S. Tharika Banu v. The Secretary to Government, Health and Family Welfare Department and Ors. W.P. No. 26628/2017

On the 29th of November, 2017, a single judge bench of the Madras High Court decided whether a transgender woman[1] could be admitted to an undergraduate degree even though she had not obtained certain minimum marks for admission. The High Court decided the transgender woman, S. Tharika Banu, must be admitted to the degree because the, “minimum marks holds good only for “males” and “females”, and not for transgender persons. The court made this relaxation for Banu keeping in mind, the rareness of her demand, the harassment and discrimination faced by transgender persons in society, and the directions of the Supreme Court in the NALSA case. In this blog, I will discuss two aspects of this judgment: 1. Will this decision open doors for more transgender persons to apply for undergraduate degrees at less than minimum marks? 2. Does this decision apply to those transgender persons who identity as male or female, and not transgender?

Before delving into these issues, it may be helpful to know that in the NALSA case, the Supreme Court had directed that the Centre and State governments treat transgender persons as socially and educationally backward classes of citizens, a constitutionally protected category, and provide them reservation in matters of admission to educational institutions. However, the latest version of the Transgender Persons (Protection of Rights) Bill, 2016 has no mention of a reservation provision. Therefore, if this version of the Bill is to pass, transgender persons will have no legal entitlement to reservation. Until this Bill solidifies into an Act, the direction of the Supreme Court is law (Article 142)[2] and binds Tamil Nadu State Government and accordingly, its instrumentalities like the Tamil Nadu Backward Classes Commission. Suppose the 2016 Bill passes as it is and becomes an Act– it can be challenged in the Supreme Court for failing to provide reservation to transgender persons. The court will have two options. It can by its complete justice provisions, bypass the Act and restore its earlier directions, or it may examine afresh whether denial of reservation to the transgender population violates the constitution. As the Supreme Court itself has expressly stated that transgender persons are “legally entitled and eligible” for affirmative action measures [para 60], the court will have strong reasons for upholding this challenge.  Meanwhile, representation can be made before State Backward Class Commissions for their omission to include transgender persons in the other backward classes (OBC) category, and a writ can be filed before State High Courts against the State Government for violating the equality right of transgender persons by failing to provide them “equal protection of the laws” through reservations schemes.

  1. WILL THIS DECISION OPEN DOORS FOR MORE TRANSGENDER PERSONS TO APPLY FOR DEGREES AT LESS THAN MINIMUM MARKS?

Arguably, yes. In this particular case, Banu had obtained 537/1200 (44.75%) marks whereas the minimum threshold to be considered for admission to the undergraduate course was 50%. A little background about Banu is important here because arguably, the court considers the background an important reason to provide relief. Banu was assigned male at birth “but due to chromosomal aberration…started identifying himself more as a female than as a male.” Without more it is difficult to say what this phrase means but arguably this signifies that Banu had an intersex condition at birth/developed one later, if that is possible, and as a consequence started to identify as a woman. This was not acceptable to her parents, and Banu left home at a young age, and underwent a sex-reassignment surgery (SRS). Thereafter, she took on a traditionally more feminine name and has been living as a female. She also passed her higher secondary exam with the abovementioned marks. Recounting the stigma faced by transgender persons in society, the court surmised that,

…for the first time in history, a transgender person has knocked on the doors of this court seeking to consider her candidature for admission in BSMS course…it is a welcome change that they have come forward to get higher education. instead of living normal stigmatic life as a transgender and in spite of undergoing various insults and even assaults, harassments in the hands of some unruly elements, when they come forward to get education, the same has to be encouraged and based on technicalities, the transgender persons coming forward to join educational institutions should not be driven out…[i]t is not as if many transgender persons have applied for seats…on very rare occasions, this kind of claims would be made and that has to be considered with compassion and benevolence. [paragraphs 9-12]

Accordingly, the court directed the State to admit her into the undergraduate course (Bachelor of Siddha Medicine and Surgery). A reader, upon examining this reasoning, may be tempted to think that the court is granting a one-off prayer, especially since the government has provided no reservation schemes for transgender persons in Tamil Nadu. However, this does not seem to be the thrust of the judgment read as a whole. Though the court has directed Bhanu be admitted into the course, it has also stated explicitly,

The Court hopes that this order would be a first step to throw open doors of educational institutions for the entry of ‘Transgenders’ for their social empowerment, employment status, dignity, right etc….” [para 13]

This signifies the court’s intention that this order be not one of a kind, but be the first to open doors for transgender persons in education institutions. One of the ways for doing so, is by providing them reservation as directed by the Supreme Court and also by another bench of the Madras High Court. The court finds the State “guilty of not implementing the order” of these courts mentioned and rejects the rationale of the Tamil Nadu Backward Classes Commission for denying reservation to transgender persons in educational institutions. The commission had argued that since transgender persons comprise only .007% of the total population of Tamil Nadu, it would not be “feasible”, numerically, one may suppose, to provide any reservation for them.

  1. DOES THIS DECISION APPLY TO THOSE TRANSGENDER PERSONS WHO IDENTIFY AS MALE OR FEMALE, AND NOT AS TRANSGENDER?

Arguably, it does. it is important to address this point, because in its reasoning, the court has especially stressed that the 50% cut-off applies to “males” and “females” and not to “transwoman” or “transgender.” At first glance, it may seem that this reasoning can exclude those transgender persons who identify as male or female and do not want to call themselves transgender. However, the judgment should not be read in this way especially because the Supreme Court has expressly stated that transgender persons have the right to identify as male, female or third gender. Therefore, this judgment should apply equally to transgender persons who identify as male or female. Equally, this judgment should apply to persons who do not identify with the sex assigned to them at birth, this being the manner in which the Supreme Court understood the term transgender, and this could cover gender-queer persons. Finally, various regional identities such as hijra, aravani, shiv-shakti etc. are all included. In short, this judgment should apply to all those persons covered within the ambit of transgender persons, as per the NALSA judgment. This is of course, till the 2016 Bill is enacted. If enacted, as is, the 2016 Bill will severely cut down the ambit “transgender.” For the full argument on this, please see here.

  1. OBSERVATIONS ABOUT SRS, INTERSEX CONDITION ETC.

The intersex condition is classified as a “physical abnormality” and a “chromosomal aberration”, and  the role that SRS has played in the grant of the relief is unknown though seems to be of importance. It is doubtful if court would have ruled similarly if SRS had not been performed especially because the court states,

those unfortunate persons, due to some physical abnormality and due to the act of genes, suffer from transforming into transgender and could not identify themselves with regular gender namely, male and female.”

It could be that this statement does not mean very much, as indeed, if construed as a whole, it signifies some kind of metaphorical transformation into a transgender person– akin to the stuff of legends. However, what we can certainly take away from this is that we do not know if the court would have decided similarly if the petitioner had not undergone the SRS.

However, there are some good points to note about the judgment: 1. the court recommends that the government carry out a survey to determine the number of transgender persons in Tamil Nadu for proper compliance with the NALSA decision; and 2. the court uses pronouns in line with respect to the petitioner’s gender identity (she). Finally, it is worth raising a point about caste here. The petitioner belonged to the Scheduled Caste (SC) and had in fact asked to see the merit list for the SC category. The court did not find it necessary to grant this relief in light of its decision. One does not know whether the seat Banu was allotted was one from the SC category or from the OBC category. Since the Supreme Court direction states that transgender persons must be treated as socially and educationally backward classes, it could be that transgender persons of different castes may have to deal with a loss of caste, or at least have a fractured caste identity– caste A for all times, but a member of backward class for the purposes of admissions in educational institutions. Law/policy will have to devise a way to handle this possibility. Although fracturing of caste identities may be a beginning on the path to diminish the value of caste identities but such eventualities may cause resentment in the short run.

 

[1] Actually, it is not clear whether the petitioner identifies herself as a woman or as transgender. The facts suggest that she has been living her life as a female but there does not seem to be a suggestion from the side of the petitioner that she would call herself transgender. However, the court uniformly describes her as a transgender woman.

[2] The Constitution of India, 1950.