The Transgender community in India is undoubtedly the foremost socially deprived in terms of marriage, property, adoption, electoral rights and so the list goes on. After the NALSA judgment, that’s the National Legal Service Authority v. Union of India the Transgender Persons (Protection of Rights) Bill was taken up in the Lok Sabha in 2016 which talks about the right of residence for the community but fails to talk about their inheritance rights. The status of a coparcener is not given to them in a Joint Hindu Family. Furthermore, they are also not given the status of a legal heir of their parents’ separate property.
The people of this community have been a part of every race, class, and culture since the beginning of time. The Supreme Court created the “third gender” in the landmark judgment of the National Legal Services Authority (NALSA). As opposed to the earlier system of being forced to wrote either male or female as their gender, now they had been given recognition by the Supreme Court as it asked the center to treat transgenders as socially and economically backward.
Some of the problems faced by transgenders are discrimination, unemployment, lack of medical facilities, mental health issues, hormone medication abuse, marriage, adoption, and property to name a few.
Property rights for the transgenders:
All the laws of the land should be applied to them like every other person. they ought to be treated equally, respectfully, they must not be discriminated against in exercising their right to employment, access to a public place, right to property, or their right to access to justice. Civil rights like the right to induce a passport, identity card, make a will, inherit property, and adopt children must be available to all or any irrespective of the change in gender/sex identities.
India’s policy of recognizing only two sexes and refusing to acknowledge transgenders as third sex has deprived them at a stroke of several rights that Indian citizens for granted. These rights include the right to vote, the right to possess property, the right to marry, the right to show a proper identity through a passport and an identity card, a license, the right to education, employment, health so on. Such deprivation secludes hijras from the very fabric of Indian civil society.
Transgender Persons (Protection of Rights) Bill, 2016:
After the judgment within the case of National Legal Service Authority v. Union of India the Transgender Persons (Protection of Rights) Bill was introduced in Lok Sabha within the year 2016. The Bill has been divided into various chapters managing various rights that are to be granted to transgender against the prevailing discrimination faced by them. Section 13 of the Chapter deals with the transgender’s right of residence. Section 13(1) clearly states that transgender people mustn’t be separated from their family and immediate family at the bottom of their individuality. Section 13(2) provides them with the proper right to enjoy the household and use all facilities available within the house. This provides them with the proper maintenance as other members of the family regardless of their gender. The bill introduced by the Lok Sabha though talks about the transgender right of residence but doesn’t discuss their inheritance rights. They’re not given the status of coparcener within the Joint Hindu Family with their identity nor as a legal heir of their parents’ separate property. The bill needs plenty of correction as transgender are citizens of India and maybe recognized in every law concerned with their Human and Legal Rights because they are the third gender.
National Legal Services Authority (NALSA) v. Union of India:
The Supreme Court said the absence of law recognizing transgenders because the third gender couldn’t be continued as a ground to discriminate them in availing equal opportunities in education and employment.
This is for the primary time that the third gender possesses formal recognition. The third gender people are considered as OBCs, the SC said. The Supreme Court said they’re going to be educational and employment reservations as OBCs. The Court also said states and therefore the Centre must devise financial aid schemes for third gender community and run a public awareness campaign to erase social stigma. The Court added the states must construct special public toilets and departments to seem into their special medical issues.
If someone surgically changes his/her sex, then he or she is entitled to her changed sex and can’t be discriminated against. The apex court expressed concern over transgenders being harassed and discriminated against in society and passed a slew of directions for his or her financial aid. The Court got wind that transgenders were respected earlier in society but the case has changed and that they now face discrimination and harassment.
It said that section 377 of IPC is being misused by police and other authorities against them and their social and financial condition is nowhere near satisfactory.
The Constitution of India:
In essence, the Constitution of India is ‘sex blind’, that’s to mention, the fundamental premise of equality before the law and equal protection of the law is predicated on a Constitutional mandate that the sex of someone is irrelevant save where the Constitution itself requires special provisions to be made for girls under Article 15(3). Article 14 guarantees to any or all person equality before the law. Article 19 (1) ensures for all citizens freedom of speech & expression. Article 21 guarantees a lifetime of dignity to all or any persons.
Interestingly, the Registration of Births and Deaths Act, 1969 doesn’t mention anything about ‘sex’/ ‘gender’ of someone to be registered just in case of birth or death. The Act is gender-neutral. the necessity of indicating the sex/gender of someone just in case of a birth or death within the Birth or Death certificate, because the case is also, doesn’t seem to result from the provisions of the Act itself. Such a requirement may are put within the formats of such certificates prescribed within the Rules under the Act, which are made by the States.
The Hindu Succession Act stays mum about the third gender. It clearly explains what a Hindu is and who all comprise within the said definition. The Act lays down a consistent and comprehensive system of inheritance and applies to persons governed by both the Mitakshara and Dayabhaga schools. The person is additionally specified under this law.This Act applies to a person, who could be a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or follower of the Brahmo, Prarthana or Arya Samaj, anyone who is Buddhist, Jain, or Sikh by religion and to the other one who isn’t Muslim, Christian, Parsi or Jew by religion unless it’s proved that the concerned person wouldn’t be governed by the Hindu Law or by any custom or usage as a part of that law in respect of any of the matters prohibited herein if this Act had not been passed. Males and females are granted ownership over the property by the identical, with no reference of the third gender. There haven’t been significant amendments after 2005.
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