'How's Being Transgender a Caste Identity?' Bihar's 'Discriminatory' Caste Survey Reaches Patna HC

They face societal stigma, often have to fight for their fundamental rights, and find themselves detached from the 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 from April 15 and will continue till May 15, the caste code for ‘third gender’ has been numerically allotted as 22 — the same for 214 other castes. This has triggered a row in the community which called the move discriminatory and arbitrary.

Reshma Prasad, social activist for transgender persons, spoke exclusively to CNN-News18 and termed the decision political.

“I don’t say that the whole process of caste survey is wrong but classifying transgender persons under 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 vast discrimination against transgendered persons. No other country or state has done this but Bihar. It’s deplorable.”

CNN-News18 also spoke to other trans-women who are enraged with the Bihar government’s decision.

Madhu, a BPSC aspirant, said: “I identify as a trans woman. It’s very wrong to categorise me into a transgender caste as I have my own caste identity. Being transgender is a journey and it is an umbrella term. The government should think about this.”

Another trans woman Advika Chaudhary, who is preparing for Bihar Police, asked the government officers if their gender was their caste or they had their own caste identity. “Is identity of a male or female their caste or their gender? The Bihar government has done this to malign our identity. We don’t want to protest but very graciously request the chief minister to roll back its decision.”

Anupriya Singh, who runs a web portal for raising the issue of transgenders, said: “My parents, brother and sister have their own caste identity. I too belong to their caste because I was born in that family and I am lucky to live with my family. We are already facing stigma and discrimination in society. But if you categorise us in one caste, then what about our personal identity? This would add another stigma to us. CM Nitish Kumar should be sensitive towards the already neglected community.”

According to the 2011 Census, the total population of transgender persons in Bihar is 40,827. Earlier, in 2014, a Supreme Court judgment had pronounced that transgender persons be treated as ‘third gender’ for the purpose of safeguarding their rights under part III of the Constitution.

Public Interest Litigation

A writ petition in the form of a Public Interest Litigation has been filed by advocate Shashwat in the Patna High Court on behalf of petitioner Reshma Prasad on April 17, 2023. Activist Prasad decided to move the court to get relief because she thinks the government is insensitive towards the transgender community which has no other option than to go to court.

Prasad’s petition said that categorising “transgenders as a caste, is unconstitutional and arbitrary as it is inconsistent with Articles 14, 15, 16, 19 (1)(a) and 21 as well as the judgment of the Hon’ble Supreme Court in National Legal Services Authority vs. 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 respondents are Chief Secretary of Bihar, ACS of General Administrative Department of Bihar, ACS of Social Welfare Department of Bihar as well as Ministry of Social Justice and Empowerment, Government of India.

Advocate Speaks

Speaking exclusively to CNN-News18, advocate Shashwat said: “A PIL has been filed against the state of Bihar in the ongoing caste survey where they have categorised transgender persons under the head of caste. They have snatched away the gender identity and have assimilated it with their caste identity. The persons coming from that community are enraged and hence they approached us to file the PIL.”

On the legal aspect, Shashwat said it was a direct violation of Article 14, 19 and 21 of the Constitution. “Their personal autonomy and free will are compromised. A male or female has their own caste identity but that identity is snatched from the transgender persons so this is a direct violation. We are hopeful of a positive judgment,” he added.

Politician’s Take

Bihar’s former labour minister from BJP, Jibesh Kumar, told CNN-News18: “You can’t just classify anyone you like… the transgender persons are born in a family and have their own caste identity by birth. A transgender can be from any caste be it Brahmin, Rajput, Kurmi, Muslims or SC/ST or others. You just can’t just snatch their caste identity and bring them in one caste. If this is deliberately done, then it’s awfully wrong and if it’s a mistake, then government should rectify it as soon as possible.”

Even the leaders in the government think the decision of the general administration department must be changed.

Rishi Kumar, RJD MLA, said: “It’s a terrible mistake but could be a clerical error. We will talk to the leaders in the government and hope it will be rectified.”

What Laws Say and How They Are Violated

Article 21 guarantees the protection of “personal autonomy” of an individual which was established in Anuj Garg v. Hotel Association of India (2008) case and as such action by the Respondent Authority is against the precedence set by the Hon’ble Supreme Court.

The Hon’ble Apex Court in National Legal Service Authority vs Union of India (2014) has categorically and unequivocally upheld that third gender have right to self-determination and the action by the Respondent Authority is as such bad in law.

The gender identity and caste identity of the petitioners are two separate and distinct identities, thereby are different demographic indicators and the petitioners are afforded distinct constitutional protections by virtue of the same.

Categorising transgender under the head of caste is violative of principles laid by the Hon’ble Apex Court in National Legal Service Authority vs Union of India (2014) wherein it was succinctly enunciated that: “Article 14 of the Constitution of India states 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 freedom.

“Right to equality has been declared as the basic feature of the Constitution and treatment of equals as unequals or unequals as equals will be violative of the basic structure of the Constitution. Article 14 of the Constitution also ensures equal protection and hence a positive obligation on the State to ensure equal protection of laws by bringing in necessary social and economic changes, so that everyone including TGs may enjoy equal protection of laws and nobody is denied such protection.

“Article 14 does not restrict the word ‘person’ and its application only to male or female. Hijras/transgender persons who are neither male/female fall within the expression ‘person’ and, hence, entitled to legal protection of laws in all spheres of State activity, including employment, healthcare, education as well as equal civil and citizenship rights, as enjoyed by any other citizen of this country. ”

Advocate Shashwat has pleaded that transgenders ought to be categorised as the third gender, or be allowed to identify as either of the heterogeneous genders as they may choose. This would not only permit the petitioners to come within the purview of the Act and avail the social benefits/protection guaranteed by the legislation, it would also ensure that the constitutional protections guaranteed to them based on the caste they belong, can also be availed by them.

It now remains to be seen if the general administration department of Bihar headed by Chief Minister Nitish Kumar takes note of the alleged mistake and rectifies it in time. ​

Read all the Latest India News here