In a significant order that will benefit the transgender community, the Madras High Court on Tuesday, January 9, 2024, asked the T.N. government to consider the possibility of providing 1% horizontal reservation for the community across all caste categories in education as well as public employment.
Chief Justice Sanjay V. Gangapurwala and Justice D. Bharatha Chakravarthy granted time till March 4, 2024 for Advocate General R. Shunmugasundaram to take instructions from government officials, after the law officer said this was a policy decision which had to be taken at the highest level.
The judges agreed with Senior Counsel Jayna Kothari, representing transgender activist Grace Banu Ganesan who had filed a public interest litigation (PIL) petition, that though Tamil Nadu was a pioneer in transgender persons’ upliftment, the reservation policy for the community in the State was somewhat complicated.
They pointed out that under the present policy, transgender persons who declare themselves as women get to enjoy horizontal reservation provided for women across all caste categories. However, those who declare themselves either as men or as of the third gender, were considered either under their respective caste category or under the Most Backward Class (MBC) category, whichever was beneficial to them.
Such a complicated policy leads to a transgender person who had declared himself as male and belonging to the Scheduled Caste or Scheduled Tribe category being considered only as a SC/ST male candidate, without any special consideration for being a transgender person, the judges said.
On the other hand, recording the submission of Ms. Kothari that the Karnataka government had come up with a policy of providing 1% horizontal reservation for transgender persons across all caste categories, the judges said, the Tamil Nadu government too, could consider such a simple solution.
The Chief Justice told the A-G that the Supreme Court in the famous NALSA (National Legal Services Authority) judgement in 2014 had directed the Centre as well as all State governments to provide reservations for transgender persons so that they could be integrated into mainstream society.
Therefore, the Tamil Nadu government could consider such a horizontal reservation policy without affecting the cap on vertical reservations, he said. Justice Chakravarthy also said, that transgender persons could be provided with exclusive reservation without pushing them into the binary division of male and female.
