TRANSGENDER: POSITION AND IDENTITY IN FAMILY LAW
The word ‘Transgender’ is a combination of two words which are “Trans” and “Gender” where the word Trans has been derived from Latin word where literally mean “across” or “beyond” and Gender is a complicated concept. More than four million Indians have fallen prey to the core of this problem.With respect to World Health Organization, ‘Gender’ is the word which means that it is the characteristics of both men and women which is constructed socially such as part of the role, norms and sharing the relationship between men and the women. When an individual is beyond political and traditional explained the variation of man and woman then the individual is transgender. It is vital to analyze the word “gender” and the word “gender identity” to know the complete meaning of transgender identity clearly.
‘Gender’ is something where the society expects the behavior and characteristics of an individual of their assigned, biological sex. Gender identification is the way how an individual identify himself or herself. Gender identity is something where an individual like to present himself/herself through clothes, expressions, behavior, emotions and appearance. Gender identification of a person is explained by their original sex when they were born. In the present day with the growing of human rights there has been growth in terms respect and dignity of an individual. Identification and expression of their gender identity is one of the advancement. It is observed that their gender identity comes under basic right of an individual under right to life; anyhow there a lot of issues relating to their human rights are still unsolved. Personal law of there is one such issue which will govern their relationships and lives. The reason for their discrimination in the society and in their own family is that there is no law which is separately governs the transgender people. It is their fundamental right to marriage and to have family. But these fundamental laws are restricted only to man and woman in UDHR (ICCPR) and in Indian Personal Law. Transgender does not get any type of property from their parents instead it is given to their other siblings.
BACK GROUND OF THE STUDY
Homosexual, transgendered and bisexual all of them face a lot of issues in their life like discrimination and not even getting their basic rights in the society on the misconception of sexuality. More over homosexuality is criminalized in many of the parts in all over world. The LGBT community is already in a condition where no one except them, they are ostracized always in the society, the condition of homosexual and transgender children are a lot neglected. Now a day some NGOs and group are trying to reach them and help them in every possible manner, but the difficulties of transgendered children are unable to fix them. In India also homosexuality is criminalized under the Indian Penal Code, and there is no provision for the protection and safeguard of the transgender community. Although, now a day there are few NGOs which are working and advocating on the issue of reproductive and sexual rights for the transgender community in our country. Government and some of the NGOs are not keeping efforts and are negligent and there are also negligible efforts for the community that would help in the development and mainstream of the community. The stigma, discrimination and pernicious to the respect and dignity of the individual are still in existence in the society.
THE HISTORY OF TRANSGENDER IN INDIA
The paper will elaborately try to understand about transgender and explore in brief the history related to. They come under marginalized section and face a lot of difficulties economically, legally and socially. Anyhow there are a lot of people who does not come under this category, but they are still transgender. In India, transgender include Jogappas, Aradhis, Sakhi, Jogtas, Hijras and Shiv-shaktis. ‘Eunuchs’ are transgender only which was there from the 9th century BC. Eunuchs during Mughal period were on high in demand as they used to take care and protect the superior women in their rooms. They were given a lot of respect in the Mughal courts has they were in higher positions of the court. At that time also they were also having right to acquire property but they cannot inherit the property from their blood relations unlike the man and woman. They were allowed to collect taxes from the land and they can even carry out any type of business like begging etc.
Since the Britishers has come to India, the transgender community life has been changed a lot. The attitude for the transgender changed so much that their right to life with respect and privileges, right to hold property and right to be identified and live hood. In Bombay presidency, the Britishers started taking the lands of transgender on the ground that, they did not inherit the land from their parents and relatives under the act Bombay Rent Estates Act, 1852.Later the Britishers also taken away the basic rights of the transgender community. The transgender community people were treated as criminals by bringing them under Criminal Tribes Act, 1871. It was made mandatory for the transgender people to register themselves in order to save themselves from the false charges of crimes during post-independence era. Day by day the community people were considered as criminals in India whereas in US the transgender community was treated equally in every aspect like property etc. In the year 1868 changed was made after 14th amendment to the section 1 of the US constitution. After that Criminal Tribes Act, 1871, the transgender lost their dignity and respect and their they were in such a condition where not only their family but they themselves forgot their existence. The lack of identification of family members was the main problem for the transgender that they are still now facing for their right. At the same the laws which are governing in terms of family matter did not give them any type of importance and not even recognize their gender identity as transgender. For many of the transgender people to live with dignity and respect is still a dream for many of transgender and which is their basic right under the Indian Constitution of Article 21.
During the ancient and medieval period, the religions which ever have been originated in India like Hinduism, Sikhism, Buddhism and Jainism have less teaching on the concept transgender when compare to Abrahamic traditions. In religious ancients texts like Vedas the word third is often mentioned and also known as Hijiras where they are not male or female. Some of the people consider this ancient hijras are the same in the modern western culture known as Lesbian, Gay, Bisexual, Transgender and intersex identitites.
Transgender in Christianity:
In Christianity transgender was believed as a sin but with the flow of time they were morally accepted. In “The Church of England, Church of Sweden, Episcopal Church, Evangelical Lutheran Church in America, Presbyterian Church (USA), and United Church of Christ” have allowed appointing transsexual church to serve in gatherings and have invited transsexual individuals. As per the believes of holy saying by Jesus “there are eunuchs who have been so from birth, and there are eunuchs who have been made eunuchs by others, and there are eunuchs who have made themselves eunuchs for the sake of the kingdom of heaven” which light up the path for LGBT to come front for their rights.
Transgender in Islam:
From history Islam is the religion which is tolerant of the Abrahamic religions in the matter of same sex amorousness. Unlike to Jewish and Christian law where it is considered that same sex attraction, which is homosexuality, is against to the nature but in Islam it is considered natural feelings. In Hadith Muhammad said that mukhannathun (gender variant person mostly entertainers),can come to Mecca and Medina with some restrictions but they must practice Islam which is very important. In the hadith it is said that homosexual behavior was existed in the seventh century Arabia. It is also said that the holy book Quran did not mention anything on the retribution of the homosexual sodomy and there is uncertainty on the concept of sodomy.
Transgender in Hinduism:
Hinduism took a lot of different places going from positive to unbiased or hostile. A few Hindu writings, for example, ‘Manu Smriti’ and ‘Sushruta Samhita’ declare that a few people are brought into the world with either blended male and female qualities or explicitly fix, as an issue of characteristic science. Several Hindu laws strictly contain orders against gay action, while some Hindu speculations don't censure lesbian relations whereas some third-gendered people were profoundly respected. Hindu gatherings are verifiably not brought together with respect to to the problem of homosexuality every individual having a different doctrinal view. Hindusim is complex, where there is no main governing body, where mostly all the swamis are against to the same sex relationships and only few supported them.
Transgender in Buddhism:
Buddhism has next to no to say about homosexuality, as the lessons of the Buddha are totally quiet on same sex fascination and the same in procreative
FAMILY LAW RELATED PROBLEMS OF TRANSGENDER:
We are living in a country where LGBT people are afraid to come out to their own parents and talk about their sexual orientation openly. They feel isolated and lonely and even if they do come out to their parents, they are shunned and forced to hide this fact from the world to avoid humiliation, embarrassment and disgrace to the family
Marriage and Divorce
In the modern time period still the society is not able to accept the social changes in the daily life. Homophobia has very much prevailed in India, where people think that being homosexual is a disease or a mental disorder. The LGBT group comprises of the marginalized section of society, which faces a lot of discrimination in legal, political and social aspects of the society. The concept of homosexuality is accepted easily by the younger people than older people and in the contemporary society same sex relationship is strongly against to moral values.
In the case Arunkumar and Another. v The Inspector General of Registration and Ors Madras High Court held that it is fundamental right of transgender community to marry anyone of their own choice. Arunkumar [a man] wants to marry Sreeja [a trans woman] but the Registrar of Marriages refused to register the marriage as a trans woman cannot come under ‘bride’ in section 5 of the Hindu Marriage Act,1955(HMA). The court went beyond to the facts in order to address the present condition freedom of self-expression, and self-determination in order to recognize the importance of right of marriage for the transgender community.
Finally the court gave the judgment that a marriage between a Hindu male and Hindu trans woman is a valid marriage under section 5 of the Hindu Marriage Act. The court said that the judgment was upon the landmark cases where the apex court in NALSA v. Union of India, Justice K. Puttaswamy v Union of India and Navtej Singh Johar v Union of India to say that even transgender community have right to self-identity their gender themselves. It also held that sex and gender are not same but are distinct , sex is biologically determined when the individual is born but gender is not the same gender is something which is determined how the individual want to life.
Adoption of child.
As per the old prevailing culture and thoughts it is believed that the child adopted by same sex couple will get married with same sex person only because of the psychological influence from their parents on them. It is necessary to create awareness that good parenting refer to the potentiality of the parents for taking proper care and competence enough to provide better nourishment to the child and not the sexual orientation of the parents. It is important to develop the social status of the trans genders. More than a segregated policy for LGBTQ, we need policy which helps in decreasing the discrimination against the LGBTQ community. For equal rights and equally access to adopt the children and reproductive rights for same sex couples is been increasing now a day.European Court of Human Rights observed in the case Salgueiro da Silva Mouta v. Portugal that the judgment was against of the adoption where a gay father wants to adopt a child but the judge held that he cannot as he was a gay and due to his sexual orientation . It can be said the judge’s opinion was completely discriminating in the ground of sexual orientation and also it is discrimination for the privacy. In the case Frett v. France the court was against in recognizing a gay man’s cannot adopt a child or right to adopt the child under the ECHR. After so many years in the case E.B. v. France, the court observed the interests of the child to held that, the ground for the rejection of the application of applicant is about her sexual orientation, which is not valid in the convention. After the decision of the two cases Frett v. France and E.B. v. France the European community held that gay parenting is also good and healthy which means they are also eligible for the adoption of the children .There are lot of significant progress in terms of identification of LGBTQ rights. Sixty countries together signed a UN declaration to scrape homosexuality on December, 2008 .Delhi High Court has struck down gay sex ban in the year 2009. Yet there is a lot if discrimination and the lives of the lot of people are impacted by the legally ineffective and invisibility of the LGBT community. It’s high to time to supportive and help and recognize same sex families.
Inheritance of the property in India is governed by the respective religion and community. These laws are only meant for the two genders they are female and male. In order to get the property transgender need to place themselves in these two categories.
In Hindu Succession Act, 1956 which is the personal law for the Hindus and also for the inheritance of the property, in the act only male and female can inherit the property. The act describes only about male and female but not about the different sexual orientation. Transgender people can inherit the property from their blood relations by recognizing themselves as female. The procedure for inheriting property from their blood relations is against to the Article 15 of the Indian Constitution which is prohibits the discrimination on the ground of sex. The term ‘sex’ is not a biological sex as male or female but also includes a person who doesn’t want to be recognizing himself as a male or female. In the act section 24 and 26 says about the disqualification of the person but in the act there is nowhere mention about disqualification of the transgender. At the same time in the section the word used is ‘person’ which is very wider, as per this word ‘person’ is it can be said the not only male and female but the transgender community can also come under this as citizens of India. Hence rejecting the transgender for inheriting the property from their parents on the ground of their gender identity is violated under the section 28 of the act.
Sharia Law is the personal law for the Muslims. In India Muslims are of two type –Sunni and Shia. Both of these two varieties of Muslims have their own laws in terms of inheriting property and are based on gender. Just like Hindu personal law for inheriting the property Muslim laws also say that only male and female can inherit the property.
Indian Succession Act, 1925 is the act which is used for the succession of property in Christian Law where it is having complex then the Hindu and Muslim personal laws. In order to inherit the property in Christian law not only male or female but the transgender can also inherit has it is mentioned in the section 44 of the Indian Succession Act, 1925 not like Hindu and Muslim personal laws. The recommendation was made by the Law commission of the India for the proposal to the Delhi Minorities Commission after getting majority from the Advisory Committees of Christians.It can be said that this is one of the major progressive move in India, though there are no amendments made to the existing law.
CONCLUSION OF THE STUDY
Due to lack of legal recognition LGBTQ community has been deprived of their human rights. Marriage is believed to be very crucial in the Indian culture and it is also treated very sacredly which is between only male – female relationship whereas the marriage of trans-sexual or transgender is harsh fact of still existing discrimination in the society. Still there is ill treatment and negative attitude in the lives of transgender. Even though in many parts of the world including our country is developing, still there are some people who are at margin because of their old culture and orthodox thoughts, lack of planning and awareness in the development of the community.
RECOMMENDATIONS ON THE STUDY
Proper laws must be enacted and followed in order to avoid discrimination and to give them equal rights, there are no proper laws for the concept of LGBTQ and when it comes to family law, the existed laws are not in favor of the LGBTQ community it should be amended so that even LQBTQ community can also enjoy their life and live with dignity and respect , and even they also deserve equal rights just like normal people. It’s high time for us to amend our existing laws for equality. NGOs should also take up the issue and fight or the LGBTQ community so that they can get their basic rights to live. Government, NGOs and some film actors, students should involve in arranging some awareness camps the reason for including film actors and students that there words will be effective in the mind if people. Section 377 has be criminalized but the attitude towards LQBTQ community has not changed, government should also make strict laws which will give transgender equal rights. They face a lot of discrimination in their life like marriage, adoption, succession, financially, health issues and education and in work places etc. , there is no full stop for their discrimination .
NAME: ASHRAF FATHIMA
YEAR: SECOND YEAR
COLLEGE: SYMBIOSIS INTERNATIONAL( DEEMED) UNIVERSITY