Transgender Persons Self-Identifying As Females Can't Be Clubbed Under Women Quota, Should Be Given Special Reservation : Madras High Court

The Madras High Court has held that clubbing Transgender persons who self-identified as females under the quota for women is unconstitutional.

"The decision of Tamil Nadu Uniform Services Recruitment Board (TNUSRB) to combine the TGs, who had opted for female category, along with the vacancies reserved for Women deprives equality to them which is violative of Articles 14 and 16(1) of the Constitution of India," the Court said.

The Court also held that the failure to provide any kind of reservation for the Trans Gender persons in the male category and placing them on par with the general category candidates, is violative of Articles 14 and 16(1) and unconstitutional. The Court held that such an action defies the direction in the Supreme Court's NALSA judgment to provide reservation for transgender persons in public employment.

"...the decision of TNUSRB to combine the reservation for the TGs, who identify themselves in the female category, along with the 30% vacancies for Women, is opposed to the findings and directions in NALSA. Likewise, the denial of any reservation for the TGs, who identify themselves in the male category, was also not the intent behind the findings in NALSA, as well as in Aradhana's case (supra).

Moreover, clubbing of reservations of the Women and TGs together is opposed to Article 16(1), since it denies the right of opportunity to the TGs in matters of public employment and therefore unconstitutional. Above all, the TGs who had opted for Men category, have been totally denied of any reservation, which infringes their right under Articles 14 and 16(1)", the Court held.

Denial of relaxations to Transgender persons who identified as "male" illegal.

The Court noted that though the TNUSRB granted certain concessions to transgender persons, they were denied to those persons who identified themselves as "Male" or "Third Gender".

"Though these appears to be concessions granted to the TGs, the notification restricts these concessions to such TGs, who recognize themselves as "Male" or"Third Gender". This was never the intent of NALSA. In para 135.2 of NALSA, it was declared that the TGs have a right to decide their self identified gender and the Central and State Governments were accordingly directed to grant legal recognition of their gender identity such as "Male" or "Female" or "Third Gender". Merely because the TNUSRB had extended the option to the TGs, who choose their self identified gender, they had no right to deprive their fundamental right of equal opportunity in employment, vis-a-vis the Women and the TGs, who identify themselves as Women.The object behind NALSA's declaration of the TGs' right to decide their self identified gender was to give them a recognition of their identity in various legislations and thereby extend equal protection of law, as well as to avoid discrimination", the Court observed.

"Thus, depriving the TGs, who recognize themselves as "Male" for the relaxations in the physical tests, is opposed to the object behind NALSA in upholding their right to decide their self identified gender, as well as violative of Articles 14 and 16(1) and therefore unconstitutional"

"Deprivation of the relaxations and concessions offered to female candidates in the physical measurement tests, endurance tests and physical efficiency tests to the TGs, who recognise themselves as "Male" or "Third Gender", is arbitrary and unreasonable, apart from infringing their fundamental right under Article 16(1)", the Court stated.

A single bench of Justice MS Ramesh delivered the verdict in a petition filed by transgender persons challenging the recruitment process for Grade-II Police Constables conducted by the TNUSRB.

 Finding the procedure adopted in the recruitment process stands vitiated, insofar as it relates to the failure to provide for a special reservation for the TGs of both male and female categories and deprivation of the concessions/relaxations in the physical tests, the High Court set aside the disqualification of all the petitioners.

Court recommends special reservation for Transgender persons

The Court was informed that the State of Karnataka has extended 1% specified reservation for transgender persons in public employment. Taking note of this, Justice Ramesh observed ,"If that be so, I do not find any impediment for the Government of Tamil Nadu to adopt a specified percentage of reservation for the TGs of this State also".

"This Court strongly recommends to the Government of Tamil Nadu for providing a specified percentage of special reservation for the TGs in matters of future public employments, apart from other relaxations and concessions extended to the socially and economically backward classes", the Court directed.

Relaxation in upper age limit can't be regarded as reservation

The Court further held that the relaxations in the upper age limit for the Transgender person, cannot be termed to be a "reservation", but rather a relaxation enabling them to fall within the zone of consideration and place them on par with the general category

Senior Advocate Jayna Kothari with Advocate C Prabhu appeared for the petitioners while the respondents were represented by Additional Advocate General P Kumaresan and Advocate C Selvaraj.

Case Title : Saratha vs Member Secretary, Tamil Nadu Uniformed Services Recruitment Board

Citation : 2022 LiveLaw (Mad) 82

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