IMPORTANT POINT
Transgender individuals are entitled to horizontal reservation as a distinct gender identity, and any classification treating them as a caste is unconstitutional and arbitrary.

ORDER :

Prayer : Writ Petition filed under Article 226 of Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records and quash G.O.Ms.No.28, Backward Classes, Most Backward Classes & Minorities Welfare (BCC) Department dated 06.04.2015 issued by the 2nd respondent and consequently direct the respondents to provide for horizontal reservation to the transgender community in compliance of the judgment of the Hon'ble Supreme Court of India in NALSA v Union of India (2014) 5 SCC 438.

This Writ Petition has been filed challenging the G.O.Ms.No.28, Backward Classes, Most Backward Classes & Minorities Welfare (BCC) Department dated 06.04.2015 issued by the second respondent, thereby included in the list of Most Backward Classes “Transgender or Eunuch (Thirunangai or Aravani) in SI.No.36C of Schedule IV in G.O.Ms.85 Backward Classes, Most Backward Classes in the State for reservation of seats in Educational Institutions and appointments or posts in the services under the State form the date of issue of the order.

2. Heard the learned counsel on either side and perused the materials available on record.

3. The petitioner is a Transgender and had registered with the Tamil Nadu Transgender Welfare Board. She was also issued with an identity card. She is qualified with B.Sc Nursing and got registered with the Tamil Nadu Nurses and Midwives Council. Though the reservation was accorded for transgender, it was provided under the category Most Backward Class (herein after called as “MBC”) and provided vertical reservation, treating the transgender community as a caste, instead of horizontal reservation by treating transgender as gender identity. The Government Order impugned in this writ petition was passed on the basis of the recommendation issued by the Tamil Nadu Backward Classes Commission and the Judgment of the Hon'ble Supreme Court of India, in the case of NALSA v Union of India reported in (2014) 5 SCC 438 and the Hon'ble Supreme Court of India recognized the legal identification for the transgender as third gender and directed the State to take necessary steps to treat the transgender community as social and educationally backward classes of citizens.

4. Thereafter, G.O.Ms.No.28, Backward Classes, Most Backward Classes & Minorities Welfare (BCC) Department dated 06.04.2015 passed for the following reasons:-

“(i) The Hon'ble Supreme Court, after hearing the State has taken judicial notice of their social and educational backwardness.

(ii) Transgenders are most backward in educational, social and economic fronts in the state.

(iii) Transgenders are comparable to orphans; their caste and community from which they emerge cannot be fixed, in general, since the vedic period.

(iv) They (transgenders) were identified as a criminal tribe, as observed by the Supreme Court and hence fit to be treated on par with Most Backward Classes.

(v) They are far worse than Scheduled Castes but without the stigma of traditional practice of untouchability.

(vi) Their present social, educational and economic status is likely to improve by their inclusion in the Most Backward Classes.”

5. It has been challenged on the following grounds:-

“ (a) It is in violation of Articles 14, 15, 16, 19 and 21 of the Constitution of India.

(b) It is in violation of the Judgment of the Hon'ble Supreme Court of India in the case of NALSA v Union of India reported in (2014) 5 SCC 438 which recognized that the transgenders are a third gender identity.

(c) It is manifestly arbitrary because it is treating a gender as a caste.

(d) It has no logical or legal basis. It is also a classic case of unequals being treated equally thereby violating Article 14 of the Constitution of India.

(e) The Hon'ble Supreme Court of India held that when any legislation by the State is manifestly arbitrary, it is in violation of Article 14 of the Constitution of India and it has to be struck down.

(f) Those who identify as transgender will be treated as an MBC man. Tre