Title: bridging the gap: Transgender Inheritance Equality in Hindu Law

Topic: Inheritance rights of transgender people in Hindu Law

Abstract:
This research looks into the rights of transgender people to inherit property under Hindu
law. The research emphasizes the importance of fairness and inclusivity by investigating the
challenges they face and their progress. The study advocates for recognizing and protecting
transgender inheritance rights within Hindu traditions by examining legal precedents and
societal attitudes. Despite the laws of the land being considered to be gender neutral, there
is a bias among the people due to traditions and practices which makes it difficult for the
trans people to claim their stand. Individuals must choose between conforming to their
gender identity and exercising their rights. Furthermore, successors are frequently difficult
to identify because individuals may lack documentation, and be unable to marry or prove
adoption. While courts attempt to address these issues, they leave it up to their discretion
when it comes to ensuring transgender people's rights. We will also look at the other
legislation that is being introduced for the welfare of the Trans community people. we will
be looking at some landmark cases that voice out millions of voices of trans community
people in India. we will also attempt to compare the schemes or steps taken by certain
Governments to improve the life of Transgenders and their community.
Hypothesis:
Transgender people face challenges in obtaining equitable inheritance rights under Hindu
law, with potential obstacles arising from both legal precedents and societal attitudes. The
gap in the current legal framework may exist, necessitating refinements to ensure a more
inclusive and just treatment of transgender inheritance rights. The research anticipates
identifying areas for improvement through an examination of legal cases and societal
perspectives, with the ultimate goal of contributing to the advancement of a legal
framework that aligns with principles of fairness and inclusivity for transgender individuals
within the context of Hindu traditions and looks at how it should adapt with the modern and
dynamic world.
Research questions:

1) re-assigning of sex? is it a compulsory affair to claim one's feelings ie the way they portray
themselves or for a property?

2) whether the current legislation for Trans community people sound enough to overtake
the personal laws and age over traditions and practices?

3) the need for inclusivity

a)what has changed from looking at the trans community people as demigods to
outcasting them from the entire community?

4) Hindu Law - Gender neutral or highly patriarchal?

Scope of research:

This paper includes the study of the Trans community and their evolution over time in
Indian History. We will also be looking at certain legislations and schemes offered by some
governments and look at Transgender Person Protection Act 2019 which help us to
understand and determine the current position of transgenders and with which we can
formulate suggestions for the laws to be more dynamic and inclusive and not stagnant and
rigid. These basic analyses will help us to understand the complexities of Hindu law and try
to find out if personal laws are gender-neutral or not. the scope of the study tries to answer
the research gaps efficiently and effectively. We will also be referring to certain landmark
cases to analyze and come up with effective solutions

Methodology:

In this paper, we will be using the doctrinal methodology according to Dr. Myneni “A
doctrinal research means research that has been carried out on a legal proposition or
propositions by way of analyzing the existing statutory provisions and cases by applying the
reasoning power" our primary resources will be statues, legislations secondary resources
will be reports, articles, documentaries etc.

Introduction

Transgender people are those who don’t identify themselves with their assigned gender at the
time of their birth. Transgender people are people whose gender identity is different from the
gender they were thought to be at birth. “Trans” is often used as shorthand for transgender.1
Gender identity is an inner understanding of who one is. Every person has a gender identity,
which may match or differ from their assigned sex at birth.
A healthcare expert usually assigns neonates a male or female sex at birth. People who
identify with a gender other than the one assigned to them may refer to themselves as
transgender. A transgender lady is someone who identifies as female yet was born male. A
transgender man is someone who is currently masculine but was born female.
Some transgender people may identify as neither male nor female or as a combination of the
two. 2

Transgender people for decades have now faced so much discrimination. Even basic needs
have been denied to them such as healthcare facilities, education, shelter, etc. from being
considered demi-gods, political advisors, and administrators3 in ancient times to not being
fairly treated as human beings the Transgender community has faced a lot of discrimination
and over the course has been lost in the society and being denied of basic human need which
is essential for any human being to sustain.

In 2014, the Supreme Court of India made the first constitutional recognition of a third
gender. Petitioners claimed violation of citizen rights, including access to healthcare, work,
and property ownership. The court highlighted the challenges that transgender individuals
experience in exercising their inheritance rights. The article cited (i) gender-based rights and

1
NCTE (2016).
2
B. Sissons, (2021)
3
Ariba (2023).
(ii) challenges in determining successors. Although the judgment demonstrates a progressive
understanding of gender identities, India still faces obstacles.4

Legal Framework and Recognition of Transgender Identity and Understanding the obstacles
in inheriting property:

The Eunuchs/Hijras/Kothis/Thirunangais etc (the terms often associated with transgender

community) was not recognized. There was no category for them to identify themselves. It
was during the 2011 census they were categorized as ‘other gender’ or ‘others’ 5.

In the year 2014 the famous and landmark judgment on the basic rights of transgender that
they are being deprived of. It was the NATIONAL LEGAL SERVICES AUTHORITY (also known
as NALSA) filed a petition before the Supreme Court to fight for the basic rights of
transgenders. The petitioners claimed deprivation of rights ordinarily available to citizens
(such as the right to vote and participate in elections, access healthcare and employment, and
own property)6

In April 2014, a two-judge bench led by Justice Radhakrishnan and Justice (Dr) Sikri made a
significant ruling regarding the recognition of gender identity. They broadened the
understanding of sex under the Constitution, stating that discrimination based on gender
identity falls under the prohibited discrimination based on sex outlined in Articles 15 and 16.
This meant that transgender persons were to be treated as equal citizens with full
protection of fundamental rights. The court emphasized that gender expression is protected
under Article 19(1)(a) of the Constitution, as it reflects a person's innate character and
identity. The court noted that the provisions in the Constitution are gender-neutral and
include transgender persons within the scope of protection, not limited to strict
interpretations of male or female genders. As a result, the court issued various directives to
the Central and State governments to ensure the rights and inclusion of transgender
persons in society, including providing healthcare centers and creating public awareness.

Although the court did not directly address inheritance and property rights, it acknowledged
the challenges faced by transgender persons in exercising these rights. This was attributed
to gendered laws that only recognize binary genders and the non-recognition of transgender
identity in various legislations, leading to discrimination. Gender identification was
highlighted as crucial for transgender individuals to enjoy civil rights fully.

THE ROLE OF TRANSGENDER PERSON PROTECTION ACT 2019:

The implementation of Transgender Person Protection Act was a result of the NALSA V.
Union of India in the year 2016 which led the center to take a strong initiative to come up
with legislation to protect the Transgender community. According to the Transgender
Person Protection Act of 2019 states that: The Bill prohibits the discrimination against a
transgender person, including denial of service or unfair treatment in relation to: (i)
education; (ii) employment; (iii) healthcare; (iv) access to, or enjoyment of goods, facilities,
opportunities available to the public; (v) right to movement; (vi) right to reside, rent, or
4
K. Gulati, and T. Anand, (2021)
5
New Indian Express (2012)
6
K. Gulati, and T. Anand, (2021)
otherwise occupy the property; (vii) opportunity to hold public or private office; and (viii)
access to a government or private establishment in whose care or custody a transgender
person is.7 This Law provides a ‘vague’ outline of the rights available to the transgender
community.

OBSTACLES IN INHERITING PROPERTY:

Now the role of Hindu law especially in the Hindu Succession Act is stated that a person may
acquire the property through Agnate ( related by blood or adopted wholly through males) or
Cognates ( related by blood or adopted not wholly through male). Generally, in India, the
male heir is given priority during the time of inheritance of property. But in recent times even
the daughter is given an equal share in the property. Here we focus on the difficulties faced
by the transgenders in acquiring a property. The Ajay Mafatlal case helps us to understand
the complexities of the Hindu Laws. Here Ajay Mafatlal initially known as Aparna
underwent a sex reassignment surgery as he felt that he never felt like a woman. He was
accused of changing his gender as they thought he underwent the surgery to acquire
property.8 The Hindu Succession Act generally states that the property is inherited by the
sons or daughters and people under the Class I and Class II heirs which is dealt with in
sections 8,9,10,11 and 12 of the Act9. There is no clarity or any amendments made as such to
recognize transgender people to be considered as male or female to inherit the property. The
answer to this question is also unavailable in the General Clauses Act, which provides
definitions missing from specific legislation.10 In the case of Ajay Mafatlal, he was declared
that he is not a legal heir by his mother which denied him his right. Despite the constitution
being gender-neutral and strongly opposing the idea of leaning towards one gender the other
provisions made were also supposed to be taken in a gender-neutral way but the Indian
society strongly inclines towards one gender in the society which the male gender.

Conclusion:

Despite being in a modern era we still incline to some old school ideas of preferring the male
over the female in many instances. And the influence can be strongly felt especially during
the time of dividing the property or inheriting the property. Despite amendments being made
to reduce gender inequality and make the legislation more gender neutral. Certain changes
have been made but the current act needs to cope with the present situations such as the
inheritance rights of the transgender community. The acts must be very clear as the
representation of trans people while acquiring the property, they must not be outcasted just
because they are different from others, at the end of the day they are also human beings who
require basic rights and need to survive. Lawmakers have to make laws that are inclusive of
all people despite their differences and backgrounds as that’s what the backbone of the
country the Constitution states. Laws must be gender-neutral and not patriarchal or
matriarchy.
States like Karnataka, and Tamil Nadu have brought in different policies to make the
transgender community feel more inclusive in society. The Government should take more
initiatives and take more steps toward the well-being of the trans society and it is high time

7
The Transgender Persons (Protection of Rights) bill, 2019
8
D. India, (2015).
9
H. S. A. 1956, (2023).
10
K. Gulati, and T. Anand, (2021)
that personal laws like the Hindu Law propose amendments to their laws which are inclusive
of the Transgender community in India.

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