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OBC quota for transgenders? Central move 'undermines' right to representation

By Ishita Gupta*

With the education ministry considering reservation for transgenders in higher education institutions via the OBC route, the issue of transgender rights has got a new voice. The Madras High Court also picked up the matter for hearing in March 2019, in pursuance of a PIL filed by activist Grace Banu, demanding horizontal reservation for transgenders as against reservation currently being offered by the state as MBC, which is a form of vertical reservation.
As per the 2011 Census, there are nearly 4.8 lakh transgenders in India, the estimates peg the actual number at more than 50 lakh. Less than 30,000 of these are registered with Election Commission. The numbers are sufficient to highlight the fact that we are missing the bigger picture, the chunk of the iceberg that lies below the surface.
Transgender rights in India is a sensitive topic, with the community struggling not only for a share of state’s welfare allocation, but for their basic human rights and identity. The lack of awareness surrounding the sex and gender connotations and the general quagmire around the LGBTQIA terminology further prevents a more open debate on the topic. 
A study by National Human Rights Commission brings proof. As per the study, more than 96% of transgenders are refused access to jobs, despite being qualified. More than 60% of them have never attended schools. The figures are not surprising. Atrocity starts for transgenders at home and becomes a bigger struggle at schools, where the pupils are not sensitised to the concept of third gender.
The Supreme Court has, over the years, passed landmark judgements to uphold the transgender rights. In its 2014 order in the NALSA v/s Union of India case, the Court directed for Centre and State governments to take steps to treat transgenders “as socially and educationally backward classes of citizens and extend all kinds of reservation in admission to educational institutions and in public appointments”. SC held that transgenders have been at the end of discrimination in the society and thus are entitled to reservation under Article 16 of our Constitution.
However, despite the issue receiving multiple voices over the years, the progress on the matter is not encouraging. Barring a few southern states like Tamil Nadu, most of the states in India do not have a separate policy to address transgender concerns, let alone providing for a reservation. The passage of the Transgender Persons (Protection of Rights) Act, 2019 further highlights the sensitivity of the topic.
Despite multiple parties demanding reservation in the Act, the Centre failed to make provisions for the same. The proposed inclusion of transgenders in the 27% OBC quota was dropped from the Bill after uproar from the OBC communities who lobbied against the move, since this would imply a reduced share of the pie for them. Even after a parliamentary panel slammed the Bill for not addressing the reservation issue, the Centre moved ahead with the Bill.
One remembers the Transgender Rights Bill 2014 tabled by DMK’s Tiruchi Siva in the Rajya Sabha. The Bill, inter alia, provided for a 2% reservation in educational institutions and public jobs. Unfortunately, the Bill, which got passed by Rajya Sabha in a historical moment, could not see the light of day and lapsed on dissolution of the lower house. The new Act greatly takes away the rights that were proposed under the 2014 Bill.
Grace Banu 
Now, activist Grace Banu has filed a PIL before the Madras HC, demanding horizontal reservation in educational institutions. Tamil Nadu currently provides reservation to transgenders under the Most Backward Class (MBC) category, which is a form of vertical reservation. 
Vertical reservation will imply that transgenders who also belong to SC/ST communities will have to forego their reservation rights under the said categories and claim reservation as transgender under the MBC quota.
This will alienate the rights of transgenders who face discrimination at the intersection of caste and sexual orientation. Demand for horizontal reservation is also based on a more fundamental concept. Sexual orientation is a more natural and personal construct than societal caste based system, and thus spans across these definitions. Hence, a horizontal reservation for transgenders in educational institutions and public jobs, similar to reservations provided for women and persons with disabilities, is more appropriate.
Citing the complexity of reservation law in India and the social and legal intricacies involved in the issue, it is high time that the issue is addressed by a specially constituted panel and the transgenders are invited to the policy table. Transgenders need to be given a greater say in policy implementation, and their concerns duly heard before the law is promulgated. State welfare policies and National Council for Transgender Persons are some positive policy level steps in this regard.
However, there is a greater coordination required between government authorities and transgender rights bodies so that the laws are not made in vacuum or in haste. This will ensure that the directives that are finally made are acceptable to the larger community. A panel constituted under the aegis of Parliament shall be constituted to look into the lacunae in the current Transgender Rights Act and provide for reservation provisions.
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*IIM Ahmedabad, PGP in Management

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