The Uttarakhand High Court on September 28, 2018 directed the state government to provide reservation to transgenders in educational institutions and public appointments.
The direction is a part of a slew of directions issued by the court for the welfare of transgender persons in the state. The court stated that the transgenders lead a miserable life and are often treated unfairly. Observing that they have the right to a life of dignity, the court gave the state government six months time to implement its decision.
The order came on a petition filed by two members of the transgender community seeking protection to their lives and liberty. While directing protection for them, the court took judicial notice of the difficulties generally faced by the transgender population in the country.
The Supreme Court in its judgement in the case of National Legal Services Authority vs. Union of India, (2014) had directed the central and state governments to recognise transgender as the third gender and provide them with the benefits of the socially and economically backward class such as reservation in public employment.
The top court had held then that gender identity is a part of the right to dignity as well as personal autonomy and self-expression thus, discrimination on the grounds of gender identity is impermissible.
It had also directed the centre and state governments to seriously address the problems faced by Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies and social stigma.
It had also directed the governments to take proper measures to provide medical care to the transgenders in the hospitals and provide them with separate public toilets and other facilities.
It also directed the governments to frame social welfare schemes for the betterment of transgenders.
Taking cognisance of the SC judgement, the Uttarakhand high court stated that the state government has not till date implemented the directions issued by the apex court.
Key Observations of the Court
• No transgender persons should be separated from their family immediately on the ground of being a transgender.
• Every transgender has a right to live in a house with his or her parents.
• The State Government is required to frame social welfare schemes and programmes for transgenders.
• Every individual has a right to life. Transgenders have a right to privacy. They are required to be protected from exploitation and have a right to work.
• The state government is required to take all necessary steps to provide habitable accessible, culturally appropriate houses to transgenders including the right to education.
• Transgenders are required to be provided separate facilities in public utility buildings including toilets.
Post its observations, the bench issued the following directions to protect the rights of the transgenders:
The court directed the Senior Superintendent of Police, Dehradun to provide necessary protection to the petitioners in both the petitions.
The court directed the state government to frame a scheme within six months to provide reservation in admission in educational institutions and for public appointments to the transgenders.
3. Social Welfare Schemes
The court directed the state government to frame various social welfare schemes and programmes for the betterment of transgenders within a period of six months.
4. Public awareness
The court directed the state government to create public awareness to enable transgenders to come into the mainstream and also to take measures to regain their respect and place in the society.
5. Housing scheme
The court also directed the state government to frame a scheme of housing for transgenders by giving suitable accommodation to them within six months.
6. Financial Assistance/ Scholarships
The court also directed the state government to provide financial assistance to the parents of transgenders and also to give a scholarship to transgenders upto post-graduate level in order to absorb them in the mainstream.
7. Constitution of the welfare board
The court further directed the state government to constitute a welfare board for the upliftment of transgenders in the state within a period of six months. The transgenders will be given representation on the board.
8. Free medical access
The court also directed the state government to provide free medical access to transgenders in all the hospitals.
9. Free access to public institutions
The court also directed the state government to ensure that transgenders have free access to public institutions, public places, playgrounds, roads including educational institutions, malls, marketplaces, hospitals, hotels and restaurants.
10. Separate Public Utility
The court also directed the state government to provide separate toilets to transgenders in every public utility buildings including hospitals, bus stations and railway stations within six months.
11. Non-separation of transgenders from family
The court also suggested the state government to frame a law or scheme to ensure that no transgender is separated from the parents or guardians and family within a period of three months.
It also stated that criminal cases shall be registered against those who forcibly remove transgenders from their parents or guardians and family.
12. Registration of all transgenders
The court directed that all the transgenders in Uttarakhand are to be registered by the District Magistrates to recognize them with their own identity.
13. No discrimination
The court stated that there shall not be any discrimination against transgenders in employment or occupation. The court affirmed that they should not be treated unfairly and said that they have the absolute right, as enshrined under Article 21 of the Constitution of India to maintain privacy and to live with dignity.
Prior to this, the state of Odisha had framed a scheme for promotion of transgender equality and justice.
The scheme covers medical assistance to the parents of transgenders along with pre and post matric scholarship, personality development, skill up-gradation training and self-employed of transgenders.
It also covers the role of district administration, the role of block/ ULB administration and budget provision and utilisation.
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Who: Uttarakhand HC