Bihar caste census: SC dismisses plea challenging classification of transgenders

A bench of Justices Sanjiv Khanna and S.V.N. Bhatti dismissed the petition as withdrawn and granted liberty to the petitioners to approach the state government

New Delhi: The Supreme Court on Monday refused to entertain a plea challenging the decision of the Bihar government to classify transgender community as “caste” and not under the category of “gender” in the state caste survey process.

A bench of Justices Sanjiv Khanna and S.V.N. Bhatti dismissed the petition as withdrawn and granted liberty to the petitioners to approach the state government. The bench orally remarked that social benefits could be extended to transgenders as a “third gender” and not as a “caste” after noting that there exist three columns in the survey form now viz male, female and transgender.

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The plea contended that the state government categorized hijra, kinnar, kothi, transgender (third gender) as a separate caste code at serial no 22 under the Caste Code List and did not classify them under the category of gender. The special leave petition, filed through advocate Tanya Shree, said that the Patna High Court earlier disposed of the writ petition without taking into account the fact that classification of transgender under the category of caste and not under the category of gender in Bihar Caste Census, 2022 is violative of Article 14, 15, 16 and 21 of the Constitution, as well as Transgender Persons (Protection of Rights) Act, 2019.

The petition stated that the “erroneous” classification of the transgender community as caste in the Bihar Caste Census, 2022 has resulted in discrimination against the community as it has taken away the right of self classification of their gender. “Such classification of transgenders is erroneous and against the Constitutional mandate as well as judgments of the Supreme Court,” it said, adding that such action of the state government is void ab intio (null and void from the very beginning).

It said that the caste survey is ultra vires the Section 8 of the Transgender Persons (Protection of Rights) Act, 2019, which obligates the appropriate government to take steps for the welfare of the persons from the transgender community. A batch of pleas questioning the state government’s authority to notify the conduct of caste-based survey in Bihar has been adjourned by the Supreme Court till January next year.