Kerala transwoman contests local body polls from women-reserved seat, will it set a precedent?

A timely legal move and a favourable decision from the State Election Commission (SEC) paved the way for the transwoman candidate, Amaya Prasad, to contest in a women-reserved seat in Thiruvananthapuram's Pothencode division. The final candidates' list published by the SEC however includes her under the transgender candidates.

Going by the list, she is the only transgender candidate in the local body polls. Arunima, another transwoman candidate in Alappuzha, has been enlisted as a woman candidate. This has raised legal and technical questions whether the decision of the SEC to let her contest from a seat reserved for women will set a new precedent in the upcoming elections.

While Amaya identifies herself as a woman, she is categorised as transgender in the voters' list. In Amaya's case, even the High Court didn't make a decision but directed her to raise her contentions before the Returning Officer (RO). Eventually, the RO allowed her to contest from a reserved seat.

Experts suggest the situation is legally complex. The debate centres on whether a transwoman can contest a seat reserved for women, as the voters' list includes only three categories: male, female and transgender and does not separately recognise transwomen. While the state has successfully implemented initiatives like a dedicated Transgender Policy, the electoral laws have arguably lagged behind social reality.

A former official associated with the Election Commission highlights a discrepancy in the electoral roll. The current system lists voters in three distinct categories: male, female, and transgender.

"The voters' ID card is considered the basic reference document. When the voters' list is taken as the primary document, the reservation mentioned is only for 'women'. In my view, under the current framework, the term 'women' does not automatically include the 'transgender' category," the official said.

He emphasises that once the election process begins, the Returning Officer holds the final decision-making power. Neither the State Election Commission (SEC) nor the High Court acts as a supervisory body at this stage. Any challenge to the RO's decision on the candidate's eligibility must be made post-election through an Election Tribunal or the courts.

In 2021, the Bombay High Court directed the SEC, Maharashtra to accept the nomination of transgender candidate Anjali Guru Sanjana Jaan, after the RO had rejected her nomination to contest from a ward reserved for women (general) category.

Radhakrishnan Kurup, a former SEC consultant, suggests a broader perspective. He said that the Returning Officer likely accepted the nomination based on the Bombay High Court verdict. However, Kurup agrees that the law requires a definitive interpretation or amendment to prevent future disputes.

"A definite interpretation must come; otherwise, the law must be amended," Kurup states. "If the legislature feels that our election laws need more clarity, pressure from society will drive that change."

Kurup believes that even if the courts later review the decision, the event itself sets a precedent. He notes that electoral laws initially lacked a 'transgender' category entirely, and the inclusion of the third gender was a result of societal evolution. The next logical step, he suggests, is distinguishing 'transwomen' and 'transmen' within that legal framework.

The writ petition filed by Amaya in the Kerala HC also cited the Bombay HC’s decision, which affirmed that transgender women are entitled to be treated as women for all legal and political purposes.

Advocate Gautham Krishna, who appeared for Amaya, said the situation appeared unprecedented only because Kerala was confronting such a case for the first time. He said the case could lead to wider policy changes. “Right now, the Panchayati Raj Act recognises only women and general seats. With evolving situations, rules may be amended to specifically include categories like transwomen and transmen. Every major legal reform begins with a real-life situation like this,” he added.

Arunima, a transgender candidate from Alappuzha's Vayalar, believes the law already provides clarity. She argues that both Supreme Court verdicts and Central Government Bills recognise those who have undergone surgery as women.

"We became women so that we can live as women, right?" Arunima asserts. "All proof and valid documents reflect that. Then what is stopping us from contesting for women's reserved seats? There is no obstacle at all," she added. She contends that legal restrictions should only apply to individuals who have not medically transitioned.