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New Delhi: The Trans Rights Now Collective has urged the Union government to institute a mechanism for providing ‘horizontal reservations’ to transgender persons instead of including them in the Other Backward Classes category.
The Economic Times has reported that the Ministry of Social Justice and Empowerment recently sought the National Commission for Backward Classes’s advice on the issue of including transgender people in the OBC list.
The move follows the landmark 2014 judgment by the Supreme Court in NALSA vs Union of India. In the order, the SC had recognised the constitutional rights of equality, liberty, and dignity for transgender persons and had directed the Union and state governments to take steps to treat transgender people “as socially and educationally backward classes of citizens and extend all kinds of reservations in cases of admission in educational institutions and for public appointments”.
In December 2014, Rajya Sabha MP from Dravida Munnetra Kazhagam party, Tiruchi Siva, piloted a private member’s bill, which provided for “reservation in employment and education for transgender and intersex persons”. This was passed unanimously by the Rajya Sabha.
The bill proposed a scheme of horizontal reservation for transgender and intersex persons – which meant that they would get benefits as a separate class within already existing reservation slabs, similar to the way reservation exists for women or people with disabilities.
The subsequent Transgender Persons (Protection of Rights) Bill 2016, which did away with many progressive provisions in the private member’s bill did not mention reservation. This was met with wide spread protests from transgender people and activists.
TRNC, an organisation working towards gaining educational and employment rights for transgender people, has argued that including transgender persons within the OBC category will be detrimental to large sections of the community.
“The Union government says that it is doing this because the NALSA judgment said so but the NALSA judgment does not call for including transgender persons in the ‘OBC’ category. It says transgender persons should be considered as socially and educationally backward classes. That’s a recommendation from the court, the government has full freedom to decide how it wants to do that,” says Kanmani R., a transwoman and advocate from Delhi.
By clubbing all transgender persons into one category, the government is neglecting the diversity that exists within the community, activists feel. “We are not all OBC category people. We have different caste backgrounds and many of us are facing caste-based oppression within our own community too,” says Grace Banu, founder and director of the Trans Rights Now Collective.
The present proposal is not cognisant of whether a transgender person is from a Scheduled Caste, Scheduled Tribe, or OBC or from the ‘general’ category, thereby making transgender persons from the first three categories choose between reservations on the basis of their caste status or gender identity, the statement said.
Highlighting the need to recognise the existence of multiple identities, Kanmani says, “It’s not possible for one person to have just one identity”.
If transgender people are included in OBC, they will have to compete with multiple groups already included in the category. “Do you really expect transpersons to compete with everyone and still get through?” the statement asks.
Currently, Karnataka is the only state that provides 1% horizontal reservation for transgender people. The reservation of 1% is available in each category – general, SC, ST, and in each of the categories under ‘OBC’. Rule 9 of the Karnataka Civil Services (General Recruitment) Rules, 1977, has been amended to enable reservation for transgender persons.
The Madras high court has, in several judgments, directed that horizontal reservation be provided for transgender persons. In a 2016 decision, in Swapna vs The Chief Secretary, the high court specifically held that reservations be provided to transgender persons in education and employment on a percentage or post basis where at least one post be made available for transgender persons in the different categories of SC, ST, Most Backward Classes, etc., within a period of six months.