The Fight For Equality - Transgenders Reservation In Education And Politics
Author: LawSphereX
Category: Constitutional & Human Rights
Published:
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THE FIGHT FOR EQUALITY: TRANSGENDERS
RESERVATION IN EDUCATION AND POLITICS
Aziz Umar, Faculty of Law, Jamia Millia Islamia Amaan Ahmed, Faculty of Law, Jamia Millia Islamia Mohd Ammaar, Faculty of Law, Jamia Millia Islamia
ABSTRACT
The issue of Transgender Marginalisation and oppression in India and world is not new contention. Sparking debates on their exploitation and dilution in educational and political institutions has become a common phenomenon in the contemporary legal community. This Article provides a comprehensive description of the historical overview of Transgender community marginalisation in India by emphasising more on education and political institutions. The Article further elucidate on the burning need of overcoming this marginalisation through reservation to transgender community in educational and political institutions. This Article further analyses various success stories in and outside India, whereby a way of addressing the situation of transgender individuals was improved. It concluded by advocating the urgent need of modern reforms to overcome from this marginalisation.
Keywords: Transgender, Reservation, Education, Politics, NALSA
1. Introduction
According to a recent report, an astonishing 39% of Transgender students are victims of unfair and unequal treatment by various stakeholders of the school from teachers to other administrators. One other report shockingly by the Election Commission of India states that transgender voter’s total turnout for the 2024 Lok Sabha Election was a mere 27. 08%. Both reports call out the urgent need for contention by concerned institutions. Historically, Transgender community throughout the globe being a victim of immense oppression and burgeoning discrimination just due to their gender identity does not resonate with their assigned sex at birth. To redress this discrimination against transgenders some countries initiate scheme of affirmative action in both education institutions and political representation.
Reservation is only way to overcome from this issue as it aims to provide equal opportunities and treatment to all individual faced historical marginalisation both in education and political representation. This Blog basically aims to highlight the History and need of reservation for Transgenders and give comprehensive description of challenges faced by transgenders in obtaining reservation in education and parliament.
2. Transgender Rights and Legal Recognition in India: Historical Context, Movements,
and Challenges
2.1 Overview of the Transgenders community in India
The transgender community including Hijras, Aravanis and Kinners, is considered as integral part of Indian demography and political institutions. During the Mughal era they were occupiers of many imperative designations including officials and administrators. The Criminal Tribes Act, of 1871 was enacted which basically aims to notify tribes irrespective of their criminal history to impose restrictions on their movement. This Act targeted ‘Eunuchs’ (colonial terms for transgenders) by deeming them as criminal offenders and also excludes their civil rights. This ultimately becomes the reason for their marginalization even today. 1 The post-independence situation of the transgender community remains precarious and
1 Criminal Tribes Act, 1871, § [section number], No. XXVII, Acts of Parliament, 1871 (India).
challenging. Although the Constitution guarantees equality for all citizens and aims to mitigate social and political marginalization, it falls short of establishing a society grounded in the principles of equity and fairness. Specifically, it fails to incorporate explicit legal provisions that safeguard the rights of the transgender community. In contrast, the constitution has enacted protective measures for other marginalized groups, such as Scheduled Castes and Scheduled Tribes, highlighting a significant gap in legal protections for transgender individuals.
2.2 Rise of Movements and Demand for Reservation for Transgenders
Despite the progress made since independence, substantial measures to enhance the conditions of the transgender community in India have been lacking. It was not until the 1970s that the movement advocating for the rights and inclusion of transgender individuals gained momentum, largely due to the emergence of influential leaders such as Laxmi Narayan Tripathi. Tripathi played a pivotal role in establishing a legal framework for the recognition of transgender individuals as a distinct third gender, thereby facilitating their social inclusion. This movement aimed to integrate the transgender community into the mainstream social and political fabric of Indian society, advocating for their rights and ensuring their representation in various spheres of public life.
2.3 Legal Aspect of Transgender Reservation and critical Analysis of NALSA Judgment
Efforts to improve conditions for transgender individuals in the country have not been very successful due to traditional societal norms and insufficient government support. Most initiatives have not worked, leaving transgender people still facing stereotypes and stigma. In 2012, the National Legal Services Authority (NALSA) filed a Public Interest Litigation (PIL) 2 for official recognition of transgender individuals as the Third Gender, aiming to empower the community against centuries of discrimination. A similar petition was submitted by the Poojaya Mata Nasib Kaur Ji Women Welfare Society and another by Laxmi Narayan Misra, a prominent advocate for transgender rights. The Hon’ble Court combined these petitions, hearing them as National Legal Service Authority v. Union of India. 3 2 Clear Tax, What is Public Interest Litigation (PIL) and What is Its Importance? , https://cleartax.
in/s/publicinterest-litigation (last visited Apr. 18, 2025).
3 National Legal Services Authority v. Union of India, (2014) 5 SCC 438 (India).
The main issue raised before the Hon’ble Supreme Court was whether or not to recognize transgender community as a separate gender infringing their fundamental rights enshrined under the constitution of India. Another issue raised in this case is whether a person changing their original gender through surgery should be identified as another gender The Petitioner's argument highlights the constitutional basis for recognizing transgender individuals as human beings and citizens of India, entitled to the same fundamental rights as others. Discrimination against them violates their essential rights, including the right to life and personal liberty under Article 21 and the principle of equality under Article 14.
Conversely, the Respondent, the Union of India, contends that the lack of official gender recognition for transgenders is due to several states forming an “Expert Committee” to address this issue promptly. The Hon’ble court dismissed the Respondent's argument after reviewing foreign precedents from Australia, New Zealand, and Malaysia, emphasizing psychological sex over biological sex. Paragraph 53 of the judgment mandated adherence to international conventions, including the Yogyakarta Convention4 alongside fundamental rights in the Constitution. The court cited Part 21 of the United Nations Convention Against Torture, 1984,5which requires signatory states to protect individuals regardless of sexual orientation and gender identity.
Additionally, the court interpreted Article 15(4) of the Indian Constitution, acknowledging the historical deprivation of transgender individuals, thus classifying them as backward and necessitating affirmative action to improve their social and political status.
2.4 Consequence of NALSA Judgment and Overall Evolution on Transgender
Reservation Issue in India The NALSA judgment significantly altered Indian courts' perceptions of legal provisions, promoting a more gender-neutral approach in both civil and criminal matters. This is evident in various rulings, notably in Navtej Singh Johar v. Union of India (2018),6 where the Supreme 4 International Commission of Jurists, Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (Mar. 2007), available at https://yogyakartaprinciples.org/principles-en/ 5 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N.
GAOR,
39th Sess., Supp. No. 51, at 197, U.N.
Doc.
A/39/51
(1984), available at https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-against-torture-and-other-cruelinhuman-or-degrading.
6 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
Court struck down Section 377 of the IPC,7 decriminalizing homosexuality. Additionally, the Delhi HC's judgment in Jasmine Kaur Chhabra v. Union of India (2024) 8ordered the government to establish separate toilets for transgenders.
3. Legal Framework for uplifting Transgender Education in India
Whenever the subject of transgender rights arises, some pseudo-intellectual individuals claim that transgender persons engage in unlawful activities, such as kidnapping children, participating in immoral acts, begging, or avoiding hard work, thereby labelling them as burdens on society. Are these allegations true? Do transgender individuals genuinely lack the will to progress in a constructive manner?
3.1 Understanding the precarious Condition of Transgender community Educational
Marginalization in India Education is crucial for individual growth, yet transgender persons often face significant barriers to accessing it. Many are stigmatized by their families, who may view their education as a waste. Even supportive families may not shield them from bullying in schools, leading to ridicule and derision from peers. Consequently, few transgender individuals can successfully pursue their education. Reports and statistics substantiate this harsh reality. According to the Census of 2011,9 the literacy rate among transgender individuals was a mere 56. 1%, significantly lower than the national average of 74. 04 This clearly points to a systemic failure in achieving equal access to education for transgender persons.
The Annual Status of Education Report (ASER)10 recurrently shows how isolated communities suffer due to poor infrastructure and exclusionary patterns in education. In addition, as cited in the UNDP-India Report of 2010, stigma and discrimination drive more
7 Indian Penal Code, § 377 (1860), available at https://www.indiacode.nic.in/handle/123456789/1999.
8 jasmine Kaur Chhabra v. Union of India, W.P.(C) No. 2997/2021 (Delhi High Court May 13, 2024), SCC Online No. 3921-DB Office of the Registrar General & Census Commissioner, India, Census of India, https://censusindia.gov.in/census.website/.
10 ASER Centre, Annual Status of Education Report (ASER) 2024, https://asercentre.org/aser-2024/.
and more transgender children out of school. 11 Additionally, according to a study from the National Transgender Discrimination Survey (NTDS), “78% transgender individuals reported having experienced harassment in schools". These trends depict the dominant exclusionary structures against which the access and fruition of educational settings of transgender people struggle. 12 Despite constitutional guarantees of equality and dignity under Articles 14, 15, 16, and 21 of the Indian Constitution, these rights remain inaccessible for a significant portion of the transgender population due to entrenched social prejudices and institutional barriers. The National Human Rights Commission (NHRC) Study (2018) revealed that poverty serves as a substantial barrier for transgender individuals.
Over 92% of transgender individuals are deprived of the right to participate in any form of economic activity, which forces many into begging or sex work. 13 All these writings, supported by reports and data, conclusively establish that the transgender community is significantly lagging in terms of educational advancement. Moving forward, let us now deliberate on potential solutions to address this pressing issue.
3.2 Understanding the Need of Reservation of Transgender Community in India
Affirmative action, in the form of reservation in education, has been an effective mechanism for uplifting marginalized communities in India. Its extension to the transgender community will open doors for access to education, thereby eliminating the systemic barriers to education for the transgender community. The Indian Constitution provides a strong foundation for affirmative action through reservations: Article 15(4), 16(4) and 46. Moreover, it is very inevitable fact that every citizen of India has Right to Education as fundamental Right under broader purview of Article 21 of Indian Constitution in the Landmark 11 Press Trust of India, India ranks 119th in UNDP's Human Development Report 2010, Business Standard (Jan. 21, 2013), https://www. business-standard. com/article/economy-policy/india-ranks-119th-in-undp-s-humandevelopment-report-2010-110110400198_1. html. 12 Jaimee M.
Grant, Lisa Mottet, Justin Tanis, Jack Harrison, Jody Herman & Mara Keisling, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey (Nat'l Ctr. for Transgender Equality & Nat'l Gay & Lesbian Task Force 2011), available at https://transequality. org/resources/national-transgenderdiscrimination-survey-full-repor 13 Ress Trust of India, About 96% of transgenders are denied jobs, 60% have never attended schools: Study, Money control (Aug. 13, 2018), https://www. moneycontrol. com/news/india/about-96-of-transgenders-are-de
Judgment of Unnikrishnan v. State of Andhra Pradesh14 the Hon’ble Supreme held that the Right to basic education is implicit in the Right to life and personal liberty when read with Directive principle on education under Article 41. This includes the transgender community, as recognized by the Supreme Court in the NALSA Judgment (2014), which also makes them eligible for affirmative action measures, such as reservation in education. Furthermore, in the Landmark Judgment of Anjali Guru Sanjana Jaan v. State of Maharashtra 15and others under para 135 (3) Hon’ble Bombay HC direct the centre and state government to announce that Transgenders are socially and educationally backward and provide them reservation in admission of all educational institutions of the country to include them in mainstream threshold of society.
3.3 Success Stories of Transgender Education framework in world and in India
The wise often emphasize adopting progressive practices from around the world. Argentina, for instance, was the first country to recognize transgender persons as the third gender and has further advanced their inclusion by enacting a law reserving 1% of government jobs for transgender individuals. In India, similar steps have begun to take shape. In Swapna v. The Chief Secretary (2016) 16the Madras High Court directed the State Government to explore postbased or percentage-based reservations for transgender persons in educational institutions. More recently, in Mugil Anbu Vasantha v. State of Karnataka, 17the Karnataka High Court ordered the implementation of the NALSA ruling, mandating interim reservations of 0. 5% in educational institutions, fee relaxation, and financial assistance for transgender students.
To build an inclusive society, it is crucial to foster respect and equitable treatment toward transgender individuals. Reserving seats in educational institutions not only empowers them but also reduces the societal and familial perception of transgender persons as a burden, paving the way for meaningful progress and equality.
4. Marginalization of the Transgender Community in India: A Call for Political
14 Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors., (1993) 1 SCC 645, AIR 1993 SC 2178.
15 Anjali Guru Sanjana Jaan v. State of Maharashtra, Writ Petition (Stamp) No. 104 of 2021 (Bombay High Court, Aurangabad Bench, Jan. 2, 2021), SCC Online No. 2021 Bom 2.
16 Swapna v. The Chief Secretary, W.P. No. 31091/2013 (Madras High Court, 2016), SCC Online No. 586.
17 Mugil Anbu Vasantha v. State of Karnataka, Writ Petition No. 14909 of 2023 (Karnataka High Court, Dec. 16, 2024), available at https://www.casemine.com/judgement/in/6760982839b861578789479e.
Representation When discussing politically marginalized communities in India, most people tend to focus on Scheduled Castes (SC), Scheduled Tribes (ST), and minorities. There is no doubt that these communities lack adequate representation proportional to their population and continue to face social discrimination. However, there exists another community that is rarely brought into these conversations. This community is very much a part of our society, yet, to date, not a single individual from this group has reached the Lok Sabha. Perhaps this lack of representation is a significant factor contributing to their marginalization. If you have carefully read the title of this article, you would have already deduced that we are referring to the transgender community.
4.1 Demonstrating Transgender Marginalisation in Politics
Though Indian transgender people received legal recognition in the form of a "third gender" by the Supreme Court judgment known as NALSA (2014), they continue to experience systemic political marginalization. A limited number have succeeded in becoming public officeholders, and numerous structural barriers remain that hinder their full political inclusion. A 2018 study by the National Human Rights Commission (NHRC) of India found that
transgender individuals face significant barriers in accessing formal employment, leading many to engage in informal or marginalized occupations. This economic marginalization hinders their ability to participate in the political process, such as voting or contributing to campaigns. Additionally, challenges in obtaining proper identification documents, like voter ID cards, prevent many from exercising their constitutional right to vote.18 The discriminatory practices entrenched within political institutions exacerbate the marginalization of this community. For instance, although the Transgender Persons (Protection of Rights) Act, 201919, includes provisions aimed at preventing discrimination, the actual situation remains profoundly disheartening. This disparity arises from the lack of significant advocacy against such discrimination, largely due to the community's absence in political
18 National Human Rights Commission, Annual Report 2018–2019, at 23 (2019), available
at https://nhrc.nic.in/sites/default/files/Annual%20Report%202018-29_final.pdf.
19 Transgender Persons (Protection of Rights) Act, 2019, No. 40 of 2019 (India), available
at https://socialjustice.nic.in/writereaddata/UploadFile/TG%20bill%20gazette.pdf.
representation. In India, issues of this nature seldom attract the attention of the administration unless there is political advocacy or representation to highlight them.
4.2 Analysing the Need for Transgenders Reservation in Political l institution
Transgender individuals are not the sole community facing discrimination; numerous other groups encounter similar obstacles. For these communities, reservation is vital in addressing such inequities. To delve deeper into this issue, we will first explore the provisions of our Constitution regarding reservation and subsequently assess how it can effectively address this challenge. Articles 243D and 243T of the Indian Constitution provide for the reservation of seats in Panchayati Raj Institutions and Municipalities for Scheduled Castes (SCs), Scheduled Tribes (STs), and women, thereby providing them with representation in grassroots governance. The extension of these provisions to transgender persons would similarly afford them an opportunity for inclusion in democratic processes as a means of redressing historical exclusion. The Supreme Court, in K. Krishna Murthy v.
Union of India (2010)20 holds that political reservation is designed to empower and ensure effective participation of underrepresented groups in governance. Additionally, the landmark judgment NALSA Judgment (2014) held transgender persons as the "third gender" and ordered the government to implement affirmative action to enable political representation. Whereas the Transgender Persons (Protection of Rights) Act, 2019 under Section 16 requires the government to take measures for opportunities for transgender persons in political life and within public offices, there is no separate provision of reservation. If it introduces political reservation for transgender persons, it would fulfil constitutional and judicial mandates and set up chances for inclusivity of governance.
21 Reservation ensures transgender individuals have a guaranteed role in decision-making, enabling them to advocate for their specific needs. It addresses their systemic exclusion and societal stigma by making them visible stakeholders. Despite legal recognition of their rights through the NALSA Judgment and the Transgender Persons Act, political accountability remains lacking, leading to inadequate implementation. Reservation creates opportunities for transgender representatives to oversee legal provisions and inspire their community to combat
20 K. Krishna Murthy & Ors. v. Union of India & Amr., (2010) 7 SCC 202.
21 Transgender Persons (Protection of Rights) Act, 2019, No. 40 of 2019, § 1 (India), available
at https://www.indiacode.nic.in/handle/123456789/13091?sam_handle=123456789%2F1362
barriers in education and employment. Their involvement in governance not only fosters inclusion but also provides positive role models, highlighting the potential of reservation to address their challenges in politics. Without such measures, efforts for inclusion are insufficient against institutional resistance.
4.3 Global Success Stories: Political Reservation and Empowerment of Transgender
Communities This topic is not entirely untouched, nor are we the first to advocate for reservation for transgender individuals. In fact, some countries have progressed further in this regard. You may be surprised to know that we are not referring to a Western European, North American, or First World nation, but rather to our neighbouring country, Nepal. In the landmark case of Sunil Babu Pant v. Nepal Government (2007), the Supreme Court of Nepal recognized transgender persons as equal citizens with full rights. Consequently, when the Constituent Assembly was formed to draft Nepal’s Constitution, Sunil Babu Pant, the petitioner in this case, was appointed as a member of the Fundamental Rights Committee. He played a significant role in securing LGBTQI+ rights in the Draft Constitution.
Although that draft was not enacted, the subsequent Constituent Assembly incorporated many of its provisions. The 2015 Constitution of Nepal, which is predominantly gender-neutral, explicitly guarantees transgender rights through Article 12,18 and 42(1). 22 The difference is clear, countries like France and Belgium have paved the way with examples like Gabriel Attal becoming a transgender Prime Minister and Petra De Sutter serving as a Deputy Prime Minister. We must adopt similar measures to ensure individuals from the transgender community can integrate into society effectively. That said, progress has not been absent in India.
For instance, West Bengal's Joyita Mondal became a first transgender judge, Tamil Nadu established a Social Welfare Board with all 14 members being transgender individuals, and Karnataka has taken significant steps, supported by its government and High Court, to promote transgender inclusion. What remains is for such initiatives to be consolidated and scaled at the national level. With focused efforts from the 22Sunil Babu Pant & Ors. v. Nepal Government & Ors. , Writ No. 914 of 2007 (Supreme Court of Nepal, Dec. 21, 2007), available at https://www. icj. org/sogicasebook/sunil-babu-pant-and-others-v-nepal-government-andothers-supreme-court-of-nepal-21-december-2007/.
central government, India has the potential to bring meaningful change, fulfilling the promise of inclusion and equality enshrined in our Constitution.
5. Conclusion
If you have read this blog so far, you must have clearly understood our perspective. It is evident that transgender individuals in India continue to face systemic exclusion, economic marginalization, and limited access to political and educational opportunities. While legal frameworks like the NALSA judgment and the Transgender Persons (Protection of Rights) Act, 2019, have laid the foundation for inclusion, their effective implementation remains a distant dream. Establishing policies on reservation in education, employment, and political representation will ensure meaningful change for transgender people; they would be empowered to contribute more vibrantly in the democratic process while their socio-economic vulnerabilities could be resolved through these measures. A society's true progress is measured by how it treats its most marginalized communities.
Embracing inclusivity can transform systemic barriers into stepping stones, creating a future where every individual, regardless of gender identity, thrives with dignity and equality.