Gender Fluidity and Inheritance

**Anandita Srivastava and Anandita Anand

The article discusses the generally accepted binary notion of sex and gender. While the recent advancements have made attempts to go beyond this notion and be inclusive of other gender identities, there is still a long way to cover before the laws actually succeed in doing so. The article delves into the specific problem faced under Hindu Personal Laws governing succession and inheritance. Over the years, several attempts have been made by the Judiciary to make the laws more inclusive. These efforts fall short of achieving the end goal. In the end, the article prescribes the policy measure which may be effective going ahead to ensure that the laws governing succession and inheritance are not discriminatory. 

1. Introduction: Understanding Gender Beyond The Binary Framework

From a medical perspective, classifying male and female bodies is essential for accurate treatment and diagnosis due to physiological differences. This is achieved through a process known as the “medicalization of sex”. At the time of their birth, children are classified into either male or female based on their reproductive organs. However, the classification becomes problematic when applied to intersex children—those born with both male and female reproductive characteristics. While intersex children are medically healthy, societal pressure to adhere to a binary view of sex often results in surgeries soon after birth. These surgeries and sex assignments, typically decided by parents, often leave children distressed and traumatized.

While sex—being a biological attribute—may still be understood in binary terms in many contexts, gender is a social construct. Gender, which is inherently fluid, when confused with sex, leads to numerous problems, especially for those whose gender identity does not align with the binary norms.

In Supriyo v. Union of India, [hereinafter “Supriyo”] the Supreme Court made a clear demarcation of the terms- sex and gender. ‘Sex’ refers to the physical reproductive organs and structures people are born with. Gender, on the other hand, refers to the sense of self, and is more personal.

In the recent past, several developments have taken place to think of gender beyond the restrictive binary sense. To understand the existing standards, let us look at the following illustrations: 

B, who was born as a female,

1. Identifies as female, in which case they would be considered ‘cisgender’.
2. Identifies as male, in which case they would be considered ‘transgender’.
3. Does not align with the conventional categories of male or female, in which case they may be referred to as ‘agender’.

And the list is never ending. Some studies suggest that there are over 100 different gender identities. The fluid nature of gender makes it difficult for language to keep up with it.

Due to the dynamic nature of gender, categorizing it into strictly defined boxes contradicts the very efforts to move away from rigidity. However, it becomes essential to use terms representing such gender categories in order to educate people on gender identities.

It might cause confusion to use gender identity labels interchangeably, such as transgender as an umbrella term, can lead to misunderstanding. Certain simplifications made for academic purposes may be important and harmless. For instance, this study conducted in UK, for simplicity’s sake, used ‘non-binary’ as an umbrella term for people identifying themselves as genderqueer, genderfluid, non-binary, or agender.

However, the problem arises when the variety within that category is ignored in legal frameworks or policies which try to group all non-binary identities into a single category—such as the third gender or transgender—and apply uniform laws to them. The identities of people who are categorised as third gender might vary greatly. In actuality, a cisgender person may share more characteristics with a queer person than two queer people who are both classified by the state as third gender. A transwoman and a ciswoman, both identify as women, but a transwoman and a genderfluid person may have vastly different sense of their identities. Thus, while a ternary system of male, female, and third gender may seem inclusive, it fails to capture the complexity of gender identities and reinforces rigid classifications.

Despite growing awareness, non-binary and gender-diverse individuals continue to face significant challenges. For example, in a 2018 UK survey, 76% of non-binary respondents reported avoiding expressing their gender identity due to fear of negative reactions. Surveys in India also affirm such findings, with studies showing numbers as high as two-third of transgender people have been fired because of their identity. This problem extends beyond personal experiences to social, political, and economic rights, such as access to property, inheritance, and succession. 

Given the challenges faced by non-binary persons (NBPs) [for the purposes of this article, NBPs are individuals with gender identities outside the binary framework of male and female. This includes agender individuals, bigender individuals, gender-fluid individuals, or anyone who is not a cisgender male or female], the second segment of this article briefly explores the various policy options available to policymakers regarding gender and sex. The third segment examines India’s legal regime for NBPs’ property succession and inheritance (within Hindu personal laws) and its inadequacies. In the fourth section, the article delves into recent legal developments concerning the rights of NBPs. Lastly it concludes by proposes solutions to address these issues.

2. Policy Approaches to Gender and Sex  

The intersection of gender, sex, and law can occur through various approaches. Lawmakers’ policy choices can generally be categorized into three approaches: essentialist, abolitionist, and pluralist. 

The essentialist approach reinforces the binary notion of sex and gender in law-making. This is often used to justify anti-LGBTQ laws and create provisions that strictly categorize individuals as either male or female. Hindu personal laws, which uphold this binary framework, currently fit within this category.

On the other extreme is the abolitionist approach. It advocates for gender-neutral laws, eliminating the consideration of sex or gender for legal purposes. For instance,  gender-neutral bathrooms or the growing movement for decertification of sex. The Protection of Children from Sexual Offences Act of 2012 is also a good example of the abolitionist approach.

Pluralist approach forms a middle ground between these two. It acknowledges that sex and gender are important, however, it recognises that they are not limited to the binary understanding, which is furthered by the essentialist approach. For instance, the Medical Termination of Pregnancy Act of 1971- while the Act does not expressly mention this, after the 2022 judgement of X2 v. State (NCT of Delhi), the Supreme Court made it clear that the interpretation of the word “woman” in the Act includes persons other than cisgender women as well.

3. The Hindu Succession Act and Its Impact on Gender Rights

Presently in India there is no special law addressing the succession and inheritance of people falling outside the realm of the binary understanding of males and females. Any form of discrimination against transgender persons is prohibited by the Transgender Persons (Protection of Rights) Act of 2019. However, it does not provide concrete steps to ensure succession to property for transgender persons. Each religion has its own set of personal laws governing inheritance and succession, but none of them extend these rights to transgender persons. The Indian Succession Act of 1925, which prescribes the mode of succession and inheritance for Christians and Parsis prima facie, appears to be a gender-neutral legislation. However, on delving deeper into the rights of the parents of the deceased, it favours the rights of the father over the mother. 

The Hindu Succession Act, 1956 [“HSA”] provides for a detailed scheme for succession for both males and females dying intestate. While the General Clauses Act, 1977, states that masculine gender includes females, the HSA specifies that masculine terms do not include females unless otherwise provided.

Section 8, read with the Schedule of HSA, provides the heirs of the Hindu male, upon whom property is to devolve in a specific manner when the person dies intestate. If a person dies intestate, their property primarily passes to Class I heirs, including the mother, widow, children, and children of predeceased children. If none of the class I heirs are alive, the property goes to Class II heirs including father of the deceased, who, if alive, will inherit the property to the exclusion of others in the Class.

The scheme for deceased females is covered under sections 15 and 16 of the HSA. The property of a deceased woman will first pass to her children and husband, with the term “children” also including the offspring of any pre-deceased children. In the absence of husband or children, the property of the woman goes to the heirs of her husband (as per section 8) before it can be availed by her parents. Only in the unlikely scenario where none of the husband’s heirs are surviving, will the property go to her parents. 

The inherently discriminatory nature of these provisions—treating males and females differently—also creates problems for NBPs. The following illustration explains this:

Consider ‘R’, who was born female and married under the Hindu Marriage Act to a male before identifying as a transgender man. If the succession to R’s property is determined by sex at birth, Sections 15 and 16 will apply. The property will devolve upon their husband and children, if any. In the case of R dying childless and a widow, their property will go to the legal heirs of their deceased husband before devolving upon R’s parents.

On the other hand, if R’s gender identity were respected and their succession determined under Section 8, their mother would be a Class I legal heir and would succeed to the property, even in the presence of the spouse. Similarly, in the absence of a mother, children, or other Class I heirs, R’s father would inherit the property, excluding other Class II heirs.

Further, if R realizes they are gender-fluid and do not fit within the binary of male or female, what would be the route of succession? Would R still be governed by the HSA, given its essentialist rigidity and requirement to conform to the binary notion of gender?

Who gets the property significantly changes with how we determine the applicable provision, some may claim that a person underwent sex reassignment surgery to alter their succession scheme. Prior to the 2005 amendment to the HSA, daughters were not recognised as a coparcenary and did not have a right to ancestral property of their fathers. In 2003, the transition of Aparna Mafatlal to Ajay Mafatlal sparked controversy, with many believing it was done to secure property rights. 

Despite daughters now being considered coparcenary, several loopholes remain that not only discriminate against women but also complicate the inclusion of NBPs in the Act’s framework.

4. Evolving Legal Standards: Recent Judicial Changes 

No statutory scheme clearly recognises the rights of NBPs but several judicial developments in the past decade have been significant. 

In National Legal Services Authority v. Union of India (2014), [hereinafter “NALSA”] the Supreme Court categorically upheld the fundamental rights of the “third gender” persons, including their right to self-identify. While clarifying that gender identity is based on personal perception, not biological traits, the Court held that discrimination based on “sex” encompasses both biological attributes and gender identity. The Court directed the Central and State Governments to implement measures, including legal recognition of the ‘third gender’ in official documents and establishing social welfare schemes. This right of self-identification was re-affirmed in K.S. Puttaswamy v. Union of India (2017). 

In Arunkumar v. The Inspector General of Registration (2019), the Madras High Court held that the term “bride” in the Hindu Marriage Act must be interpreted expansively to include transgender women as well. Finally in Supriyo, while the court rejected the claim for same-sex marriage rights, it clarified that transgender persons in heterosexual unions are governed by the existing legislative scheme. 

5. Conclusion & Proposed Reforms: Creating a More Inclusive Legal Framework

The above-discussed judicial positions lead to several outcomes. First, even though Hindu Personal Laws are strictly binary, the judiciary has, over the last decade has moved beyond this understanding. Second, while the provisions of the existing laws have been widely interpreted to enhance the rights of NBPs—including recognizing transwomen as “brides”—these rights primarily pertain to choosing partners and self-identification, and do not expressly address inheritance and succession. Third, while NALSA took a pluralistic approach by recognizing that gender identities can go beyond male and female, it fell short by categorizing all other genders as “third gender” without addressing the nuances and complexities of different gender identities. It fails to address the concerns of intersex, gender non-conforming, agenders, gender-fluid persons, and others. This highlights the danger of using “transgender” as an umbrella term for the queer population in general. It focuses primarily on individuals whose sex does not align with their gender identity, but still exists within the binary. These individuals, by undergoing sex-change surgeries, can claim their desired gender. This approach, rather than promoting inclusivity, reinforces the binary concept of gender by suggesting that those whose gender does not conform to their sex can simply undergo surgery to “fix” the anomaly.

Thus, adopting a pluralistic view regarding succession and inheritance is more complicated than it appears. While moving beyond the binaries is essential, the fluidity of gender demands great meticulousness from lawmakers. Particularly, having different succession schemes for different genders means one misinterpretation could negatively impact the rights of many individuals. In this context, it is crucial to analyze whether pluralism is the right approach for succession purposes.

Almost 70 years ago, HSA came into existence as a means to codify laws relating to Hindu intestate succession. Over the years as the idea of rights and justice evolved, several amendments were brought about to the Act. For instance, the Act secured inheritance rights of daughters by granting them coparcenary rights. While these changes are welcome, they are insufficient. The inherent discriminatory nature of the Act no longer serves a purpose in this modern age.

An alternative to the pluralist approach is abolitionism. Under Article 44 of the Indian Constitution, the State has been directed to enact a Uniform Civil Code (UCC). Given the diverse religious identities in India, a nationwide UCC has not yet been enacted, as it faces severe criticism every time the idea is proposed. Despite this, the Uttarakhand Government recently enacted the Uniform Civil Code of Uttarakhand Act, 2024 (UCC Act). The first chapter of Part 2 of the UCC Act deals with ‘intestate succession.’ The provisions have adopted an abolitionist approach, eliminating gendered terms like male, female, mother, father, son, daughter, and replacing them with persons, parents, children, and spouses.

Such a gender-neutral approach ensures that there is no gender or sex-based inequality regarding succession and inheritance rights. Additionally, it ensures that the rights of individuals are protected regardless of their gender or sex, making the provision all-encompassing. However, the UCC Act has been criticized for eliminating the distinction between ancestral and separate property, as well as for not retaining the rule under Muslim Personal Law that prohibits bequeathing more than one-third of a person’s property through a will. Given the existing bias and stigma against NBPs, family members might be incentivized to completely disinherit such individuals by willing away their entire property.

Therefore, while adopting an abolitionist approach may be essential to ensuring equality in succession and inheritance, it is important to retain certain safeguards provided under various personal laws to balance the rights of legal heirs with the choices of the testator.

**Anandita Srivastava is a B.A. LL.B. (Hons.) student at NLU Jodhpur, specializing in Intellectual Property Rights. Her core interests lie in Constitutional Law, Criminal Law, and IPR. Anandita Anand is a B.A. LL.B. (Hons.) student at NLU Jodhpur, specializing in IPR, with a keen interest in Family and Commercial Laws.

Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.