Bihar caste survey: SC dismisses plea challenging classification of transgender persons as a caste

The Supreme Court on Monday refused to entertain a plea challenging the decision of the Bihar government to classify the transgender community as a 'caste' and not under the category of 'gender' in the state caste survey process.

A bench of Justices Sanjiv Khanna and SVN Bhatti dismissed the petition as withdrawn and granted liberty to the petitioners to approach the state government.

The bench verbally stated that social benefits could be extended to transgender persons as a 'third gender' and not as a 'caste' after noting that there exist three columns in the survey form now — male, female and transgender.

The plea contended that the state government categorised hijra, kinnar, kothi, transgender (third gender) as a separate caste code at serial no 22 under the Caste Code List, not classifying them under the category of gender.

The special leave petition, filed through advocate Tanya Shree, said Patna High Court earlier disposed of the writ petition without taking into account the fact that classification of transgender persons under the category of caste and not gender is violative of articles 14, 15, 16 and 21 of the Constitution, as well as Transgender Persons (Protection of Rights) Act, 2019.

The petition stated that the "erroneous" classification of the transgender community as caste in the Bihar Caste Census, 2022 has resulted in discrimination against the community as it has taken away the right of self-classification of their gender.

"Such classification of transgenders is erroneous and against the Constitutional mandate as well as judgments of the Supreme Court," it said, adding that such action of the state government is void ab initio (null and void from the very beginning).

It said that the caste survey is ultra vires section 8 of the Transgender Persons (Protection of Rights) Act, 2019, which obligates the appropriate government to take steps for the welfare of the persons from the transgender community.

A batch of pleas questioning the state government’s authority to notify the conduct of a caste-based survey in Bihar has been adjourned by the Supreme Court to January next year.