It feels like an unending tragedy when the Courts and policy makers don’t even consider our sex-class worthy of its own category
Tamil Nadu Uniformed Services Recruitment Board (TNUSRB) was recently given a Court order to create special reservation for ‘trans’ people; that their inclusion can’t be clubbed under the female category. Anybody with any cognisance about the gender cult would find this to be a good move. I did. I was happy that female workplace quotas will no longer be infringed upon by men who self identify as ‘women’. However, it was not about protecting female affirmative action quotas. Rather, this judgement is the result of a confusion around several pre-existing safeguarding measures for various groups.
One of the media reports that announced the passing of this judgement said, “The Madras High Court has held that clubbing Transgender persons who self-identified as females under the quota for women is unconstitutional.” Notice how ‘transgender’ is a self-identified “female” but a female is a “woman.” The judgement, condemning TNUSRB’s decision to club ‘trans’ under the woman category, upholds that it deprives equality to ‘trans’ which is violative of Articles 14 and 16(1) of the Constitution of India. The Court held that such an action defies the direction in the Supreme Court’s NALSA (National Legal Service Authority) judgment to provide reservation for transgender persons in public employment.
There are several issues in this judgement that affect women’s sex-based rights, and before I point them out, here’s a quick breakdown of the law and the Constitutional Articles being cited.
Problems with ‘NALSA v Union of India (2014)’ and the ‘Transgender Persons (Protection of Rights) Act, 2019’
The judgment of the Supreme Court of India in NALSA v Union of India recognised that ‘transgender’ persons are to be accorded a legal status under Indian laws. And the Transgender Persons (Protection of Rights) Act, 2019 is a culmination of the efforts to give effect to NALSA and to enact a legislative framework to protect the rights of the ‘transgender’ community all over the country.
During NALSA, the Court took into account certain international guidance and laws, which are not of uniform status i.e the Court extensively uses the Yogyakarta principles, which are NOT international law, nor indeed, best practice.
The Supreme Court also interpreted the word ‘sex’, as given in Articles, to include ‘gender identity’. It said, “both gender and biological attributes constitute distinct components of sex.” And instead of defining ‘gender’ as a set of sex stereotypes, it defined it as ‘gender identity’. And with this interpretation (which is not in line with the Constitution of India which only mentions ‘sex’ as the protected category) the Supreme Court concluded that protection from sex-based oppression under the Articles inadvertantly includes gender identity. But sex and gender identity are not the same and must not be conflated. Sex is biological, dimorphic, and immutable. Whereas gender identity is a person’s “feeling” of what ‘sex’ they are. This legal ambiguity within the NALSA judgement has set a dangerous precedent for all further judgements.
The overuse of ‘gender identity’ has changed the very meaning of the word ‘gender.’ It is no longer understood as a social construct riddled with hierarchy wherein women are accorded an inferior status; instead, TRAs claim gender to be some “unique feeling” which deserves to be given precedence over material reality. Thus the Court’s decision to stitch together the words ‘gender’ and ‘identity’ is nonsensical because sex stereotypes are attached to a particular sex; and not individual or personal feelings.
Sex is biological, dimorphic, and immutable. Whereas gender identity is a person’s “feeling” of what ‘sex’ they are. This legal ambiguity within the NALSA judgement has set a dangerous precedent for all further judgements.
Incidentally, the claimants in NALSA did not contend to change sex, but called for recognition as a third category. Yet, the Transgender Persons (Protection of Rights) Act of 2019 provides for self-identification as the opposite sex. Therefore, both the NALSA judgment and the Act of 2019 display the same problematic conflation of sex and gender.
The convenient conflation of ‘sex’ and ‘gender’ and reference to Constitutional rights
The recent judgement to overhaul TNUSRB’s recruitment process repeatedly cites Articles 14 and 16(1) of the Constitution of India. As per the latest version involving amendments if any, Article 14 is described as: “Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”
Similarly, while the Court conveniently cites Article 16 (1) which ensures equality of employment opportunity for all citizens, it blatantly ignores Article 16 (2) which says: “No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State.”
The Constitution of India under Article 15 prohibits discrimination by the State on the basis of ‘sex’ and not ‘gender or gender identity’. Gender, which could be defined as social roles, stereotypes and behaviors expected of the members of a particular sex, is not used by the Constitution; thus confirming that the law acknowledges the difference between sex and gender. But the Transgender Persons (Protection of Rights) Act, 2019 does away with the difference by defining a transgender person as someone whose, “gender does not match with the gender assigned to that person at birth…”
Indian TRAs argue that whether a person is a man or a woman is not dependent on their biology but their innate, self-perceived feelings. But biological sex is not subjective, and gender is the product of socially constructed roles wrongly considered appropriate for the members of each sex- men (masculinity) and women (femininity).
The term ‘assigned at birth’ is only relevant to babies born with DSD (Disorder of Sex Development) conditions and has been co-opted by the ‘woke’. Humans are born either male or female; and DSDs are deployed by gender ideologues to argue that sex is somehow a spectrum. The existence of persons with DSDs, does not negate the utility of sex as a basis for categorisation and non-discrimination. Persons with DSDs (0.02% of the population) are still identifiable as one of the two sexes.
Several other mind-boggling issues with TNUSRB judgement
- Changes in criteria only applicable to males who self ID as ‘female’ and not other way round:
According to the judgement, those who identify themselves as male or third gender were considered under a general category. Further, the relaxation given to women candidates in physical measurement, endurance and physical efficiency tests were extended “only to the transgender who either identity themselves as female or as third gender.” The judgement read, “the physical tests were ordered to be determined according to the category of their option [at the time of application]. Thus ‘trans’ persons who opt to apply as a Third Gender will undergo physical tests prescribed for “Female candidates”.”
Such relaxations were not applicable to those who identify themselves as male. “Though these appear to be concessions granted to the TGs, the notification restricts these concessions to such TGs, who recognize themselves as “Male” or “Third Gender,” the Court said.
This is not an isolated case where trans identifying females are grossly neglected. Previously, the Union Public Service Commission that conducts national level competitive exams for the National Defence Academy and Naval Academy laid out some rules. According to a clause, female and ‘transgender’ candidates are not allowed to take the NDA exam. ‘Trans women’’ whose legal “gender” is still male are eligible. ‘Trans men’, however, are neither allowed on the basis of their sex or their “gender identity,” said the clause.
While progressives laud this to be a landmark judgement, it baffles me how they can miss the glaring misogyny in such provisions. The ‘trans’ movement has covertly only been about male rights after all.
- MBC community certificates for anyone who is ‘trans’ (only applicable to males who self ID as ‘female’):
In 2019, the Commissioner of Social Welfare told the Madras High Court that transgenders were entitled to reservations in jobs and education as per the community to which they belong and that those who did not possess community certificates could be considered as Most Backward Class (MBC) candidates. The report stated that the transgenders who preferred to identify themselves as females were eligible to compete under the 30% special quota for women candidates and also under the rest of the 70% meant for both men and women.
Fast forward to March 2022, Madras High Court has made a “strong” recommendation to the State government to provide a specified percentage of special reservation for the transgender candidates in future recruitments in addition to extending other privileges and relaxations.
In 2015, a trans-identifying male became the principal of a women’s college in Kolkata, where it is not clear if the State had such policies in place. On January 5, 2021, (despite no such pre-existing provisions) the Bombay High Court allowed a trans-identified male to contest village panchayat (town council) polls as ‘female’ in a ward reserved for women, saying that such persons have the right to a “self perceived gender identity.”
Feminists are rightfully concerned about an approach to an end goal that involves manipulating the meaning of words, or demanding provisions meant for some other group for an entirely different purpose.
In one of my earlier pieces, I explained the desperate conditions under which the Hijras survive. Their livelihood often depends on either prostitution, performance or seeking alms. One of the petitioners of the case against TNUSRB understandably feels scared for himself. “It feels like the government is telling us that we are fit only for begging. We want to live regular lives like everyone else, but the government is not thinking on the same lines. They are hell-bent on oppressing us to the lowest rung,” he said in an interview.
But feminists contention to ‘trans’ inclusion or reservation is not based on spite. Feminists are rightfully concerned about an approach to an end goal that involves manipulating the meaning of words, or demanding provisions meant for some other group for an entirely different purpose.
- Demanding provisions set aside for destitute widows:
Late last year, three men self-identifying as ‘female’ applied to be constables at the TNUSRB. Their petition to be eligible for employment in this role significantly influenced the Madras HC to pass the aforementioned judgement. These three men couldn’t apply for the job due to the upper age limit of 26 – all of them were older. And this is where it gets twisted.
While the TNUSRB has existing provisions for destitute widows to seek employment due to the death of their husband, there is an age limit of 35. The TRAs behind the case cited that the petitioners’ upper age limit must be that of a destitute widow; for after all, they are “marginalised based on their gender.” The plea was allowed by Justice Dhandapani and the three men took the aptitude test.
Having written the exams and failed, these men wanted a much lower cut off mark, much like (wait for it…) a destitute widow. The three men had scored 30, 32, and 35 in their written test but the cut-off for MBC candidates is 38. “The cut-off for the destitute widow category was 29. So we filed a petition at the court stating that there are others who have lower cut-offs and hence we, from an oppressed community, need relaxation of cut-off marks,” said their legal rep in an interview.
- Dangers of legal precedent:
Even before this case in Tamil Nadu, the State of Karnataka had adopted a provision that provides a reservation of 1% to ‘transgender’ in public emloyment. The Madras High Court sought this as best practice and made a strong recommendation to follow Karnataka’s precedent. Justice M.S. Ramesh – who passed the judgement concerning TNUSRB – took note that the neighbouring State has created provisions:- “If that be so, I do not find any impediment for the Government of Tamil Nadu to adopt a specified percentage of reservation for the transgender of this State also,” he wrote.
When we face hurdles in ensuring the measly 30% reservation is achieved, fight against a system that relentlessly distances us from our aspirations, women are now having to defend their very existence.
It has been an ongoing practice for judgements given by a High Court in one State to then be deemed as references for High Courts in other States. So there is, in the very least, a risk that this judgement may be regarded as a precedent by ‘trans’ lobbying groups in many other States too.
Women’s gripe against such lobbying is extremely simple: it encroaches upon existing affirmative actions set aside for other marginalised communities. Whether these affirmative actions are effective in reality is a debate that warrants a whole article in itself. When we face hurdles in ensuring the measly 30% reservation is achieved, fight against a system that relentlessly distances us from our aspirations, women are now having to defend their very existence.
Judgements like these are problematic and display a shocking indifference towards maintaining the sanctity of women’s quota. Without clear demarcations, we run the risk of not just losing access to women-only affirmative action – since anyone can be a woman – but also of being entirely written off from exercising our fundamental rights.
Men in India now have free access to change their names on birth certificates, thus altering their legal sex marker to F regardless of any surgical interventions. Corporations have submitted themselves to the woke ideology and are removing women-only spaces such as toilets by making it ‘inclusive’. The irony is of course that such ‘inclusivity’ excludes women. For feminists like me, fighting for ‘women’s rights’ feels like an unending tragedy when the Courts and policy makers don’t even consider our sex-class worthy of its own category.
Special Thanks to M.A. for her time and generosity in offering legal input for this article.
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