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Transgender Persons (Protection of Rights) Bill, 2016 and Constitutional Status of Transgender

The transgender community in India faces a variety of issues which include problems relating to marriage, property, electoral rights, adoption, etc. to name a few. After the judgment in the case of National Legal Service Authority v. Union of India the Transgender Persons (Protection of Rights) Bill 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.

Transgender people are individuals of any age or sex whose appearance, personal characteristics, or behaviours differ from stereotypes about how men and women are “supposed” to be. Transgender people have existed in every culture, race, and class since the story of human life has been recorded. In its broadest sense, transgender encompasses anyone whose identity or behaviour falls outside of stereotypical gender norms.

In the landmark judgment of the National Legal Services Authority (NALSA) v. Union of India, 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.

The State has to now ensure that all persons are accorded legal capacity in civil matters, without discrimination based on sexual orientation or gender identity, and the opportunity to exercise that capacity, including equal rights to conclude contracts, and to administer, own, acquire (including through inheritance), manage, enjoy and dispose of the property.

Problems faced by Transgenders

The problems, faced by Transgenders are discrimination, lack of educational facilities, unemployment, lack of shelter, lack of medical facilities like HIV care and hygiene, depression, hormone pill abuse, tobacco, and alcohol abuse, and problems relating to marriage, property, electoral rights, adoption. Ministry of Law and Ministry of Social Justice and State Governments need to recognize the deprivation suffered by transgender people and work on much-needed reform.

In India, there is a host of socio-cultural groups of transgender people like hijras/kinnars, and other transgender identities like – shiv-shaktis, jogtas, jogappas, Aradhis, Sakhi, etc. However, these socio-cultural groups are not the only transgender people, but there may be those who do not belong to any of the groups but are transgender persons individually. Though an accurate and reliable estimate of transgender people is not available, it cannot be denied that their number is minuscule compared with the total population of the country.

Transgender people in India face a variety of issues. So far, these communities perceive that they have been excluded from effectively participating in social and cultural life; economy; and politics, and decision-making processes. A primary reason (and consequence) of the exclusion is perceived to be the lack of (or ambiguity in) recognition of the gender status of hijras and other transgender people. It is a key barrier that often prevents them from exercising their civil rights in their desired gender.

So far, there is no single comprehensive source based on which an evidence-based advocacy action plan can be prepared by transgender activists or possible legal solutions can be arrived at by policymakers. Reports of harassment, violence, denial of services, and unfair treatment against transgender persons in the areas of employment, housing, and public accommodation have been discussed in local media, from time to time.

The International Bill of Gender Rights

The International Bill of Gender Rights also establishes the right to self-determination of one’s gender identity and to medical care that allows individuals to realize this. The Right To Free Expression Of Gender Identity is the right to define one’s own gender identity, all human beings have the corresponding right to free expression of their self-defined gender identity. Therefore, all human beings have the right to free expression of their self-defined gender identity; and further, no individual shall be denied Human or Civil Rights under the expression of self-defined gender identity.

The Right To Control And Change One's Own Body is that all human beings have the right to control their bodies, which includes the right to change their bodies cosmetically, chemically, or surgically, to express self-defined gender identity. Therefore, individuals shall not be denied the right to change their bodies as a means of expressing a self-defined gender identity; and further, individuals shall not be denied Human or Civil Rights on the basis that they have changed their bodies cosmetically, chemically, or surgically, or desire to do so as a means of expressing self-defined gender identity.

The Right To Competent Medical And Professional Care is given to the individual's right to define one's own gender identity, and the right to change one's own body as a means of expressing a self-defined gender identity, no individual should be denied access to competent medical or other professional care based on the individual's chromosomal sex, genitalia, assigned birth sex, or initial gender role. Therefore, individuals shall not be denied the right to competent medical or other professional care when changing their bodies cosmetically, chemically, or surgically, based on chromosomal sex, genitalia, assigned birth sex, or initial gender role.

Property rights for the Transgenders

All the laws of the land should be applied to them like any other person. They should be treated equally, respectfully, and without any discrimination. They should not be discriminated against in exercising their right to apply for a job, access to a public place, right to property, or their right to access to justice. Civil rights under law such as the right to get a passport, ration card, make a will, inherit property, and adopt children must be available to all regardless of the change in gender/sex identities.

India’s policy of recognizing only two sexes and refusing to recognize Transgenders as third sex has deprived them at a stroke of several rights that Indian citizens take for granted. These rights include the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a driver's license, the right to education, employment, health so on. Such deprivation secludes hijras from the very fabric of Indian civil society.

In the opinion of the MP High Court, a ‘hijra’ woman was allowed to receive property from her Guru because the court accepted that the community cannot transfer property to anyone outside of the community. In this ruling, the court explicitly acknowledges the existence of a distinct ‘eunuch’ class with its customs and rituals that must be respected.

Transgender Persons (Protection of Rights) Bill, 2016

After the judgment in the case of National Legal Service Authority v. Union of India the Transgender Persons (Protection of Rights) Bill was introduced in Lok Sabha in the year 2016. The Bill has been divided into various chapters dealing with various rights that are to be granted to transgender against the prevailing discrimination faced by them. Section 13 of the Chapter deals with the transgender’s right of residence.

Section 13(1) clearly states that transgender people should not be separated from their family and immediate family on the ground of their gender identity. Section 13(2) 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.

The bill introduced by the Lok Sabha though talks about the transgender right of residence 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 parent's separate property. The bill needs a lot of correction as transgender are citizens of India and should be recognized in every law concerned with their Human and Legal Rights as the third gender.

Discussion on National Legal Services Authority (NALSA) v. Union of India

The Supreme Court said the absence of law recognizing Transgenders as the third gender could not be continued as a ground to discriminate them in availing equal opportunities in education and employment.

This is for the first time that the third gender has got formal recognition. The third gender people will be considered as OBCs, the SC said. The Supreme Court said they will be given educational and employment reservations as OBCs. The Court also said states and the Centre must devise social welfare schemes for third gender communities and run a public awareness campaign to erase social stigma. The Court added the states must construct special public toilets and departments to look into their special medical issues.

If a person surgically changes his/her sex, then he or she is entitled to her changed sex and cannot be discriminated against. The apex court expressed concern over Transgenders being harassed and discriminated against in society and passed a slew of directions for their social welfare. The Court pointed out that Transgenders were respected earlier in society but the situation has changed and they now face discrimination and harassment.

It said that section 377 of IPC is being misused by police and other authorities against them and their social and economic condition is far from satisfactory.

The Constitution of India

In essence, the Constitution of India is “sex blind”, that is to say, the basic premise of equality before the law and equal protection of the law is based on a Constitutional mandate that the sex of a person is irrelevant save where the Constitution itself requires special provisions to be made for women under Article 15(3). Article 14 guarantees to all people equality before the law. Article 19 (1) ensures for all citizens freedom of speech & expression. Article 21 guarantees a life of dignity to all persons.

Interestingly, the Registration of Births and Deaths Act, 1969 doesn’t mention anything about the ‘sex’/ ‘gender’ of a person to be registered in case of birth or death. The Act is gender-neutral. The requirement of indicating the sex/gender of a person in case of a birth or death in the Birth or Death certificate, as the case may be, doesn’t seem to flow from the provisions of the Act itself. Such a requirement may have been put in the formats of such certificates prescribed in the Rules under the Act, which are made by the States.

Naz Foundation v. NCT of Delhi

In the case of Naz Foundation v. NCT of Delhi in the context of inclusiveness it has been held that:
Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination. It cannot be forgotten that discrimination is the antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.

Discrimination must be prohibited where it is on grounds of race, colour, ethnicity, descent, sex, pregnancy, maternity, civil, family or career status, language, religion or belief, political or another opinion, birth, national or social origin, nationality, economic status, association with a national minority, sexual orientation, gender identity, age, disability, health status, genetic or other predisposition toward illness or a combination of any of these grounds, or based on characteristics associated with any of these grounds.

Further, the case pointed out that “sexual orientation is a ground analogous to sex and that discrimination based on sexual orientation is not permitted by Article 15. Further, Article 15(2) incorporates the notion of horizontal application of rights. In other words, it even prohibits discrimination of one citizen by another in matters of access to public spaces. In our view, discrimination on the ground of sexual orientation is impermissible even on the horizontal application of the right enshrined under Article 153”.

It is therefore evident that the Constitution of India guarantees the right to equality and non-discrimination for all including transgender persons.

Conclusion
The Hindu Succession Act stays mum about the third gender. It clearly explains what a Hindu is and who all comprise within the said definition. The Act lays down a uniform and comprehensive system of inheritance and applies to persons governed by both the Mitakshara and Dayabhaga schools.

The person is also specified under this law. This Act applies to any person, who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or follower of the Brahmo, Prarthana or Arya Samaj, any person who is Buddhist, Jain, or Sikh by religion and to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that the concerned person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. Males and females are granted ownership over the property by the same, without any reference of the third gender. There haven’t been significant amendments after 2005.

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