Transgender people have been widely recognised socially in India for centuries. However, they continue to be marginalised and are subjected to discrimination, especially since they do not fall within the stereotypical categories of the gender binary – ‘male’ or ‘female’.
The national data for the number of transgender people living in India is also skewed, since the census did not recognise the ‘third gender’ until 2011, when the national census, for the first time, gave the public an option to choose ‘others’ to identify their gender.
Although Indian laws have progressively been becoming more inclusive, discrimination and lack of enforcement of policies have made it difficult for transgender people to avail financial resources or property.
Legal Rights Of Transgender People In India
In a landmark case, NALSA v Union of India, AIR 2014 SC 1863, the Supreme Court recognised the ‘third gender’, ie non-binary gender identity, and upheld the fundamental rights of transgender people in India. The judgement also directed the Government of India to take proactive steps to protect transgender people’s rights and safeguard their interests in terms of reservation in jobs, educational opportunities, and their right to own assets and property.
Subsequently, the Transgender Persons (Protection of Rights) Act 2019 (“TPA”) was introduced, which prohibited discrimination of transgender people regarding their right to ‘reside, purchase, rent, or otherwise occupy, any property’.
Inheritance Rights For Transgender People In India
Despite advancements in the law, neither the NALSA, 2014 judgement, nor the TPA Act, 2019, explicitly provide details regarding the inheritance rights for transgender people. With the lack of clarity surrounding this issue, transgender people end up being subjected to a dual hindrance – in establishing their right over inheritance, as most laws are based on a binary notion of gender, and identifying successors in case of an intestate death.
In 2005, the famous case of Ajay Mafatlal (formerly Aparna Mafatlal, and one of India’s first sex reassignment surgery patients) came to light. However, the case got caught up in controversy, as many accused him of undergoing a sex change in order to to claim ownership over his father’s property, since females are often left out of their parents’ inheritance. Cases like these bring to light how difficult it has been and continues to be for people to fit into patriarchal notions of gender, ostracising anyone who does not conform.
The bottom line is inheritance in India is still subject to personal laws based on religion and in many cases, obsolete cultural practices. A revision is required to accommodate the changes in laws and policies in India. The Indian Succession Act, 1925 (“Act”), for instance, appears to be gender neutral and includes terms such as kindred and lineal descendants. However, in describing legal heirs, the Act remains ambiguous with a tilt towards traditional binary genders. Similarly, the Hindu Succession Act, 1956 and the Muslim Personal Law (Shariat Application), 1937 are limited to binary genders in the definition of heirs, and in the order of succession.
The Way Forward
As we have seen, much has been done in recent history to eliminate the discrimination faced by transgender people, and to create inclusive policies and laws in India. Recently for example, the new Uttar Pradesh Revenue Code (Amendment) Act, 2020 includes transgender people, who may be named as members of the land owner’s family and gives them succession rights over the agricultural property.
These types of changes are heartening to see - however, implementation of such policies remains few and far between. Inheritance laws for transgender people in India are still unclear.
The good news is that there is a simple way to protect your transgender loved ones. Creating a Will that identifies them as a Beneficiary ensures that they received their rightful inheritance, no questions asked.
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