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The Madras High Court has directed the time-bound implementation of state government guidelines aimed at protecting the third gender and streamlining the employment of transgender persons in the government sector.
Justice N Kirubakaran called for the same while ruling in favour of transgender woman Tharika Bhanu, who had contested a refusal to grant her a UG seat for a course in a Siddha Medicine and Surgery.
After passing her +2 examinations, Bhanu had applied for the course in the respondent-institute. The prospectus issued by the institute did not provide seats for the transgender category, to which Bhanu belongs. The Court noted that this was in direct contravention of the orders passed by the Supreme Court in the National Legal Services Authority case.
Bhanu approached the Madras High Court when she did not make it to the merit list issued by the respondent institution for the academic year 2017-18. In October this year, the Court issued an interim direction to reserve a seat for the petitioner.
Justice Kirubakaran noted that despite the breakthroughs made through the 2014 NALSA case,
“…both the Central and State Governments have not effectively taken any steps to comply with the directions issued by the Hon’ble Supreme Court. The bill “The Transgender Persons (Protection of Rights) Bill, 2016” has been introduced and it has been referred to parliamentary standing committee for examination and report. If the directions given by the Supreme Court had been complied within time, the petitioner would not have been knocking the doors of this Court for relief.”
It was noted that proper surveys may also have to be conducted to ensure that benefits intended for the transgender community actually reach them.
“It is not as if there are only one or two persons in the society, but there are about 5518 transgenders living in Tamil Nadu as stated by the State Government. Further, this Court is not aware as to whether regular survey/census has been conducted and all the transgenders have been identified.
If no regular survey has been conducted to identify transgenders in the State of Tamil Nadu, it is appropriate for the State Government to conduct a survey/census with regard to transgenders and their place of living, so that if any benefit scheme is extended by the Government, the same could reach them.”
As regards the case at hand, the Court opined that given the history of hardships faced by the third gender and their continued relative disadvantage, some leniency should be shown to the transgender candidate in allowing her to be admitted for the applied course.
“… for the first time in history, a transgender has knocked the doors of this Court seeking to consider her candidature for admission in BSMS course…In schools, a few transgender students are educated and it is a welcome change that they have come forward to get higher education.
Instead of living normal stigmatic life as a transgender and in spite of undergoing various insults and even assaults, harassments in the hands of some unruly elements, when they come forward to get education, the same has to be encouraged…based on technicalities, the transgender persons coming forward to join educational institutions should not be driven out.”
Though Bhanu had not scored the prospectus defined minimum of 50% marks for her exam, Justice Kirubakaran noted that the defined threshold holds good only for “males” and “females”.
“In the prospectus, it has not been spoken about transwoman or transgender. Therefore, leniency should be shown to the transgender person, who is longing for an admission into the Siddha College. Therefore, 50% of minimum marks applicable to the male and female students cannot be made applicable to the transgenders. The respondents are guilty of not implementing the order of the Hon’ble Supreme Court and this Court, by providing a separate reservation for them.”
For these reasons, the Court ordered that Bhanu be admitted to the college immediately within one week from the date or receipt of the order. The case will come up for hearing for compliance of this order on December 11.
The Court hoped that,
“…this order would be a first step to throw open doors of educational institutions for the entry of “Transgenders” for their social empowerment, employment status, dignity, right etc., which have been denied to them till date, violating the fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India.”
In response to the Court’s queries, the state had also filed a counter affidavit in the matter, informing the Court that it had decided to issue guidelines on the “Determination of Community” and “Reservation in Employment” in respect of the third gender.
In moving towards the broader goal of uplifting the transgender community, the Court also ordered the state government to implement the proposed guidelines within a period of four months.
These guidelines are aimed at streamlining the procedures to be followed by recruiting agencies like TNPSC, TRB, USRB, MRB, etc., and Employment Exchanges in sponsoring/recruiting/selecting candidates of the third gender for appointment in government service. It was submitted by the state that the concurrences of the concerned departments have been obtained and that the proposed guidelines were at the final stage.
Compliance in respect of the same is to be reported to the Court on April 7, 2018.
Read copy of Order below.