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Law

1. Affirmative Action for Transgender: Implementation & Challenges The term transgender has the relevance of stating themselves as the third gender. The religious text quoted by the National Legal Services Authority versus Union of India, 2014 (NALSA) judgement established that some religion calls the transgender as the form of “Shakti” and “blessing giver”. The NALSA judgement though was one of a leading judgement which gave rights to the transgender as third gender and after the judgement a legislation enacted, i.e.., The Transgender Persons (Protection of Rights) Act, 2019 which underlines the rights which are guaranteed to the transgender but was full of criticism. The implementation of the Act or the judgement is seen rarely in any public and private sector and especially the reservation quota to the transgender is very conflicting.

2. Intersection of Gender and Caste Double Discrimination The transgender from lower caste is entitled to choose one quota though there is double discrimination towards the transgender. The reservation, education, and infrastructure every challenge is still a contesting issue. The paper will fundamentally deal with the double discrimination towards the lower caste transgender the intersection between gender and caste of the transgender persons. Affirmative Action The researcher through this paper will deal with the affirmative actions taken in form of judgement & act and will discuss all the criticisms from the implementation point of view. The researcher will through the study suggest possible ways for more of affirmative policies for transgender and will deal the challenges faced till now by the transgender community.

3. Historical Context 1 Vedic Times The transgender community has a very ancient existence among all the religions. Hinduism from their Vedic times denotes the transgender as the Tritiya Prakriti. The ‘napunsaka’ is a term which was denoted for the people who do not have any masculine or feminine gender. 2 Ramayana In Ramayana the Lord Ram when leaving to the forest for vanvaas said all the male ana female please return, but the transgender followed Lord Ram to the forest stating that they were not asked to go. So, Lord Ram gave transgender the power to bless newly born or any newly married couple. 3 Modern Recognition The transgender was required to fill the details in any educational institution stating themselves as female or male, and not as the gender which they exist as. Gender as a term previously only involve the male and female gender. The transgender comprises of hijra, chakka, shiv shaktis, or aravanis. The community was from long back a part of society.

4. Constitutional Rights 1 Article 14-16 The constitution of India through article 14 to 16 and 21 describes the rights which are given to every citizen without any discrimination based on caste, sex, religion, or place of birth. 2 Article 21 The Constitution is a wholesome of all rights which an individual requires for the sake of justice and dignity. Transgenders are also covered under the ambit of constitutional rights, as they are also the citizen of India. 3 Fundamental Rights The violation of their rights and their dignity has been prevalent from a very long time back. The constitution a way back has given this right to every citizen though the rights were not conferred by the transgender community. They did not exist in the eyes of laws and were deprived of certain fundamental rights, which are necessary for every individual to grow as a person or identity.

5. Affirmative Action: A Historical Perspective 1 US Origins The term affirmative action was first used in the US to enact a policy in 196, to take positive actions in the employment sector. The discrimination based on caste, race, sex must be prohibited. 2 Indian Context In India the people consider affirmative action as reservations in the education as well as the employment sector. The Indian Constitution adopted the reservation clause in 1950 for educational institution and any government jobs to the minority class (schedule caste & schedule tribes). 3 Supreme Court Intervention The case of Indira Sawhney v. Union of India the Supreme court capped the reservation limit. These cases brought the concept of affirmative action policies through reservation in the frame.

6. Affirmative Action for Transgender NALSA Judgement The affirmative action for transgender was a thought of conflict for many people among the society. The gender is considered as a complex term, when we think of gender, we consider only male and female. The gender though include male, female and trans as the third gender, which was recognized for the first time in the case of National Legal Services Authority versus Union of India, 2014. Transgender Persons (Protection of Rights) Act, 2019 After these judgements and lot of conflict the act with so many criticisms was passed that was The Transgender Persons (Protection of Rights) Act, 2019. This act was in contradiction with NALSA judgement as well as violative of basic fundamental rights. The act guarantees several rights to the transgender community, such as education, employment and healthcare rights.

7. Criticisms of the Act Self-Identification The Supreme court gave right to the transgender community for their recognition through self-identification, and on the other hand the act discussed that the transgender needs to confirm their identity by District Magistrate. The act is violating their right of self-identification which is earlier guaranteed by the Supreme Court through verdict. Medical Surgery The section 4, 5 and 6 of the act states that after the medical surgery only they will be recognized as the third gender which is violating their right to self-identification. Reservation The transgender community faced lack of reservations in the employment as well as educational sector. The Supreme court of Indian though guarantees right to equality to the transgender in the employment and education still the act does not hold any such right for the transgender in which they are entitled to get affirmative actions for social and educationally backward class.

8. Challenges and Implementation Lack of Legal Protection The first and foremost challenge faced by the community is lack of legal protection, which is very necessary for their upliftment as well as is necessary for removing the social stigma. Healthcare Challenges The second challenge faced by the community was proper healthcare and check up facilities. The healthcare providers in the hospitals are very insensitive towards the transgender. Social Stigma There is a lack of social support, from family or from other people in society. They are socially stigmatized as they have a lack of awareness and society is lacking awareness. Family rejects their own children and abandon them. Infrastructural Challenges The infrastructural challenges faced by the community is against their right against discrimination.