TRANSGENDERS: IDENTITY AND POSITION IN THE FAMILY LAW IN INDIA

Abstract

This paper attempts to bring to light the problems and challenges that the transgender population of India have to face due to the non-accommodating nature of the existing personal laws in the country. Given that their right to a self-perceived gender identity has been recognized by the Supreme Court, several other challenges in bringing their lives under „equal protection of laws‟, guaranteed under Article 14, continue to persist. This paper systematically analyses this problem, focusing first on the various identities that comprise the transgender community of India; namely Transsexuals and „The Third Gender.‟ It then further examines various identities that constitute the third gender, and the various practices and customs which govern their personal lives. Further, considering that majority population of transgender is mostly Hindu or Muslim, an analysis of applicability of Hindu & Muslim marital and adoption law to transgenders is undertaken in this paper. A secular legislation in both respects has also been analysed to understand the scope of their rights under law. Finally, the paper concludes with a policy suggestion with regards to the improvement that can be made in the personal laws using a sui generis approach.