The TRANSGENDER community in India were an ignored segment of the society and were target to lots of discrimination even in the basic necessities such as, employment, health, education etc despite protection given to them under the provisions of the Constitution of India. A landmark case of NALSA v. Union of India[1], “recognized the various civil and political rights of the transgender community in April 2014.” The main argument in this case was against the state enforced heteronormativity[2] and recognition of only binary genders under the Indian law and therefore, there was seek for legal measures to fulfil the needs of the transgender community by the petitioners.

The difference between the two forms of reservations was laid down in the case of Indira Sawhney v. Union of India[3], “it was held that reservations in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes under Article 15(4) and 16(4) is vertical reservations, whereas reservations in favour of physically handicapped under clause (1) of Article 15 and 16 is horizontal reservations.”

The NALSA judgment did not differentiate between the horizontal and vertical reservations and therefore, came to a conclusion that both of these reservations fall under Article 15(4) and 16(4) and that the Constitution discriminated on basis of castes. Eminent scholar Mohan Gopal agrees to the opinion that transgenders, like the physically disabled category fall should be categorised under the category of horizontal reservations.

In the case of Swapna v. The Chief Secretary[4], the petitioner who belonged to third gender category approached the court for issuing direction to the respective state governments to provide reservations, but the court dismissed the petition and “held that petitioners were looking for administrative action which could be provided by the legislature rather than Judicial interpretation over the matter.” It can be said from this case, that the government needs to fill several gaps existing in relation to ‘class’ and ‘gender’ before arriving at any conclusion.

The genesis of this recognition lies in the acknowledgement of equal worth of every person and the right of choice given to an individual which is the inseparable part of human rights.[5]The word ‘transgender’ is like an umbrella as it included various genders in it and therefore, making it non-homogeneous  and hence, would be impossible to cover it within the ambit of ‘class’ which is backward and hence, would be outside to the limit of Article 15(4) and 16(4) of the Constitution of India.

Therefore, in conclusion it can be said that inclusion of transgenders within the purview of Socially and Educationally Backward Classes is a flawed as this not only goes against the spirit and the provisions mentioned in the Constitution but also against the verdicts of the Supreme Courts as well.

[1] NALSA v. Union of India, (2014) 5 SCC 438.

[2] http://data.unaids.org/pub/manual/2007/070517_yogyakarta_principles_en.pdf, last visited 11/06/2020.

[3] Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217

[4] Swapna v. The Chief Secretary, July 18, 2014. 68 Writ Petition No. 31091 of 2013, Madras High Court, decided on July 5, 2016.

[5] http://www.encyclopedia.com/social-sciences/applied-and-social-sciences-magazines/heteronormativity, visited on 11/06/2020

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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