New Delhi: Transgender persons must be given 1 percent reservation in the West Bengal government services, the Calcutta High Court said last week. A 2014 Supreme Court judgment, National Legal Services Authority v. Union of India, grants reservations in admissions to educational institutes and jobs to transgender people. However, the high court held that such mandatory reservations had not been implemented in West Bengal.
The Transgender Persons (Protection of Rights) Act, 2019, a central law, defines a transgender person as one whose gender does not match the one assigned at birth. It includes within its fold transmen and transwomen, persons with intersex variations, genderqueer people, and individuals with various socio-cultural identities like kinnar, aravani, and hijra.
A transgender teacher who passed the eligibility test for a teaching position under the West Bengal government but was not called for an interview or counselling filed a writ petition in the Calcutta High Court. The petition was heard, and Justice Rajasekhar Mantha issued directions to the state government to immediately implement reservations for transgender persons.
“[T]his court directs the chief secretary of the Government of West Bengal to ensure 1 percent reservation for the category of persons mentioned in the… [SC decision], in all public employment in the State.”, the high court said.
The landmark 2014 SC decision, which legally recognised the rights of transgender people for the first time, made nine declarations to protect the rights of transgender persons. These included provsion of medical care in hospitals and separate public toilets, among other rights and facilities.
After this, Parliament passed the Transgender Persons (Protection of Rights) Act in 2019. This prohibits discrimination against transgender people and provides for the creation of welfare policies and reservations for them in educational institutes and jobs. The act prescribes a punishment of up to two years’ imprisonment, along with a fine, in case one commits an offence against transgender persons.
In November 2022, West Bengal’s Department of Women and Child Development and Social Welfare had adopted a policy that called for the equal treatment of transgenders and to provide them with equal employment opportunities. The high court said that despite this policy, reservations had not been implemented.
Notably, the Centre has submitted before the SC that transgender people can avail existing reservations under the categories of Scheduled Caste, Scheduled Tribe, and Other Backward Classes, and there exists no separate policy for these.
ThePrint explains the 2014 Supreme Court judgment and the 2019 act of Parliament.
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SC ruling legally recognised transgender people
In 2014, transgender persons were legally recognised for the first time. The Supreme Court judgment said that hijras and eunuchs must be considered a “third gender”, apart from the gender binary, to safeguard their fundamental rights such as freedom of speech and expression. The National Legal Services Authority of India (NALSA), a statutory body whose purpose is to provide free legal services to eligible candidates, was the primary petitioner for the legal recognition of transgender people.
The court also recognised a transgender person’s right to their self-identified gender, which refers to the liberty to declare one’s gender as male, female, or a third gender. Other observations and directions included the mandatory setting up of healthcare centres for sexual health problems and the provision of separate washrooms for transgender persons. The court also observed that insisting on SRS (sex reassignment surgery) for declaring one’s gender was “immoral and illegal”.
It had also directed both the Centre and states to extend all kinds of reservation benefits to transgender persons in education and public employment.
“We direct the Centre and the state governments to take steps to treat them as Socially and Educationally Backward Classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments,” the court had said.
Keeping in view the Supreme Court’s judgment, the Calcutta High Court has now ordered mandatory 1 percent reservation in public employment for transgender people, something that had not been implemented in West Bengal so far.
While the Supreme Court judgment covers both employment and education, the high court’s decision has introduced the 1 percent reservation policy only for employment in government services.
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2019 act prohibits discrimination
The 2019 Act prohibits discrimination against transgender persons, which includes “denial” or “unfair treatment” to transgender persons. For instance, denial and unfair treatment in education, healthcare, employment and housing are covered by the act. It also requires the government to take steps to introduce adequate healthcare facilities, including HIV surveillance centres, facilities for sex-reassignment surgeries, and provision for comprehensive health insurance.
One of the key protections provided by the act is a “right to residence” for transgender individuals. This gives them the right to reside in and be included in their family’s household.
“Every transgender person shall have… a right to reside in the household where a parent or immediate family members reside,” Section 12 of the act notes.
It is only in cases where the immediate family is unable to take care of the individual that courts have the power to place the individual in a rehabilitation centre.
Certificate of identity, complaint officer
A person who identifies as transgender can also apply to the district magistrate for the issue of a certificate of identity indicating their gender.
“A transgender person may make an application to the district magistrate for issuing a certificate of identity as a transgender person, in such form and manner, and accompanied with such documents, as may be prescribed,” the law says.
Notably, these identity cards have been operationalised and people can apply for them online by providing proof of residential address, photo identification, signature and an affidavit/medical certificate. The affidavit must declare that the person perceives themselves as transgender because their gender does not match the one assigned at birth.
The law also says that all establishments, including companies, institutions, and government bodies, must provide for a complaint officer to look into complaints filed under the 2019 act. These could be complaints alleging discrimination or unfair treatment as covered by the legislation.
Someone who commits an offence under the legislation can be subject to a fine and imprisonment of up to two years, depending on the offence. This punishment may be for the denial of public places, forced or bonded labour, removal from the household, or any form of abuse.
(Edited by Radifah Kabir)
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