Realizing Trans Rights in India: Property Ownership and Inclusion

November 18, 2021 | Deepika Hungenahally

Source: Pratik Chorge/HT Photo; Image only for representational purpose

 

Owing to incidents of non-acceptance, abandonment and at times harassment from family members, transgender persons are often forced to leave their parental home and become vulnerable to homelessness at a very young age. Most often than not, they seek recourse in shelter homes and are inducted into the guru-chela systems that have long been a part of the transgender community. The guru acts as a guardian to the abandoned transgender youths and the chelas, in exchange for food and shelter, devotedly undertake the chores allotted by their guru.  

 

On the other hand, transgender persons having access to education and self-earning capacities may try other routes to livelihood but are often restrained in their access to housing due to discrimination by landlords and hostel/housing authorities. Moreover, the statutory right to inherit property is itself restricted to binary-gendered notions of ‘male’ and ‘female’ and makes no allowance for transgender persons to inherit property. As a result, transgender persons live at the mercy of their families, gurus or landlords.  

 

Discrimination by Landlords 

A report published by the International Commission of Jurists in June 2019 provides testimonials by transgender persons who’ve faced discrimination and harassment in rental housing. Amongst the many concerns were the fear of sexual violence, higher rent rates, lack of secure tenure, unreasonable demands and intrusion in personal space by the landlords.   

 

Discrimination in private spaces such as tenancy, especially for transgender communities and sexual minorities, is a conversation that has been long overdue and there is a pressing need for the State to address this through adequate legislation. 

 

Inheritance Rights 

Property rights, amongst others, constitute an essential fragment of our civil rights laws and it continues to be inaccessible to the transgender community. Succession laws in India are broadly based on religion and binary-gendered classifications. The Hindu Succession Act 2005 is strictly limited to male and female genders in the definition of heirs and in the order of succession.  Despite the nomenclature of ‘heirs’ being gender-neutral in the Indian Succession Act 1925, there exists gender-based inequality in its order of succession. In fact, prejudice and non-traceability of successors of transgender persons prevents them from acquiring property despite having undergone gender-reassignment surgery and documentation changes.  

 

In 2020, Uttar Pradesh granted inheritance rights to transgender persons with regards to agricultural property by amending nomenclatures and the order of succession in the UP Revenue Code 2006. Although a nascent effort, a similar revamp of the property laws is required to further the scheme of equality within inheritance laws.  

 

Guru-Chela System  

Several Courts have recognised inheritance rights within the guru-chela system, thereby identifying a distinct customary group. However, the realisation of property rights in the guru-chela system is completely at the discretion and mercy of the guru. Even the basic shelter provided by the guru is unstable and dependent on the absolute allegiance of the transgender person to their guru.  

 

Hence, there is an immediate need for state-sponsored housing schemes and preferential allocation of residential sites to transgender persons. So far, only Madhya Pradesh, through its State policy 2020, has attempted to do so by recommending adequate housing facilities for transgender persons. 

 

NALSA on Property Rights 

The Supreme Court, in NALSA, observed that the exclusion of transgender persons in inheritance and succession laws is against the principles of equality enshrined in the Constitution. Subsequently, the Transgender Persons (Protection of Rights) Act 2019 prohibits any discrimination or unfair treatment of transgender persons concerning their right to ‘reside, purchase, rent or otherwise occupy any property’. However, neither the NALSA judgment nor the 2019 Act explicitly delve into inheritance rights or provide for specific concessions in housing facilities.  

 

It is about time that the State takes a dedicated approach towards accommodation rights of transgender persons in line with international law.  The Yogyakarta Principles require States to ensure all individuals, without discrimination on gender identity, have the right “…to administer, own, acquire (including through inheritance), manage, enjoy and dispose of property”. Likewise, Article 11(1) of the ICESCR provides for adequate housing facilities for all individuals.   

 

Property ownership and safe accommodation for transgender persons is vital for the prevention of discrimination and harassment directed towards them. The State must pass appropriate legislation to prevent discrimination in rental space, devise appropriate rules for inclusive housing schemes and include transgender persons within inheritance laws.  

Deepika Hungenahally

Litigation Associate

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