The Court affirmed the necessity for the Government to implement affirmative action policies, providing reservations for transgenders in education and public employment, as mandated by the Constitution and prior Apex Court rulings.

JUDGMENT :

A.Muhamed Mustaque, J.

Transgenders filed these writ petitions. They seek relief of a writ of mandamus directing the Government of Kerala to provide reservations to transgender persons in education and public employment. The earliest writ petition was filed in 2019. These writ petitions were filed in the light of the declaration of law by the Apex Court regarding the right of transgenders in National Legal Services Authority v. Union of India and Ors. [(2014) 5 SCC 438]. This Court passed various interim orders in the earliest writ petition, W.P.(C). No.29247/2019. However, nothing has come out effectively to provide reservations to the transgenders. We also note that the Government has taken various measures to assist transgenders through different Government orders from 2015 onwards. Yet, the Government failed to evolve policies providing reservations to transgenders.

2. While ordinarily this Court may not interfere in the policy domain of the Government, in cases involving fundamental rights and a clear direction from the Apex Court existing, the judicial role in enforcing such rights become imperative. 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. But in this case, the rights of transgenders have been declared by the Apex Court in the National Legal Services Authority’s case (supra), declaring the law as follows:

“135. We, therefore, declare:

135.1. 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.

135.2. Transgender person’s right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.

135.3. We direct the Centre and the State Governments to take steps to treat them as Socially and Educationally Backward Classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.

135.4. The Centre and State Governments are directed to operate separate HIV serosurveillance centres since hijras/transgenders face several sexual health issues.

135.5. The Centre and State Governments should seriously address the problems being faced by hijras/transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender is immoral and illegal.

135.6. The Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities.

135.7. The Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.

135.8. The Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables.

135.9. The Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life.

136. We are informed an expert committee has already been constituted to make an in-depth study of the problems faced by the transgender community and suggest measures that can be taken by the Government to ameliorate their problems and to submit its report with the recommendations within three months of its constitution. Let the