Transcending Lacunae In Transgenders' Inheritance Rights And Its Impact On National Integration
Author: LawSphereX
Category: Family & Personal Law
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TRANSCENDING LACUNAE IN TRANSGENDERS'
INHERITANCE RIGHTS AND ITS IMPACT ON NATIONAL INTEGRATION
Shreyasree Paul, B.Com. LL.B. (Hons.), Presidency University, Bangalore
ABSTRACT
The marginalization of transgenders in society extends to the realm of inheritance rights, where they often face discrimination and exclusion. This paper explores the lacunae in existing legal frameworks that fail to adequately protect the inheritance rights of transgenders. It delves into the challenges faced by transgenders in accessing and asserting their inheritance rights, highlighting the societal prejudices and legal obstacles that hinder their rightful claims. The paper argues that upholding the inheritance rights of transgenders is not merely a matter of legal justice but also a crucial step towards fostering national integration. By recognizing and protecting the inheritance rights of transgenders, society can send a powerful message of inclusivity and respect, paving the way for a more harmonious and equitable society.
Keywords: Transgender, Property Rights, NALSA v Union of India, Transgender Persons (Protection of Rights) Act, 2019, Indian Succession Act, National Integration.
INTRODUCTION
Ever since the advent of human life and history, we find reference to transgenders. Be it the Greek, Roman or our very own Indian culture, transgenders have found mentions in even our epics, holy scriptures. For example, we have Shikhandi in Mahabharata. He was born as a biological female to King Draupada, known as Shikhandini, but later transitioned into a male as a sex exchange with a yaksha. In terms of Islamic history, we have found mentions of transgender individuals during the Mughal dynasty. Their roles varied from that of music and entertainment to that of financial advisors and militants in the courts of the rules. As per the New Testament, Christianity was always open for the evangelism and baptism of the eunuchs (another synonymous name of transgenders). Even in the year of 2003, the United Church of Christ called for full inclusion of this community.
Despite the wide history, there exists many nuances in the modern Indian society that give rise to many social and individual distinctions, most of the time the same holding no substance. As per the reading of § 2 of the Transgender Persons (Protection of Rights) Bill which was introduced in the Parliament in 20161, the provision incorporates the following multi-identity definition, “transgender person means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such sociocultural identities as kinnar, hijra, aravani, and jogta.
” Herein, we will be dealing with the proprietary rights of transgenders at large alongside a subtle elucidation on their other rights in relation to the same. INDIAN FRAMEWORK & SCENARIO Transgenders have long been marginalized and discriminated against in Indian society. Denying them the right to inherit property further perpetuates this discrimination and exclusion. It is essential for a progressive society like India to ensure equal rights and opportunities for 1 Transgender Persons (Protection of Rights) Act, 2019, §2, No. 40, Acts of Parliament, 2019 (India). all its citizens, regardless of their gender identity. Moreover, recognizing inheritance rights for transgenders would contribute significantly to national integration. By acknowledging their rightful place in society, it sends a powerful message that every individual's contribution is valued and respected.
This inclusivity fosters unity among diverse communities and strengthens the social fabric of the nation. With the prevailing societal stigma and lack of expertise in the medical community, transgender individuals continue to face exploitation and abuse while seeking healthcare, despite the Supreme Court of India's directive to develop welfare agencies for their improvement. After the judgment in the case of National Legal Service Authority v. Union of India2, the Transgender Persons (Protection of Rights) Bill3 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.
In this landmark judgment of, 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. Furthermore, granting inheritance rights to transgenders aligns with international human rights standards. The Universal Declaration of Human Rights explicitly states that everyone has the right to own property individually or collectively. By amending the Indian Succession Act, India would demonstrate its commitment to upholding these universal principles.
4 COMPARATIVE STUDY For the comprehensive understanding of the subject-matter, we will compare the proprietary rights of the Indian transgenders in a two-fold manner: (1) With Respect To The Indian Cisgenders In India, property rights have long been a subject of debate and contention. The country's family
2 2014 INSC 275.
3 Id. at 1.
4 Karan Gulati, Tushar Anand, Inheritance Rights of Transgender Persons in India, No. 350, NIPFP WORKING PAPER SERIES, 2021. laws have historically favoured male heirs, leaving women and transgender individuals at a disadvantage. When it comes to property rights, the differences between Indian males, females, and transgender individuals are stark. Under Indian family laws, male heirs have traditionally enjoyed preferential treatment in matters of inheritance. They are entitled to inherit ancestral property and hold a higher status within the family structure. This patriarchal system has perpetuated gender inequality for generations. On the other hand, Indian females face numerous challenges in securing their property rights.
Despite recent legal reforms aimed at empowering women, they still encounter obstacles such as discriminatory practices like dowry and unequal division of inherited property. These factors contribute to the marginalization of women within society. Indian transgender individuals face an even more complex situation regarding property rights. Until recently, they were not recognized as a separate gender category under Indian law. Consequently, they were denied any legal entitlements or protections when it came to inheritance or ownership of property, until NALSA v Union of India5 took place which changed the situation by a very slant increase. It started recognizing transgender people as a third gender and brought in a subsequent legislation protecting their rights. There has been some progress towards addressing this issue.
Transgender individuals can now claim their rightful share in ancestral properties and exercise ownership over acquired assets. In totality, we see that transgender individuals have historically been denied any legal recognition or protection regarding their property rights but recent legislative changes provide them with some level of redressal. It is crucial for society to continue advocating for equal access to property rights for all genders in order to foster a more inclusive and just society. (2) With Respect to Other Countries Several countries have made commendable strides in recognizing transgender rights within their inheritance laws. For instance, Argentina passed a groundbreaking law in 20126 that allows individuals to change their gender identity without any medical or legal requirements.
Consequently, that led to more inclusive inheritance laws for transgender people, ensuring they
5 Id. at 2.
6 Gender Identity Laws, Law No. 26.743.
are not excluded from inheriting assets based on their gender identity. Similarly, Denmark has also taken progressive steps towards transgender inclusivity by allowing individuals to legally change their gender without undergoing surgery or hormone therapy. This recognition extends to well-explained inheritance laws as well, ensuring that transgender individuals are treated equally when it comes to inheriting property and assets. In particular, Nepal, Norway, and Pakistan amended their laws to reflect the self-determination of gender identity. They do not require State or medical intervention to determine a person’s gender identity. On the other hand, though Australia and Spain recently allowed a change in gender identity - they still require State and medical sanction for changes in official documents.
All of these countries have included the rights of joint ownership of property in one way or the other, say it came under the marital rights. However, apart from granting connected civil rights, countries have not specifically amended their inheritance laws. One reason for this is that they already use gender-neutral terms such as spouse etc. This is in contrast to India, which uses gender-specific inheritance schemes. A gender-neutral approach limits the scope of excluding anyone from protection since transgender persons are automatically guaranteed the same rights as all other individuals. Several international treaties prescribe that transgender persons should not be subject to discrimination. The Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) recognise that no person shall be arbitrarily denied their legal rights.
7 On a wider picture, India should take notes from such countries to establish more well-versed laws that can create inclusivity for transgenders in the Indian society by not just recognising their basic rights but also including their proprietary rights. CURRENT LEGAL RIGHTS BESTOWED BY THE GOVERNMENT Indian transgender individuals have long been marginalized and denied basic human rights. The Criminal Tribes Act of 1871 labelled eunuchs as criminals, mandated registration, and 7 Article(s) 2, Universal Declaration of Human Rights 1948, 217 A (III); International Covenant on Civil and Political Rights 1966, United Nations, Treaty Series, vol 999, p 171. granted widespread powers to arrest individuals under the apprehension of promiscuous activities. 8 The British regime was the torch-bearer in this subject-matter.
Even after they left India, the stereotypical mind-set has a deep-rooted grip on the Indian society. A good example for the same is the 2011 Amendment Act of the Karnataka Police Act which mandated its authority “to control undesirable activities of the transgenders” by compulsory registration. Under its façade, the authorities have taken undue advantage of the law and the same was brought into public light by many incidents. Many landlords refuse to rent properties to them due to deep-rooted biases. However, in recent years, there has been a growing recognition of their rights, including property rights. Traditionally, Indian society has followed a binary gender system that excluded transgender individuals from inheritance and property ownership.
Nonetheless, with the landmark Supreme Court ruling in 2014 case of NALSA v Union of India9 recognizing transgender people as a third gender and affirming their fundamental rights, significant progress has been made. The national census for the first time allowed persons to identify as others - leading to approximately five hundred thousand persons availing the choice. Now, any prohibited discrimination based on sex under Articles 15 and 16 would include discrimination based on gender identity as well as one’s gender expression would be protected under Article 19(1)(a) of the Constitution as it reflects the innate character and identity of persons. Under Indian law, transgender individuals now enjoy considerable rights under the Transgender Persons (Protection of Rights) Act, 2019 but it does not circumstantiate their property laws.
The Indian legal system still adheres to a binary understanding of gender, recognizing only cisgender identities. This lack of recognition leads to exclusion from inheritance rights for transgender individuals who do not fit into these categories. Another barrier is the absence of specific laws protecting transgender individuals' right to inherit property. The existing laws are primarily focused on cisgender individuals, leaving transgenders vulnerable and without adequate legal protection. Having just the Constitution of India, 1950 as the watchdog for providing gender equality by not bracketing the interpretations into only male or female.
8 Chapter 2 (Eunuchs), Criminal Tribes Act, 27 of 1871.
9 Id. at 2.
HOW NATIONAL INTEGRATION COMES INTO THE PICTURE?
National integration refers to the process of bringing together individuals from diverse backgrounds and uniting them under a common identity. It is a crucial aspect of any nation's development as it fosters social cohesion, harmony, and stability. Social and economic aspects play a significant role in achieving national integration. Socially, national integration involves promoting inclusivity, respect for diversity, and equal opportunities for all citizens. This can be achieved through various means such as promoting cultural exchange programs, celebrating national festivals together, and encouraging interfaith dialogue. By embracing different cultures and religions within a society, individuals develop a sense of belongingness to their nation.
Economically, national integration focuses on reducing disparities among different regions or communities by ensuring equitable distribution of resources and opportunities. This includes providing access to quality education, healthcare facilities, employment opportunities, and infrastructure development in all parts of the country. Economic empowerment plays a vital role in reducing social inequalities and fostering unity among citizens. Furthermore, economic growth leads to improved living standards which contribute to social harmony. When people have access to basic necessities such as food, shelter, and healthcare without discrimination based on their background or region they belong to; it strengthens the bond between individuals from diverse backgrounds. The rights of the transgenders are also pertinent to this subject matter.
When we talk about society, they are also a quintessential part of it. In furtherance, let us look into both these aspects to understand this better: (1) Economic Aspect The economic consequences faced by transgender individuals and their families in relation to transgender proprietary rights remain a significant challenge. One of the key economic consequences is employment discrimination. Many transgender individuals face difficulties in finding stable employment due to prejudice and bias. This leads to financial instability, limited access to healthcare, and inadequate housing options. Moreover, the wage gap between transgender individuals and their cisgender counterparts is substantial, resulting in long-term financial disadvantages.
Wherein the current scenario, transgenders are depraved of their inheritance rights, making or buying a house of their own becomes a struggle due to such low financial stability. Transgender proprietary rights also impact family dynamics. For example, if a transgender individual is denied the right to legally change their gender marker on identification documents or official records, it can lead to complications when applying for loans or mortgages as well as accessing government benefits. Additionally, lack of recognition can hinder the ability of transgender parents to secure custody or visitation rights for their children. Such issues regarding proprietary rights are far-reaching. Employment discrimination limits financial opportunities while wage disparities perpetuate inequality. Furthermore, lack of recognition hampers access to essential resources such as healthcare and housing.
It is imperative that society continues its efforts towards achieving full equality for all genders by addressing these economic challenges faced by transgender individuals and their families. (2) Social Aspect In India, denying fundamental inheritance rights to transgender individuals has severe social implications. This discriminatory practice perpetuates the marginalization and exclusion of an already vulnerable community. It exacerbates their economic instability and reinforces societal prejudices against them. By excluding transgenders from inheriting property or wealth, society sends a message that their identities are not valid or deserving of recognition. Moreover, the denial of inheritance rights can lead to increased poverty rates within the transgender community.
10 Many transgender individuals rely on their families for financial support due to societal discrimination that limits their employment options. Without access to inherited assets or financial resources, they are forced into further economic hardship and dependency. Furthermore, such discriminatory actions undermine the principle of equality enshrined in India's Constitution. Despite the introduction of the Transgender Persons (Protection of Rights) 10 Danish Sheikh, “A Tale of Two Judgments: The Afterlives of a Defeat and Victory for Queer Rights in India” (2018) 8 HARVARD KENNEDY SCHOOL LGBTQ POLICY JOURNAL.
Act 2019, without equal access to inheritance, these legal protections remain incomplete and ineffective.
THE WAY FORWARD: POLICY
RECOMMENDATIONS
FOR TRANSGENDER INHERITANCE RIGHTS Transcending the lacunae in Indian transgender inheritance rights is crucial for achieving national integration and promoting social justice and equality. It is necessary to engage with and involve transgender communities in the process of drafting and implementing policies that affect their lives. One way to address this issue is by amending the Indian Succession Act, 1956 to explicitly include transgender individuals and their inheritance rights. This would ensure that transgender individuals have equal access to inheritance and property rights, thus empowering them economically, socially and in other ways, as discussed in the paper. Other suggestion would entail the inclusion of gender specific terminology. As of current date, no statutes prima facie discriminates against transgender persons.
The same has played an instrumental role in misinterpretation and aided in the various nuances pertaining to this issue. The matter of gender-inclusive laws have been argued hitherto in this very same concern. However, there will be disputes on what genders receive identity and which do not but there would be a necessity in addressing these issues rather than outrightly ignoring them. Another concern would be that, say, people are given their requisite proprietary rights, there are chances of misuse of the same. These concerns would need adequate mitigation. Three measures can be taken, at large: -
1. Amend inheritance laws to include gender-neutral provisions.
2. Amend rules to ensure that all identification documents include transgender persons.
3. Include inheritance as a prohibited field of discrimination under the Transgender
Persons (Protection of Rights) Act. This will ensure that their voices are heard, their experiences are understood, and their rights are protected. The recognition of transgender individuals' inheritance rights and their inclusion in the legal framework is not only a matter of justice and equality but also has significant implications for the overall well-being and social cohesion of the nation. Therefore, in order to advance equality in society, it is necessary to recognize the rights of not just transgenders’ property but also for them for all-round life.