Intersex and transgender people need reservations advocates report

(from left) Anup Surendranath, Grace Banu and Jayna Kothari

Arjun Rajan

CLPR’s policy brief provides framework for providing reservations to Transgender and Intersex persons

Centre for Law and Policy Research (CLPR), a legal research organisation released a policy brief advocating the implementation of reservations for intersex and transgender people in education and public employment. This could not have come at a more opportune moment as Lok Sabha passed the much criticised Transgender (Protection of Rights ) Bill 2018 some days ago.

Unlike the bill, the policy brief advocates for reservation to transgender and intersex people, addresses key issues such as identification of the beneficiaries, and the form of reservation (vertical or horizontal ) that is required for transgender and intersex persons. The policy brief comes at a time when the Transgender (Protection of Rights ) Bill 2018 has been passed in the Lok Sabha and doesn’t have provisions for reservations. In addition to not having provisions for reservations, it goes against several other directions under the NALSA judgment. Activists have taken issue with  the screening committee that will certify transgender persons; the inadequacy of the bill in addressing violence against transgender person, among others.

The policy brief was released by Hon’ble Mr Justice L Narayana Swamy at the Bangalore International Centre (BIC), and the panelists present for the discussion were Grace Banu, activist and founder of Trans Rights Now Collective, Dr. Anup Surendranath, assistant professor, National Law School, Delhi and Jayna Kothari, executive director, CLPR. The highlights of the recommendations were provided by Kothari who stated that there should be a central law that responds to the following points. Firstly there should be a clear definition of transgender and intersex persons. Currently, even in court judgments ‘transgender’ is an umbrella term that is used for different groups. She provided definitions that are internationally recognized and used. This, she states is necessary because the first step in providing reservation is to be able to identify the social group.

Secondly she stated that while the Supreme Court in the NALSA vs Union of India (2014) judgment guaranteed the right to self determination of one’s gender as female, male or transgender; it didn’t lay down any guidelines for it. The report recommends having transgender committees or welfare boards which will issue identification cards on the basis of self identification; and with a representation of at least 50 percent from the transgender community. Thirdly the reservations that are provided should be horizontal and not vertical. The reservations under the categories of SC, ST and OBC are vertical categories, and if there was another such category for transgender and intersex persons then those who are marginalized from these groups would have to give up their other identities (caste/class) and compete with the more privileged. Horizontal reservations cuts across vertical reservations and creates inter locking reservations which recognizes various identities. In the past people with disabilities, freedom fighters have been provided horizontal reservations. As a final recommendation, Kothari stated that a time bound nationwide survey of transgender population should be conducted to assess the extent of reservation quota required.

Trans-activist Grace Banu briefly spoke about the several hurdles that people from the transgender community currently experience in their attempts to gain higher education or access dignified employment. She painted a dismal picture when she speaks about the lack of initiatives by state governments in implementing the Supreme Court directions in the NALSA judgment to advance the social, cultural, economic and cultural rights of transgender persons.

Anup Surendranth, in his response to the policy brief pointed out one should be aware that even though horizontal reservations try to address the issue of hierarchy within groups; these hierarchies would still persist to a certain degree. He asserted that while he is a strong supporter of reservations; they shouldn’t be seen as being able to bring about empowerment of entire groups. He added that reservations are just one of the means by which marginalized groups can be empowered.

During the open discussions an audience member pointed to the possibility of instances where more privileged groups might be able to access transgender identity cards and claim reservations, similar to other groups acquiring SC (scheduled caste) certificates. In response Surendranath stated that it could be a possibility, but that it couldn’t be a principle over which reservations are denied. Banu added that members from the transgender community should take it upon themselves to expose such people in instances of undeserved reservations.