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Adoption, Inheritance Rights Of Transgender Persons In India: An Uphill Battle

Transgender persons continue to face hurdles in gaining access to inheritance, adoption rights, family pension and important legal documents

The Fight Goes On: A digital artwork made for the Transgender Day of Remembrance in 2018 in collaboration with the Asia-Pacific Transgender Network
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Ranjita Sinha, a transwoman and transgender rights activist, has been fighting to get the family pension of her deceased father from the West Bengal government for over six years now. Family pension is allowed to the dependent unmarried or widow daughter. Sinha has been claiming the right as a transgender daughter but the state police department, where her father was an officer, did not agree to her claims. She has finally decided to approach the court. The legal battle may not be easy. The Supreme Court of India in its famous 2014 judgement (National Legal Services Authority vs Union of India) held that a person has the right to identify their gender as male, female or transgender but the Transgender Persons Protection of Rights Act (TPPRA) of 2019 reduced the scope of the rights. 

“Each person’s self-defined sexual orientation and gender identity is integral to their personality,” said the apex court and ruled that no one should be forced to undergo medical procedures, including Sex Reassignment Surgery (SRS), sterilisation or hormonal therapy as a requirement for legal recognition of their gender identity.

The TPPRA defines transgender persons as “whose gender does not match with the gender assigned to that person at birth and includes transman or transwoman (whether or not such person has undergone SRS or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.”

While section 4 of the law gives the right to self-identification only as ‘transgender’, and not as male or female, section 7 of the same law implies that a transgender person’s choice of gender identity as male or female can be recognised only after the person has provided a medical certificate in support of having undergone medical treatment.

Sinha has not undergone the SRS, just like the majority of the transgender community. “My fight is not only about my claim to family pension. It’s a fight for the rights of the community. The majority of transgender people do not have the financial capacity to undergo SRS,” says Sinha, a former member of the West Bengal Transgender Persons Development Board. 

Sinha highlighted how different governments prioritise the empowerment of women, treating them as the marginalised sex, and cited the examples of the West Bengal government’s Kanyashree scheme for girl children and the Laxmir Bhandar monthly assistance to women and the Karnataka and Delhi government’s free bus ride schemes.

Adoption restrictions impact inheritance and succession, as transgender persons cannot prove legal adoption. Inheritance as a spouse becomes impossible because transgender marriage is not legally accepted.

“These are welcome policy interventions. At the same time, it is disheartening to see there is nothing on offer to the people from the third gender, who are far more marginalised than women,” says Sinha, who heads the Association of Transgender/Hijra Bengal (ATHB) and the non-profit Gokhale Road Bandhan. The latter also runs a shelter home for transgender persons.

In a 2020 article, Jayna Kothari, a Supreme Court advocate and executive director, the Centre for Law and Policy Research, wrote that section 7 of the TPPRA negated the apex court’s core principle that a person has the right to self-determination of their gender identity and that their self-identified gender can be either male, female or a third gender. “Even with the NALSA judgment in place, the response of the State has been to defeat the right to self-determination of gender and to insist on a medical model for legal recognition of one’s gender identity. The TPPRA 2019 and all government welfare schemes still require medical proof of reassignment to be provided by transpersons in order to get benefits,” Kothari wrote.

Most transgender rights activists agree with Kothari’s summation of the government’s attitude, which they cite as one of the main reasons why transgender people have to approach the judiciary to remove the hurdles in their way. 

For example, a transperson from a northern West Bengal town has recently decided to move to the High Court after the police asked for the job application to be either as male or female. In Uttar Pradesh, a transperson employed with the state police had to approach the High Court as the police were not giving permission for SRS for transition from woman to man.

In August, an Indian resident currently in Chicago approached the Delhi High Court after failing to get a new passport with a new gender identity. The person, born a male, transitioned into a woman by 2022 by underground SRS in the US and got new legal documents accordingly from the courts there. However, the Indian passport authorities had not issued her a new passport in six months. While hearing the petition, the Delhi High Court said that it was necessary to ‘streamline the process’ of renewing passports with one’s new identity and appearance. These are a few among the many hurdles that India’s transgender people face, as most legislations and government orders are written in a language of heteronormative binary and transgender people must fall in either the male or the female category to claim their rights. In a society habituated to gender binaries, every policy excludes the third gender.

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Take the case of Prithika Yashini, a sub-inspector of police who had to win a legal battle in the Madras High Court to get appointed to the state police as a transgender woman in 2017. In June this year, she had to approach the court again after her application for adopting a child was rejected on the grounds that she was transgender.

The legal developments in this case will be keenly followed by the transgender community, as adoption has been a major obstacle they face. In a 2021 report by the National Institute of Public Finance and Policy, authors Karan Gulati and Tushar Anand showed how India’s adoption laws differ in the treatment of male and female persons and the exclusion of gender-neutral terms and provisions create gray areas for transpersons as prospective parents or adopted children.

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The Hindu Adoptions and Main­te­n­ance Act provides that a single male person can only adopt a female if he is at least 21 years older than the adoptee, while there needs to be a 21-year gap between a single adoptive mother and a male child. Adoption Regulations passed under the Juvenile Justice Act disallows a single male to adopt a female child but there is no such restriction on a female adopting a male child. “Both Acts (and regulations) also have repeated usage of gendered sections. There are 36 and 37 instances of the terms male and female in the Adoption Regulations, respectively,” the paper said, adding that the absence of gender-neutral or third-gender-specific terms creates ambiguity for transgender people. The question of determination of gender, either of the prospecting transgender parent or the child to be adopted or both, can spoil the scope for adoption.

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Adoption restrictions also impact inheritance and succession, as transgender persons cannot prove legal adoption. Besides, inheritance as a spouse becomes impossible because transgender marriage is not legally accepted. The Succession Acts based on religion-specific personal laws make no provision for transgender persons. A section of the transgender community has pinned their hopes on the pending Supreme Court judgement on the case seeking legal recognition of same-sex marriage, a demand that the government of India has opposed citing various reasons, including the impact on other laws. However, even if a favourable order comes from the apex court, the community will still be left with many legal hassles, as bringing gender neutrality to a list of laws is not going to be an easy task.

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(This appeared in the print as 'An Uphill Battle')

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