Bihar caste census: Plea in SC challenges classification of transgenders as ‘caste’ instead of ‘gender’

A plea has been filed in the Supreme Court challenging the decision of the Bihar government to classify transgender community as 'caste' and not under the category of 'gender' in the state caste survey process.

The special leave petition said 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.

The petition claimed that the state government categorized hijra, kinnar, kothi, transgender (third gender) as a separate caste code at serial no 22 under the Caste Code List and did not classify them under the category of 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 intio (null and void from the very beginning).

The plea claimed that the Bihar government has no power in categorizing the third gender as a separate caste.

It said that the caste survey is ultra vires the 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.

The special leave petition, filed through advocate Tanya Shree, said that the Patna High Court disposed of the writ petition without taking into account the fact that classification of transgender under the category of caste and not under the category of gender in Bihar Caste Census, 2022 is violative of Article 14, 15, 16 and 21 of the Constitution of India, as well as Transgender Persons (Protection of Rights) Act, 2019.

“The Notification dated June 6th, 2022 is against the Constitutional mandate … and also against the judgement of the Hon’ble Supreme Court in case of National Legal Service Authority Versus the Union of India & Ors, whereby right of self identification of gender has been held to be a fundamental right,” stated the plea.

A batch of pleas questioning the state government’s authority to notify the conduct of caste-based survey in Bihar is already pending for consideration before the Supreme Court.