S, a transgender, and seven other individuals contesting the recruitment procedure for police constable positions conducted by the Tamil Nadu Uniform Services Recruitment Board (TNUSRB), filed a writ petition in the Madras High Court under Article 226 of the Indian Constitution.

The Petitioners argued that the benefits and relaxations advanced to transpersons in the common recruitment processes of Grade-II constables in years of 2017-18, 2019, and 2020 were flawed and amounted to prejudice.

Government Order. (Ms) No.90 dated 22.12.2017, provided that incase of employment transpersons who associated themselves with “women” will be provided 30% reservation and those who identify themselves as “Male” or “Third Gender”, may be considered against the 70% reservation for General category (both Men & Women). The Court remarked that though the TNUSRB endowed particular benefits to transgender persons, they were denied to those persons who recognized themselves as “Male” or “Third Gender”.

This notification was said to be violative of Articles 14 and 16(1) and against the decision of Apex Court in NALSA v Union of India.The court opined that intermingling “male” and “female” reservation benefits with transpersons do not achieve the intention laid by the Supreme Court in NALSA.

Observations of the Court

“Though these appears to be concessions granted to the TGs, the notification restricts these concessions to such TGs, who recognize themselves as “Male” or “Third Gender”. This was never the intent of NALSA. In para 135.2 of NALSA, it was declared that the TGs have a right to decide their self-identified gender and the Central and State Governments were accordingly directed to grant legal recognition of their gender identity such as “Male” or “Female” or “Third Gender”. Merely because the TNUSRB had extended the option to the TGs, who choose their self-identified gender, they had no right to deprive their fundamental right of equal opportunity in employment, vis-a-vis the Women and the TGs, who identify themselves as Women.”

“The object behind NALSA’s declaration of the TGs’ right to decide their self self-identified gender was to give them a recognition of their identity in various legislations and thereby extend equal protection of law, as well as to avoid discrimination.”

“Depriving the TGs, who recognize themselves as “Male” for the relaxations in the physical tests, is opposed to the object behind NALSA in upholding their right to decide their self-identified gender, as well as violative of Articles 14 and 16(1) and therefore unconstitutional.”

“Deprivation of the relaxations and concessions offered to female candidates in the physical measurement tests, endurance tests and physical efficiency tests to the TGs, who recognize themselves as “Male” or “Third Gender”, is arbitrary and unreasonable, apart from infringing their fundamental right under Article 16(1).”

The court gave the example of Karnataka which has provided 1% horizontal reservation to the Transpersons in public employment. 

The Single Bench of M.S. Ramesh passed the following order: –

• The disqualification of the Petitioners herein from the recruitment process for the posts of Grade-II Police Constables conducted by the TNUSRB for the years 2017-18, 2019 & 2020, are quashed.
• The Member Secretary of TNUSRB is directed to treat all the petitioners herein, as having qualified in the initial selection process, including the written examination and forthwith subject them to physical measurement tests, endurance tests and physical efficiency tests, in accordance with the relaxed norms applicable for Women candidates, for the purpose of appointing them as Grade-II Police Constables and complete such a process, within a period of eight weeks from the date of receipt of a copy of this order.
• The Court strongly recommends to the Government of Tamil Nadu for providing a specified percentage of special reservation for the TGs in matters of future public employments, apart from other relaxations and concessions extended to the socially and economically backward classes.
• This Court strongly recommends to the Government of Tamil Nadu for providing relaxations in the physical measurement tests, endurance tests and physical efficiency tests for the TGs, who identify themselves as “Male” or “Third Gender”, on par with the concessions extended to Women candidates and other socially and economically backward classes.
• While granting any reservations, concessions and relaxations to the TGs, the Government of Tamil Nadu shall take into account the ratio adopted for granting similar privileges to the other socially and economically backward classes and adopt a similar method for determining these privileges for the TGs.

– Written by Vaishali Jain & Hamda Arfeen