7 Years Post NALSA, Trans Community Won a Battle But Lost the War

Among the SC observations were reservation in educational institutions & public appointments for trans people.

On 15 April 2014, the Supreme Court of India delivered the historic judgment that recognised the trans persons as ‘the third gender’. 

(Photo: PTI)

“Seldom, our society realises or cares to realise the trauma, agony and pain which the members of transgender community undergo, nor appreciates the innate feelings of the members of the transgender community, especially of those whose mind and body disown their biological sex.”

With these words of Justice Radhakrishnan, the National Legal Services Authority (NALSA) vs Union of India judgment echoed the sentiments of the one of India’s most oppressed minority groups – the transgender community.

On 15 April 2014, when the Supreme Court of India delivered the historic judgment declaring the transpersons as ‘the third gender’, the transgender community saw it as a ray of hope. The needs and rights of the community were finally recognised by the highest court of law.

The dreams were assured to be fulfilled; the dignity was promised to be granted.

But have the rights of the community been implemented even after seven years? Like a tragic story, even after winning the battle, the transgender community is losing the war.

Verdict Took Backseat From Day One

India was celebrating one its biggest festival – the Lok Sabha elections of 2014 was in full swing. In between the fourth and the fifth phase of voting, the NALSA judgment was pronounced. Amid the noise of election rallies, the verdict for transgender persons took the backseat.

While recognising the gender identity of the most marginalised community, the Supreme Court directed the government several steps to be taken for the betterment of such persons.

The most important of those measures was reservation in educational institutions and public appointments as envisaged under Article 15(4), considering the community as socially and educationally backward classes.

The apex court observed, “State is bound to take some affirmative action for their advancement so that the injustice done to them for centuries could be remedied.”

But that justice against centuries of injustices is yet to be implemented in reality.

Reservation in Education, Jobs – Need of the Hour

According to 2011 census, there are 4.88 lakh transgender persons in India. But this number is pegged to be far less from the reality.

Due to the stigma attached, most transgender persons do not reveal their identity – and what’s worse, the government has made no attempts to reach out to them. Almost all of them, at some point, have faced discrimination in society, at work or within their own families.

• Almost 92 percent of members from the transgender community have been denied jobs in the organised sector.
• About 96 percent are pushed to take up low-paying jobs and forced to indulge in beggary and sex work.
• At least 60 percent of them have never attended schools, as per a study conducted by National Human Rights Commission.

In such a scenario, reservation in education and jobs alone can help the community in becoming financially independent.

But most, unfortunately, the government has so far remained unmoved towards the sufferings of the community – despite the order to provide reservation for the community in NALSA judgment.

Silence, Inaction in Parliament?

The Transgender Persons Bill, 2014, was introduced as a Private Member’s Bill by DMK MP Tiruchi Siva and passed by the Rajya Sabha in 2015. The Bill, which had been drawn up in consultation with the community, was reflective of the NALSA verdict and incorporated several progressive recommendations such as reservation in education and employment opportunities, right to self determination, special court for transpersons and more.

The Lok Sabha was expected to take up the Bill soon, but in December 2015, the Ministry of Social Justice and Empowerment came up with a draft of the Transgender Persons Protection of Rights Bill, 2016. The Bill received flak from the trans community for including none of the provisions of Siva’s Bill – and for getting the very definition of the term ‘transgender’ wrong.

In 2017, replying to a question in Lok Sabha, Vijay Sampla, the then Minister of Social Justice and Empowerment, said the government agrees with the directives of the NALSA judgment and has no plans to challenge them.

Two years after the promise, the Central government implemented the Transgender Persons (Protection of Rights) Act, 2019, despite widespread protests from the community. This Act, again, completely ignores the need for reservation.

In February 2021, answering a related question in the Parliament, Union Minister of Social Justice and Empowerment Thawar Chand Gehlot clarified such a provision may not be available in the near future.

“There is no proposal to provide reservations for transgender persons in job and education.”

Thawar Chand Gehlot, Union Minister of Social Justice and Empowerment

This is in complete defiance of the NALSA judgment, which reflected that denying the rights on any pretext is arbitrary discrimination by the government on its citizens, more particularly when the discrimination is against the most oppressed community of the society.

No Political Intention Beyond PR?

Political parties, when it comes to the issue of reservations, keep blowing trumpets. Be it reservation on the ground of caste and religion or for the local residents – political parties go miles to grant reservation.

But when it comes to transgender persons, they seem to be hesitant to even follow the directives of the Supreme Court. Truth is, there is no legal hurdle for the government to extend reservations to the community. The Opposition parties are not vocal – reflecting not just inherent bias, but also their own vote bank politics.

Elected representatives – be it at the Central or state level – talk about ‘uplifting’ the transgender community. But do they do anything that is beyond being a PR gimmick or lip service?

The Uttar Pradesh government has included special privileges for transgender persons in their policy for startups. The Odisha government is engaging the community in the collection of government taxes and is handing over tenders for public parking to them. The Kochi Metro employed several transgender persons on contractual employment, but most of them left the job due to discrimination at workplace and lack of affordable housing.

There are many such instances of the governments engaging with the community claiming inclusion, but they turn out to be nothing but photo-op events. Providing the community with such schemes while denying them their right is nothing but biased discrimination. These so-called empowerment projects have only further distanced the community from mainstream society.

Several applications are now pending before various high courts and the apex court, seeking reservation for trans persons. On 12 March, the Chief Justice of India SA Bobde had issued a notice to the Central government seeking their response on education and job quota for transgender persons.

It is tyranny that after a historic verdict in the highest court in the land, the transgender community is fighting for basic human rights – the means to live a life of respect and dignity.

(The author is a transgender woman, corporate lawyer, and LGBTQIA+ activist. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)