Making Rights Real – Policy Brief – India

Reservations for transgender and intersex persons in education and employment are crucial for their social and economic inclusion because only 46% of transgender persons in India are literate and 94% are either unemployed or employed in the informal sector. CLPR’s policy brief develops a comprehensive and functional strategy for the implementation of reservations for transgender and intersex persons in educational institutions and public employment.

BENEFICIARIES OF THE RESERVATION

The brief identifies that in the Indian context, no separate definition for ‘intersex’ has been provided and intersex persons have been included within the term ‘transgender’. Many cases of transgender reservation are in fact of intersex persons in India. It settled on the following definitions for both transgender and intersex persons:

Transgender Person: Transgender persons are persons whose gender identity or gender expression does not conform to their biological sex. This includes persons who intend to or have undergone Sex Reassignment Surgery (SRS) to align their biological sex with their gender identity in order to become male or female, transsexual persons, cross-dressers and all other identities.

Intersex Person: An intersex person is born with sexual anatomy, reproductive organs, and/or chromosome patterns that do not fit the typical definition of male or female. This may be apparent at birth or become so later in life. An intersex person may identify as male or female or as neither.

While NALSA guaranteed the right to self-identification of one’s gender as male, female or transgender, it did not lay down any method or self-identification protocol. Hence, medical procedures or hormone therapy should not be required as a pre-condition for any legal recognition or identity documents for transgender and intersex persons. Gender recognition procedures should be quick, accessible, transparent and based on self-determination. If a person requires a change in how their gender is recorded, their expression of intent should serve as the sole basis for such a change. Subsequently, the process of obtaining identity cards by transgender and intersex persons must be based only on self-identification.

HOW SHOULD RESERVATION FOR TRANSGENDER AND INTERSEX PERSONS BE IMPLEMENTED?

The Policy Brief outlines the categorical basis for reservation and the extent of reservation that must be provided.

TRANSGENDER AND INTERSEX PERSONS’ RESERVATIONS UNDER THE ‘TRANSGENDER’ CATEGORY

It states that the reservations extended to women under Article 15(3) should be extended to transgender and intersex persons, as special reservations and horizontal reservation. Ideally, transgender persons, like women and persons with a disability, should also be given reservation under Articles 15(3) and 16(1), as a horizontal category for the purpose of reservation. Horizontal reservations should be provided and should be compartmentalised. This would mean that transgender and intersex candidates should be selected on the basis of merit lists under the categories of SC, ST, OBC and OC to which they belong. For example, if a transgender candidate belongs to the SC category, they will be assessed by the merit lists prepared within that category thus ensuring fair competition to all the candidates.

TRANSGENDER AND INTERSEX PERSONS’ RESERVATIONS UNDER THE ‘WOMAN’ CATEGORY

In Nangai v. Superintendent of Police, the Madras High Court held that: ‘treating the petitioner as not a female on the basis of medical declaration that she is a transsexual and forcing her to accept the said sexual identity will surely be an infringement of the rights of the petitioner guaranteed under Articles 14, 15, 16, 19(1)(a) and 21 of the Constitution of India.…….the petitioner was born as a female, recognised by the society as a female, she choose to identify herself as a female for all purposes. Therefore, I hold that she is a female in the legal parlance and thus, she is eligible for appointment as a Woman Police Constable.” Therefore, transgender persons who wish to identify only as ‘women’ and do not wish to avail reservation relying on their transgender identity card should be permitted to avail reservations under the distinct horizontal category of ‘woman’ that is currently in place.

EXTENT OF RESERVATIONS FOR TRANSGENDER AND INTERSEX PERSONS

The policy brief does not propose a definite extent of the reservation be provided by the States or the Central Government. Such a proposal must rest on a detailed and nation-wide empirical assessment of the size of the transgender and intersex population in India. The ‘transgender’ category be treated as a horizontal reservation, it will not breach the 50% limit set by the Supreme Court on the extent of vertical reservations.

CONCLUSION AND RECOMMENDATIONS

Central legislation should be enacted to respond to the issues discussed in the policy brief. The legislation should include the following aspects:

  1. The statute should clearly define “transgender and intersex persons” building on the right to self-identification of gender identity and laying down a process of self-identification of gender identity, without any medical diagnosis or mental health assessment which would encroach on the dignity and privacy of transgender persons.
  2. The statute should provide for the establishment of Committees or State Transgender Welfare Boards to issue identification cards based on the principle of self-identification. At least 50% of such Committees or Boards should be transgender and intersex persons. Further, these bodies must conduct periodic surveys and studies on the state of affairs of the transgender community and the extent to which reservation and supporting policies are improving their conditions.
  3. The Statute should specifically provide for horizontal reservations for transgender and intersex persons in education and public employment either under the ‘transgender/gender identity’ or ‘woman’ categories. A horizontal compartmentalized approach would be sensitive to the intersectional experience of discrimination on the basis of gender identity and caste. Moreover, reservation under the ‘transgender/gender identity’ category should be accessible solely on the possession of an identity card.
  4. The Statute must specify the extent of the reservation quota based on a time-bound nationwide empirical survey carried out by the Central Government. Such a survey must estimate the number of transgender persons and their current living and social conditions so that it forms a comprehensive basis for legal intervention in the near future.

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