Delhi High Court Asks Governments to Respond to a Petition Regarding Horizontal Reservation for Trans Persons

New Delhi— The landmark National Legal Services Authority vs Union of India & Ors (NALSA) judgement, which identified the hardships faced by the members of the trans community, came out nine years ago. People from the community still are fighting for their well-deserved rights. Recently, a trans woman approached the Delhi High Court advocating for separate seats for the Transgender community at AIIMS Masters' of Science in Human Embryology course, ICMR, and all public employment and educational institutions. The court has now asked the Central and State Governments to respond to the important plea.

The petitioner was assigned male at birth but exhibited gender non-conforming habits and identified as a female. Owing to this, she was constantly bullied and ridiculed through educational spaces. Safe institutions had become a space of violence and discrimination. The plea explained her struggles within the system saying, “She has been a victim of isolation and depression, since she was always left out and discriminated on the basis of her nonconforming behaviours which her peers and teachers felt ‘odd’ and ‘irregular’.”

Even then, she fought through the hardships while focusing on her education. In 2022 and 2023, the petitioner gave entrances of MSc at AIIMS, Senior Technician Assistant - B position at the Defence Research & Development Organization and another attempt for MSc at AIIMS. The diligent student secured All India 11th rank, 87 percentile and an All India Rank of 25 respectively but did not receive admission in any institution as no relaxation or reservation for Transgender people were available.

The petitioner has approached every possible measure from her part. From writing a letter to the Chief Minister of Delhi about the issues faced by her community to emailing AIIMS and requesting reservation for Transgender people under the NALSA judgement, she tried all the avenues possible. An RTI was filled with the National Commission for Backward Classes as well requesting information regarding Minutes of Meeting or Agenda’s Discussed by the National Commission for including Transgender Persons in the Central List of OBC’s but in vain. The commission denied disclosing the said information to the Petitioner’s RTI, exercising its powers vide Section 8 (1) (j) of the RTI Act, 2005.

Vacancies in government jobs issued notifications only for the gender binaries of male and female, completely disregarding the queer population. Despite being qualified, the petitioner is unable to fill the forms of such vacancies, making her case all the more valid. The plea said, “Exclusion on the basis of gender from the Recruitment Process / Employment Opportunities at various positions in the Respondent No. 3 - The Indian Council of Medical Research, New Delhi (hereinafter referred as “ICMR”). All advertised vacancies for every position whatsoever published from time to time are confined only to the binary of Male and Female gender, thereby excluding the Transgender Persons as a Separate Category.”

The petition further read, "Despite being qualified, the Petitioner finds herself unemployed, owing to the discriminatory practice of the Respondent Nos. 3 to 6 (ICMR, AIIMS, Delhi Department of Welfare) for their failure to issue Separate Vacancies for Transgender Persons vide Horizontal Reservation, and such an act of discrimination is unlawful, arbitrary, and impermissible under law."

Justice Purushaindra Kumar Kaurav issued notice returnable by March 28, 2024, to the Union Ministries of Home Affairs and Law & Justice, Indian Council of Medical Research (ICMR), All India Institute of Medical Sciences (AIIMS), the Government of Delhi and Delhi's Department of Social Welfare. The court has also asked both the Central and State governments to figure out a policy that would provide relaxation to the Transgender community.

The petitioner has further urged the authorities to set up a Transgender Protection Cell at various levels to protect the community from exclusionary measures and discrimination. Advocates Diksha Dadu, Arundhati Katju and Srishti Borthakur represented the petitioner.

Advocates Kirtiman Singh, Waize Ali Noor and Shreya V Mehra appeared for the Central government and ICMR whereas advocates Santosh Kumar Tripathi, Aman Panwar and Pradyumn Rao appeared for the Delhi government.

This ‘blanket exclusion’ is not just AIIMS or ICMR’s problem, but a nationwide issue. Various Transgender activists including Grace Banu, Kanmani Ray, Jane Kaushik, Disha Pinky Shaikh and many others have been conducting protests for horizontal reservation. This system of relaxation would mean reserving a certain percentage of SC/ST/OBC for trans people. During June 2023, Grace Banu had staged a protest to demand horizontal reservation for people of the community. She argued, "Horizontal reservation is not a new concept. Such reservations are provided to women and people with disabilities across caste categories. Take, for instance, a Dalit trans woman. She is doubly oppressed, and therefore, she would need reservation in both categories. The lack of horizontal reservation is a denial of opportunities to trans persons."