Rights of Transgenders in India

Transgenders are people whose gender identity or gender expression does not correspond with their sex assigned by birth. Historically, this has subjected them to discrimination, oppression and violence, especially in conservative societies.

Some common transgender communities are identified as Hijras, Jogappas, Aradhis, etc. A transgender not belonging to any of these is simply identified as an individual transgender person.
 

Recognition of transgenders in India

The courts in India have attempted to recognize the identity of transgenders and provide them with basic human and fundamental rights, associated with every citizen of India.

National Legal Service Authority (NALSA) v. Union of India

• The Supreme Court opined that the basic fundamental rights must be available to the ‘third gender’ the same way as it is expected to be provided for males and females. Therefore, the court said that transgenders too are protected in lieu of Articles 15, 16 and 21 of the Constitution.
• The court also opined that not identifying as a male or female is not a social or medical problem; and that we are obligated to recognize such persons owing to the basic tenets of human and fundamental rights.
• The court recognized that the right to one’s gender identity lies guaranteed under Article 14 and 21 and is an essential part of leading a life with dignity. It is also a part of the right to make a choice and the right to privacy, which was subsequently secured by the Puttaswamy judgment.
• While interpreting the applicability of Article 14, the court pointed out how the provision provides protection to ‘any person’, which will also include transgender persons as well. The court also held that Articles 15 and 16 are not limited to the biological sex of male or female, but it intended to include even those who consider themselves to be neither male nor female, and the third gender.

Transgender rights under the Constitution of India

The NALSA judgment paved the way for the recognition of transgenders with fundamental rights under the Constitution:

• The judgment has allowed transgenders to have fundamental rights under Articles 14, 15, 16 & 21 under the Constitution.
• Articles 14, 15 & 16 protect right to equality, while Article 21 provides right to live with dignity, the right to choice and right to privacy, amongst others.
• Article 21-A also provides for right to education in India as a fundamental right under Part III of the Constitution. This is applicable to those who identify themselves as a ‘third gender’ at a nascent stage, i.e., from six to fourteen years old.
• The NALSA judgment explicitly clarified that all transgenders have the right to education.
• The Transgender Persons (Protection of Rights) Act 2019 obligates educational institutes to be inclusive towards transgenders with adequate facilities.
• The Madras High Court also laid down directions for educational institutes to provide for gender-neutral restrooms and additional categories of gender on important forms.
• However, changes and implementation of these guidelines have been poor at grassroots level.

 

Status of inheritance rights in India vis-à-vis transgenders

Transgender inheritance rights remain a problem in India:

• Gendered inheritance laws: Inheritance laws in India are governed by personal religious laws and contain gendered terms. This makes it difficult for transgender persons to lay claim to inheritance since the law of inheritance only recognizes either male or female. Although the issue has been raised numerous times with the Law Commission of India, nothing has been done to address the writings of the law so far.
• Identification: Transgenders often lack the basic identification documents as ‘third gender’. Although recognized by the court of law, acquiring documents with the preferred third gender is a challenge. A lack of identification contributes to the violation of inheritance rights, as identification is necessary before possession of property and other assets.
• Hindu Succession Act 1956: There is no mention of anyone else other than ‘males’ and ‘females’. Section 8 defines rules of succession only in terms of succeeding males through different classes of heirs; Section 15 does the same for female class heirs. However, to avoid challenges, transgenders usually categorise themselves as female for inheritance matters. There is no ground for disqualification explicitly mentioned in the Act for transgenders.
• Muslim Personal Laws (Shariat): Muslim laws of inheritance are mainly drafted according to the Quran – the holy book in Islam. Muslim property law is uncodified in India and all Muslims are governed by the Shariat Law for succession. There is no indication of transgender rights under Shariat law and, once again, the law is ambiguous when it comes to transgender inheritance rights in Islam.
• Indian Succession Act:  This Act governs all those who are not Hindu, Muslim, Jain, Buddhist or Sikh. Prima facie, this statute seems gender neutral as it uses terms such as ‘kindred’ and ‘lineal’ descendants. However, the legislation still is not truly free of binaries and silence of the statute is not favourable towards the trans community.
• Use of Wills: Succession through Will is the safest way of ensuring that transgender persons are given a share in inheritance. A Will would always override any other mode of intestate succession. It does not depend on gender and can include all persons, regardless of their characteristics. For example, in Shariat law, a person can bequeath 1/3^rd of the property to a person of their choice. Similarly, under Hindu law, a person can bequeath as they please because the Will can override intestate succession as mentioned in the Indian Succession Act or supersede Hindu laws of succession.

Marital rights of transgenders

Transgenders, like homosexuals, are often deprived of the right to marry legally. Following are the important points to consider when discussing the marital rights of transgenders:

• Inheritance rights often stem from marriage. If marriage of transgenders is not recognized, it directly means that inheritance rights will suffer as well.
• The Hindu Marriage Act, for example, uses the terms ‘bride’ and ‘bridegroom’. Whether these terms incorporate transgenders is up for debate and left to interpretation.
• In 2019, the Madras High Court, in Arun Kumar & Anr. v. Inspector General of Registration & Ors. held that the word ‘bride’ under Section 5 includes transgender persons as well. This was passed on the basis of Article 21, the Puttuswamy judgment and the NALSA judgment.
• Despite this judgement, the government has included no provisions related to the marriage of transgenders in the Transgender Persons (Protection of Rights) Act, 2019.
• Literal reading of the Act does not prohibit transgender marriage. However, transgender marriages are not implemented after interpretation by authorities leads to prohibition.
• Indian legislation restricts marriage of transgenders in either letter or in spirit of the law. Thus, lack of marital rights hampers inheritance since most personal laws have the two interwoven.  

Hindu Marriage Act (HMA) & Special Marriage Act (SMA)

• HMA states that for a valid marriage, the parties should not be ‘within the degrees of prohibited relationship’. This is defined as marriages prohibited due to caste, sect, community or society problems. The fact that this is defined makes it difficult to approve transgender rights.
• SMA was adopted to give legal protection to inter-faith marriages. Section 4 of the Act discusses the conditions of a valid marriage, but leaves no scope for transgenders, since one of the conditions is ‘fit for procreation’ – which does not support transgender marriages naturally.

 

Employment rights of transgenders

The right to employment of transgenders is protected by the Transgender Persons (Protection of Rights) Act 2019. The legislation prohibits discrimination of transgenders in employment and prohibits:

• Section 3(b): Unfair treatment of a transgender person about employment or occupation.
• Section 3(c): Denial or termination from employment or occupation.
• Section 9: Discrimination in matters relating to employment, including but not limited to – recruitment, promotion, etc.
• Section 10 of the Act obligates establishments to enforce the provisions of this Act strictly and provide such facilities to transgenders as may be necessary.
• Article 14 & 15 also protect transgender from employment discrimination and ensuring equality before the law.

Therefore, transgenders have the complete right to employment as a fundamental right as per the Constitution of India and in accordance with the special legislation – The Transgender Persons (Protection of Rights) Act 2019.
 

Recent Supreme Court guidelines

• In September 2022, the Supreme Court provided the Centre with three months to devise a policy for opening up avenues for employment of transgender persons, especially in the aviation industry, since the petitioner belonged to this industry.
• The Supreme Court said the petitioner's case raised larger issues about the formulation of government policy whereby non-discrimination against transgender people is ensured.
• The Centre was ordered to comply with the provisions and spirit of the Transgender Persons (Protection of Rights) Act of 2019. The court reiterated the provisions that mandate that no establishment – private or public – should discriminate against transgenders in matters of employment.
• The Department of Personnel & Training and the Social Justice Ministry has been asked to collaborate with the National Council for Transgender Persons – a body formed under the Act – to consult and prepare a policy for the community’s welfare and rights.

 

Adoption rights for transgenders

• While the Juvenile Justice Act is gender-neutral by stating that any person can adopt a child – a prerequisite for adoption is that a couple be formally recognized under Section 41(6) of the Act. Recognition as a ‘couple’ is impossible for transgenders as their co-existence and marital status are not yet approved by law.
• The Hindu Adoption & Maintenance Act, on the other hand, only recognizes adoptions by either a ‘male’ or ‘female’, leaving no scope for transgenders to adopt under this Act.

 

Conclusion

While strides have been made to safeguard interests of the transgender community, they are still deprived of basic human rights such as education, marriage and recognition under the law. The Transgender Persons (Protection of Rights) Act attempts to explicitly address the concerns of the community. However, it falls short at the level of implementation.