GENERAL AND PROPERTY RIGHTS OF TRANSGENDERS

INTRODUCTION

The stereotypical ideology has divided the human race into two genders: Female and male; thus, anything outside the scope of this defined structure is usually deplorable in society. A transgender person means “a person whose gender does not match with the gender that was assigned to them at their birth but they are the persons with intersex variation and genderqueer”.[1] These are the people who are not of the same gender that was identified at the time of their birth. These people feel differently about themselves as an individual, however, the society often mistook the interpretation and fail to accept their identity. Thus, these people have to agonize from Social-exclusion, discrimination, social oppressions, physical violence, etc. they are usually deliberated as a socially, financially, and diplomatically backward category throughout the world.[2]

The Third gender, i.e., Transgender has been existing since the 9th century BC and was called ‘Eunuchs’.[3] Unlike today’s world, they were treated with great dignity and respect during the Mughal Era, they were regarded as the neutered men who were appointed to sentinel the royal women’s quarters. They also hold a prominent position in the crown court and had the privilege to attain property, practice professions, and earn a livelihood. However, the British rule in India seized their right to life and dignity; they were just given the right to property which was also taken away by the British government. Even in the post-independence era, there was no explicit mention of the Trans people are their rights in the constitution. They were not treated as a member of their own family, even the family laws don’t include them with respect to their gender identity in any manner. They were not treated with dignity and thus, were compelled to face deprivation of the fundamental right to life under Article 21 of the Indian Constitution.[4]

THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019

It is only recently in 2019 that The Transgender Persons (Protection of Rights) Act, 2019 came into existence to acknowledge the rights and individuality of the third gender and protect them from the widely practised discrimination. The foundation of the Act was laid down in 2014, through the landmark case of National Legal Services Authority v. Union of India.,[5] The judgment suggested reservations for transsexual people in positions and instructive establishments and the right of transsexual people to announce their self-saw sexual orientation personality without going through a sex reassignment medical procedure.[6] This particular case holds great contribution in establishing a legal provision for Trans people and providing them recognition as ‘third gender’. The basic aim of the Act is to create a conducive non-discriminatory environment for the Trans people to enjoy all their rights and allow them to perform all legal activities. 

The Act efficiently prohibits discriminatory attitudes towards them. Also, it provides them with various opportunities in the area of education, employment, healthcare, and access to public services and benefits. The law makes it mandatory to ensure equal opportunities for the Trans people in the public as well as the private sector. The government through the act has also formulated certain transgender sensitive, non-stigmatizing and non-discriminatory welfare policies and schemes. For instance, National Council for Transgender Persons is established to recommend the government with respect to making and supervising the policies and reparation of the grievances of transgender persons,[7] and a designated person is appointed as a complaint officer to hear and handle the complaints of the transgenders. 

A salient feature of the Act is the improvements made to infrastructure to make it more comfortable for Trans people (such as unisex toilets, hygiene products, etc.). Every possible attempt is made to allow them to enjoy a dignified and normalized lifestyle. Legitimately, they are also provided with a unique Certificate of identity that provided them with the right to self-perceived gender identity. It uncomplicates the process of performing the surgery for a change of gender.  

Therefore, this is a highly comprehensive Act as the law provisions specifically define the punishment to the people indulging in any sort of discrimination, violence, or misbehaviour towards transgender people. As per the law, any person binds the trans people to force labour, repudiates them from getting into public places, causing any physical, emotional, or sexual harm to them, or any other offence; is punished with 6months to 2years of imprisonment along with a heavy fine.

PROPERTY RIGHTS TO TRANSGENDER PEOPLE

Hindu Succession Act, 1956 administrates Hindus for the inheritance of both Joint and separate property. However, the Act only recognizes male and female as a subject matter to the property rights,[8] it makes no mention of the third gender under the right to ancestor property. These people are generally detached from the family and are not provided with any share in their family property. Therefore, to relish their property right, they have to forego their Trans identity and recognize themselves according to the gender assigned to them at the time of birth. This is unfair in moral as well as legal sense, the discrimination based on sex violates Article 15 of the Indian Constitution. Section 24 to 26 of the Hindu Succession Act, 1956 specifies the criteria for disqualification for the property rights, however, it doesn’t exclude/disqualify the transgenders. Therefore, it is purely unjustified to deprive transgenders of their basic rights. Alike the law for Hindus, the Muslim and Christian laws and religious scripts also excluded them from the inherent land.

Section 13 of Chapter V of the Transgender Bill, 2016 deals with the residential rights of transgender people, the clause (1) of the act states that a transgender person should not be separated from their family and immediate family on the ground of their gender identity.[9] Whereas, Section 13(2)[10] provides them with the right to enjoy the household and use all facilities available in the house. This provides them with the right to maintenance as other members of the family irrespective of their gender.

CONCLUSION

Therefore, the bill/ act has been a remarkable step for the welfare of the LGBT community, and to improve their standard of living. However, yet the nation] and the world has to go a long way to morally and socially accept the people from the LGBT community around us and treat them equally with dignity and respect.

Author(s) Name: Vritika Chanjotra (Rajiv Gandhi National University of Law, Patiala)

References:

[1] Saumya Agarwal and Gourvika, ‘What are the Rights of Transgender in India’ (ipleaders, 24 October, 2015), https://blog.ipleaders.in/legal-rights-of-transgender-india/ assessed 12 August, 2021

[2] Supra Note 1

[3] Rupal Sharma, “Inheritance Rights of Transgender: A Cry of Humanity” (2018), IJLMH, Volume 1, Issue 3. https://www.ijlmh.com/wp-content/uploads/2019/03/Inheritance-Rights-of-Transgender-A-Cry-of-Humanity.pdf assessed 12 August, 2021

[4] I.R. Coelho v. State of Tamil Nadu [2007] A.I.R. S.C. 861

[5] National Legal Services Authority v. Union of India [2014] A.I.R., S.C. [1863]

[6] Ajay Singh Solanki, ‘India’s new law on the protection of rights of transgender persons’ (International Bar Association) https://www.ibanet.org/article/0F3AE21B-0170-4BF7-95DD-45B07EF1CAF6#_ftn2 assessed 12 August, 2021

[7] Ibid

[8] Hindu Succession Act, 1956

[9] The Transgender Persons (Protection of Rights) Lok Sabha Bill (2016) s. 13(1)

[10] The Transgender Persons (Protection of Rights) Lok Sabha Bill (2016) s. 13(2)

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