Transgender persons entitled to reservation under third gender category: Madras High Court

The Madras High Court has said that transgender persons are entitled to reservation under the third gender category for admission to educational institutes. [S Tamilselvi v. The Secretary to Government, Health and Family Welfare Department].In an order passed on October 11, a Bench of Justice R Suresh Kumar said that the Tamil Nadu government was obligated to provide for special reservation in educational institutions for those belonging to the transgender or third gender category, irrespective of the number of such persons. .The Court was hearing a petition filed by S Tamilselvi, a nursing student, seeking a direction to the State authorities to quash the prospectus issued for the Post Basic (Nursing) Course for the academic year 2022-2023, as "illegal" for failing to categorise transgenders under a special category.Tamilselvi had earlier completed a Diploma course in Psychiatry Nursing in the State, following a High Court order directing that she be recognised as a transgender person.However, when she applied for the 'Post Basic' course for the current academic session, she could not secure admission. As per the entire list, Selvi had been categorised as a "female candidate," and since there were only 30 of the total 40 seats reserved for female candidates, Tamilselvi, who secured a rank of 280, could not get a seat.She argued before the High Court that had there been a reservation for the third gender category, as already made mandatory by several Supreme Court judgments and the Transgender Persons (Protection of Rights) Act, 2019, she would have secured the admission..The Tamil Nadu government, however, said that special reservation for transgender candidates had not been provided for the nursing course because transgender candidates were very minimal in number throughout the State.The State further argued that if reservation was provided for the third gender category, there would hardly be any takers, and the seats would stay vacant..The Court, however, refused to accept the State's submission. It said that such presumption that there would be few takers for the special category seats was in breach of the Supreme Court orders as well as the provisions of the 2019 Act. "Had there been the special reservation as directed by the Hon'ble Supreme Court provided to the transgender, certainly the petitioner would have been in a top position and would be in a position to get admission in the course concerned."Justice Kumar said that the government should have at least added a proviso to the prospectus saying that any transgender candidates applying for the nursing courses would receive special reservation under the third gender category. "Atleast this kind of special note could have been appended to the notifications or prospectus issued by the respondent, even that kind of special note was missing in the said notification/prospectus. Therefore, this Court has no hesitation to hold that the petitioner would be entitled to get a special reservation for third gender viz., transgender category for admission in the said course," the order stated.It thus directed the State authorities to place Tamilselvi under the "special category i.e. transgender category for the purpose of admission." The Court added that in case any other transgender candidate applied for the said course, a separate merit list must be prepared for special category seats. .Advocate Reshmi Christy appeared for the petitioner. Advocates UM Ravichandran and M Sneha appeared for the State authorities..[Read order]