Tag: #TheTransgenderPersonsAct

INTRODUCTION

Gender is a word that cuts society, polity, and culture all over the world. Some languages do not have the word gender instead the word sex is used. Different terms are used regularly in theories of sexuality. Sex and gender may look identical but they are completely different terms. Sex generally means the biological and physiological characteristics of a person whereas gender usually refers to sociological, psychological, and cultural construct. This generally refers to the attributes associated with the person and it is not determined by biological characteristics. The word “Trans” means a general term used for the people who use a different gender identity other than their assigned sex by birth.  The person’s identity in their innate knowledge has changed and they think they are different from what they are expected to be born. Transgender people can be of any age, having different personal characteristics other than the views of how men and women should be.

HISTORY OF TRANSGENDERS

Transgender people were known to exist since ancient times. In Ancient Greece and Rome nearly 9000 to 3500 years ago, there were priests called Galli priests that some people believed to be Trans women. The Roman Emperor named Elagabalus who lived in 222 A.D performed sex reassignment surgery as he preferred to be a woman. In the Indian subcontinent, one of the oldest Veda named Rig Veda, mentions the ancient poems where their creation lacked all distinction and men were described with womb or breast. In the great Epics Ramayana and Mahabharata, there were trans men like Shikhandi. In Hinduism, there are transgender deities called Iravan, and Ardhanarishvara (half male and half female considered to be a fusion of Lord Shiva and Shakti), worshipped by the transgender community.

In the middle ages, Eleanor Rykener was arrested in the year 1394 in Europe where he had the body of a male but performed feminine roles, it was earlier seen as gender dysphoria. At present, trans people are recognized as the third gender and are accepted in society broadly. They are elected to public offices, legislatures, and even in courts but still, some countries refuse to recognize them and provide them with basic rights.

RIGHTS OF TRANSGENDERS

Our Constitution enshrines all the fundamental rights of the people irrespective of religion, sex, race, or gender. Part III of the Constitution deals with fundamental rights. Fundamental rights are provided for speech, education, trade, occupation, etc., the fundamental of all fundamental rights lies in Article 21 of the Constitution which deals with the right to life. The right to live with personal dignity to all individuals. Protection is also given to individuals against the violation of fundamental rights. The major issues faced by transgender people are discrimination, marital problems, hygienic problems, unemployment, and financial crisis. They are also sometimes not given the authority to vote. Transgenders are often neglected in the areas of property, adoption, marriage, etc. They end up begging in the street or even acting as a sex worker to survive. They are even refused to use bathrooms. They are also sexually assaulted in public places. Meanwhile, our constitution ensures that all laws are being enacted for the well-being of people in order to establish equality in social, economic, and political spheres; transgender people do not even get their necessities fulfilled. They are considered to be the weaker class and often exploited by the dominant class people. The Supreme Court in the landmark judgement of NALSA vs Union of India¹ case said that transgender can be legally a third gender and they are enshrined with all fundamental rights. But the laws for the benefit of the transgender community people remain unenforced.

TRANSGENDER MARRIAGE

Supreme Court in another landmark judgment Navtej Singh Johar vs Union of India² case held that Section 377 of the Indian Penal Code was decriminalized and it legalized the sexual relationship of all kinds of genders. In the Arun Kumar & Another vs Inspector General of Registration & Ors³ case the court said that under Section 5 of the Hindu Marriage Act, a bride can include a transgender person as well since the right to marriage is a fundamental right under Article 21 of the constitution. Despite the judgment, there is no provision for the right to marry in the Transgender Protection of Rights Bill. The Union government also stated that the Natvej case does not legalize homosexuality but it has decriminalized a particular way of human behaviour.

In Arun Kumar’s case, the term ‘bride’ covers the people who identify themselves as females. But what about those people who do not identify themselves as females? It is stated that if a transgender community undergoes Sex Reassignment Surgery to transit gender then they can fit into either male or female and a document must be submitted to the judicial magistrate with medical documents. Only then they will fit into the perception of male or female and only then they will be enabled to marry with their identity. In Mohammedan law, the perception of marriage is that it must be between the opposite gender for the procreation of children, and bearing children is a very crucial part of marriage. People who have undergone Sex Reassignment Surgery cannot reproduce children so under Mohammedan law it is not considered to be a valid marriage.

The biggest challenge faced by the transgender community for a valid marriage is the procreation of children. This construct that the society accepts two people as lawfully married for the procreation of the children has hindered transgender people in securing the fundamental right to marry. In the Shakthi Vahini vs Union of India⁴ case, it was stated that every individual has constitutional freedom to choose someone whom they wish to marry. The judgments pronounced have not inspired amendments in the provisions of the statute which is the sole reason why there is trouble in recognizing transgender marriage in India. On 1^st April 2022, MP Supriya Sule from the Congress party introduced a bill to Lok Sabha to legalize same-sex marriage under the Special Marriage Act. This bill provides rights to same-sex couples as opposite-sex couples have.

TRANSGENDER MARRIAGE IN OTHER COUNTRIES

In the United States of America, on June 26, 2015, a landmark judgment was passed and in the fourteenth amendment, a fundamental right was guaranteed to same-sex couples, and the government legally recognized same-sex couples. The United Kingdom Gender Recognition Act, 2004 allowed people to get a new birth certificate that recognizes their acquired gender so that they can get legal rights.  In New Zealand, the Civil Union Act, of 2004  was established and couples of both opposite and same-sex gender can get all civil rights including marriage rights. South Africa is considered a prime example of a country that gave recognition to the transgender community. They once considered this community a taboo community but now it has been dramatically changed and marriage rights are given to all the communities irrespective of their gender. The constitutional court of South Africa stated that the relationships are much more than procreation and the love between them cannot be determined by the sex of the parties. 

In 2006, they passed a law solemnizing the union of same-sex couples. Some countries like Saudi Arabia still do not recognize transgender rights. Saudi law follows strict Muslim ideology that considers homosexuality immoral and severe punishment is given to homosexual people. India must also incorporate the right of marriage in the statuary law. There must not be only marriage rights but there must be provisions for adoption, divorce, inheritance, etc. Transgender couples must be provided with the legal right to adopt children.

CONCLUSION

Transgenders face a lot of challenges in society be it physical, political, economic, or social, there is no measure of the magnitude of their problem. These people faced some kind of harassment for their sexual identity. There is also less awareness among transgender people about the fundamental rights vested upon them. The current law for transgenders is inadequate as they need more amendments so that they can live a dignified life. Law is dynamic, it needs constant change so the concept of marriage must be changed; marriage is not for the procreation of children it is much more than that.  The transgender community must not be discriminated against the society and they are also an equal part of this society. They need a dignified and happy life with laws protecting their well-being.

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REFERENCES

1. SC, Civil Writ Petition No. 400 Of 2012.
2. SC, Criminal Writ Petition No.76 Of 2016.
3. Wp(Md)No.4125 /19,3220/19.
4. SC, Civil Writ Petition No 231 Of 2010.

This article is written by Sree Lekshmi B J, a third-year law student of Sastra University, Thanjavur.

Introduction

Transgender¹ or the third sex denotes those people who cannot align themselves to their given respective biological genders with their inherent biological features. They are usually born as male or female but their innate perseverance of gender turns out to be different from their bodily features. Their self-proclaimed gender identity doesn’t match with their sex leading to the discrepancy in their gender orientation. Transgender, transsexual, and hijra are synonymous with each other and are used to denote them.

Since the dawn of human civilization, the existence of transgender people has been acknowledged but they have been devoid of subsequent approval from mainstream society. Even in this 21st century, such people are viewed as taboo and are subjected to persecution and a state of constant denial. Shame and stigma still continue to characterize such subjects in both public and private spheres thus engendering grave misconceptions. They are systematically denied equal rights in spheres of education, employment, marriage, divorce, inheritance, property, adoption, etc. The rudimentary reason for their denial of equal rights is ambiguity in recognition of their gender status as most of the civil rights especially succession, inheritance, marriage, and property rights are gender-specific and the policymaking in India has been always conceived primarily in respect of only two genders i.e. male and female, thereby preventing them from exercising their civil rights in their desired gender.

National Legal Services Authority vs Union of India

The Supreme Court in its landmark judgment of National Legal Services Authority vs Union of India² declared the transgenders as the third gender and endowed them with the right of self-identification of gender as female/ male / third gender. This self-perceived gender identity forms a very crucial part of one’s right to life under Article 21 of the Indian Constitution. The two-judge bench affirmed their entitlement to the fundamental rights granted to them via the constitution of India. Any denial of their fundamental rights in the civil or criminal sphere owing to their third gender is discriminatory to them. The court held transgenders as socially and economically backward classes (OBC) who are entitled to reservation in educational institutions and public sector appointments.

Constitutional Rights

Article 14 of the Constitution of India states that the State shall not deny to “any person” equality before the law or the equal protection of the law within the territory of India. The phrase “any person” includes transgender too. And article 15 prohibits discrimination against any citizen on grounds of sex. Non-recognition of the identities of transgender/hijras leads to the systematic denial of the rights of equality and equal protection of the law. Article 19 (1) (a) of the Indian Constitution describes that all citizens shall have the right to freedom of speech and expression. It guarantees one of the most basic and fundamental human rights. Expression and alignment of one’s gender is hence an obvious derivative of article 19 (1)(a). Denial of the right to express one’s sexual identity through speech and choice of romantic/sexual partner would lead to violation of Article 19

The Transfer of Property Act 1882 and Miscellaneous rights

The Transfer of Property Act 1882³ and its subsequent amendments regulate the transfer of property. The phrase ‘transfer of property’ denotes a demonstration by which a person transfers or passes the property to at least one person, or himself, and at least one different person. It basically implies the transfer of property from one person to another. The term person consists of an individual, or body of individual or company, or association. Section 5 of the Act provides that transfer of property must take place between two or more persons who are living or it must take place inter vivos. The word “person” above forth holistically includes male, female and third gender. The other property-related laws such as The Hindu Disposition Of Property Act, 1916, The Indian Easements Act, 1882, etc include the word “person” to connote and include transgender within its sphere and do not per se disqualify them from legal transactions.

Inheritance Laws

The inheritance and succession laws lay down rules pertaining to the devolution of property on the death of an individual. The property is devolved on the basis of the relationship between the deceased and the inheritor. The succession laws in India are governed by the respective personal laws of the religious communities that chiefly recognize inheritors into the watertight compartments of the male and female genders. In order to claim property rights, transgenders are required to recognize themselves as male or female.

The Hindu Succession Act 1956⁴ which governs the inheritance of properties is completely silent pertaining to the rights of transgender. It explains who is Hindu and whom all comprise the inheritance schedule (such as son, daughter, spouse, etc.) within the said definition. The Act establishes a comprehensive and uniform system of inheritance. Ownership over the property is granted only to males and females thereby excluding the third gender. Such trans people are devoid of property rights and subject to extreme prejudice and vulnerability. They have to align their genders to respective categories of either male or female in order to claim property rights. So they have to establish their gender identity as per the one assigned to them at their birth certificate. Moreover, trans people are not entitled to the status of legal heir of their parent’s separate property nor coparcener in the Joint Hindu Family with their gender identity.

Similar to the line of succession rules of The Hindu Succession Act, the personal law of Muslims i.e. Shariat too follows similar rules pertaining to transgender property rights. Indian Succession Act, 1925 governs property inheritance of Christians. Notably, Section 44 of the act has included transgender and elucidates upon their inheritance of the ancestral property.

THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019

THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019⁵ has made a decent effort to protect the rights of transgender and promote their welfare by prohibiting discrimination on grounds of education, employment, healthcare, movement, access to goods and services, choice of occupation, etc. The act has sought to remove discrepancies in unfair treatment with regard to the right to reside, purchase, rent, or otherwise occupy any property. Section 4(2) of the Act provides the right to self-perceived gender identity. Section 5 of the Act provides that a transgender person could be perceived as third gender (transgender) by making an application to the District Magistrate for issuing a certificate of identity as a transgender person. But the act does not delineate anything about property rights thereby perpetuating lacunae in the system.

Evolving Sphere

Recently States such as Uttar Pradesh⁶, Uttarakhand, etc have sought to enforce progressive laws on property inheritance of transgender people. It has successfully passed an amendment to include transgender people in the UP Revenue code wherein they will be included in the inheritance nomenclature. The transgender people will now be recognized as members of a landowner’s family and will hold an equal right to inherit agricultural property.

Conclusion

The SC judgment in the NALSA case coupled with THE TRANSGENDER PERSONS ACT, 2019 has sought to create a level playing field by endowing trans people with the right to self-identification and creation of the label of the third gender. Transgenders cannot be denied the right to property per se as they have the absolute right to inherit family property unless disqualified by law. The State must strive to ensure equality of rights and promote the holistic development of the trans community as a whole.

References:

1. FAQs, https://transequality.org/issues/resources/frequently-asked-questions-about-transgender-people
2. WP (Civil) No 400 of 2012
3. https://www.indiacode.nic.in/bitstream/123456789/2338/1/A1882-04.pdf
4. https://www.ijlmh.com/wp-content/uploads/2019/03/Inheritance-Rights-of-Transgender-A-Cry-of-Humanity.pdf
5. https://www.news18.com/news/buzz/why-transgender-people-still-have-to-go-through-hoops-to-get-married-or-inherit-property-in-india-2842545.html

This article is written by Riya Ganguly, 2 nd year BBA LLB student at Bharati Vidyapeeth New Law College, Pune.