Trans rights: Can free education replace the demand for quota?

The demand for horizontal reservations is an appeal for substantive equality. Let us unpack why this is so.

Reservation is one of the constitutional measures that ensures the representation of historically disadvantaged and oppressed groups in educational institutions, employment and legislative assemblies. This is done by taking into consideration the caste system and socio-economic status amongst other factors to address social inequalities and systemic barriers.

Article 46 of the Constitution states: “The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.”

There are two types of reservations — vertical and horizontal. Reservations for Scheduled Castes (SC), Scheduled Tribes (ST), Other Backward Classes (OBC) and Economically Weaker Sections (EWS) are known as vertical reservations. Reservations for women, children, transgender people, and persons with disabilities are known as horizontal reservations because they are not homogenous categories and hail from various communities and groups.

Transgender persons are not a homogenous category, and, like everyone else, have multiple identities based on caste, race, religion, and ethnicity. Many transgender persons face both gender as well as caste or ethnicity-based oppression. Thus, the demand for reservations is specifically for horizontal reservations.

Despite directions of the Supreme Court, the inaction of the Union and many state governments have compelled transgender persons to knock on the doors of courts.

In the petition filed by NGO Sampada Grameen Mahila Sanstha and Community Based Organisation Muskan Sanstha, along with transpersons Vinayak Kashid (29) and Arya (22), before the Bombay high court (HC), the state government’s submission stated: “Considering the extent of vertical and horizontal reservations which are already provided, providing additional reservations for transgender persons seems difficult”. The Maharashtra government set up an expert committee to study the issue and make suggestions for the state policies for transpersons. It consists of 14 members, who are mostly secretaries of various state departments and psychologists.

This is not to say that all states are on the same level of inaction. In 2021, Karnataka granted 1% horizontal reservations for transgender persons in public employment in the state. It remains the only state to have done so, to date.

In 2015, Tamil Nadu placed transgender persons under the Most Backward Classes category (MBC). Recently, some states including Madhya Pradesh and Jharkhand decided to grant OBC status to transgender persons. However, these are forms of vertical reservation. Putting transgender persons under an existing MBC/OBC category though every transgender person may not be from the OBC/MBC category, undermines the constitutionally based distinction of graded social inequality of disadvantaged social groups. Here transgender persons from SC and ST categories will be compelled to choose between availing reservation either as a transgender person (OBC/MBC category in this case) or as an SC/ST person. What’s more, transgender persons competing in the OBC category will be forced to compete with others from various communities listed under the OBC category.

Practically, this means that transgender persons have to meet the mark cutoffs for the OBC/MBC category and even then they may not get a fair chance at getting a seat in an educational institution or a job in the public sector. This defeats the whole purpose of the reservation policy. On the other hand, if there was a horizontal reservation, a transgender person who is also an OBC/MBC person would only be competing with other transgender OBC/MBC persons, thus not only increasing their chances of representation — the main aim of reservation in the first place — but also ensuring that the competition takes existing social realities into account. For instance, transgender persons are prone to drop out of school, and not complete their education; they are prone to lose contact with their birth families on account of the non-acceptance of their gender identity etc.

The Supreme Court of India in the State of Kerala vs NM Thomas (1976) held that formal equality was insufficient to eliminate historical inequalities. The apex court laid down that the Constitution recognises both formal and substantive equality. Substantive equality recognises the fact that there is equality only among equals and to treat unequals equally is to perpetuate inequality. If due to historic disadvantages, certain classes of people have been placed at a significant disadvantage, then in order to uphold the principles of equality the State may legitimately take positive action to remedy the situation.

In 2014, in the National Legal Services Authority (NALSA) vs Union of India, the apex court recognised the fundamental rights of transgender persons under the Indian Constitution. It also directed the Union and state governments to treat transgender persons as a ‘Socially and Educationally Backward Class’ (SEBC) and extend all kinds of reservations in public education and employment. Therefore, it is an obligation of the Union and state governments to implement reservation policies and other welfare schemes for the advancement of the transgender community.

However, the Transgender Persons (Protection of Rights) Act, 2019 does not provide reservations for transgender persons. The Union government has adopted a more philanthropic attitude towards the transgender community instead of responsibly implementing rights-based policies and initiatives.

This is in stark contrast to the Rights of Persons with Disabilities Act, 2016 and the 2017 Rules under the Act which provides for reservation in education and employment, specifically horizontal reservations in public employment.

Prejudice and systemic barriers lead to a denial of employment, housing and education to transgender persons. The State’s lack of commitment to creating a horizontal reservation policy despite the Supreme Court’s directives deprives the community of full participation in society which leads to their continued oppression.

It took 67 years after independence for the apex court to acknowledge the rights of transgender persons, yet how many openly transgender persons are your neighbours, classmates, colleagues, civil servants or your MPs and MLAs? Therein lies the answer.

Prashant Bhaware is a lawyer and researcher at the Laws of Social Reproduction, a research project hosted by Kings College, London. Kanmani R is a savarna transgender woman and an advocate practising in the Madras high court