TRANSGENDER PERSONS AND AFFIRMATIVE ACTION: ANSWERING THE WHY AND THE HOW

Abstract

Justice Radhakrishnan began his judgement in the landmark Indian case of NALSA v Union of India, with an observation on the society’s moral failure being exhibited by its exclusion of the transgender community and its inability to understand their pain. The division bench judgement unanimously stated, inter alia that reservations be opened up for the transgender community by declaring them as socially and educationally backward. In the years since this judgement, however, there have barely been any State actions in India to implement the judgement in its spirit. 

The Transgender Persons (Protection of Rights) Act, 2019, a statute passed to further the ideals of protecting the interests of the transgender community was met with resistance and protests from the transgender community itself. The absence of reservation provisions in the Act was one of the many grievances raised by the activists. India’s Union cabinet has recently approved a cabinet note to include transgender persons within the ‘Other Backward Communities’, a move to open up the reservations in education and employment to transgender persons. 

Here, I look at the dichotomy between the acceptance of transgender persons in the early local Indian community practices and the discrimination that came with the colonisation and western mores. I attempt to understand the use of contemporary legal tools, like reservations as a compensatory and corrective measure for the aforementioned discrimination. While examining the adequacy of reservations as a measure, I look at the possibilities of potential Affirmative Action policies that go beyond the traditional state mandated reservation policies in India. I also intend to learn from existing Affirmative Action policies for the transgender community in the United States and the United Kingdom to provide suggestions that can benefit the community in India.