Madras High Court Asks State To Consider Providing Horizontal Reservation To Transgender Persons In Education, Public Employment

Chief Justice SV Gangapurwala and Justice Bharatha Chakravarthy asked the Advocate General to get instructions on the possible policy decision and respond by March 4th.

The court was hearing pleas by Grace Banu Ganesan and Rizwan Bharathi, both working for the rights of trans persons, seeking to frame and implement a horizontal reservation policy for transgender and intersex persons in public employment and education. 

The petition had also sought directions to the Tamil Nadu State Transgender Welfare Board to issue identity cards to transgender and intersex persons allowing them to avail these reservations, in accordance with the principle of self-identification of gender identity and which should not require medical re-assignment, mental health assessment, hormone or any other treatment as a pre-condition and without any biological examination.

In their plea, the petitioners had submitted that while transgender persons were included in the Most Backward Class category, there were no clear guidelines on how they should be provided reservation in public employment and education or which category of transgender persons could avail reservation. 

Thus, the petitioners had submitted that instead of including transgender persons under vertical reservation in the MBC category, reservation should be horizontal as a separate category for transgender and intersex persons on the basis of gender identity. 

The petitioners had also submitted that horizontal reservations cut across vertical reservations, it allows for reservations not just on the basis of one identity i.e. gender or disability, but enables reservations to be provided where a person has more than one significant identity such as gender and caste, or disability and caste. 

The petitioners had also filed another plea in 2023, challenging the notification issued by the Tamil Nadu Uniformed Services Recruitment Board calling for applications for the recruitment of Sub-Inspectors of Police [Taluk, Armed Reserves & Special Police (Men, Women & Transgenders)]. These petitions have now been clubbed with the earlier pleas and will be heard together by the court. 

When the matter was taken up today, Senior Advocate Jayna Kothari, appearing for the petitioners submitted that the present reservation policy would not give any benefits to transgender persons for being members of the community. Kothari suggested that the State could consider providing 1% horizontal reservation to transgender persons like the state of Karnataka.

Agreeing to this, the court added that the transgender persons could be given exclusive reservation without making them choose between the binary divisions of male and female.

The court thus suggested that the State could come up with a horizontal reservation policy without affecting the vertical reservations already in place.

Case Title: Grace Banu Ganesan and another v State of Tamil Nadu and another

Case No: WP 21631 of 2023