‘Selfhood not concession’: Rajasthan High Court grants 3% weightage to transgender persons, slams 2026 Bill for ‘diluting’ rights

“It is now proposed that legal recognition of gender identity shall be conditioned upon certification, scrutiny, or other forms of administrative endorsement. What was recognised by the Supreme Court as an inviolable aspect of personhood now risks being reduced to a contingent, State-mediated entitlement,” the court said on Monday.

A bench of JusticesArun Monga and Yogendra Kumar Purohit was hearing a writ petition by a trans woman, Ganga Kumari, challenging the state’s January 12, 2023, notification that placed transgender persons in the OBC category.

Court’s epilogue raises concerns over 2026 trans bill

Taking note of the Transgender Persons (Protection of Rights) Amendment Bill, 2026, which was passed by Parliament on March 24 before the judgment was pronounced and is currently awaiting Presidential assent, the court said that the proposed amendment seeks to omit the right to self-perceived gender identity under Section 4(2) of the 2019 Act, effectively taking away the right to self-determination or self-identification as a third gender.

Expressing concern, the bench said that such a move risks undermining a core aspect of personhood that has been recognised as fundamental under constitutional jurisprudence, particularly in the Supreme Court’s NALSA judgment.

The right to self-identify one’s gender is an intrinsic facet of dignity, autonomy, and personal liberty under Articles 14, 15, 16 and 21 of the Constitution.

Bottomline being, selfhood is not a matter of concession, it is a matter of right.

The subsequent amendment to the Transgender Persons (Protection of Rights) Act, 2019, however, marks a departure from that said constitutional baseline.

In the altered legal landscape, any policy framework devised by the state must be careful and it must strive to preserve, to the fullest extent possible, the constitutional guarantee by extending affirmative measures of reservation.

Any framework, be it legislative or executive, the rule of law demands that such measures must withstand scrutiny not merely of legality, but of constitutional conscience.

The state, as a constitutional actor, is expected to adopt an approach that harmonises statutory compliance with constitutional congruity, ensuring that the rights of transgender persons are not rendered illusory by procedural constraints.

The true measure lies in the tangible dismantling of systemic marginalisation that transgender persons continue to endure.

Operative direction: 3 per cent weightage across state institutions

The court ordered that transgender persons shall be granted 3 per cent additional weightage in the maximum prescribed marks for purposes of selection and appointment to posts and for admission to educational institutions under the state government, its instrumentalities, public sector undertakings, and state-funded or aided institutions.

The court clarified that this direction will operate as an interim measure until the state formulates a constitutionally compliant reservation framework that gives real effect to the mandate of the Supreme Court.

Philosophical opening: Constitutional morality, social reality

The judgment begins with an expansive reflection on the lived experiences of transgender persons, drawing from the Supreme Court’s observations in NALSA vs Union of India (2014).

The court noted that transgender persons have historically faced ridicule, exclusion, and denial of dignity in public spaces such as schools, workplaces, and hospitals.

It emphasised that the present case is not about extending sympathy or charity, but about enforcing rights that already stand recognised under constitutional jurisprudence.

The bench posed a fundamental question- whether rights declared by courts are being translated into reality or remain confined to legal texts.

Cultural recognition vs Contemporary marginalisation

In a rare and striking discussion, the court referred to India’s civilisational heritage, noting that religious texts and mythology have long acknowledged gender diversity through figures such as Mohini, Ardhanarishvara, and Brihannala.

However, the court observed that despite this cultural acceptance, transgender persons in contemporary India continue to face profound social exclusion, economic vulnerability, and institutional discrimination.

This contradiction, the court said, highlights a failure of society to align its practices with its professed values.

From earlier litigation to present challenge

The petitioner, a transgender individual, approached the court seeking enforcement of rights for the entire community.

The litigation has a long procedural history.

The petitioner had earlier approached the high court in 2021 seeking horizontal reservation in police services, leading to a direction to the state to frame appropriate rules within four months.

In response, the state issued the impugned notification dated January 12, 2023, including transgender persons in the OBC list.

However, no separate reservation framework was created.

Subsequent contempt proceedings were closed after the notification was issued, but the petitioner challenged the notification afresh, arguing that it did not comply with the substance of the Supreme Court’s directions.

Petitioner’s arguments: Denial of meaningful reservation

The petitioner argued that the state’s approach is fundamentally flawed because it treats transgender identity as a subset of caste-based classification, rather than recognising it as a distinct basis for affirmative action.

It was contended that the policy creates a situation where transgender persons must choose between their birth-based reservation category and their identity as transgender, thereby placing them at a disadvantage.

The petitioner also pointed out that the absence of separate reservation forces many transgender persons, who already face social exclusion, into precarious livelihoods such as begging or sex work due to a lack of employment opportunities.

Significantly, the petitioner relied on data placed before the Court showing that not a single transgender person had benefited from the notification since its issuance.

State’s stand: Policy prerogative, existing measures

The state opposed the petition by arguing that transgender persons have already been classified as socially and educationally backward and are therefore entitled to OBC reservation benefits.

It contended that decisions regarding the structure and extent of reservation fall within the exclusive domain of the executive and legislature.

The state also referred to welfare measures such as skill development programmes, scholarships, and employment initiatives, and submitted that these steps demonstrate its commitment to the upliftment of the transgender community.

Court’s analysis: Two-part mandate of NALSA

The court undertook a detailed analysis of the Supreme Court’s NALSA judgment and clarified that it contains two distinct directions.

The first is to treat transgender persons as socially and educationally backward classes, and the second is to extend all kinds of reservation in educational institutions and public employment.

The bench held that while the State has formally complied with the first requirement, it has failed to implement the second, thereby rendering its action incomplete and ineffective.

‘Eyewash’ finding: No real benefit, only formal compliance

In one of the most significant findings of the judgment, the court held that the impugned notification is a “mere façade” and an “eyewash”, as it does not confer any real reservation benefit.

The court observed that the notification merely reiterates the recognition already granted by the Supreme Court without creating any mechanism for actual representation.

As such, it reduces a binding constitutional directive to a symbolic exercise.

Anomalies, adverse consequences identified

The court pointed out that the notification leads to serious anomalies.

It noted that transgender persons belonging to SC, ST, or other backward categories may lose more beneficial reservation protections due to their classification under OBC.

Even if a choice between categories is allowed, the court found that the policy offers no additional advantage and therefore fails to advance the cause of affirmative action.

This creates a situation where the classification becomes redundant and even detrimental.

Minuscule population, but real disadvantage

The court examined demographic data from the 2011 Census and noted that the transgender population in Rajasthan is approximately 16,517, constituting about 0.024% of the total population.

While acknowledging that such a small proportion may make the implementation of horizontal reservation complex and lead to infrequent roster opportunities, the court emphasised that the vulnerability and marginalisation of the community cannot be ignored on this ground.

Limits of judicial intervention

The court also addressed the limits of its own jurisdiction, observing that the design and structure of reservation policies fall within the domain of the executive and legislature.

It held that courts cannot create or restructure reservation categories under Article 226.

However, the court made it clear that this does not absolve the state of its constitutional obligation to formulate an effective and meaningful policy.

Statutory obligations under 2019 Act

Referring to the Transgender Persons (Protection of Rights) Act, 2019, the court noted that the legislation mandates governments to ensure full participation, non-discrimination, and welfare of transgender persons.

It observed that the State’s current approach falls short of these statutory requirements.

Recognition of intersectional discrimination

The judgment highlights that transgender persons belonging to SC, ST, and OBC categories suffer compounded disadvantages arising from both caste and gender identity.

The court recognised that such intersectional discrimination necessitates more nuanced and effective affirmative action measures.

Conclusion: Interim relief, call for policy reform

In conclusion, while refraining from directing a specific reservation structure, the Rajasthan High Court granted 3 per cent additional weightage as an interim measure to ensure immediate relief.

At the same time, it delivered a strong message that symbolic compliance is not enough and that constitutional mandates must be implemented in substance.

The judgment underscores that dignity, identity, and equality are not abstract ideals but enforceable rights, and it calls upon the State to move beyond tokenism and design a policy that ensures real representation and inclusion for transgender persons.