On June 15, the Delhi High Court asked the Central government and Union Public Services Commission (UPSC) why transgenders have not been included as a third gender option in the Civil Services Preliminary (CSP) examination's application form. It gave the government until June 17 to reply. The Central government responded to the Delhi High Court, stating that transgenders were not included in UPSC application forms as the Supreme Court has not clearly defined the third gender.
The HC asked the UPSC and Department of Personnel Training (DoPT) why they have yet to include a third gender option despite a ruling from the Supreme Court recognising individuals as a third gender.
On April 15, 2014, the Supreme Court passed a landmark judgement creating a third gender for transgenders. Prior to this judgement they were forced to place themselves under the restrictive boundaries of male or female.
The court directed the government to treat transgenders as a socially and educationally backward class, entitled to quotas like OBCs in educational institutions and for public appointments.
The SC also added that if a person surgically changes his/her sex, then he or she is entitled to her changed sex and can not be discriminated against.
The bench also clarified that the order is specific to eunuchs, Hijras, Kothis, Aravanis, Jogappas and Shiv-Shakthis. It said, the discrimination this group of individuals face is "unimaginable" and their rights had to be protected, "irrespective of chromosomal sex, genitals, assigned birth sex, or implied gender role," to ensure they live a dignified and prejudice free life, as quoted by Indian Express .
HC vs Centre/UPSC
" Despite the Supreme Court judgement of April 15, 2014, you are doing this. Why? Do you want to disqualify them (transgenders) straight away?" the Delhi HC asked UPSC and DoPT.
The court made the observations while hearing a Public Interest Litigation (PIL) filed by Justice Jamshed Ansari that contended, that lack of the third gender option has quashed the ability of transgenders to apply for UPSC examinations. The PIL also sought addition or inclusion of transgenders as an eligibility criteria or gender option in the online application forms for the exam.
The petition also pointed out that the apex court had directed the Centre and state governments to " take steps to treat transgender community 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".
The architects of the Indian constitution like many other democracies believed it would be responsible to create a separation of power. Therefore, the government and the judiciary are separate entities under the letter of law. This means that the government cannot intervene in a court order or direct the court to pass a certain judgement. It can advise the court, it can suggest to the court and it can express its point of view. However, the court will eventually order what it deems fit.
In this case, the government's answer on June 17 is a suggestion to the court that certain actions cannot be taken until a clear definition is expressed by the SC. The High Court has a number of options now, it can either direct the government to construct a definition in a limited number of days, or it can pass the law stating that a definition already exists. It can also take stronger action and hold the government in contempt - however, the likeliness of this happening, is slim to none.
The Supreme Court has passed a law that recognises transgenders as a third gender, it grants them civil rights and reservations under the OBC category, it has provided a definition of what constitutes a transgender. If after all this the government fails to grant them individual freedom and civil rights, then it is time to question whether the government is violating basic human rights.