While I was applying to the 2020 PhD program at IIT Madras, I found that it has no third gender option for the Trans community to legitimately select and gain admission through that category. As a former student of TISS with a deep interest in human rights, I found some time to check out every IIT to see whether they follow the third gender rule in their respective admission processes. To follow the categorization of third gender/Trans Gender (TG)/others by every IITs comes into force particularly from the Transgender Persons (Protection of Rights) Act, 2019 which came into effect on January 10, 2020.
After a long gap of 5 years, the present BJP government enacted an illogical and irrational Transgender Persons (Protection of Rights) Act, 2019 that couldn’t even address and abide by the honourable apex courts’ original orders from 2014. The language of the Act was not in conjunction with the Supreme Court’s order but partially concentrated on some aspects of the order by just granting them the third gender identity and leaving them to have no reservation in any public institutions or offices. There is no recognition of transgender persons in the Socially and Economically Backward Classes (SEBC) as directed by the apex court and no reservation in the public educational institutions and in public employment opportunities.
In the judgment itself, the court had directed the state and the union government to treat them as SEBCs and extend them with all kinds of reservation in admissions to educational institutions and in public appointments (p. 128). However, none of these orders was followed by the union government in making of this Transgender Persons (Protection of Rights) Act, 2019. Thus leaving them extremely vulnerable. In fact, recently on April 20, 2020 the Government of India (GoI) released an office memorandum directing central government institutions to include “TG/any other category” in their application forms. But this order only talks about employment opportunities, not admissions. Therefore we will study the admissions aspects of the 2019 Act and the IITs further.
According to the Transgender Persons (Protection of Rights) Act, 2019, Chapter III, Section 4 (1) & (2) states that,
“4. (1) A transgender person shall have a right to be recognised as such, in accordance with the provisions of this Act. (2) A person recognised as transgender under sub-section (1) shall have a right to self-perceived gender identity.” (p. 3)
And also according to the Act, Chapter II, Section 3 (a),
“3. No person or establishment shall discriminate against a transgender person on any of the following grounds, namely:—
(a) the denial, or discontinuation of, or unfair treatment in, educational establishments and services thereof” (pp: 2 – 3).
Therefore, from the said 2019 Act, both the Chapters II & III explicitly give the gender identity of the trans community a legitimate right and the provisions for no establishment to discriminate the trans community in educational institutions and in any services. Hence their right to gender identity is legitimate to gain admission in any educational institutions without any discrimination.
In fact, the said 2019 Act comes from a 2014 court judgment of the Supreme Court of India (SCI). which has given some of the best progressive ideas in its original order. This judgment has been widely reported as the NALSA judgment (National Legal Services Authority (NALSA) v. Union of India).
So, as I said, I started to browse all the IIT websites for an option of Other/Trans Gender/Third Gender in their 2020 PhD admissions. Interestingly I found some facts about every IIT, those are as follows in the table,
Table: IITs Following The Third Gender/Trans Gender/Others Categorization In Its 2020 Ph. D Admissions
Source: From the respective IIT websites, accessed on April 19, 2020 at 10: 45 PM IST
*Note: Green correct symbol indicates the respective IIT followed the third gender category and the Red Cross symbol indicates the respective IIT didn’t follow the third gender category in its 2020 Ph. D admissions.
Out of the total 23 IITs in India, 15 IITs (65.21%) have followed the Transgender Persons (Protection of Rights) Act, 2019 in their 2020 PhD admissions, as per the data collected from the respective IIT websites. According to their websites, these IITs have put an option of choosing one’s own gender identity that is different from both female and male (assigned) while applying. This choice is either termed as third gender or Trans Gender (TG) or other option for Trans community.
Out of these 15 IITs who have followed the three categorizations, 10 IITs use ‘TG’, 4 IITs use ‘Others’ and 1 IIT followed ‘TG/Third Gender’ categorization. And out of other 8 IITs, only 4 IITs (17.39%) namely the IIT – Madras, IIT – Ropar, IIT – Patna and IIT – Jammu didn’t have any option from the said 2019 Act. Finally out of the other 4 IITs, data from 3 IITs couldn’t be found because the application dates were over and other 1 IIT’s website was not reachable at that time I was browsing.
This choice of giving an option of third gender/TG/other in the admission process of PhD for the trans community is legally binding from the point of National Legal Services Authority (NALSA) v. Union of India, a landmark judgment of the Supreme Court of India in which the apex court has recognized the transgender persons as equal gender that of male and female and their rights as equal. The apex court in its order had declared,
“transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.” (p. 128)
This historic judgment of apex court on NALSA paved a path for the demolition of state-sponsored discrimination in access to education, health care, employment and public places etc. To this regard, the court had declared,
“we direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.” (p. 128)
With the enactment of the Protection of Rights Act, 2019, several activities felt a need for an intervention by the Supreme Court in the above said Act to nullify some of the provisions of it and therefore holding the apex court’s order in legitimacy for granted fair rights to the trans community.
On January 27, 2020 the apex court has issued a notice to the Union government on a plea challenging the validity of the Transgender Persons (Protection of Rights) Act, 2019. The notice was issued by a bench consisting of the Chief Justice of India (CJI), S A Bobde and other justices B R Gavai and Surya Kant in a writ petition filed by a transgender activist Swati Bidhan Baruah who were represented by 4 advocates to declare the Act as unconstitutional. To this the plea has sought that the Transgender Persons (Protection of Rights) Act, 2019 should be declared as unconstitutional saying that it restricts the right of such persons to self-identify their gender by subjecting it to certification from the State authority and the bureaucratic burdens on the trans community. The petitioners stated that,
“the impugned Act is a regressive piece of legislation which is more likely to harm the interests of the transgender community in India. The impugned legislation has several provisions which suffer from the vice of arbitrariness and vagueness,”
The said petition only talks about the problems of the Act in the identification of the third gender and not particularly on the admission as such.
The 15 IITs that followed the third gender categorization are well within the NALSA judgment of the apex court and the Transgender Persons (Protection of Rights) Act, 2019 under Chapter III, Section 4 (1) & (2) and Chapter II, Section 3 (a). Recognizing transpeople in the admission process by the IITs is well appreciated and it can ride the tests of any court in this country. But the challenge here is the admission of the trans community itself. It is well observed by the apex court that the trans communities face historical prejudice perpetuated by different means.
Even if they apply through the category of third gender/TG/other, they still have to compete with the caste category. The category of this gender has only been identified as just one gender but not as one particular group of people who lack educationally and socially as in the case of Other Backward Classes (OBC). For this, the apex court in 2014 had directed the respective union and state governments to act as follows,
“We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.” (p. 128)
But so far, the said 2019 Act doesn’t speak of reservations in admission or employment. In analyzing so, the 4 IITs namely IIT Madras, IIT Ropar, IIT Patna and IIT Jammu have constitutionally violated their duty to recognize them and to give them a chance to study after the due admission process. Therefore, it’s time for the public institutions and offices and especially the IITs to follow up the said Act in due respect to the Constitution of India and its governing provisions and principles, as envisaged by the chief architect of the Constitution, Dr B R Ambedkar.