Right of Inheritance of Transgender Community

Abstract

The paper will first look at the historical background of the laws India has seen with respect to the Transgender community. Especially in the context of colonialist history of the country, and how that impacted the outlook of the state towards this community. The paper will look at how these perspectives have translated to the current Family Law which govern the inheritance rights of the transgender community. The paper will then reflect on the Indian jurisprudential and legislative growth of the family laws of the country with respect to inheritance. Finally, the paper will look at a comparative analysis of the inheritance laws of our country with respect to other countries and analyze the position of transgender community under current law. The conclusion of the paper will give a final reflection on the current inheritance law of our country vis-á-vis the rights of transgender community.

Keywords

Transgender’s inheritance rights, Indian Family Law, Hindu Inheritance Law, Muslim Personal Law, Indian Succession Act, Inheritance Rights, Family Law.

Research methodology

The paper has taken a qualitative and quantitative approach. It is descriptive in nature, and is analyzing the various family laws and other acts in India, statutes of America, Britain and Australia, and the relevant case laws from these various countries. Secondary sources of the paper include books and relevant articles written by people specializing and having expertise in family law matters.

Introduction

Over the past few years, there has been increasing support for LGBTQ+ community. People of the community are being represented in multiple forms of mass media. Within the umbrella term of LGBTQ+ community or the queer community, there are different communities or spectrums. One of these community includes people who recognize themselves as Transgender. The term ‘Transgender’ is an umbrella term used to describe people who do not fall under the “normative” masculine and feminine definitions of men and women, respectively.[1] The term Transgender includes transsexuals, genderqueers, or non-binary people, crossdressers, and other variants. In most cases, people who identify as Transgender do not have a set gender label they fall under, i.e., male or female. This makes it hard to categorize them under inheritance laws, which operates based on such distinction. This paper is going to analyze how the rights of the Transgender community has evolved over the years, especially in matters of inheritance and marriage in personal laws, in comparison with other countries. 

Transgender or ‘trans’ people have been recognized in various historical and mythological texts of India. Hindu mythology, for example, has represented multiple elements of variance in gender and has moved beyond the definition of masculine and feminine ideals. This has been represented various times in different stories. The prime example is Lord Vishnu, who changes his forms multiple times from a man to a woman and back again. In his incarnation as Krishna in Mahabharata, he transforms into a woman to marry Aravan and, after his death, became his widow.[2] Since this story finds itself in Mahabharat, it’s indicative of existence of Transgender communities in India, since the epic text is based on some happenings. Furthermore, the representation and acceptance of Transgender men have been seen in texts written during Mughal Period, when they were called ‘Eunuchs.’ All over the country, they were seen as men who had been castrated and were thus, in-charge of guarding the royal women quarters as royal help. During this time, they had the right to acquire and hold property, but they were not allowed to inherit property from blood relations.[3] Eunuchs also had the right to collect revenues from any land they had and were also allowed to carry out business.

With colonialism the rights of Transgenders, i.e., right to life and dignity and right to hold land and earn a livelihood, were abolished. If the Transgender people had been given any benefits in land provisions, they were taken away by the Britishers. Their land was taken away or seized on the ground that the land held by them had not transpired through blood relations.[4] Under the Criminal Tribes Act, 1871 (“CTA”), Transgender people were labeled as criminals.[5] CTA required them to give their place of residence and furnish proof of it and further directed village headmen to keep their eyes on eunuchs to ensure that they do not have a buy under the age of sixteen with them. That is, the government ordered them to keep an eye on the eunuchs who were suspected of kidnapping, sodomy, and castration.[6] The law was repealed only in 1911.

Independence in the country did not improve the now precarious situation of Transgenders in the country. The constituent assembly also shaped the mentality of the middle-class community of gender and sexual morality. This community was in support of extreme policing of the now ‘Hijra’ community. The constituent assembly started leaning towards certain ‘zones’ or ‘local areas’ being allotted to the Transgender community and then limiting them to such areas. The reflection of these ideas has been seen in various state laws, which are now based on the CTA, for example, Karnataka Police Act, 2011.[7] The 2018 Transgender Rights Bill also tried to police Transgender people. It required a Transgender person to register themselves with District Magistrate, whether they are or identify as a ‘man’ or ‘woman.’

Therefore, it’s very apparent that the Indian legislative system is not operating in favour of the Transgender community. Thus, it’s crucial to see how these negative ideas have percolated to different personal laws in the country regarding the inheritance rights of Transgender communities. The personal law includes Hindu Succession Act, 1956 (HSA) governing Hindu Law; Muslim Law is governed by their scripts and school of understanding, both Shia and Sunni; and Christian Law is governed by Indian Succession Act, 1925 (ISA).

Personal Laws

HSA governs the right of inheritance of Hindus for both Joint Family property and personal property. However, it only recognizes males and females as the people who inherit the property or the subject matter of property rights. There are clear gender binary terms used throughout HSA, such as mother, father, son, daughter, and so on. For example, HSA specifies who gets property as a ‘son’ or ‘daughter’ and never just ‘child’, which is a gender-neutral term, that can be used to devolve property to a person’s children. No gender-neutral term is seen within the ambit of HSA itself, which would allow a Transgender person to claim their rights over the property of their parents or siblings. Thus, there is an explicit exclusion of people who recognizes themselves as Transgender, which may be that they recognize themselves as another sex or non-binary.

However, the Hindu Inheritance (Removal of Disabilities) Act, 1928 protects persons against exclusion from their right to inherit separate or Joint Hindu Family. Under section 2, the act states that other than reasons for lunacy or idiocy, or reasons of law and custom, no one shall be excluded from their right of inheritance of the property.[8] Transgenders are not considered lunatics or idiots by the law of the country or the Hindu Personal Law. Thus, a case can be made to allow Transgenders to inherit property under the personal law, despite not having any representation within the law itself.

Similarly, in Muslim Personal Law, both Shia and Sunni, there is a strict gender binary with respect to inheritance. Males and females are the only subject matter of inheritance of property. There is a clear division of shares given by both personal laws for a particular person, that is, a son, daughter, mother, and so on. Thus, people who do not fall under these specific categories, like Transgenders, find it very hard to claim their inheritance in intestate succession, in both Hindu and Muslim law.

However, in Sunni law, due to the principle of nearer in degree excludes the remoter, a Transgender can claim inheritance through nearness in decree. The rule dictates that if X dies and he has a son and son’s son, the son will inherit the property. This rule is interpreted in terms of blood relations, and thus, if a Transgender proves that he is nearer in degree and nearest in degree, the court can then pass a decree that they are the inheritor of the property without a will.[9]

Under Shia law, the first class of heirs includes consanguine heirs, people related to the deceased by blood. They are divided into three groups, with each having sub-divisions. The division of inheritance follows the line of parents, children, grandchildren, siblings, paternal and then maternal uncles and aunts, in the same line. Thus, even though the personal law dictates the person who will receive what (i.e., mother, father, son, and so on), the court can interpret for Transgenders to fall under the category of children.

On the other hand, the ISA, which has a broader application than both Hindu personal law and Muslim personal law, regulates Christian inheritance of property. ISA is much more inclusive than both Hindu and Muslim personal law. Under section 59, any person who is of sound mind and is a major can devolve property under testamentary succession.[10] Moreover, even if there is an issue with pronouns in the will, the testator’s intent is derived, and the property will still devolve to them.[11] Thus, a Transgender cannot be removed or disqualified from their share in the property unless the testator never wanted to devolve the property to him.

With respect to section 37, which deals with the intestate succession of property, ISA states that “the property shall devolve to child or children.”[12] The use of the term “child or children” shows that ISA moves beyond the confines of the gender binary of male and female. It also provides a more comprehensive and inclusive right to inheritance. Child in ISA refers to lineal descendants in first degree of persons.[13] Thus, no one can legally take away the right of a Transgender person under this act, as long as they fall under the definition of child as given by ISA.

Indian Jurisprudential and Legislative Growth

In 1990, the Madras High Court upheld the rights of Hijras to inherit through guru-chela system.[14] Following which, Supreme Court in National Legal Services Authority v. Union of India[15] (NALSA) held that Transgender rights are a matter of Human Rights. Being Transgender is not a medical or social issue, so the court held the Transgenders are ‘third genders.’ The court went ahead to say that “The Hijras/Eunuchs who fall under Transgender group, can claim legal status as third gender with all legal and constitutional protection.[16] In doing so, the court also gave the now ‘third genders,’ right of employment and inheritance of property, and so on. It was stated that no third gender can be discriminated against, excluded, or restricted based on their gender identity, and doing so would be violative of fundamental rights under the Constitution of India. following which, Delhi High Court acknowledged representation of Transgenders in Hindu manuscripts.[17] The right of Transgenders to be employed as police was also upheld after this judgement.[18] The Puttaswamy judgement upheld the right to privacy under Article 21 of the Constitution, for a person to choose their partner without any interference from the court.[19]

The judiciary has made progressive steps in combating the discrimination against Transgender communities. However, it has not yet established any precedent or passed any decree which would clarify the ambiguous position of Transgenders with respect to their right of property. Moreover, despite amendments, the HSA continues to ignore the issue of Transgender people with respect to their right of inheritance of property. It does not specify the rights of a Transgender to inherit their parent’s property, as is dictated for sons and daughters. It becomes even more ambiguous when a Transgender identifies as non-binary, i.e., not having a specified gender since there are no rules dictating their share in the property. Moreover, Sex Reassignment Surgery was declared to be a precondition for legal recognition of gender identity.

Even though the case was seen as a very progressive judgement with respect to the right of the Transgender community in India, there were still a few issues with the judgement; it failed to remove section 377 of the Indian Penal Code on the grounds of discrimination. Even though the judgement decreed that discrimination against Transgender people is against their fundamental right, the ignorance of section 377 was completely in opposition to it. Section 377 of Indian Penal Code allows social discrimination against people of different sexual orientations that do not fall under the “normal” sexual orientation.[20] Moreover, the court only delivered the judgement in terms of court and Transgenders’ rights in the Constitution, but they failed to rule on the management of affairs of personal life.[21] This would also impact the rights of Transgender people in matters of inheritance since they can be discriminated against by family members without any repercussions.  

The Transgender Persons (Protection of Rights) Bill, 2016 was introduced in the Lok Sabha after the Navtej Singh Johar v. Union of India[22] judgement. Section 13(1) of the bill provides that all Transgender people are protected from being separated from their families on the basis of their gender identity.[23] Furthermore, under section 13(2),[24] they have been given the right to maintenance from household and facilities available in the house. However, the bill completely overlooks the inheritance rights of the Transgender community. In Joint Hindu Family, they have not been given recognition as a coparcener or as a legal heir of the separate property of their parents.[25] After various protests against this bill and the proposed 2018 Bill, the Transgender Persons (Protection of Rights) Act, 2019, was passed. The 2019 Bill did make some improvements on the contested policies; however, yet again, the bill failed to improve the ambiguous position of the Transgender community’s rights of inheritance in personal laws. Additionally, a Transgender in the country can now get a revised certificate of identity, only after they have undergone a sex change treatment.[26] The bill thus, ignores the people who identify themselves as non-binary or are intersex.

The situation is not all bleak; the Indian judiciary has made many improvements on the rights of Transgenders in terms of what gender binary they fall under. The Madras High Courts, in its judgement of Jackuline Mary v. Superintendent of Police, Karur & Ors.,[27] held that a person’s gender identity is a matter of psychological factors as well as physical perceptions. Thus, holding someone as male when they are trans female will be an infringement of the person’s rights and their sexual identity, even if they are declared as male in a medical exam. Such forced recognition would be violative of their fundamental rights under the Constitution of India.[28] Furthermore, the Madras High Court, in another judgement in 2019, passed that the definition of bride includes transwomen.[29] Moreover, in Navtej Singh Johar v. Union of India,[30] the Supreme Court of India struck down section 377 of the Indian Penal Code, which criminalized homosexuality or non-procreative sexual activities. The judgement was a huge step forward in terms of equality for the Transgender community in India. The judgement has seen its reflection in cases where the judiciary and police have been asked to sensitize themselves on matter of LGBTQ+ community, and to educate students about these matters; [31] as well as in cases where family members were stopped from coercing their family to stop living in same-sex relations,[32] and cases where live-in relationship of Transgender man and a woman was upheld.[33] Such judgements will allow more Transgender people to come forward in courts and fight for their right of inheritance when their family has breached their right to inheritance.

Other Countries

Despite being the country, which introduces policing acts and sections to control Transgenders, Great Britain’s British House of Lords made changes to the condition and rights of Transgender people in the country right in 1970. In the case of Corbett v. Corbett,[34]  brought for divorce of a transexual woman Ashley, the court laid down four tests to determine the sex of the person. Firstly, chromosomal factor, then presence or absence of ovaries or testes, genital factors, and finally, psychological factors. Following this, in the Gender Recognition Act, 2004, the government permitted issuing of new birth certificate for any person who recognized themselves as Transgender after they have had a sex change, which has been notified to the Gender Recognition Panel.[35] Their rights are given full recognition under their newly acquired sex, for all purposes, including marriage and inheritance.[36] Moreover, the Act states that a person’s gender including acquired gender will not affect the disposal or devolution of property.[37]

In Australia, a High Court judgment in 2014 legally recognized individuals with non-specific sex as a gender.[38] The Birth, Deaths and Marriages Registration Act, 1995 allows the registrar of an area to register a person’s sex as non-specific, and Transgender people have this right.[39] Furthermore, the Sex Discrimination Amendment Act, 2013 states that gender is decided according to the mannerism or appearance of a person, and not the person’s designated sex they have been born with.[40] Thus, rights of inheritance of a Transgender person will be in accordance to their perceived sex.

In the United States of America, under the rules of intestate succession, a surviving wife is the heir of a deceased man who has not left a will.[41] If there have a child or children, the property needs to be divided equally between the widow and the children or child.[42] The statute does not specify between daughter or son when talking about a child, and as a result, a Transgender can easily inherit their parent’s property. If a will was made by the parent for a Transgender person, with the wrong pronouns (i.e., the person had a sex change surgery after the will was made), the person can still inherit property since the court will only look at the intention of the parent.[43]

Conclusion

As visible, the ISA has made leaps and progression in providing equality for all people. On the other hand, there is a need for both Hindu and Muslim personal law to be amended and made inclusive of the rights of Transgender people in matters of inheritance and marriage. The absence of inclusion of non-gender-binary people in the wording of these personal laws has led to controversial judgements on rights of the Transgender community of inheritance and succession. In a 2016 judgement, the esteemed judge held that “Shastric Law does not confer the right of inheritance on a eunuch.”[44]

Moreover, no significant precedent has been set by the court with respect to the rights of inheritance of Transgenders in either Muslim personal law or Hindu personal law. It has been seen in various cases like the Triple Talaq Case,[45] courts have not been very keen on deciding the Constitutional validity of matters of personal law. This is either because of the political climate of the country, or there has been ignorance by the legislature on the same matter. Courts decide not to pass controversial changes in personal law due to fear of retaliation from the people who follow the religion. There is a need for the development of statutes and jurisprudence of the country to protect the interests of the Transgender community. Much like Great Britain, Australia, and the United States, India needs to make more progressive steps to counter the disbalance of rights and stop discrimination against Transgenders in matters of family law.

BIBLIOGRPAHY

Indian Cases

Arun Kumar v. Inspector General of Registration, Tamil Nadu, Decided on 22 April, 2019, WP(MD) No. 4125 of 2019.

Chinmayee Jena v. State of Odisha & Ors., Decided on 24 August 2020, W.P. (Criminal) 57/2020

Ilyas & Ors. v. Badshah Alias Kamla, AIR 1990 MP 334.

Jackuline Mary v. Superintendent of Police, Karur & Ors., 2014 (3) CTC 497.

Justice (Retd.) K. S. Puutaswamy v. Union of India, 2017

K. Prithika Yashini v. The Chairman, decided on 3 November, 2015, W.P. No. 15046 of 2015.

National Legal Services Authority v. Union of India, WP (Civil) No. 400 of 2012.

Navtej Singh Johar & Ors. v. Union of India, AIR 2018 SC 4321; W.P. (Crl.) No. 76 of 2016.

Poonam Rani v. State of Uttar Pradesh & 5 Ors., Decided on 20 January 2021, Writ C. No. 1213 of 2021

Shayara Bano v. Union of India, WP (C) 118/2016. (Triple Talaq Case)

Shivani Bhat v. State of NCT Delhi & Ors.,Decided on 5 October, 2015, W.P. (Crl.) 2133/2015.

S. Sushma v. Commissioner of Police, W.P. No. 7284 of 2021.

Sweety v. General Public, R.S.A No. 17 of 2016, para 7.

British Case

Corbett v. Corbett, [2003] EWCA Civ 559

Australian Case

NSW Registrar of Birth, Death and Marriages v. Norrie, [2014] HCA 11 (2 April 2014)

Indian Statutes

Bombay Rent Free Act, 1852.

Criminal Tribes Act, 1871 (Act No. XXVII of 1871), s. 24.

Hindu Inheritance (Removal of Disabilities) Act, 1928, s. 2

Hindu Succession Act, 1956.

Indian Constitution, 1949, Article 14, 15, 16, 19(1)(a) and 21.

Indian Penal Code, 1860, s. 377.

Indian Succession Act, 1925, s. 37, 59, 74, 99.

Karnataka Police Act, 2011, section 36A.

Transgender Persons (Protection of Rights) Bill, 2016, s. 13(1), 13(2).

Transgender Persons (Protection of Rights) Bill, 2018.

Transgender Persons (Protection of Rights) Act, 2019, s. 6.

British Statutes

Gender Recognition Act, 2004, s. 15, 9(1).

Australian Statutes

Birth, Deaths and Marriages Registration Act, 1995, s. 64.

Sex Discrimination Amendment Act, 2013, s. 64(1).

US Statute

25 U.S. Code, 2011, § 2206 (2), § 2206 (2)(i).

Author:

Vasvi Agrawal

O.P. Jindal Global University

Articles

Kavita Kane, “Storytelling: LGBT themes in Hindu mythology,” (The Indian Express, 2020),  <https://indianexpress.com/article/parenting/blog/storytelling-lgbt-themes-in-hindu-mythology-5273332/> Accessed 25 May, 2021.

Mayank Mahla, “Application of Inheritance Law on LGBTQ+,” Academia EDU, <https://www.academia.edu/34659279/Application_of_Inheritance_Laws_on_LGBTQ_as_Beneficiaries_A_legal_Analysis?email_work_card=view-paper>, Accessed 25 May 2021.

Patrick N. Cain & David Ramsey, America Constitutionalism, Marriage, and the Family: Obergefell v. Hodges and the U.S. v. Windsor in Context, (Lexington Books 2016), p. 81.

Rupal Sharma, “Inheritance Rights of a Transgender: A cry of Humanity,” (2018) 1(3) IJLMH, <https://www.ijlmh.com/wp-content/uploads/2019/03/Inheritance-Rights-of-Transgender-A-Cry-of-Humanity.pdf>

Sonja Lehmann, New Patterns, “Old Stitches?: Interdisciplinary Perspectives on the Interrelation of Gender and Space,” (2015), TranscriptPublisher, p. 226.

Stephen Gilmore, Jonathan Herring, & Rebecca Probert, “Landmark Cases in Family Law,” (2011) Bloomsbury Publishing, p. 79.

Wentling, Tre, Kristen Schilt, Elroi J. Windsor, and Betsy Lucal. “Teaching Transgender.” Teaching Sociology, (2008), 36(1), pp. 49-57, <http://www.jstor.org/stable/20058627> Accessed May 26, 2021.


[1] Wentling, Tre, Kristen Schilt, Elroi J. Windsor, and Betsy Lucal. “Teaching Transgender.” Teaching Sociology, (2008), 36(1), pp. 49-57, <http://www.jstor.org/stable/20058627> Accessed May 26, 2021.

[2] Kavita Kane, “Storytelling: LGBT themes in Hindu mythology,” (The Indian Express, 2020),  <https://indianexpress.com/article/parenting/blog/storytelling-lgbt-themes-in-hindu-mythology-5273332/> Accessed 25 May, 2021.

[3] Rupal Sharma, “Inheritance Rights of a Transgender: A cry of Humanity,” (2018) 1(3) IJLMH, <https://www.ijlmh.com/wp-content/uploads/2019/03/Inheritance-Rights-of-Transgender-A-Cry-of-Humanity.pdf>

[4] Bombay Rent Free Act, 1852.

[5] Criminal Tribes Act, 1871 (Act No. XXVII of 1871), Part II, s. 24.

[6] Id.

[7] Karnataka Police Act, 2011, section 36A.

[8] Hindu Inheritance (Removal of Disabilities) Act, 1928, section 2.

[9] Mayank Mahla, “Application of Inheritance Law on LGBTQ+,” Academia EDU, <https://www.academia.edu/34659279/Application_of_Inheritance_Laws_on_LGBTQ_as_Beneficiaries_A_legal_Analysis?email_work_card=view-paper>, Accessed 25 May 2021.

[10] Indian Succession Act, 1925, S. 59

[11] Indian Succession Act, 1925, s. 74

[12] Indian Succession Act, 1925, S. 37

[13] Indian Succession Act, 1925, s. 99

[14] Ilyas & Ors. v. Badshah Alias Kamla, AIR 1990 MP 334.

[15] National Legal Services Authority v. Union of India, WP (Civil) No. 400 of 2012.

[16] Id.

[17] Shivani Bhat v. State of NCT Delhi & Ors., Decided on 5 October, 2015, W.P. (Crl.) 2133/2015.

[18] K. Prithika Yashini v. The Chairman, decided on 3 November, 2015, W.P. No. 15046 of 2015.

[19] Justice (Retd.) K. S. Puutaswamy v. Union of India, 2017

[20] Indian Penal Code, 1860, s. 377.

[21] Sonja Lehmann, New Patterns, “Old Stitches?: Interdisciplinary Perspectives on the Interrelation of Gender and Space,” (2015), TranscriptPublisher, p. 226.

[22] Navtej Singh Johar & Ors. v. Union of India, AIR 2018 SC 4321; W.P. (Crl.) No. 76 of 2016.

[23] Transgender Persons (Protection of Rights) Bill, 2016, s. 13(1)

[24] Transgender Persons (Protection of Rights) Bill, 2016, s. 13(2)

[25] Supra note 3.

[26] Transgender Persons (Protection of Rights) Act, 2019, s. 6.

[27] Jackuline Mary v. Superintendent of Police, Karur & Ors., 2014 (3) CTC 497.

[28] Indian Constitution, 1949, Article 14, 15, 16, 19(1)(a) and 21

[29] Arun Kumar v. Inspector General of Registration, Tamil Nadu, Decided on 22 April,2019, WP(MD) No. 4125 of 2019.

[30] Supra note 22.  

[31] S. Sushma v. Commissioner of Police, W.P. No. 7284 of 2021.

[32] Poonam Rani v. State of Uttar Pradesh & 5 Ors., Decided on 20 January 2021, Writ C. No. 1213 of 2021

[33] Chinmayee Jena v. State of Odisha & Ors., Decided on 24 August 2020, W.P. (Criminal) 57/2020

[34] Corbett v. Corbett, [2003] EWCA Civ 559.

[35] Gender Recognition Act, 2004, s. 9(1).

[36] Stephen Gilmore, Jonathan Herring, & Rebecca Probert, “Landmark Cases in Family Law,” (2011) Bloomsbury Publishing, p. 79.

[37] Gender Recognition Act, 2004, s. 15.

[38] NSW Registrar of Birth, Death and Marriages v. Norrie, [2014] HCA 11 (2 April 2014)

[39] Birth, Deaths and Marriages Registration Act, 1995, s. 64.

[40] Sex Discrimination Amendment Act, 2013, s. 6(4)(1).

[41] 25 U.S. Code § 2206 (2).

[42] 25 U.S. Code § 2206 (2)(i).

[43] Patrick N. Cain & David Ramsey, America Constitutionalism, Marriage, and the Family: Obergefell v. Hodges and the U.S. v. Windsor in Context, (Lexington Books 2016), p. 81.

[44] Sweety v. General Public, R.S.A No. 17 of 2016, Para 7.

[45] Shayara Bano v. Union of India, WP (C) 118/2016. (Triple Talaq Case)