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Activist Grace Banu Ganeshan has filed a PIL in Madras High Court insisting upon reservation of one percent seats for transgenders in appointments for the post of Office Assistant and Librarian in the High Court.

In the plea, Ganeshan contends that 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 disability, should also be given reservation under Articles 15(3) and 16(1), as a horizontal category for the purpose of reservation,” Ganeshan avers.

Through a notification dated March 14, 2021, vacancies in the Madras High Court for various posts were notified, but in the notification, there was nothing regarding the reservation for transgender persons.

Resultantly, Ganeshan filed the present plea praying for a special recruitment drive for the transgenders by such reservation.

Arguing that Registrar General of the High Court is a competent authority to public own Rules/regulations and is not dependent upon the State Government for executive directions, Ganeshan pleads that if such special recruitment drive for transgenders is conducted, then it would set an example for the State Government to come forward to make provision for such reservations.

Ganeshan pleads,

“The issue of reservation pertaining to the transgenders has not been analyzed and visualized so far by the legislature………..the transgenders too, on par with class of vulnerability and abject state of poverty and weaker sex, who are stigmatized and traumatized by the society, are entitled to avail protection from this Hon'ble Court.”

To support the issue raised, Ganeshan highlights that though The Transgender Persons (Protection of Rights Act, 2019) provides for non-discrimination against transgender community, but it has miserably failed as there are no provisions for reservation of transgender people in educational and employment institutions.

Ganeshan points out that the transgender rights bill initially had a provision for 2 per cent reservation for transgender community in educational institutions and every Government establishment, but the final Act is devoid of such provisions.

Ganeshan stresses that reservation for transgender and intersex persons in education and employment are crucial for their social and economic inclusion because as per 2011 census data only 46% of transgender persons in India are literate and 94% are either unemployed or employed in the informal sector.

To strengthen his argument for including trans person under reservations under Article 15(3), Ganeshan refers to the Apex Court’s ruling in National Legal Services Authority (Nalsa) Vs. Union of India (2014), and contends that as the scope of 'sex' under Article 15 has been expanded and it was held that 'gender identity' is an attribute of 'sex' and therefore, discrimination on the basis of 'gender identity' would qualify as discrimination on the basis of sex.

Ganeshan also refers to Madras High Court’s judgment in Swapna v. Chief Secretary (2013), in which High Court directed the State Government to provide a scheme for reservation for transgender persons within 6 months.

“But this is yet to be done,” however he adds.

Ganeshan avers that the High Court directed the Tamil Nadu Social Welfare Department to consider reservation for transgender persons, rather than providing for reservations under the Most Backward Classes' category.

Importantly, Ganeshan highlights the Karnataka Government’s unprecedented move which made it the first state in India to reserve jobs in public employment in favour of transgender persons.

Lastly, reiterating Madras High Court’s recent unique and creative decisions, Ganeshan prays for the direction to the Registrar General of Madras High Court to conduct a special recruitment drive for the transgenders with 1% reservation for them in the vacancies notified earlier.

Case Title: Grace Banu Ganeshan v. The Chief Secretary, Govt. of Tamil Nadu and Ors.