The Centre has told the Supreme Court that gays, lesbians and bisexuals cannot all be clubbed as transgenders or given the benefit of reservation in education and jobs under the other backward classes (OBC) category as ordered by the court in April.
“Gay, lesbian and bisexual (persons) cannot obviously be included in the category of a gender or transgender. The concept of gay, lesbian and bisexual is based strictly on sexual orientation while the term ‘transgender’ has to do with the person’s own deep sense of gender identity,” the government said Wednesday in an application requesting clarity from the court on the definition of ‘transgender’.
Furthermore, it claimed, all transgenders cannot be clubbed as OBC as many of them may by birth belong to other castes.
In the landmark April verdict hailed by gender rights activists, the top court had directed the government to declare transgenders a ‘third gender’ and include them in the OBC quota. Underlining the need to bring them into the mainstream, it had said they should have all rights under law, including marriage, adoption, divorce, succession and inheritance.
But the Centre said the verdict had created confusion. “Universally, the term LGBT is used for lesbians, gays, bisexuals and transgenders. While it may be possible for some transgender persons to also be gay, lesbian or bisexual, that is only an individual’s sexual orientation and would not result in a lesbian, gay or bisexual by themselves per se becoming a transgender,” the application stated.
Asking the court to modify its order, it added, “Caste is determined by birth. It is an intricate question and clubbing them all as one category may pose problems both practically and politically.”
“They (transgenders) may be separated from their families and living in groups but that does not mean they have converted to other castes.”
Civil society activists called the Centre’s modification plea regressive. “Instead of understanding the spirit of the judgment and proposing reservation for transgenders, the government has indicated which way it wants to go as far as the rights of minorities are concerned,” said advocate Kranti, executive director of Human Rights Law Network. He also accused the Centre of acting unilaterally, without considering civil society’s views.
Maintaining that the inclusion of castes in the OBC category was done on the recommendation of the National Commission for Backward Classes, the Centre also sought to know if it could implement the court’s verdict without going to the commission. It added that it wasn’t possible to implement the court’s directions within the six-month deadline fixed by it.