INTRODUCTION
The word transgender is an umbrella term that gained global popularity in the year 1990s that describes people whose gender identity or expression is not the same as the sex on their original birth certificate.
ORIGIN OF THE TERM “TRANSGENDER”
This umbrella term was used by Dr. John F. Oliven who published a medical text which included one of the first know uses of this globally widespread word in the year 1965, where he wrote: “Where the compulsive urge reaches beyond female vestments and becomes an urge for gender ('sex’) change, transvestism becomes 'transsexualism.'”
Later the word “transgender” was used as a synonym for “transsexual” about people who transition through surgery, according to Dr. Oliven.
Another major source of the term “transgenderal” got popularized in the 1970s by Virginia Prince who is an activist and trans pioneer through her advocacy and writing. She first used the term “transgenderal” in the year 1969 to differentiate herself from transsexuals, or those who used surgery to transition, resulting in initiating the modern gay rights movement. This led to one step towards changes and development in terms of broad visibility for the LGBTQ+ community.
And this term gained worldwide popularized in the year 1993 in one most popular novels of time “Stone Butch Blues” by Leslie Feinberg who is one of the well-known transgender activists.
According to clause (k) of Section 2 of the Transgender Persons (Protection of Rights) Act of 2019, "transgender's person" means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as Kinner, hijra, aravani and jogta. [1]
RESERVATION FOR TRANSGENDERS IN KARNATAKA, INDIA
Karnataka becomes the 1st State within the country which implemented and provided 1 percent horizontal reservation specially made in respect of any service or post, which would be vacant in every category of general merit, scheduled caste, scheduled tribe, and also in every category of among the Other Backward Classes for transgenders in government jobs sector which are to be filled up via direct recruitment process, which was clearly stated in a draft notification issued on May 13, 2021, to amend Rule 9, sub-rule (1) (d) of Karnataka Civil Services (General Recruitment) Rules, 1977 to provide horizontal reservation for the transgender candidates which was amended by the Karnataka government.
SANGAMA & ANR. VS. STATE OF KARNATAKA W.P. No. of 2020
On July 6, the government submitted the final copy of the draft notification to the division bench comprising Chief Justice Abhay Shreeniwas Oka and Justice Suraj Govindaraj of the High Court of Karnataka during the hearing of the PIL petition was filed by Sangama, a non-governmental organization (a society working for the welfare and rights of economically backward sexual minorities, transgenders and People living with HIV.) and Nisha Gulur (Program manager at Sangama), who have sought for the implementation of Fundamental Rights by providing a separate column of others which is available in the application for the government jobs for the transgender persons and to frame a scheme for proper implementation of horizontal reservation for the transgender community. The Petitioners also questioned the High Court in their petition for the denial of job opportunities to the transgender for the post of the State Special Reserve Constable Force and Bandsman.
The draft notification clearly stated that in the application for the reservation for the transgender persons to any category of Group-A, B, C, or D posts, all the appointing authorities shall be providing a separate column of “others” along with male gender and female gender and also the transgender persons is being defined in Clause (k) of Section 2 of the Transgender Persons (Protection of Rights) Act of 2019. It also underlines that there should not any discrimination during the recruitment of transgender candidates.
The draft notification which has received no objections for proposing 1 percent reservation to the transgender's community, though 15 days were given to the public to submit objections or suggestions to the proposed amendment was stated by the government to the Hon'ble High Court, also further stated that, if there is an insufficient number of eligible transgender persons present, to the extent of one percent, the unfilled vacant posts shall be filled by male or female candidates, as the case may be, belonging to the same category.
APPLICATION IMPLEADED BY JEEVA NGO
Jayna Kothari who is a senior advocate has also submitted a petition from Jeeva, a non-governmental organization (is an organization working extensively on the rights of transgender persons and to create a platform for sexual minorities to participate equally in society) argues that the current amendment accommodates the third gender in government services. She emphasized that the High Court should provide directions to make sure job opportunities in various boards and corporations.
In the application, the Applicants relied on NALSA vs Union of India, 2014 judgment to the extent that the High Court well noted that the transgender candidates were being discriminated against on the grounds of their gender identity.
They also relied on the Anil Kumar Gupta v. State of Uttar Pradesh (1995) 5 SCC 173; wherein it was held that horizontal reservations should be provided which should be categorized, and also transgender candidates should be selected based on merit lists under the categories of SC, ST, OBC, and OC.
The Karnataka High Court allowed the enforcement of the Application on 16.10.2020 and the case (Sangama & Anr vs. State of Karnataka W.P. No. of 2020) is listed for 20th July 2021.
CASES CITED BY THE PETITIONERS
Despite the verdict in the case of NALSA (National Legal Services Authority of India) vs. Union of India (2014) 5 SCC 438 by the apex court in the year 2014, directing public employment sectors to reserve posts for the transgenders while treating them as ‘third gender’, the Karnataka government had failed to provide reservation of posts for transgender persons during last year’s recruitment for the post of special reserve police constables and other posts, which resulted in the violation of the judgment and also the draft notification being challenged by the Petitioners as being unconstitutional according to Art. 14, 16, 19 & 21 of the Constitution of India.
Also, in the case of Ganga Kumari v. State of Rajasthan W.P., 14006/2016, wherein the Hon’ble Rajasthan High Court upheld in its judgment the selection of a transgender person into the police force on account of the constitutional guarantees of the transgender persons, which was also cited by the Petitioners during the case regarding the grounds for challenging in the High Court.
In the case of Anil Kumar Gupta v. State of Uttar Pradesh (1995) 5 SCC 173; wherein it was held that horizontal reservations should be provided which should be categorized, and also transgender candidates should be selected based on merit lists under the categories of SC, ST, OBC, and OC.
Vijay Kumar Patil who is the public prosecutor in the case, representing the government informed the Bench that the State government has provided 1 percent horizontal reservation in the public employment sector by amending the Rule 9, sub-rule (1) (d) of the Karnataka Civil Services (General Recruitment) Rules, 1977.
Last year the court asked the government to implement the apex court’s directions, and according to the government’s observation, the proposal to provide reservation for transgenders was under rumination by amending the relevant provisions of law.
CONCLUSION
This landmark decision by the High Court played a vital role in bringing one step towards the inclusion and giving equal rights to the ‘transgender community in all the government services, as they should have and it should be appreciated and welcome the development.
And this is possible due to organizations (Sangama and Jeeva NGOs) filing PIL petitions in High Court and going through litigation to implement 1 percent horizontal reservation by the Karnataka government for transgender candidates.
We need to understand the rationality behind providing 1 percent horizontal reservation to them as they are facing discrimination on basis of their gender identity in the society, low literacy, lack of proper socio-economic conditions, various health issues, and isolation from the mainstream of society. In such situations, reservation for the transgender plays a crucial step for their upliftment in society.
REFERENCE
https://www.livelaw.in/pdf_upload/pdf_upload-377492.pdf
https://www.livelaw.in/pdf_upload/2715watermark-397043.pdf
http://socialjustice.nic.in/writereaddata/UploadFile/TG%20bill%20gazette.pdf
https://www.them.us/story/inqueery-transgender
https://clpr.org.in/litigation/sangama-anr-v-state-of-karnataka/
[1] https://www.livelaw.in/pdf_upload/2715watermark-397043.pdf
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