which category of transgender persons could avail reservation. They argued that instead of including transgender persons under vertical reservation in the MBC category, reservation should be horizontal as a separate category for transgender and intersex persons based on gender identity.
The petitioners also emphasized that horizontal reservations cut across vertical reservations. This approach allows for reservations not just on the basis of one identity, such as gender or disability, but enables reservations to be provided where a person has more than one significant identity, such as gender and caste, or disability and caste.
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Another plea filed in 2023 by the petitioners challenged the notification issued by the Tamil Nadu Uniformed Services Recruitment Board for the recruitment of Sub-Inspectors of Police [Taluk, Armed Reserves & Special Police (Men, Women & Transgenders)]. These petitions have now been clubbed with the earlier pleas and will be heard together by the court.
During the hearing, Senior Advocate Jayna Kothari, representing the petitioners, submitted that the current reservation policy does not offer any specific benefits to transgender persons for being members of the community. Kothari suggested that the State could consider providing 1% horizontal reservation to transgender persons, similar to the policy in the state of Karnataka.
The court agreed with this suggestion, adding that transgender persons could be given exclusive reservation without making them choose between the binary divisions of male and female. The court thus proposed that the State could develop a horizontal reservation policy without affecting the vertical reservations already in place.
This case, titled Grace Banu Ganesan and another v State of Tamil Nadu and another (Case No: WP 21631 of 2023), marks a pivotal moment in the recognition and support of transgender and intersex persons’ rights in India.