New Delhi- On June 7, the Tamil Nadu government informed the Madras High Court that discussions are in progress with stakeholders to construct gender-neutral public toilets throughout the state.
Government pleader A. Edwin Prabhakar reported to the bench, comprising Acting Chief Justice R. Mahadevan and Justice Mohammed Shaffiq, that new gender-neutral toilets will soon be built in public buildings. Additionally, existing toilets designated for persons with disabilities may be declared gender-neutral in the interim.
The High Court bench, while hearing a Public Interest Litigation (PIL) on the matter, has directed the government to submit a status report within two weeks.
The petition was filed by Fred Rogers (he/him), an activist and a man of trans experience. The Mooknayak talked to him in order to understand more about the petition and the reasoning behind it.
Through a telephonic conversation, the activist explained that many trans individuals, particularly those from the transmasculine spectrum, face significant challenges with restroom access.
“Some have not undergone surgery and may only have changed their hairstyle, making it uncomfortable or unsafe for them to use women's restrooms,” he continued, “additionally, transfem persons who still express themselves in their assigned sex at birth ( i.e - pant, shirt) are not comfortable using men's restrooms and are denied access in women's spaces.”
According to him, his friends across India have shared numerous stories highlighting the lack of adequate toilet facilities for transgender, gender non-conforming, non-binary, queer, and other communities.
This has led to their isolation from mainstream society. These communities have been advocating for such basic rights and needs for decades.
Considering that access to toilets is a fundamental necessity, the creation of gender-neutral restrooms holds primary importance. It will foster a sense of inclusivity in society and help these individuals achieve other basic rights in the future.
Reflecting on the process of filing the petition and the hearing, Fred stated that the petition was initially filed in 2021 and was heard in 2023. During the hearing, the court proposed that converting existing restrooms for persons with disabilities into gender-neutral facilities would be a sensible approach.
This suggestion came from the court, not from the petitioners or the government.
Back then, it was Acting CJ T.Raja and Justice Bharatha Chakravarthy who proposed the conversion and scheduled a follow-up hearing for two weeks later. However, the hearing never took place in 2023.
When the case was finally heard again, it was before Acting Chief Justice Mahadevan and another judge. They gave the Tamil Nadu government two weeks to submit a report on the progress of establishing gender-neutral toilets, either already built or in the process of being built, across the state.
Fred's request is straightforward: the implementation of gender-neutral restrooms in all locations. There is already a favorable ruling from the Madras High Court, known as the Sushma verdict by Justice N. Anand Venkatesh, which mandates the construction of gender-neutral restrooms in educational institutions.
Fred is urging the enforcement of this order and the establishment of gender-neutral restrooms in all public spaces.
During a previous hearing, Justice Rajan and Justice Bharadwaj Chakravarty even noted the absence of gender-neutral restrooms in the Madras High Court itself.
“The current bench has also shown understanding and empathy towards this important issue,” revealed the petitioner.
An important fact to note is that the case for gender-neutral washrooms were also made during previous verdicts but they were not implemented.
On asking if he feels the decision will work out this time, he said, “We, as a community, might have missed the opportunity to follow up on that particular order. We likely failed to bring it to the court’s attention that, even after two years, the order has not been implemented.”
“However,” he continued, “during the last Pride, we made it a demand that the Madras High Court's orders, particularly regarding the Sushma verdict, must be enforced. The year before, we also cited several interim orders, insisting on their implementation.”
“As the petitioner in this case, I am committed to consistently following up with my lawyer,” he added.
Fred asserted that he would work to ensure that the matter is listed before the bench, creating momentum and movement to prevent this issue from being overlooked. His goal is to compel the government to implement the order promptly.
This follows another directive from the Madras High Court regarding the implementation of horizontal reservation.
When asked if these developments indicate a wave of change in the state and inspire hope, he responded with a resounding ‘yes’.
“These orders indeed provide a significant amount of hope,” Fred added.
Despite the deeply entrenched patriarchal structure of the country, there is ongoing sensitization across various sectors, including the legal community.
Madras HC’s Directive on Horizontal Reservation:
The Madras High Court has mandated the Tamil Nadu government to provide horizontal reservation for all individuals identifying as transgender in the state.
Justice Ilanthiraiyan deemed the existing GO arbitrary and unconstitutional, directing the state to implement horizontal reservation for the transgender community in line with the Supreme Court’s NALSA judgement within 12 weeks.
The court struck down the GO issued by the Backward Classes, Most Backward Classes & Minorities Welfare (BCC) Department, which included transgender persons under the Most Backward Class category.
This comes after Rashika Raj, a qualified nurse who identifies as a transgender person, had filed a petition. She had been registered with the Tamil Nadu Nurses and Midwives Council and was granted reservation benefits under the Most Backward Class (MBC) category through vertical reservation.
However, Raj argued that this approach treated the transgender community as a caste, rather than recognizing transgender identity through horizontal reservation. "This approach was highly arbitrary," stated Raj before the Court.
Her counsel, NS Tanvi, echoed this sentiment, emphasizing the arbitrary nature of the reservation system.
The Court concurred, emphasizing that any reservation provided to the transgender community must address the intersection of their identities to be effective.
The judgement said, “In view of the above discussion, the impugned Government Order is liable to be struck down for being manifestly arbitrary and thereby, violative of Article 14, 15, 16, 19 and 21 of Constitution of India. Accordingly, G.O.Ms.No.28, Backward Classes,”
“Most Backward Classes & Minorities Welfare (BCC) Department dated 06.04.2015 issued by the second respondent, is hereby quashed.”
“The second respondent is directed to provide horizontal reservation to the transgender community in compliance of the Judgment of Hon'ble Supreme Court of India in NALSA v Union of India reported in (2014) 5 SCC 438, within a period of twelve weeks from the date of receipt of a copy of this order,”
The court also highlighted the state's failure to properly implement the Supreme Court's NALSA judgement, noting that treating transgender persons as a caste under the MBC category violated constitutional principles. The court emphasized that only horizontal reservation, treating transgender persons based on gender identity rather than caste, complied with the Supreme Court's directives.
The state argued that another GO from the Social Welfare and Nutritious Meal Programme Department addressed the issue by classifying third-gender candidates without a community certificate as MBC while recognizing their respective communities if they had SC or ST certificates.
However, the court found that the state's approach conflicted with the Supreme Court's directive to treat transgender persons as a socially and educationally backward class, extending all kinds of reservations to them.
The court emphasized that the degree of discrimination faced by transgender persons is an intersection of their gender and caste identities, and effective reservation must address this intersection. The court noted that Karnataka had amended its Public Service Conditions of Service Act to provide 1% reservation across all community reservations.
Consequently, the court directed Tamil Nadu to implement horizontal reservation within 12 weeks and quashed the previous GO.
The judgement further added, “Once the transgender identity is a gender identity like man or woman, it is manifestly arbitrary and in violation of Article 14 to give woman horizontal reservation and treat transgender persons similar to men.”
“Therefore, if once gender identity is given horizontal reservation, it follows that the transgender community, being a socially and educationally backward community discriminated on the basis of gender identity, should also be entitled to similar reservation.”
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