Mere acknowledgement of transgenders as separate identity not enough: Tribunal bats for inclusion

Mumbai: The Maharashtra Administrative Tribunal on Wednesday said it cannot direct for reservation for transgenders in public employment and education but said the government ought to take more steps towards the community’s inclusion in mainstream society.

The tribunal passed its order on the applications filed by three transgenders – two of them had applied for the post of police constable and the other for ‘talathi’ (revenue official).

The applicants had sought a direction to the Maharashtra government to add the option of “third gender” in the online application form and also provide reservation in government jobs.

The tribunal said it could not direct the Maharashtra government to grant reservation to the applicants but said certain concessions could be given to them.

The order passed by the tribunal's chairperson retired Justice Mridula Bhatkar and member Medha Gadgil, however, noted that mere identification and acknowledgement of the existence of transgenders in society was not sufficient inclusion but to facilitate their appointments in government and public sectors would amount to inclusion in true sense.

The tribunal said that the fact that not a single transgender person who has come out of the closet has got a job in the government sector in Maharashtra speaks volumes.

“The transgenders are humans and are citizens of our great Country who are waiting for their inclusion in the main stream. We have historical, mythological and cultural instances of eunuchs and their participation in political, social or cultural fields,” the tribunal said.

Transgender individuals are people in the minority, the tribunal said, adding that their case is worse than what women faced in the past while demanding equality.

“Majority forms the Government, but majority cannot suppress or ignore the rights of marginalized section. The caliber and morality of the Democracy is tested on these yardsticks,” it said.

The tribunal said that mere acknowledgement of the separate identity of transgender persons was not enough but they also need to be given opportunities in public employment.

“The State of Maharashtra has been proved to be very progressive in its thought and culture. Therefore, it is desirable on the part of the Government to take necessary measures to enable these transgender applicants to get job in the Government sector,” it said.

It further said that under Articles 15 and 16 of the Constitution, discrimination is prohibited on the grounds of gender.

“To get in public employment is a handicapped race for the transgenders. Though they are not physically disabled and are able bodied persons, their activities, actions, growth is paralyzed due to the negative approach of the Society, family in all the schools, colleges in all places at all the levels,” the tribunal said.

It added that just by acknowledging the third gender, the government has not made adequate opportunities available to the community and more steps are required to be taken for its effective participation and meaningful inclusion in the mainstream.

The tribunal in its order directed the Maharashtra government to give the applicants “necessary grace marks to reach the cut-off marks” and consider the applicants who have reached 50 per cent of the total marks for the posts concerned.

In case any of the applicants is age-barred then they shall be given age relaxation if they have got 45 per cent marks, said the tribunal in its order.

The applicants’ lawyer Kranti L C had said that states like Tamil Nadu, Chattisgarh, Karnataka, Jharkhand and Bihar have given the benefit of reservations to transgenders.

In Karnataka, one per cent horizontal reservation is provided for trans persons and in the other four states, transgender individuals are given reservation under the ‘Socially and Economically Backward Class (SEBC)’.

The Maharashtra government had informed the tribunal that it would not be possible to give reservation to the transgender community.

In November 2022, the tribunal and later the Bombay High Court directed the state government to provide the option of ‘third gender’ category in online application forms.

The tribunal said in Maharashtra at present the vertical reservation has reached 62 per cent and hence it understands the difficulty faced by the state.