Introduction
In 2014, the Supreme Court of India pronounced an important judgment on gender recognition in India. NALSA v. Union of India, celebrating its 6th anniversary in 2020, has been instrumental in shaping trans and intersex persons rights in the Indian legal system. It was a watershed moment as the court held that the right to gender identity is inherent to one’s right to life, autonomy and dignity. However, NALSA was only the beginning. Based on the directions of NALSA, there is a growing demand for representation of the trans and intersex community in society.
NALSA had directed that trans and intersex persons are to be treated as socially and educationally backward classes of citizens and all kinds of reservation in admission to educational institutions and for public appointments were to be extended. Although these directions were to be implemented by the Central and State Governments within 6 months, 6 years down the line, the trans and intersex community are still fighting for basic rights. There is an immediate need for implementation of reservations for trans and intersex persons by identifying the beneficiaries of reservation, understanding the legal basis of reservation and the appropriate forms of reservation, to materialise the rights in NALSA to their legitimate end.
In this scenario, several cases have been fought for in the High Courts of India. Aspects from education to employment, right to food or marriage– every facet of life is being reiterated in the Indian High Courts by placing reliance on NALSA. An enumeration of these cases has brought to fore an interesting aspect of public service employment, specifically in the police services in India, where the high courts have emerged as a battleground to make rights real for the trans and intersex community.
Increasing Precedents on Recruitment to The Police Service
The series of cases on the rights of trans persons to apply for the police services started in 2014 with the case of Nangai v. Superintendent of Police. In this case, the Madras High Court considered whether the petitioner, Nangai, is a female who is eligible for appointment as a woman police constable and secondly, whether the termination of services for being transgender is sustainable. The Court held that Nangai was a woman and eligible for the post of a woman police constable. In addition, it accorded Nangai the freedom to self-identify her gender identity.
Similarly, in 2015, K. Prithika Yashini, a trans woman applied to the Sub-Inspector post in Tamil Nadu. Despite clear directions in NALSA, the application form did not accommodate for the transgender identity. Yashini approached the Madras High Court to enable her to apply for the job. Through interim orders, she moved past the preliminary rounds of her job test, where the Court applied horizontal reservation to her in the women’s category. However, in the physical test, she fell behind 1.11 seconds in a 100 metres sprint test. The Madras High Court took into account the societal discrimination Yashini had faced because of her gender identity and declared that her application is made successful. The Court further held “the social impact of such recruitment cannot be lost sight of, which would give strength to the case of transgenders [sic. Transgender persons].” Yashini went on to become India’s first transgender Sub-Inspector. More information about the case can be found here.
A series of cases came up before the Madras High Court before the same judge as the 2014 Nangai case, Justice S Nagamuthu. Here, the applicants successfully completed portions of their examinations only to have been terminated after being termed as transgender persons during the medical examination. The Court set aside the terminations which were motivated because of a person’s gender identity. The Court fell back on NALSA to affirm an individual’s right to self-identify and paved the way for the appointment of more transgender women in Tamil Nadu police force. More of these cases can be found here– Nangai-II v. Director-General of Police; Nangai-III v. The Secretary to Government of Tamil Nadu and G Nagalakshmi v. Director General of Police.
The important legal developments were not confined however to only the Madras High Court. In 2011, the Delhi High Court upheld the right to employment and self-identification of the gender of an intersex person in the case of Faizan Siddiqui v. Sashastra Seema Bal. Through this case, the Court broadened the scope of protections available to intersex persons in their recruitment to services, employment or in sports.
Similarly, Ganga Kumari identified herself as a female, and in 2017 applied for the post of woman constable in the Rajasthan police force. She successfully moved past the preliminary rounds. However, her medical examination report identified her as an intersex person. After this report, she did not receive any communications regarding her application. Kumari moved to the Rajasthan High Court, claiming discrimination based on gender identity. The Court conflated intersex with transgender identity, but it went on to affirm Kumari’s fundamental right to self-identify as a woman. The summary of the case is available here.
What we notice from these cases is an increasing proclivity to move the High Courts to seek the right to gender identity and non-discrimination in police services. The High Court orders have been crucial in taking the first step towards building a more inclusive and representative police service.
How Does the Transgender Act, 2019 Uphold These Rights?
The series of cases show the immediate need of reservation and sensitisation within the police forces and demonstrate a need to put in place a recruitment policy which is gender-inclusive and implements the directions provided in NALSA. However, despite the several cases being brought up in the High Courts, the recent Transgender Persons (Protection of Rights) Act, 2019 does not mention reservation at all. This is a glaring gap in the objective of the legislation which states that it is an Act to provide for the protection of rights of transgender persons and their welfare and matters connected therewith and incidental thereto.
There have been talks by the Ministry of Home Affairs and Central Reserve Police Force (CRPF), Indo-Tibet Border Police (ITBP), Sashastra Seema Bal (SSB) and Central Industrial Security Force (CISF), on incorporating transgender persons, along with male and female, for recruitment in civil services and other posts. However, no final order or notification regarding the same has been published.
Need for Horizontal Reservations
NALSA stated that gender identity is an attribute of sex under Articles 15 and 16 and further that transgender persons have a right to self-identify their gender identity. Moreover, it was observed that transgender persons are discriminated on the basis of their gender identity. Therefore, reservations for trans and intersex persons should also be provided on the basis of their gender identity in a horizontal manner, similar to the manner in which horizontal reservations are provided for women on the basis of sex, which can then be interlocked with other social categories of vertical reservation of SC/ST/OBC etc.
In Indra Sawhney v. Union of India, the Supreme Court of India held that reservations may be either vertical or horizontal. Vertical reservations are social reservations given under Article 16(4) in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes, while horizontal reservations, provided under Article 16(1), are special reservations, which cut across vertical reservations. After Indra Sawhney, in Anil Kumar Gupta v. State of Uttar Pradesh, and Rajesh Kumar Daria v. Rajasthan Public Services Commission & Ors, the Supreme Court reiterated the two kinds of reservations which realise the intersectional identities of persons.
If reservation is provided for trans and intersex persons, it should be under the horizontal category, as demonstrated in the Centre for Law and Policy Research’s policy brief ‘Making Rights Real: Implementing Reservations for Transgender & Intersex Persons in Education and Public Employment’. Putting it under a vertical category such as Other Backward Classes (OBC) or Most Backward Classes (MBC) would be tantamount to choosing between the identity as trans or intersex and other identities, such as belonging to SC/ST/OBC categories. This would, in result, deny the complex multiple identities that a person possesses, and ignore the intersectional reality. Thus, trans and intersex persons should be provided horizontal reservations under a separate horizontal category. Moreover, apart from reservations, all concessions and relaxation of conditions should be available for trans and intersex persons, as the aim of the Government should be the upliftment of transgender persons in every manner possible. This was rightly held in the case of The Chairman v. Aradhana by the Madras High Court.
Conclusion
The wealth of cases showcases the need for a complete overhaul in the recruitment mechanism for public services, specifically police services. Forced medical examination and misgendering is a common practice which negates the idea of autonomy and self-identification of gender. These practices must be done away with immediately. Forcing trans and intersex persons to approach the judiciary for intervention during police recruitment does not encourage the trans and intersex community about applying to public employment. In fact, it presents innumerable hurdles including access to effective legal assistance.
A uniform policy on the state level regarding the state police services as well as a uniform policy on the national level for CRPF, ITBP, SSB, CISF and other groups will serve to bring about a systemic change in the recruitment of the trans and intersex community. Additionally, the need for horizontal reservation cannot be emphasised enough. This two-fold response will be a good start in providing much-needed representation in public employment.
This article has been authored by Ms. Almas Shaikh, Trainee at Multilateral Diplomacy Programme Unit (UNITAR) and Ms. Kruthika R, Research Associate at Centre for Law and Policy Research. This blog is a part of RSRR’s Excerpts from Experts Blog Series, initiated to bring forth discussion on contemporary issues.