On 15th April, 2014, the Supreme Court of India passed a historic judgment recognizing the rights of transgender individuals and directing the government to take steps to ensure their equal treatment and protection. The judgment, known as the NALSA verdict, was seen as a major step forward for transgender rights in India. It recognized transgender persons as the third gender, which came as a huge victory for their community, making them equivalent to their counterparts- men and women.
However, nearly a decade later, many in the transgender community feel that little has changed. Despite some progress in terms of legal recognition and inclusion, transgender individuals still face widespread discrimination and marginalization in Indian society. Many struggle to access education, healthcare, employment, and other basic services.
One issue that has been particularly contentious is the question of horizontal reservation - that is, reserving a proportionate number of seats in education, employment, and political representation for transgender individuals. While the NALSA judgment recognized the need for such affirmative action, it did not specify any quotas or guidelines for implementation.
Now, as the 9th anniversary of the NALSA verdict approaches, many in the transgender community are calling for concrete action on horizontal reservation. They argue that without such measures, inclusive policies and legal recognition will remain empty promises.
Transgender persons are organizing a meeting on March 26, to discuss on a strategy to campaign for horizontal reservation for the community. This meeting will be held at Naz Foundation Delhi between 2-4 pm.
Under Article 14, equality is guaranteed to “any person” which includes men, women, and transgender person. All three categories have equal rights in employment, health care, education, and civil rights. NALSA judgement clubbed transgender persons under the reservation provided to the ‘socially and educationally backward’ classes, what happened after the judgement is, transgender persons got vertical reservations instead of horizontal reservations.
Vertical reservation is based on castes, such as reservation for scheduled castes, scheduled tribes, and other backward classes. It applies separately for each of the groups specified under the law, mentioned in Article 16(A) of the Indian Constitution.
On the other hand as specified in Article 15(3) horizontal reservation refers to the equal opportunity provided to other categories of beneficiaries such as women, veterans, the transgender community, and individuals with disabilities, cutting through the vertical categories.
The Mooknayak reached out to Vyjayanti Vasanta Mogli from Telangana to discuss horizontal reservation. Vyjayanti is an Indian transgender activist, RTI activist, singer, and motivational speaker.
When asked about the 2014 NALSA judgement, Vyjayanti said, “It was the very first judgement that considered transgender persons and provided them a special status, but somewhere it had loopholes, it is a confusing judgement to date. It clubbed transgender persons with OBCs or as called as BCs in Telangana MBCs (Most Backward Classes) in Tamil Nadu.”
“Trans community people do not necessarily belong to a unitarian single cast, we aren’t from one cast background. We belong to a particular gender i.e., transgender,” Vyjayanti added.
Every state has its own nomenclature for castes, some states might be using the same term but some might differ, which is why the NALSA judgement hasn’t really been helpful in providing a special reservation for the transgender community.
Vyjayanti told The Mooknayak, “Transgender persons hail from different caste backgrounds, and NALSA mentioned combining all of them in the ‘socially and educationally backward’ class, which makes it difficult for our community to identify as transgender for reservations. We share our gender identity but we don’t necessarily share the same caste.”
On July 6, 2021, Karnataka became the first state to implement a 1% reservation for the third gender. The final notification that was issued by the Karnataka Government perspicuously specified 1% reservation in all general as well as reserve categories for the third gender.
The notification said that there must be a column added for the third gender along with the male and female column in all government job application forms and there should be no discrimination in any such way.
The result of the judgement was seen soon after when three transgender person from the state qualified as Graduate Primary Teachers (GPT).
Today, the demand for horizontal reservation by the transgender community is rising, and the community wants a separate reservation for them as provided to women in the majority of states in India. The reason for this is that reservation would provide them with government job opportunities, through which they can find their way into mainstream society.
“Many states have provided separate reservation for women, so when you separate women then men automatically get the rest of the opportunities so where do we (transgender persons) stand in this bifurcation of reservation,” said Vjayanti.
The Mooknayak also reached out to Jane Kaushik, a trans woman, who was forced to resign from an Uttar Pradesh school because of her gender identity. Jane says, “Some of us from our community will be filing a petition in Delhi High Court for horizontal reservation. We demand reservation in all kinds of employment, be it health sector, education sector, or civil services.”
Advocate Jayna Kothari, co-founder of the Centre for Law and Policy Research (CLPR) is a senior advocate and practices in the Supreme Court of India.
In conversation with The Mooknayak, Jayna Kothari said that she has filed an application in the Supreme Court for the interests of the transgender community, asking to provide horizontal reservation for the transgender persons. The submitted application is listed for hearing on Monday 27 March 2023.
The Mooknayak asked the advocate about the discrepancy in the 2014 NALSA judgement to which she stated, “NALSA judgement isn’t totally clear, it doesn’t specify the type of reservation that should be offered to the third gender.”
On further discussion, she adds several major reasons because of which the third gender is demanding separate horizontal reservation.
"Suppose there’s a transgender person belonging from the general category, so if NALSA is to be followed, the person will be included in OBC, so how is it fair to compete with thousands of OBC applicants? This way the third gender won’t occupy a single seat.” Advocate Jayna explains.
Similarly, a transgender person from OBC will get zilch benefits because they already belong to the category, and any transgender person from Dalit or Adivasi community will either have to give up SC/ST reservation and register to OBC or will have to give up transgender status to enjoy the benefits of reservation.
Advocate Jayna Kothari mentions the Karnataka High Court judgement of providing 1 percent reservation for transgender personsand appreciates the move saying, “We are trying for horizontal reservation as it happened in Karnataka.”
According to a study conducted by the National Human Rights Commission in 2018, 96 percent transgenders are denied jobs and are forced to pick undignified work for livelihoods like badhais, sex work, and begging.
The first-ever study on transgender rights revealed that about 92 percent transgenders are deprived of the right to participate in any form of economic activity in the country, with even qualified ones getting rejected for the job.
Transgenders also have to face a lot of severe discrimination because of which 50-60 percent of them never attended school and those who did left education mid-way. The NHRC data states that 52 percent transgenders were harassed by their classmates and 15 percent by teachers forcing them to discontinue their studies.
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