-Article by Lavanya Goinka and Siddharth Sharma
Because they do not fit into the standard gender binary classifications, the transgender group is one of the most marginalised in the country. Transgender is a broad term that refers to people whose gender identity differs from the sex they were assigned at birth. In 1965, Columbia University psychiatrist John F. Oliven invented the term ‘transgenderism’ by replacing it with the term ‘transsexualism.’’
The dispute over transgender inheritance arose in 2005 when Ajay Mafatlal (who was Aparna Mafatlal before undergoing sex-change surgery) underwent sex reassignment surgery and became a male in order to inherit an equal part of the property under Hindu inheritance law. This incident sparked a debate in India about granting institutional legitimacy to transgender people. As a result, in 2011, the national census permitted people to choose ‘others’ to identify their gender for the first time.
Transgender people in India are denied their civil rights, including the right to inherit. It has become the primary factor for most transsexual people’s low income, lack of savings, and lack of housing.
In India, transgender people have a long history. According to the National Human Rights Commission’s research of transgenders, the overall population of transgenders was 4.8 lakh in 2011, with just 30,000 of them registered with the Election Commission. Also, according to a study on the Human Rights of Transgenders in India, there are around 50 to 60 lakh transgender people in India, but most of them keep their identities hidden to escape discrimination.
In the historic case of NALSA v. Union of India (2014), the Supreme Court recognised the rights of transgender people as the third gender. While dealing with their concerns, the Supreme Court directed the federal and state governments to regard them as socially and educationally backward classes, granting them all kinds of educational and employment preferences. Individuals have the right to self-identify their sexual orientation even without medical intervention, according to the Court, and to choose their gender after sex reassignment surgery.
The Court acknowledged that transgender people have inferior property rights, yet it declined to interfere in this case for two reasons:
1) Inheritance of property is handled by personal laws of the respective faith and group in India, which has a weak history of gendered laws. These regulations contain gendered words that require transgender people to categorise themselves as either male or female in order to be covered by inheritance rules. This creates a problem and confusion about how transgender people will inherit property if they are included.
The Consultation Paper on Reform of Family Law, the 174th Report of the Law Commission of India, and the 207th Report of the Law Commission of India have all mentioned the subject of gender discrimination, but nothing has been said about how transgender individuals can be incorporated in inheritance laws.
The use of gendered words in different statutes reveals inherent biases in legislation formulation. In particular, Section 13 of the General Clauses Act of 1897 stipulated that the term masculine gender shall include females in order to ensure uniformity of terminology in Central Acts.
Similarly, discrimination on the basis of sex is prohibited by Article 15 of the Indian Constitution, where the term sex refers to all genders, not only biological sex as male and female.
2) Gender and identification: The majority of transgender people lack documentation, which has an impact on their inheritance rights by denying them the protections that citizens have. Obtaining an identity card in their preferred name and gender remains a barrier for transgender people, notwithstanding legal recognition provided in a Supreme Court verdict in April 2014. Before taking control of a property or an asset, any person must verify their identification, relationship to the deceased person, and both parties’ home. A genuine relationship cannot be established without a valid marriage or adoption.
The majority of property in India is inherited, particularly in rural regions. The inability of transgender people to inherit property is due to two factors:
· Difficulty in recognising a successor under inheritance laws, which designate just two sexes: male and female.
· The usage of a binary gender concept is not restricted to property laws; it may also be found in criminal laws like the Indian Penal Code, 1860, and the Code of Criminal Procedure, 1973, as well as labour legislation like the Workmen’s Compensation Act, 1923, and the Factories Act, 1948. Personal legislation such as the Hindu Marriage Act of 1955 and the Hindu Succession Act of 1956 demonstrates this. Furthermore, religious personal regulations are selectively applied to benefit some genders while excluding others.
UNDER THE HINDU SUCCESSION ACT 1956
The Hindu Succession Act of 1956 is a statute that governs Hindu intestate succession. Buddhists, Jains, and Sikhs are likewise governed by it. The Act, on the other hand, makes no mention of transgender people and stipulates that heirs must be male or female. In a definition clause based on a binary notion of gender, the Act establishes agnates and cognates rights.
Agnates: If two people are linked through blood or adoption solely through males, they are considered to be ‘agnates.’
Cognates: If two people are linked by blood or adoption but not solely through males, they are considered to be ‘cognates.’
The term ‘heir’ is defined in the Act as any person, male or female, who is entitled to inherit an intestate’s property. It recognizes the rights of sons and daughters but excludes transgender people and those who change their gender identity.
Section 8 of the Act establishes the general norms of male succession and specifies the order of inheritance through classes of heirs. Class I heirs are sons, daughters, and the mother and lineal descendants of a male instate, whereas Class II heirs are mostly the father, sibling, and lineage of a sibling. Similarly, Section 15 explains the general norms of Hindu female succession, which includes a list of people who can inherit the property of a Hindu woman who dies intestate. Sons, daughters, husbands, and husband heirs are given priority. This demonstrates how men and females are regarded under the Act, but it says nothing about whether a transgender person who identifies as a male or female is allowed to inherit under Sections 8 and 15 of the Act.
Transgender people commonly identify as females while claiming property rights, which is a breach of Article 15 of the Indian Constitution, which prohibits discrimination based on gender. The Act is gender-neutral in nature, with Sections 24 and 26 laying out the grounds for a person’s disqualification from inheriting, and being transgender is not one of them.
UNDER THE MUSLIM PERSONAL LAW
The majority of Muslim inheritance law is based on principles found in the Quran or traditions. In India, Muslim property law is not codified, and all Muslims are subject to Shariat Law for inheritance. In India, Muslims are divided into two sects: Shia and Sunni, each with their own set of values. A female has been awarded one-half of a male’s share in Muslim law, owing to her lower responsibilities and obligations in comparison to males. Finally, according to the phrases employed in the list of sharers in Shia and Sunni inheritance rules, Muslim law recognises males and females as subjects.
In 1937, the Muslim Personal Law (Shariat) Application Act was passed, requiring all Muslims to follow Muslim personal rules with several exclusions, such as female personal property inherited or acquired through gift, contract, marriage, or dissolution of marriage (under Section 2). All of the clauses are vague as to whether transgender people would be subject to personal laws or receive the Act’s special protection. Section 3 of the Act, on the same grounds, enabled only a male member of a Muslim family to make a declaration under specified conditions.