They face social stigma, often have to fight for their basic rights and find themselves cut off from society, but now Bihar’s transgender community has entered the battlefield to fight for their identity.
In Bihar, where the second phase of the caste survey started on April 15 and will continue until May 15, the caste code for the ‘third gender’ has been assigned numerically as 22, the same for 214 other castes. This has triggered a dispute in the community that described the measure as discriminatory and arbitrary.
Reshma Prasad, a transgender social activist, spoke exclusively to CNN-News18 and called the decision political.
“I’m not saying the whole caste survey process is wrong, but classifying transgender people into one caste is definitely wrong. International guidelines and NLSA vs Union of India have given us gender identity and not caste identity. It is a great discrimination against transgender people. No other country or state has done this except Bihar. It’s pitiful.
CNN-News18 also spoke to other trans women who are angry at the Bihar government’s decision.
Madhu, a BPSC hopeful, said: “I identify as a trans woman. It is very wrong to categorize myself into a transgender caste since I have my own caste identity. Being transgender is a journey and it is a general term. The government should think about this.”
Another trans woman, Advika Chaudhary, who is training for the Bihar police, asked government officials if their gender was their caste or if they had their own caste identity. “Is the identity of a man or a woman her caste or her gender? The Bihar government has done this to smear our identity. We don’t want to protest, but we kindly request the prime minister to reverse his decision.”
Anupriya Singh, who runs a website to raise the issue of transgender people, said: “My parents, brother and sister have their own caste identity. I also belong to your caste because I was born in that family and I am lucky to live with my family. We already face stigma and discrimination in society. But if he classifies us into a caste, what about our personal identity? This would add another stigma to us. CM Nitish Kumar must be sensitive towards the already neglected community.”
As of the 2011 census, the total population of transgender people in Bihar is 40,827. Previously, in 2014, a Supreme Court ruling had ruled that transgender people would be treated as ‘third gender’ in order to safeguard their rights under Part III of the Constitution.
Public interest litigation
On 17 April 2023, Attorney Shashwat filed a Written Petition in the form of Public Interest Litigation in Patna High Court on behalf of Petitioner Reshma Prasad. she insensitive towards the transgender community who has no choice but to go to court.
Prasad’s petition said that the categorization of “transgender people as a caste is unconstitutional and arbitrary, as it is incompatible with articles 14, 15, 16, 19 (1)(a) and 21, as well as the judgment of the Honorable Supreme Court in National Legal Services Authority v. Union of India and Others (2014) 5 SCC 438 and as such arbitrary and unconstitutional”.
The PIL was filed against the state of Bihar and the defendants are the Bihar Chief Secretary, Bihar General Administrative Department ACS, Bihar Social Welfare Department ACS and the Government of India Ministry of Social Justice and Empowerment .
lawyer speaks
Speaking exclusively to CNN-News18, lawyer Shashwat said: “A PIL has been filed against the state of Bihar in the ongoing caste survey where they have categorized transgender people under chief caste. Their gender identity has been stripped away and assimilated with their caste identity. The people who come from that community are enraged and that is why they approached us to file the PIL”.
On the legal side, Shashwat said it was a direct violation of articles 14, 19 and 21 of the Constitution. “Your personal autonomy and free will are compromised. A man or woman has their own caste identity, but that identity is taken away from transgender people, so it is outright rape. We are hopeful of a positive trial,” he added.
politician’s take
Former BJP Bihar Labor Minister Jibesh Kumar told CNN-News18: “You can’t just classify anyone you want…transgender people are born into a family and have their own caste identity by birth. A transgender can be of any caste, whether Brahmin, Rajput, Kurmi, Muslim, SC/ST, or others. You can’t just take away their caste identity and bring them into a caste. If this is done deliberately then it is terribly wrong and if it is a mistake then the government should rectify it as soon as possible.”
Even the government leaders think that the decision of the general administration department should be changed.
Rishi Kumar, RJD MLA, said: “It is a terrible mistake, but it could be a clerical error. We will speak with government leaders and hope it will be rectified.”
What the laws say and how they are violated
Article 21 guarantees the protection of the “personal autonomy” of an individual which was established in the case Anuj Garg v. Hotel Association of India (2008) and as such the action of the defendant Authority goes against the precedent set by the Hon’ble Supreme Court.
The Hon. High Court in National Legal Service Authority v Union of India (2014) has categorically and unequivocally confirmed that the third gender has the right to self-determination and that the Respondent Authority’s action is so wrong in law.
The petitioners’ gender identity and caste identity are two separate and distinct identities, therefore they are different demographic indicators, and the petitioners have different constitutional protections under them.
Categorizing transgender people under the heading of caste violates the principles set out by the Hon. Supreme Court in National Legal Service Authority v Union of India (2014), which succinctly stated that: “Article 14 of the Constitution of India provides that the State shall not deny to “any person” equality before the law or the equal protection of the laws within the territory of India. Equality includes the full and equal enjoyment of all rights and freedoms.
“The right to equality has been declared as the basic feature of the Constitution and the treatment of equals as unequal or unequal as equals will violate the basic structure of the Constitution. Article 14 of the Constitution also guarantees equal protection and therefore a positive obligation of the State to ensure equal protection of the laws by introducing the necessary social and economic changes, so that everyone, including TG , can enjoy the same protection of the laws and no one is denied that protection.
“Article 14 does not restrict the word ‘person’ and its application to men or women only. Hijras/transgender persons who are neither male nor female fall under the expression ‘person’ and are therefore entitled to the legal protection of the laws in all spheres of State activity, including employment, health care, education, as well as equal civil and citizenship rights, as enjoyed by any other citizen of this country. ”
Attorney Shashwat has advocated for transgender people to be classified as the third gender, or allowed to identify as any of their chosen mixed genders. This would not only allow petitioners to come within the scope of the Act and take advantage of the benefits/social protection guaranteed by the legislation, but would also ensure that the constitutional protections granted to them based on the caste to which they belong, can also be granted. be taken advantage of by them.
It now remains to be seen whether the Bihar general administration department headed by Chief Minister Nitish Kumar takes note of the alleged mistake and rectifies it in time.
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