Bill sent to Cabinet after consultation with Law; House panel had criticised it for not dealing with reservation issue. (Express Photo)
Despite a Supreme Court order to treat transgender persons as “socially and educationally backward classes and extend all kinds of reservation” in government jobs and higher education to them, the central government’s Bill on transgender rights, sent recently to the Union Cabinet for its approval, doesn’t provide for any reservation. Last year, a Parliamentary committee too had criticised the Bill for not dealing with the issue of reservation for transgender persons under the OBC quota.
The Ministry of Social Justice and Empowerment has in its revised Bill incorporated most of the recommendations of the parliamentary panel barring for two crucial ones. The other recommendation concerns relooking at Section 377 as a way to recognising the rights of transgender persons to partnerships.
“The issue of reservation concerns the Department of Personnel and Training and they can deal with it later. At this stage, the Bill doesn’t need to look at it,” said an official who added that the Bill has been sent to cabinet following detailed consultations with the Law Ministry.
The 31-member Standing Committee on Social Justice and Empowerment, headed by BJP MP Ramesh Bais, had submitted its unanimous report on The Transgender Persons (Protection of Rights) Bill in July 2017. It had observed that the Supreme Court in the landmark judgment of National Legal Services Authority vs Union of India of April 2014 had directed the Union govenrment to treat transgender persons as socially and educationally backward classes (OBC) and extend all benefits of reservation in government jobs and higher education institutions to them. Following the judgment, the National Commission for Other Backward Classes (NCBC) recommended that all transgender persons from forward castes be given reservation under the existing 27 per cent quota for OBC. An initial draft of the Bill even went to the extent of stating, “Those transgender persons who by birth do not belong to Scheduled Caste (SC) or Scheduled Tribe (ST) may be declared as Backward Class and be entitled to reservation under the existing ceiling of OBC category.” However, as per sources, the ministry decided to delete the provision after OBC groups lobbied against the move which they perceived as shrinking their share of the reservation pie. Even after the Parliamentary panel slammed the Bill for being “silent on granting reservations to transgender persons” under the OBC category, the Union government’s revised Bill has not granted assured quotas under politically-sensitive OBC category.
Gee Imaan Semmalar, a transman from Sampoorna, the nationwide coalition of trans and intersex persons, said that while homelessness affects all transgender persons irrespective of their caste, those from the dominant castes often get decent education before they are are abandoned by their parents post adolescence and thereby go on to get better jobs with NGOs, a privilege that transgender persons from SC/ST communities do not enjoy. “Within the transgender community, those rallying for reservation have two sets of view. Some of us from the dominant caste communities feel that all transgender persons, including those from SC and ST, should be given reservation within OBC category as we do not want to eat up into the reservation quota for Dalits and Adivasis,” said Semmalar. Grace Banu, a Dalit transgender activist, however, states that there has to be ‘horizontal reservation’ within the existing reservation quota for SC, ST, OBC wherein transgender persons would be given an assured quota depending on their caste location. “If all transgender persons are given reservation under OBC quota, Dalits and Advasis will be unable to compete with those from the dominant caste,” said Banu, adding that the private Bill on transgender rights by MP Tiruchi Shiva, which was even passed by Rajya Sabha, had this provision for assured two per cent ‘horizontal reservation’.
On the much contested issue of Indian Penal Code section 377, which continues to criminalise “sex against the order of nature”, the Standing committee held that, “Transgender persons remain at risk of criminalization under Section 377. The Bill must at the very least recognize the rights of transgender persons to partnership and marriage.” Officials said that they would not be dealing with that matter through that Bill but would instead leave it to the Supreme Court’s three-judge bench that in January decided to revisit its earlier order on the issue.