Property Rights Of Transgender Community Of India

Introduction

Without Equality , I Say, There Cannot Be Liberty

Transgender community in India face a variety of issues which include problems relating to marriage, property, electoral rights, adoption, etc. to name a few. After the judgment in the case of National Legal Service Authority v. Union of India the Transgender Persons (Protection of Rights) Bill was introduced in Lok Sabha in the year 2016. This bill talks about the right of residence for the community but does not talk about their inheritance rights. They are not given the status of coparcener in the Joint Hindu Family with their gender identity nor as a legal heir of their parents’ separate property.

Transgender people are individuals of any age or sex whose appearance, personal characteristics, or behaviours differ from stereotypes about how men and women are “supposed” to be. Transgender people have existed in every culture, race, and class since the story of human life has been recorded. In its broadest sense, transgender encompasses anyone whose identity or behaviour falls outside of stereotypical gender norms.

In the landmark judgment of National Legal Services Authority (NALSA) v. Union of India, the Supreme Court created the “third gender” status for hijras or transgenders. Earlier, they were forced to write male or female against their gender. The Supreme Court asked the Centre to treat transgenders as socially and economically backward.

The transgender community in India faces many problems which include marriage problems, adoption, property, etc. After the judgment of the case, National legal service authority vs Union of India and The Transgender persons (protection of rights) act 2019, this act only talks about the Right of Residence but does not talk about the inheritance right of the community. Who is considered transgender? Transgender people are those individuals of any age or sex whose appearance, characteristics, or behavior are different from the stereotypes that have been set by the society of how an individual is ‘supposed to be. Transgender people are present in every class, race, religion, or culture. In simple terms trans people are anyone whose identity or behavior is different from the stereotypical norms of gender. In the judgment of landmark case, NALSA vs Union of India the supreme court created a ‘Third Gender’ for the transgender or hijras, before the judgment they were forced to write male or female. The Supreme Court directed the Centre to treat trans people as socially and economically backward.

Apart from getting the third gender status, they face a lot of difficulties in their day-to-day affairs. They still face discrimination in various fields like education, politics, jobs, property rights, etc. Due to these types of discrimination, they are deprived of education and good medical health. They suffer from medical conditions like HIV, depression, and many other health problems.

Recognition Of Transgender Right Inheritance Rights In India

It is an acknowledged fact that in India everything is intertwined with one’s religion, thereby making it inevitable for the personal laws of the respective religion and community to govern one’s inheritance rights. The laws for inheritance in India are subject to binary gender identity i.e., male and female only. Thereby, side-lining the transgender population from the ambit of the inheritance laws.

The Hindu Succession Act, 1956 recognizes an ‘heir’ to be either a male or a female as a subject matter for the purpose of succession, in the absence of a will. Despite being violative of Article 15 of the Indian Constitution, the transgender population because of their sexual orientation is often out casted from their family. Often, they enjoy their right to inherit property only by compromising their gender identity as a transgender person by recognizing themselves with their assigned sex at birth. The Act also entails provisions regarding grounds for disqualification of a person to inherit the property via intestate or testament, however, an individual recognizing themselves as a transgender person is not a ground for disqualification. Further, these provisions used the term ‘person’ earlier, which as per the definition under the General Clauses Act, 1897 does not restrict itself to recognize only male and female as a ‘person’ but is also inclusive of all genders. Therefore, the argument claiming the legislature’s intention to only consider male and female as the subject matter for property rights holds no position since gender identity is not a ground for disqualification to inherit property.

Similarly, like the Hindu personal law, Muslims are also governed by their personal law i.e., Sharia Law. The two sects of Muslims, Shias, and Sunnis, both have their separate principles of inheritance. Sharia Law is a gender restricted law wherein only males and females are recognized as subject matters to property rights, the same is reflected under the list of sharers and residuary in Shia and Sunni inheritance laws.

However, unlike the Muslim and Hindu personal laws, the Christian property rights under the Indian Succession Act, 1925 have a broader scope. Section 44 of the Act is inclusive of transgenders as a subject matter to inherit the ancestral property. Although no such amendment has been made to the existing laws, it remains the only progressive move on the part of the Indian legislature and the society. 

Property Rights For The Transgender

All the laws of the land should be applied to them like any other person. They should be treated equally, respectfully, and without any discrimination. They should not be discriminated against in exercising their right to apply for a job, access to a public place, right to property, or their right to access to justice. Civil rights under law such as the right to get a passport, ration card, make a will, inherit property, and adopt children must be available to all regardless of the change in gender/sex identities.

India’s policy of recognizing only two sexes and refusing to recognize transgenders as third sex has deprived them at a stroke of several rights that Indian citizens take for granted. These rights include the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a driver’s license, the right to education, employment, health so on. Such deprivation secludes hijras from the very fabric of Indian civil society.

In the opinion of the MP High Court, a ‘hijra’ woman was allowed to receive property from her Guru because the court accepted that the community cannot transfer property to anyone outside of the community. In this ruling the court explicitly acknowledges the existence of a distinct ‘eunuch’ class with its own customs and rituals that must be respected.

Conclusion

Considering the progress made by the legislative authorities in the recent past, there remains a vacuum space within the law that requires to be filled at its earliest. Acknowledging the issues at hand, certain suggestive solutions can be recommended to kick-start the progress further. An introduction of social welfare schemes and actions would help in changing the negative attitude of the public and the legislature. Secondly, to implement the Uniform Civil Code as prescribed under Article 44 of the Constitution in order to remove the dichotomy that persists in personal laws. This would enable the discriminatory traits of present inheritance laws to be done away with, in favour of a more egalitarian framework. Another solution can be to address issues of self-identification, personal autonomy, and freedom of self-expression, culminating in the recognition of transgender persons’ right to marry, instead of seeking and reading the laws like Section 5 of the Hindu Marriage Act literally. Lastly, Internationals convention standards for transgender persons’ protection of rights can be adopted and as the aforementioned underdeveloped nations have in the recent past, we must reform our legislature perspectives and recognize their gender identity as is whilst providing them with inheritance rights.

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