PROPERTY RIGHTS OF TRANSGENDER

INTRODUCTION

In this, rapidly growing world of the 21st century every individual is born with the assigned gender that is male or female but some fail to understand ”who they are actually” and get into a trap of their identity crisis at a very tender age as they grow over time.

They do not behave such a way as per their sexual orientation but consider themselves different by dressing, talking, behaving in a different way which makes them ” odd in so many even ” this society, because of this identity crisis they feel exhausted, depressed, frustrated, discriminated and suffers from many kinds of abuses in day to day life such as mentally, emotionally and physically which sometimes also results in physical violence.

WHAT IS TRANSGENDER?

Transgender is the individual who differentiates themselves from the sex they were assigned during their birth, they grew differently as a normal child commonly having male or female body but with the passing time, they realize that they are different merely not male or female but a transgender which means a female inside a males body or male in females body and considering this reason they are disgraced, discriminated and hated imperfectly in the society as they are always in the dilemma of their identity.

 Individuals are generally revealed or indicate their identity in a contrasting way such as dressing differently, behaving opposite as per their gender and mannerism, some of these individuals also go for surgeries to look exactly like woman do which is a very painful process and take a long time to recover but this is how they choose to live willingly. In India generally, four types of trans genders are found mainly named as Hijras, Jogappas, Sakhi, and Aradhis as these do not belong to any specific groups but are referred to as transgender persons solitary.

TRANSGENDER RIGHTS IN INDIA AND THEIR RECOGNITION AS THE THIRD GENDER

Transgender are human beings just like the other two genders i.e. male and female but are different in appearance, looks, aspect, and representation externally, they look the same just like other females but differs internally in terms of body structure and probably the reason they define themselves differently from the existing crowd being different also lead them to face many difficulties such as facing cruelty, oppression, inhuman and unjust behaviour towards them from their surroundings which sometimes leads to consequences such as physical violence wreak upon them. They not only suffer harsh cruelties in day to day life but many other problems like a common people just because being a transgender such as employment, bullying, homelessness, depression, education,

Stress, poverty, and inequality not being able to avail health care facilities, sexual diseases, torture for being different, alcohol abuse, and long going not so easily ending war of discrimination till rest of their lives just for being different. The supreme court of India decided to end this long struggle and give these individuals the rights they deserve by recognizing them as “third gender” in the society to safeguard their rights and also providing them with some welfare measures.

These measures are for their better upliftment as they have suffered a long battle the court also ask the centre to treat the transgender as socially and economically backward classes and allow them to take admission in the educational institutions and take employment based on the third gender and to live up their life with respect and dignity.

NALSA V UNION OF INDIA AND RIGHTS OF TRANSGENDER PERSON BILL 2014

In 2014 a landmark judgment was given by a bench of 2 judges Justice K S Radhakrishnan and Justice A K Sikri in the NALSA v Union of India[1] gave the transgender as the ” third gender” category and will not be forced to write gender as male or female particularly in the society, the transgender also gained legal recognition in the eyes of law with equal fundamental rights and protection from prevailing injustice and discrimination against them and guarantee like any other gender the court also provide them equal protection under article 14,15,16 and 21[2]

Justice Radhakrishnan also quoted that “recognition of transgender as a third gender is not a social or medical issue but a human rights issue Justice Radhakrishnan told the Supreme Court while handing down the judgment”.

TRANSGENDER PERSON (PROTECTION OF RIGHTS) BILL 2016

In 2016 a transgender Person (Protection of Rights) Bill 2016[3] was introduced by the lower house commonly named as Rajya Sabha of parliament, the bill is divided into two chapters dealing with rights that are provided to trans genders to protect them from the existing discrimination and inequality in the present society section 13[4] chapter deals with the transgender right to residence whereas section 13(1) states that transgender person should not be separated from the house, family members and friends based on their identity the other section 13(2) provides them with the right to enjoy all the household facilities and access all of them which are available to an individual this also provides them with the right to maintenance just like any other member of the family is provided with hence this bill talks about transgender right to the residence but not of inheritance.

INHERITANCE LAWS IN INDIA

In India generally, the families are governed with their laws as per their religious belief they follow which gives the equal right to both the genders specifically male and female but not to the third gender which is commonly known as transgender the criteria of inheriting[5] the ancestral property of an individual from parent to children is their absolute right but with the parents will however transgender are always restricted which results in the violation of their article 15[6] of the constitution and as a citizen of the country which prohibits the discrimination based on “sex,” the term “sex” does not include male or female particularly but also includes an individual who recognizes himself or herself as female or male and being transgender it restricts them to inherit.

The general clause act of 1897 has very nicely explained the term “person” in a wider aspect or identity as it includes anyone irrespective of its gender as a citizen of India, the Christian inheritance of property which is governed by the Indian succession act of 1925 includes transgender in section 44[7] of the act and has given the right to inheritance in the ancestral property, another example of Madhya Pradesh HC where a hijra woman was allowed to be the next to inherit of her guru’s property because the court understood and accepted the fact that the community cannot transfer the property to any other person outside the transgender community.

CONCLUSION

The struggle of transgender for living a simple life with respect and dignity has a long way which has always been a controversial issue for society even after independence they still wander to live a peaceful life the government of India finally decided to introduce few bills that must include for the right upbringing and living with equality of the third gender, the bills include trans genders as a coparcener in the Hindu joint family property with gender identity not as an heir in the ancestral property, the bill of 2016 also need some correction as trans genders are a citizen of India and should be recognized in every law concerned with legal, political, Cultural or human right, as the third gender.

The Transgender Protection Bill Of 2019 [8] talks about protection against discrimination, right to residence, giving equal employment opportunity, providing education to availing healthcare facilities, issuing the certificate of identity for a transgender person, providing measures by the government, applying offences and penalties on those who mistreat them and lastly establishing a national council for transgender persons (NCT).

Author(s) Name: Nidhi Sharma (Chandigarh University)

References:

[1] NALSA v Union of India

[2] Constitution of India sections 14, 15, 16 and 21

[3] Transgender person (protection of rights) bill 2016

[4] Section 13 of transgender rights act

[5] Hindu succession act 1956

[6] Constitution of India, article 15

[7] Constitution of India, Article 44

[8] The transgender protection of bill 2019

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