Transgenders entitled to special quota for third gender: Madras High Court

The Madras High Court has held without "hesitation" that transgenders are entitled to a special reservation for third gender viz., transgender category for admission to post basic (nursing) and post basic diploma in psychiatry nursing courses.

The court directed the Secretary, Tamil Nadu Health and Family Welfare department, Director of Medical Education (DME), Chennai, and Secretary (selection committee), DME, to treat the petitioner S Tamilselvi as third gender/ transgender and accordingly place her in a special category i.e. transgender category for admission to the course for the academic year 2022-23 for which the present merit list has been issued by the secretary, selection committee, only for female and male candidates.

Apart from Tamilselvi, if any other transgender candidate applied for the said course, a separate category of merit list shall be prepared by the secretary consisting of only transgenders candidates and based on the inter se merit among the transgender candidates, Justice R Suresh Kumar said.

"If more than one candidate is available, based on the inter se merit, admission shall be given to those transgender candidates. The needful, as indicated above, shall be immediately undertaken by the secretary, selection committee and accordingly the selection shall go on including the name of the petitioner under the special category i.e. transgender category," he said recently.

Tamilselvi had moved the Madras High Court seeking a direction to the authorities to quash the prospectus issued for the Post Basic (Nursing) Course and Post Basic Diploma in Psychiatry Nursing Course for the academic year 2022-2023, as illegal for not categorising transgenders under special category.

She also sought for a direction to the secretary, selection committee, to admit her in Post Basic B.Sc.(Nursing) Course for the academic year 2022-2023 under special category as transgender.

Though communal reservation was provided for the said courses, there was no separate reservations provided horizontally for the third gender/ transgender. Hence, she approached the court, her counsel Reshmi Christy, said.

Citing the Supreme Court's set of directions to the Centre and state governments on the action to be taken to treat the third gender/ transgender as a special category, Justice Suresh Kumar observed "had there been special reservation as directed by the Hon'ble Supreme Court provided to transgenders, certainly the petitioner would have been in a top position and would be in a position to get admission in the course concerned."

On the argument that sometimes seats reserved for transgenders may not be taken up by them for want of candidates as "only minimal transgenders are living" in the state, the judge remarked "at least a provisional note could have been made."

"Even though special reservation has not been made horizontally for transgender candidates, the non-inclusion of the petitioner in the special category meant for transgender is against the judgments given by the Hon'ble Supreme Court as well as this court and also against the provisions of the 2019 Act," he ruled.