Madras High Court holds all transgender persons have to be provided horizontal reservation

The Madras High Court has directed the Tamil Nadu government to mandatorily provide horizontal reservation to all persons identifying themselves as transgender in the State..In an order passed on April 8 this year, Justice GK Ilanthiraiyan quashed an existing order (GO) of the Tamil Nadu government that provided horizontal reservation to transpersons in the State who identified themselves as women, and vertical caste-based reservation for the rest of them.Horizontal reservations refers to reservation given to a class or group cutting across groups enjoying vertical reservation.Thus, while reservation for Scheduled Castes and Scheduled Tribes (SC/STs) is vertical reservation, reservation for persons with disabilities or women's quota would count as horizontal reservation.So, if there is ten percent vertical reservation for SC/STs and five percent horizontal reservation for transgender persons, then five percent of the seats reserved for SC/STs have to go to transgender persons from such communities. The single judge called such GO arbitrary and in breach of Constitutional principles and said that the State must instead, provide horizontal reservation to the transgender community in compliance with the Supreme Court’s NALSA judgement within 12 weeks of the Court’s order..“Once the transgender identity is a gender identity like man or woman, it is manifestly arbitrary and in violation of Article 14 to give woman horizontal reservation and treat transgender persons similar to men. Therefore, if once gender identity is given horizontal reservation, it follows that the transgender community, being a socially and educationally backward community discriminated on the basis of gender identity, should also be entitled to similar reservation. In fact, the State of Karnataka implemented the Judgment passed by the Hon'ble Supreme Court of India and provided 1% horizontal reservation for all transgenders persons in public employment and accordingly, amended the Karnataka Public Servants Conditions of Service Act to provide for 1% horizontal reservation across all community reservations like SC, ST, MBC etc.,” the Court said..The Court was hearing a petition filed by Rashika Raj, a qualified nurse, who identifies as a transgender person. She got registered with the Tamil Nadu Nurses and Midwives Council and while she was extended the benefit of reservation it was provided under the category Most Backward Class (MBC) and it vertical reservation.This was provided by treating the transgender community as a caste, instead of horizontal reservation by treating transgender as gender identity,” Raj told the Court. This was highly arbitrary, her counsel NS Tanvi argued.The Court agreed and said that any reservation provided to the transgender community will not be effective unless the intersection of identities was addressed..“In view of the above discussion, the impugned Government Order is liable to be struck down for being manifestly arbitrary and thereby, violative of Article 14, 15, 16, 19 and 21 of Constitution of India. Accordingly, G.O.Ms.No.28, Backward Classes, Most Backward Classes & Minorities Welfare (BCC) Department dated 06.04.2015 issued by the second respondent, is hereby quashed. The second respondent is directed to provide horizontal reservation to the transgender community in compliance of the Judgment of Hon'ble Supreme Court of India in NALSA v Union of India reported in (2014) 5 SCC 438, within a period of twelve weeks from the date of receipt of a copy of this order,” the Court said..Advocate NS Tanvi appeared for the Rashika Raj, the petitioner in the case.Additional Government Pleader E Vijay Anand appeared for the respondent Tamil Nadu government..[Read Order]