Kiran Raj

The Kerala High Court has directed the state government to implement reservations for transgender individuals in education and public employment within six months. This directive was issued in response to two writ petitions filed by members of the transgender community, highlighting the lack of progress in ensuring equal opportunities despite the Supreme Court’s directions in National Legal Services Authority v. Union of India & Others [(2014) 5 SCC 438] and the provisions of the Transgender Persons (Protection of Rights) Act, 2019.

The writ petitions were filed by Kabeer C. and Aneera Kabeer, both transgender individuals from Kerala, seeking a writ of mandamus directing the state to provide reservations for transgender persons in line with their fundamental rights under the Constitution. The petitioners argued that while the government had introduced measures for transgender welfare, such as identity cards and certain schemes, these efforts did not address systemic issues like access to education and public employment opportunities.

The petitioners relied on the Supreme Court’s decision in the National Legal Services Authority case, where the court declared transgender persons as a “third gender” and recognized their right to self-identify their gender. The apex court had also directed central and state governments to extend reservations in education and public employment by classifying transgender persons as socially and educationally backward classes.

Despite the apex court’s clear directives, the petitioners contended that public employment notifications issued by the Kerala Public Service Commission (PSC) made no provisions for transgender reservations. This, they argued, left them unable to compete on equal footing with other candidates.

The state government submitted that it had taken steps to support the transgender community through welfare schemes and initiatives since 2015. However, the court observed that these measures did not fulfill the specific requirement of providing reservations in education and public employment, as mandated by the Supreme Court.

The bench, comprising Justice A. Muhamed Mustaque and Justice P. Krishna Kumar, held that the continued inaction by the state violated the rights of transgender individuals guaranteed under the Constitution. Referring to the apex court’s decision in the National Legal Services Authority case, the court observed: “Hijras, eunuchs, apart from binary genders, be treated as ‘third gender’ for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by Parliament and the State Legislature.”

The court further noted that the Supreme Court had directed central and state governments to classify transgender persons as socially and educationally backward classes and extend reservations to them in education and public appointments. The bench recorded: “The continued inaction by the Government, despite clear legal and constitutional obligations, leaves this Court with little choice but to consider issuing appropriate directions to ensure compliance with the constitutional and legal mandate.”

The court noted the structural and societal barriers faced by transgender persons, which prevent them from competing equally in education and employment. It stated: “Innate human differences are a challenge to human civilization. We must be alive to acknowledge that the different groups face structural and societal disadvantages that prevent them from competing on equal footing.”

The bench also referred to the Transgender Persons (Protection of Rights) Act, 2019, specifically Section 3, which prohibits discrimination against transgender persons in education, employment, healthcare, and other spheres. It observed that despite the legal framework, the absence of reservations continued to deny transgender individuals equal opportunities in public employment and education.

The court directed the Kerala government to implement measures ensuring reservations for transgender individuals in education and public employment within six months. The judgment stated: “In the light of the Apex Court judgment in National Legal Service Authority’s case, the Government cannot delay the implementation of their rights in providing reservations to them.”

The court observed that implementing such measures is not merely a policy matter but a constitutional requirement to ensure equality and non-discrimination.

The court accordingly disposed of the pleas.

Case Title: Kabeer C. & Aneera Kabeer v. State of Kerala & Others
Case Number: W.P.(C) Nos. 29247/2019 and 1970/2024
Bench: Justice A. Muhamed Mustaque and Justice P. Krishna Kumar

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