Transgender Property Rights: A Paradigm Shift in Indian Law
Oct 18, 2023Homes and People

Transgender Property Rights: A Paradigm Shift in Indian Law

by Godrej Properties Limited

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In a country as diverse as India, where traditions and beliefs often clash with progressive ideas, transgender individuals have long faced discrimination and exclusion from many facets of society, including property rights. Let us understand the challenges faced by transgender people in securing property and the legal landscape surrounding this issue.
 

Inheritance Rights

Property rights are a fundamental component of civil rights laws. Still, these rights have often excluded the transgender community due to the property inheritance law in India being rooted in binary gender classifications. For instance, the Hindu Succession Act of 2005 strictly recognizes male and female heirs and their order of succession.
 

Even the Indian Succession Act of 1925, with its gender-neutral terminology, exhibits gender-based inequalities in the order of succession. Transgender individuals, despite undergoing gender-reassignment surgery and updating their documentation, often face obstacles in acquiring inheritance property due to prejudice and the inability to locate suitable successors.
 

While Uttar Pradesh took a step towards progress in 2020 by granting inheritance rights to transgender persons for agricultural property, a broader overhaul of property laws is necessary to ensure full equality in inheritance.
 

The Guru-Chela System

Courts have recognized inheritance rights within the guru-chela system, identifying it as a customary group. However, property rights within this system remain entirely dependent on the guru's discretion.
 

To address this issue, state-sponsored housing schemes and preferential allocation of residential sites to transgender people are urgently needed. Madhya Pradesh stands out as the only state that has recommended adequate housing facilities for transgender people through its State policy in 2020.
 

The Role of NALSA and International Law

The Supreme Court's NALSA judgement recognized that transgender persons' exclusion from inheritance and succession laws violates constitutional principles of equality. The Transgender Persons (Protection of Rights) Act of 2019 prohibits discrimination against transgender persons regarding their housing rights.
 

However, neither the NALSA judgement nor the 2019 Act explicitly addresses inheritance rights or provides specific housing concessions. Thus, India must align its approach with international law. As stipulated in Article 11(1) of the ICESCR, adequate housing facilities should be accessible to all, regardless of gender identity.
 

The Supreme Court ruled in NALSA v. Union of India that gender identity is determined by an individual's choice. However, a government poll carried out in Kerala revealed that 76% of transgender people were unable to register their perceived gender identities. 81% of people aspired to change their gender identity but lacked a network of support. Transgender people will not be able to assert legal rights like inheritance access unless they are permitted to identify according to their preferences and obtain identification in line with those preferences. 
 

Conclusion: Strong Inclusive Property Inheritance Law in India

Securing property rights for transgender individuals in India is a matter of social justice and a crucial step towards building an inclusive and equitable society. The nation must work collectively to dismantle discriminatory practices and create a legal framework that upholds the rights of all its citizens, regardless of their gender identity.

 

Frequently asked questions

Q: Are there any states in India that have made significant progress in granting property rights to transgender individuals?

A: In 2020, Uttar Pradesh made progress by allowing transgender individuals to inherit rights for agricultural property. But in order to guarantee complete equality in inheritance, a more comprehensive revision of India's property legislation is required. 
 

Q: What legal provisions protect the property rights of transgender individuals in India?

A: The Transgender Persons (Protection of Rights) Act of 2019 prohibits discrimination against transgender persons regarding their right to housing.

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