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
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 TransgendersThe 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
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 RightsThe 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 TransgendersAll 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, 2016After 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 IndiaThe 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 IndiaIn 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
Naz Foundation v. NCT of DelhiIn 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.
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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