Rainbow is the flavour of the month of June. Corporate logos will change to a rainbow backdrop, ‘diversity, equality and inclusion’ (DEI) sessions will be conducted, and the future of the lesbian, gay, bisexual and transgender (LGBT) movement will be charted out, over the course of this Pride Month.
However, the aim should be to use this time to draw attention to issues that do not make it to the front page; issues that do not seek popular media attention, or if they do, are pushed away to the corners of newspapers.
The reimagination of queer futures, and the collective future of this country should be in a way that is truly inclusive and not just for cisgender people. It is a long-standing demand of the transgender community, led by Grace Banu.
Also read: Policy reforms to make the LGBTQ+ community prouder by Pride Month next year
Banu is a force to be reckoned with, and has been tireless in her efforts to ensure that the guarantees of equal citizenship are truly achieved: not just in terms of protecting fundamental rights, but also in terms of equality of status and opportunity in matters of public employment and education for the transgender community in India.
The Equality Code as a means for queer liberation
Articles 14, 15, 16, 17 and 18 of the Indian Constitution are the guarantees of equality. They have been incorporated in the Constitution with the sole aim of eradicating social and economic biases and to establish a society that is truly egalitarian.
To further these aims, and to ensure that there is a society that is truly inclusive, the State has been tasked with a constitutional obligation to ensure affirmative action. Such quotas, as the Supreme Court judgment in Indira Sawhney versus Union of India (1992) held, could be either through legislation or through an executive action.
In Janhit Abhiyan versus Union of India (2022), that is the Economically Weaker Section (EWS) reservation case, the dissenting opinion of Justice S.R. Bhat for himself and Chief Justice U.U. Lalit recognises that the equality code and the reservation system was meant to provide opportunities and eliminate the stigma of caste discrimination.
The Indian Constitution has an underlying philosophy of inclusion, and not of exclusion. However, since the coming into force of the Constitution, there has been a systematic exclusion of queer folks, of people from Dalit, Bahujan and Adivasi backgrounds, and of religious minorities. Inclusion, since it guarantees equality, should not be merely formalistic but also substantive.
Also read: Objection, Your Honour: An open response to the 21 judges and their statement by a queer person
Historically, queer and transgender people’s stigma in the multi-axial framework in which they exist, is not just about gender identity or sexual orientation, but it is also about caste and privilege that the upper caste queer folks derive from it.
In the Sabarimala Temple Entry case, we saw two interpretations of Untouchability: first, in Justice D.Y. Chandrachud’s opinion where he construed Article 17 to include discrimination based on gender within the meaning of Untouchability, and the second, is Justice Indu Malhotra’s judgement where she looks at Untouchability narrowly by holding that it can only be practised on the basis of caste.
It could be argued that it is both the gender and the caste that adds on to the discrimination that is faced by Dalit transgender people. Justice Chandrachud’s opinion in Sabarimala must be read in conjunction with Justice Indu Malhotra’s opinion and must acknowledge intersectionality when deciding upon and adjudicating the matters of reservation.
The Supreme Court’s judgments since the State of Kerala versus N.M. Thomas, (1975) to B.K. Pavitra versus Union of India-II (2019), demonstrate that the court’s understanding of structural inequality and marginalisation has improved and become much more nuanced. We have enough material to examine vis-à-vis the jurisprudence on the need for reservations and affirmative actions in India.
But the argument remains that this combined with the opinions on Untouchability in Sabarimala can be applied mutatis mutandis to the issue of horizontal reservations. A right to reservation must thus, necessarily flow from the right to equality.
This equality must not just be of equal protection of the law and equality before the law, but the substantive equality of status and of opportunity for queer folks that operates not in a caste-blind way.
Legal recognition of intersectionality: What are horizontal reservations?
It was the decision of the Supreme Court in National Legal Services Authority versus Union of India & Ors (2014) (NALSA), which directed the Union of India and the state governments around the country to advance the economic, social, cultural and political rights of the transgender community.
One of the directions was to, “the Centre and the state governments to take steps to treat them (transgender and intersex persons) as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointment”.
However, not much has come of it since then. A notable exception to this is the Karnataka government. Since August 2021, it has become the first state to provide 1 percent reservation for transgender persons in employment for civil services posts across caste categories.
Also read: Making schools a safe space for LGBTQI students: Issues and challenges
The Supreme Court distinguished between horizontal and vertical reservations in Rajesh Kumar Daria versus Rajasthan Public Service Commission, (2007) and said, “Social reservations in favour of [members of] SC, ST and [Other Backward Class] OBC [communities] under Article 16(4) are ‘vertical reservations’. Special reservations in favour of physically handicapped, women, etc., under Articles 16(1) or 15(3) are ‘horizontal reservations’.
“Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class.”
The Supreme Court further said, “ Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category.”
It was in Indira Sawhney, the Supreme Court held that horizontal reservations, that is, reservation across caste categories, could be constitutionally permissible. Women, sports persons and veterans are already provided with reserved seats cutting across caste categories.
In Sangeeta Hijra versus State of Bihar (2017), the Patna High Court decided to grant a transgender woman permission to file her nomination for the ‘female unreserved seat’ to contest the Patna Municipal Elections. In the Anjali Guru Sanjana Jaan versus State of Maharashtra, (2021) case the Bombay High Court allowed a transgender woman to contest for a seat which was reserved for women. In light of these two judgements, there is no reason why transgender people should not be accorded the same rights that are afforded to women.
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Currently, they are either put under the OBC or the Most Backward Class (MBC) category in what is called a vertical reservation, that is, a reservation where all caste people are grouped under the same category. Such a system misreads the difference between caste and gender. Despite this, vertical reservations are not enough.
Such a system has three major flaws (as Mihir Rajamane points out):
- Those who belong to SC/ST categories would not be able to claim their right to reservation under both SC/ST and transgender categories, despite belonging to both communities. Those already belonging to the OBC category would not gain anything.
- Transgender persons would have to compete with other OBCs (which has led to very few availing reservations in Tamil Nadu).
- Only one group of castes could dominate transgender reservations without accounting for caste.
The reservation system (as inferred in a piece by Karan Lahari) is not just a power conferred to the State but also its duty. A duty in which the State has failed the transgender community miserably.
However, horizontal reservations are not enough. Unless supportive structures are put in place such as non-discrimination policies at workplace, gender-affirming policies and bathrooms, and welcoming policies such as leaves for transitioning, such reservation will be reduced to mere pinkwashing.
