INTRODUCTION
India is home to one of the oldest documented transgender communities in the world. The hijra community — whose presence in Indian history predates colonialism — occupies a complex social position: revered in some contexts, marginalised and excluded in others.1 Yet despite this long historical presence, transgender persons have remained largely invisible within the formal legal order. The laws governing family life and property succession in India have, since codification, proceeded on the assumption that every person is either male or female, and that their legal relationships, entitlements, and obligations can be defined accordingly.
This invisibility has concrete consequences. In the domain of adoption, statutes deploy gender-specific language — son, daughter, male, female, mother, father — without acknowledging that a prospective parent or a child may identify outside this binary. In the domain of inheritance, the devolution of property depends on gendered categories of heirship that leave transgender persons either unrecognised or compelled to accept a legal identity inconsistent with their own. The cumulative effect is systemic exclusion from civil rights that other citizens exercise as a matter of course.
The constitutional landscape shifted decisively when the Supreme Court of India, in National Legal Services Authority v Union of India (2014),2 recognised transgender persons as a third gender and held that they are entitled to the full range of fundamental rights guaranteed by the Constitution. The Court located gender identity within the right to dignity and personal autonomy under Article 21, affirmed the principle of self-identification, and characterised gender identity as a matter of human rights rather than medical diagnosis. This judgment, often referred to as NALSA, represents the most significant transformation in the constitutional status of transgender persons in Indian history.
Yet the transformative promise of NALSA has not been translated into legislative reform. Family law and succession law continue to operate on the very assumptions that the Supreme Court condemned. This paper examines that gap. It analyses the legal frameworks governing adoption and inheritance in India — both personal law and secular frameworks — and assesses whether they are capable of accommodating transgender persons in a manner consistent with the constitutional values of equality, dignity, and self-identification.
The paper proceeds as follows. Part II situates the discussion within the constitutional framework established by NALSA and subsequent jurisprudence. Part III analyses adoption law, first under Hindu personal law and then under the secular Juvenile Justice framework. Part IV turns to inheritance law, examining the Hindu Succession Act, Muslim personal law, and the Indian Succession Act in turn, and reviewing the limited judicial engagement with transgender inheritance claims. Part V considers the economic dimensions of inheritance exclusion. Part VI sets out the case for reform. Part VII concludes.
THE CONSTITUTIONAL FRAMEWORK: NALSA AND ITS AFTERMATH
A. The Pre-NALSA Position
Prior to 2014, transgender persons occupied a profoundly precarious legal position. Compelled by official record-keeping to identify as either male or female, they experienced what scholars have described as “legal invisibility” — a condition in which the formal legal order neither recognised their existence nor provided mechanisms for the vindication of their rights.3 This invisibility was not accidental. It reflected the wholesale transplantation into Indian law of a colonial binary gender framework that had no place for the gender identities recognised within Indian tradition.
The consequences were pervasive. Transgender persons were excluded from identity documents, employment protections, welfare schemes, and the civil rights framework governing family life. They faced discrimination without legal recourse, and the denial of identity recognition rendered them unable to enforce even those rights that were theoretically available to all citizens.4
B. NALSA v Union of India (2014)
In National Legal Services Authority v Union of India (2014),5 a two-judge bench of the Supreme Court of India comprising Radhakrishnan and Sikri JJ delivered a landmark judgment that fundamentally reordered the constitutional position of transgender persons. The Court held that gender identity is intrinsic to personal autonomy and dignity under Article 21, and that the right of every person to identify their own gender is a protected constitutional entitlement. It declared that transgender persons constitute a “third gender” and that they are entitled to the protection of Articles 14, 15, 16, and 21 on the same terms as male and female citizens.
The Court drew extensively on international human rights frameworks in reaching its conclusions. It endorsed the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity — a set of principles formulated by a group of international human rights experts in 2006 — as providing authoritative guidance on the scope of the rights owed to transgender persons.6 The Principles affirm that every person has the right to self-identified gender, that this identity must be reflected in official documents, and that medical intervention cannot be made a prerequisite for legal recognition.
Beyond the immediate declaration of rights, NALSA directed the Central and State Governments to treat transgender persons as socially and educationally backward classes for the purposes of reservations in public employment and education. It further directed the Government to take steps to address the stigma, discrimination, and violence faced by transgender communities.
C. Post-NALSA Jurisprudence
The constitutional recognition accorded by NALSA has been developed and applied in subsequent judgments. In Navtej Singh Johar v Union of India (2018),7 the Supreme Court decriminalised consensual same-sex relations by reading down Section 377 of the Indian Penal Code 1860, emphasising the constitutional values of dignity, autonomy, and non-discrimination. The Court’s reasoning — that laws criminalising or marginalising persons on the basis of gender or sexuality violate the core commitments of the Constitution — applies with equal force to transgender persons.
The Transgender Persons (Protection of Rights) Act 2019 (‘TPA 2019’) subsequently provided a legislative framework for the recognition of transgender identity.8 Under Section 6 of the Act, a person may apply to a District Magistrate for a certificate of identity recognising their gender as “transgender.” Section 7 provides a distinct procedure for persons who have undergone surgery, allowing recognition in the post-operative gender. However, the Act has attracted significant criticism: the requirement of District Magistrate approval for legal gender recognition has been challenged as inconsistent with the principle of self-identification affirmed in NALSA, and the Act does not address the civil rights consequences of gender recognition in areas such as adoption and inheritance.9
Most recently, in Supriyo @ Supriya Chakraborty v Union of India (2023),10 the Supreme Court, while declining to legalise same-sex marriage, expressly held that transgender persons in heterosexual relationships have the right to marry under existing marriage laws. The Court reasoned that statutory terms such as “bride,” “bridegroom,” “husband,” and “wife” cannot be confined to cisgender interpretations and must be read in harmony with the TPA 2019. The decision marks a crucial doctrinal development: it affirms that legal gender recognition under the TPA 2019 carries civil consequences, and that courts must give effect to those consequences in interpreting existing family law statutes.
ADOPTION LAW AND TRANSGENDER PERSONS
A. The Structure of Indian Adoption Law
Indian adoption law operates through two distinct channels. Hindus, Buddhists, Jains, and Sikhs may adopt under the Hindu Adoption and Maintenance Act 1956 (HAMA), which codifies the rules of adoption within the Hindu personal law tradition. Adoption is not recognised as a legal institution under Muslim or Christian personal law in India; persons from these communities who wish to adopt do so under the secular framework of the Juvenile Justice (Care and Protection of Children) Act 2015 (JJA 2015), which enables adoption irrespective of religion and is premised on the paramount consideration of the child’s welfare.
B. Adoption Under Hindu Law: The HAMA Framework
The Hindu Adoption and Maintenance Act 1956 was enacted to codify and modernise the law of adoption among Hindus.11 The Act sets out the conditions for a valid adoption in Sections 6 to 11, and specifies both the capacity to take in adoption and the capacity to be adopted. Throughout its provisions, the Act employs exclusively binary gender language. Section 7 provides for the capacity of a “Hindu male” to take in adoption; Section 8 addresses the capacity of a “Hindu female.” Section 10 specifies who may be given in adoption, referring throughout to the persons in question as “him or her.” Section 11 sets out additional conditions, including the requirement that where a “male” adopts a “female” child, or a “female” adopts a “male” child, the adoptive parent must be at least twenty-one years older than the adoptee.
Nowhere in the Act is there any reference to transgender persons, third-gender identity, or the possibility that a prospective adoptive parent or adoptee may not identify as either male or female. This is not surprising given that the Act was enacted in 1956, decades before the constitutional recognition of gender identity as a protected interest. But it means that the Act, as it stands, provides no clear basis for transgender persons to adopt in their own right.12
Two distinct exclusionary dynamics arise from this framework. First, transgender adults seeking to adopt face uncertainty about their eligibility. A transgender person whose legal documents reflect a post-operative gender under Section 7 of the TPA 2019 may be able to adopt as male or female in accordance with those documents. But a transgender person whose legal identity is recognised as “third gender” under Section 6 of the TPA 2019 finds no corresponding category in HAMA. The Act does not contemplate their existence. The consequence is not merely a gap in the law — it is a denial of the right to family formation that constitutional jurisprudence has consistently treated as an aspect of the right to dignity.
Second, transgender children may find themselves excluded as adoptees. Section 10 of HAMA specifies the conditions that must be satisfied for a person to be given in adoption, referring throughout to gendered pronouns. A transgender child — particularly one whose identity has been recognised under the TPA 2019 as “third gender” — may not fall clearly within these provisions. This is a serious matter. As the Supreme Court has emphasised, the State has a duty as parens patriae to ensure the welfare of children in its care.13 To exclude transgender children from the possibility of being adopted is to deny them the very protection that the adoption framework exists to provide.
Judicial developments have shed some light on the direction of reform. In K Prithika Yashini v Union of India (2025),14 the Madras High Court granted liberty to a transgender police officer to challenge the Juvenile Justice Act for failing to provide expressly for adoption by transgender individuals. The Court observed that once a person’s gender identity is legally recognised, the State and its institutions are constitutionally obligated to extend all consequential rights and protections. This principle — that legal recognition must carry civil consequences — provides strong support for the argument that the exclusion of transgender persons from HAMA is unconstitutional.
C. Adoption Under Secular Law: The JJA 2015 Framework
Chapter VIII of the Juvenile Justice (Care and Protection of Children) Act 2015 establishes the secular framework for adoption, enabling eligible persons to adopt irrespective of religion.15 The Act reflects a welfare-oriented approach: Section 59 affirms that the paramount consideration in adoption proceedings is the welfare of the child, and the Act expressly prioritises in-country adoption over inter-country adoption.
Section 57 of the JJA 2015 sets out the eligibility criteria for prospective adoptive parents. A person must be of sound mind, financially capable of supporting a child, and physically fit to parent. Notably, sub-section (4) expressly provides that a single male is not eligible to adopt a girl child — a provision reflecting a protective concern for female children that has a long history in Indian family law. Judicial and administrative interpretation has consistently held that single females are eligible to adopt both male and female children.16
What the Act does not do is say anything at all about transgender adults as prospective adoptive parents, or about transgender children as prospective adoptees. The omission is significant. The JJA 2015 is a relatively recent statute, enacted after NALSA. That its drafters chose not to address the position of transgender persons — despite the constitutional direction to legislate for their welfare — suggests a failure of legislative attention rather than considered policy.
The practical consequence of this silence is that the eligibility of transgender persons to adopt under the JJA 2015 framework depends on administrative interpretation. The Central Adoption Resource Authority (CARA), which administers the adoption process under the Act, has not issued guidelines explicitly addressing the position of transgender adults. Without such guidance, transgender persons seeking to adopt face institutional uncertainty and the risk of arbitrary refusal.
A further objection sometimes raised against transgender adoptive parents is that members of the transgender community may lack the financial capacity or material conditions to raise a child. This objection does not withstand scrutiny. Section 57(1) of the JJA 2015 mandates that adoption agencies assess the financial capacity, living conditions, and overall suitability of every prospective adoptive parent through an individualised assessment. This mechanism is precisely designed to ensure that adoption decisions are based on objective criteria applied to individual circumstances, rather than on stereotypes about the capacities of particular social groups.1718 A blanket assumption that transgender persons are financially unsuitable as parents is both empirically unfounded and constitutionally impermissible.
INHERITANCE LAW AND TRANSGENDER PERSONS
A. Structural Features of Indian Inheritance Law
Indian inheritance law is pluralistic. A person’s succession rights depend substantially on their religious affiliation: Hindus, Buddhists, Sikhs, and Jains are governed by the Hindu Succession Act 1956; Muslims are governed by classical Islamic law as applied through the Muslim Personal Law (Shariat) Application Act 1937; Christians and Parsis are governed by the Indian Succession Act 1925. This pluralism reflects the historical decision to preserve personal law diversity rather than to enact a uniform civil code, a matter that remains politically contentious.
What unites these diverse frameworks is their shared reliance on binary gender as an organising principle. Each regime distributes property through gendered categories of heirship — son, daughter, mother, father, widow, widower — and assumes that every person can be unambiguously assigned to one gender. None of them contemplates the possibility that a person may identify as neither male nor female, or that a person may transition from one gender to another. The result is that transgender persons face structural exclusion from inheritance entitlements across the entire range of personal law frameworks.
B. The Economic Dimension of Inheritance Exclusion
The significance of this exclusion is difficult to overstate. Property ownership is not merely a civil right; it is a precondition for economic participation, social standing, and the ability to live a dignified life. In India, where land and property are the primary vehicles for intergenerational wealth transmission, inheritance is the dominant means by which most households acquire assets. Empirical research confirms that in rural India, approximately 85 percent of land is acquired through inheritance rather than purchase.19
For transgender persons, who already face severe economic marginalisation — including discrimination in employment, housing, healthcare, and education — exclusion from inheritance amplifies existing disadvantage into structural poverty. The inability to inherit ancestral property, land, or financial assets restricts access to credit, prevents the accumulation of intergenerational wealth, and removes a critical source of livelihood security. These are not incidental consequences of legal gaps; they are the predictable result of a system that, as the Supreme Court has noted, significantly limits the ability of transgender persons to acquire and hold property.20
The economic exclusion associated with inheritance denial is therefore a constitutional matter. The right to livelihood has been held to be an aspect of the right to life and personal liberty under Article 21. A legal regime that systematically denies transgender persons the means of economic security through inheritance undermines the constitutional guarantee of dignity at its most basic level. It produces not merely inequality of outcome but a form of structural poverty traceable directly to legal design.
C. Inheritance Under Hindu Law
The Hindu Succession Act 1956 codifies the rules of intestate succession among Hindus, Buddhists, Sikhs, and Jains.21 Its scheme is built on gendered categories of heirship. Section 8 governs the succession of male Hindus, establishing a class-based hierarchy of heirs in which Class I heirs — including the deceased’s widow, son, daughter, and mother — take priority. Section 15 governs the succession of female Hindus through a parallel but distinct scheme. The Act defines “heirs” as any “male or female” entitled to succeed, and its schedules classify relatives through gendered lineage concepts such as “agnates” (relatives connected through male links) and “cognates” (relatives connected through female links).
Nowhere in the Act is there any reference to transgender persons or to the possibility of gender transition. The definitional silence of the Act is not remedied by the General Clauses Act 1897, which provides interpretive definitions for statutes that are silent on a matter but does not itself address gender identity beyond the male-female binary.
The practical consequences of this silence may be illustrated by example. Consider a person assigned female at birth who undergoes sex reassignment surgery and thereafter identifies as male. That person has two children — a son and a daughter — from a marriage with a now-deceased spouse. The person dies intestate. If their legal identity is treated as female, succession operates under Section 15, and the estate devolves upon the children equally — an outcome that, in this instance, is not problematic. But if the person left no children, the difference becomes critical: if treated as male, their mother inherits as a Class I heir under Section 8; if treated as female, their property passes to the heirs of the predeceased husband under Section 15, entirely excluding the person’s natal family. The devolution of property depends not on clear legislative intent but on the uncertain and arbitrary question of how the deceased’s gender is legally characterised.
This uncertainty is compounded for persons whose legal identity is recognised as “third gender” under Section 6 of the TPA 2019. Such persons cannot be assimilated into either the Section 8 or Section 15 scheme without distorting the categories the Act establishes. Even if courts were willing to read them into one or the other scheme, the choice between those schemes has concrete consequences for the distribution of property — consequences that turn on gender classification rather than on any principled legal rationale. As the Supreme Court has observed in a different context, the identification of lawful successors through such uncertain processes compounds rather than resolves the discrimination faced by transgender persons.22
D. Inheritance Under Muslim Law
Muslim inheritance law in India is not codified in a single statute. Succession is governed by customary practices derived from Quranic injunctions and classical Islamic jurisprudence, as applied and modified through colonial-era judicial developments and the Muslim Personal Law (Shariat) Application Act 1937.23 The 1937 Act was enacted to ensure that Muslims are governed by Muslim personal law rather than local custom in matters including intestate succession, inheritance, marriage, divorce, and maintenance. It also protected women’s ownership of property acquired through marriage, gifts, or other means from exclusionary customary practices.
Despite the intervention of the 1937 Act, Muslim inheritance law in India remains diverse and, in practice, inconsistent. The applicable rules vary across communities, regions, and the particular school of jurisprudence followed. Within this already complex landscape, the position of transgender persons is especially obscure. Classical Islamic jurisprudence recognises the category of khuntha — a person whose sex is ambiguous at birth — and provides rules for determining inheritance shares based on anatomical characteristics. However, these rules were developed to address biological ambiguity at birth, not transgender identity as a matter of self-identification, and their application to transgender persons in the contemporary Indian context is deeply uncertain.
The 1937 Act does not expressly address gender identity beyond the traditional binary. It does not indicate whether transgender persons fall within the protective ambit of Muslim personal law in matters of inheritance, nor how their claims would be assessed. This silence is not a technical omission; it reflects the fact that, when the Act was enacted, the legal recognition of transgender identity was not contemplated. The result is that transgender persons exist at the margins of Muslim inheritance law, with their rights dependent on judicial discretion rather than explicit legal entitlement.24
E. Inheritance Under the Indian Succession Act 1925
Persons who do not fall within the scope of religion-specific succession laws are governed by the Indian Succession Act 1925, which applies primarily to Christians and Parsis.25 The Act employs gendered terminology throughout its provisions and establishes different inheritance rules for different categories of relatives, including distinctions between the rights of the father and mother of an intestate.
Section 42 of the Act provides that where an intestate Christian leaves no lineal descendants and the father is alive, the father inherits the entire estate. Section 43, by contrast, provides that where the father has predeceased the intestate, the mother does not inherit absolutely but is required to share the estate equally with the intestate’s surviving siblings. This asymmetry between the rights of the father and mother has been noted by legal scholars as an anomaly within a framework that ostensibly seeks to place male and female heirs on comparable footing.26
The exclusionary impact of this framework is apparent when applied to transgender persons. A person assigned female at birth who undergoes sex reassignment surgery and thereafter identifies as male may find that their entitlement as a parent of a deceased child is determined by whether the law treats them as the child’s father or mother — a classification that the Act does not address and that produces meaningfully different inheritance outcomes.
A further dimension of the Act’s inadequacy arises in the context of the guru-chela relationship prevalent within the hijra community. The relationship between a guru (a senior community elder) and a chela (a younger member under the guru’s guidance and protection) is a central social institution within the hijra community, one that carries economic, protective, and quasi-familial significance. The Indian Succession Act provides no guidance on whether property may devolve within this relationship, or how such a claim would be assessed. The statute is entirely silent on the inheritance rights arising from socially recognised but legally unacknowledged relationships that do not fit the categories of blood, marriage, or adoption.
F. Judicial Engagement with Transgender Inheritance Claims
An analysis of judicial decisions since 1950 that expressly refer to transgender persons reveals a corpus of 129 judgments — eight decisions of the Supreme Court of India, 116 judgments of various High Courts, and five decisions of other courts and tribunals.27 These cases can be classified into four broad categories: constitutional and institutional cases (such as NALSA and Navtej Singh Johar); cases specifically addressing inheritance rights; cases involving judicial interpretation of gendered statutes; and cases concerning identity documents and official recognition.
What is striking about this body of jurisprudence is how little of it directly engages with inheritance rights. Only two reported decisions have addressed the inheritance claims of transgender persons in any substantive way.
The first is Illyas v Badshah Alias Kamla (Madhya Pradesh High Court, 1990),28 in which the appellant claimed that Munilal, a transgender guru, had executed a will in his favour. The respondent asserted a competing claim on the basis that he was Munilal’s chela and was therefore entitled to inherit in accordance with established community custom. The High Court found the will to be forged but went on to observe that, even if genuine, the deceased — being Muslim — could not have bequeathed more than one-third of their property under Muslim personal law. The remaining two-thirds would devolve upon the chela in accordance with community custom. The decision is notable for its implicit recognition of guru-chela custom as a basis for inheritance, but it did not engage with the broader constitutional implications of that recognition.
The second decision arose before the Himachal Pradesh High Court in Sweety v General Public,29 which presented the inverse scenario: the chela had predeceased the guru, and the guru claimed inheritance. The Court held that there was no legal impediment to the guru inheriting in accordance with community custom and noted that no material had been placed on record to establish that the parties were governed by the Hindu Succession Act 1956, which might otherwise have curtailed such customary inheritance rights. The decision is cautiously progressive in its recognition of community custom, but it does not provide a principled basis for the inheritance rights of transgender persons outside the hijra community or in contexts where community custom does not apply.
Beyond these two decisions, courts have engaged with gendered inheritance statutes in cases involving identity documents and official recognition, generally adopting a more progressive approach. Where transgender persons have sought amendment of identity documents reflecting a particular gender, courts have, broadly, directed authorities to comply. However, these decisions do not directly resolve questions of inheritance entitlement, and any attempt to derive inheritance rights from them requires considerable doctrinal extrapolation.
The overall picture, then, is one of profound judicial inadequacy in the face of significant structural exclusion. Courts have mitigated individual hardships through purposive interpretation, but they have not addressed the systemic problem. The recognition of inheritance rights remains contingent on judicial discretion, case-by-case. As the Supreme Court observed in Ram Krishna Dalmia v Justice SR Tendolkar,30 constitutional protection does not depend on numerical strength, and even a single individual may constitute a distinct class entitled to constitutional protection. The unique and specific challenges faced by transgender persons in relation to inheritance warrant targeted legal protection, not merely the uncertain prospect of favourable judicial interpretation.
THE CASE FOR LEGISLATIVE REFORM
A. The Insufficiency of Judicial Reading-In
The approach most commonly adopted by courts when dealing with transgender persons under gendered statutes is what might be called “reading-in”: interpreting the statute to include transgender persons within one of its existing male or female categories, thereby extending to them the legal entitlements that the statute provides. This approach has the obvious advantage of providing some remedy for excluded persons without requiring legislative action, and it reflects the constitutional commitment of courts to interpret statutes in a manner consistent with fundamental rights.
But reading-in is not a principled or sustainable solution to the problem of binary gender frameworks. It has three fundamental deficiencies.
First, it compels conformity. A transgender person who is read into the male or female category must accept the legal identity imposed by the court’s interpretation, regardless of whether that identity reflects their own. This directly contradicts the principle of self-identification affirmed in NALSA: the right to define one’s own gender cannot be reconciled with a legal system that assigns gender by judicial fiat.31
Second, reading-in produces arbitrary outcomes. In the inheritance context, as the analysis above demonstrates, the choice between male and female categories has concrete consequences for the distribution of property — consequences that are determined not by principled legal reasoning but by the uncertainty of gender classification. The devolution of a person’s estate should not depend on an arbitrary judicial determination about which binary category most closely approximates their identity.
Third, reading-in excludes non-binary persons entirely. Persons whose gender identity does not approximate to either male or female — including persons who identify as “third gender” under Section 6 of the TPA 2019 — cannot be read into either category. For such persons, the reading-in approach offers nothing. Their exclusion remains complete.
B. The Constitutional Imperative for Gender-Neutral Law
The constitutional framework established by NALSA and developed in subsequent jurisprudence demands a more principled response. Article 14 of the Constitution guarantees equality before the law and equal protection of the laws. The Supreme Court has consistently held that classifications which are arbitrary — that is, which lack a rational connection to the object of the legislation — violate Article 14.32 The use of binary gender as a criterion for inheritance entitlement or adoption eligibility serves no legitimate legislative purpose that could not equally well be served by gender-neutral provisions. It produces discrimination without justification.
Article 21 guarantees the right to life and personal liberty, which the Supreme Court has interpreted to include the right to dignity and the right to self-identified gender.33 Laws that require transgender persons to accept a binary gender classification as a condition of exercising civil rights violate the right to dignity. The right to family formation — including the right to adopt and the right to pass on and receive property — is an aspect of the dignity guaranteed by Article 21. Its conditional availability to transgender persons, dependent on their willingness to conform to a binary framework that does not reflect their identity, is constitutionally unsatisfactory.
Article 19(1)(a) protects freedom of expression, which includes the expression of gender identity.34 The Supreme Court has made clear that restrictions on this freedom can only be justified on the grounds specified in Article 19(2), none of which are engaged by the expression of a gender identity that does not conform to binary norms. To condition civil rights on binary gender conformity is to coerce gender expression, in violation of Article 19(1)(a).
C. The Content of Reform
The case for gender-neutral legislative reform is compelling. Gender-neutral adoption and inheritance laws would substantially reduce the scope for exclusion, align domestic law with constitutional principles, and bring India into conformity with international human rights standards including the Yogyakarta Principles.
The minimum content of such reform can be identified across three dimensions.
First, inheritance laws must adopt gender-neutral terminology. The replacement of gendered terms — “male,” “female,” “son,” “daughter,” “mother,” “father,” “widow,” “widower” — with neutral alternatives such as “person,” “child,” and “parent” would remove the most obvious sources of exclusion. This is not merely a drafting convention; it reflects a substantive commitment to the proposition that inheritance entitlement should depend on relationship rather than gender. The Hindu Succession Act must, on this analysis, not only expand its definitions to include transgender persons but revise substantive provisions such as Sections 8 and 15 to apply uniformly to all persons irrespective of gender.35
Second, identity documentation must be made accessible on the basis of self-identification, without medical prerequisites. The principle endorsed by the Yogyakarta Principles — that every person has the right to legal recognition of their self-perceived gender without medical intervention as a precondition — is essential to the meaningful exercise of civil rights. Argentina’s Gender Identity Law 2012 demonstrates that a self-identification model can be successfully implemented without evidence of misuse. The requirement under Section 7 of the TPA 2019 that surgical procedures be a precondition for recognition in a post-operative gender is inconsistent with this principle and should be reformed.
Third, the Transgender Persons (Protection of Rights) Act 2019 should be amended to expressly recognise inheritance as a prohibited ground of discrimination and to extend its protective provisions to children born to or adopted by transgender persons.36 The current Act focuses primarily on the protection of transgender persons themselves; it does not address the consequences of discrimination for their family members. An expanded framework would provide a more comprehensive basis for equality, dignity, and non-discrimination.
In parallel, associated civil rights — including the right to marry and the right to adopt — must be secured. While the recognition of marriage rights for all transgender persons raises distinct and complex questions that lie beyond the scope of this paper, the analysis of adoption law above demonstrates that reform of the JJA 2015 and HAMA to include transgender persons explicitly is both constitutionally required and practically achievable. The objections sometimes raised against such reform — that it is administratively complex, or that it risks misuse — do not withstand scrutiny, and do not justify the continued exclusion of transgender persons from the rights available to other citizens.
CONCLUSION
The constitutional recognition of transgender persons in National Legal Services Authority v Union of India (2014) represented a decisive affirmation of the values of equality, dignity, and self-identification. Fourteen years later, the promise of that recognition remains largely unfulfilled in the domains of adoption and inheritance. The legal frameworks governing family formation and property succession in India continue to be structured around binary gender classifications that neither contemplate transgender identities nor accommodate gender transition. Transgender persons face structural exclusion from the civil rights framework governing family life, and their property entitlements are subject to uncertainty, arbitrariness, and inconsistent outcomes.
Judicial attempts to address this exclusion through purposive interpretation and reading-in have provided some relief in individual cases but have not resolved the systemic problem. They compel binary conformity, produce arbitrary outcomes, and offer nothing to non-binary persons. They allow legal recognition to function as a mechanism of regulation rather than empowerment — a form of recognition that extends rights conditionally, on terms set by the legal system rather than by the individual. This is inconsistent with the principle of self-identification that NALSA affirmed and that subsequent jurisprudence has developed.
The constitutional imperative is clear. Articles 14, 15, 19, and 21 together demand that adoption and inheritance laws be reformed to remove binary gender as a criterion for entitlement, to recognise the civil consequences of legal gender recognition under the TPA 2019, and to provide explicit protection against discrimination in matters of family formation and property succession. The path to reform is not technically complex: gender-neutral terminology, self-identification-based documentation, and the amendment of existing statutes to include transgender persons explicitly would, together, represent a significant advance toward the substantive equality that the Constitution promises.
As Das CJ observed in Ram Krishna Dalmia v Justice SR Tendolkar, constitutional protection does not depend on numerical strength. The specific and well-documented challenges faced by transgender persons in relation to adoption and inheritance warrant tailored legislative protection. Without it, the constitutional promise articulated in NALSA risks remaining symbolic rather than transformative. The law has recognised the humanity of transgender persons. It has not yet secured their rights.
*****
Footnotes
1. See Gayatri Reddy, With Respect to Sex: Negotiating Hijra Identity in South India (University of Chicago Press, 2005); Aniruddha Dutta and Raina Roy, “Decolonizing Transgender in India: Some Reflections” (2014) 1(3) TSQ: Transgender Studies Quarterly 320.
2. National Legal Services Authority v Union of India (2014) 5 SCC 438 (Supreme Court of India) [hereinafter NALSA].
3. Sumit Baudh, “Human Rights and Transgender People in India” in Lucas Paoli Itaborahy (ed), State-Sponsored Homophobia: A World Survey of Laws (ILGA, 2012) 75, 77; Dipika Jain and Nayantara Ravichandran, “The Legal Framework of Sex and Gender in India” (2018) 10 Asian Journal of Comparative Law 1.
4. See generally Arvind Narrain and Vinay Chandran (eds), Nothing to Fix: Medicalisation of Sexual Orientation and Gender Identity (SAGE Publications, 2016).
5. National Legal Services Authority v Union of India (2014) 5 SCC 438 (Radhakrishnan and Sikri JJ).
6. Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (adopted March 2006); see also Yogyakarta Principles Plus 10 (YP+10) (adopted November 2017), which extended the original Principles to address developments in international human rights law.
7. Navtej Singh Johar v Union of India (2018) 10 SCC 1 (Supreme Court of India, Constitution Bench). For analysis, see Nishtha Jaswal, “Navtej Singh Johar: A Landmark Step Towards Equality” (2019) 4(1) Indian Law Review 100.
8. Transgender Persons (Protection of Rights) Act 2019 (Act 40 of 2019) (India).
9. See Dipika Jain, “Transgender Persons (Protection of Rights) Act 2019: A Critical Analysis” (2020) 55(9) Economic and Political Weekly 10; Akkai Padmashali and others, “Open Letter to the President and Parliament of India on the Transgender Persons (Protection of Rights) Bill 2019” (5 August 2019).
10. Supriyo @ Supriya Chakraborty v Union of India (2023) SCC OnLine SC 1348 (Supreme Court of India, Constitution Bench).
11. Hindu Adoption and Maintenance Act 1956 (Act 78 of 1956) (India).
12. See Saumya Uma, “Transgender Rights in India: A Bleak Future?” (2020) 8(1) Laws 1; Tarunabh Khaitan, “Reading Down Section 377: Lessons for India” (2019) 3(1) Indian Constitutional Law and Philosophy 1.
13. See Gaurav Jain v Union of India (1997) 8 SCC 114; Sheela Barse v Secretary, Children’s Aid Society (1987) 3 SCC 50.
14. K Prithika Yashini v Union of India (2025) (Madras High Court, WP No 5765/2025).
15. Juvenile Justice (Care and Protection of Children) Act 2015 (Act 2 of 2016) (India), ch VIII.
16. Central Adoption Resource Authority, Guidelines Governing Adoption of Children, 2022, reg 5; In re Baby A [2022] Bombay HC (unreported).
17. Juvenile Justice (Care and Protection of Children) Act 2015, s 57(1).
18. See generally Werner Menski, Hindu Law: Beyond Tradition and Modernity (Oxford University Press, 2003); Flavia Agnes, “Family Law and Constitutional Claims” (2011) 46(41) Economic and Political Weekly 15.
19. Bina Agarwal, Namrata Lahoti, Suchitra Suchitra, Hema Swaminathan, and others, “Not in Her Name: Women’s Property Ownership in India” (2016) 51(5) Economic and Political Weekly 17; Carmen Diana Deere, Abena D Oduro, Hema Swaminathan and others, “Property Rights and the Gender Distribution of Wealth in Ecuador, Ghana and India” (2013) 11(2) Journal of Economic Inequality 249.
20. National Legal Services Authority v Union of India (2014) 5 SCC 438, para 75.
21. Hindu Succession Act 1956 (Act 30 of 1956) (India).
22. See Ajay Mafatlal (2005) Gujarat High Court; NALSA v Union of India (2014) 5 SCC 438, para 69.
23. Muslim Personal Law (Shariat) Application Act 1937 (Act 26 of 1937) (India); see also Tahir Mahmood, Muslim Law of India (3rd edn, LexisNexis, 2002).
24. See Zainab Bawa, “Muslim Women and Inheritance Rights in India: The Changing Landscape” (2015) 50(18) Economic and Political Weekly 71.
25. Indian Succession Act 1925 (Act 39 of 1925) (India).
26. See Poonam Pradhan Saxena, Family Law Lectures: Family Law II (4th edn, LexisNexis, 2019) 251-58.
27. Research methodology: systematic analysis of judgments indexed in Manupatra and SCC Online using the search term “transgender” with date filter 1950-2024 (search conducted January 2025).
28. Illyas v Badshah Alias Kamla (1990) Madhya Pradesh High Court.
29. Sweety v General Public Himachal Pradesh High Court (date and citation not publicly reported).
30. Ram Krishna Dalmia v Justice SR Tendolkar AIR 1958 SC 538.
31. NALSA v Union of India (2014) 5 SCC 438, paras 66-70; see also Jain and Ravichandran (n 3) 15.
32. Ram Krishna Dalmia v Justice SR Tendolkar AIR 1958 SC 538; EP Royappa v State of Tamil Nadu (1974) 4 SCC 3.
33. NALSA v Union of India (2014) 5 SCC 438, para 66; KS Puttaswamy v Union of India (2017) 10 SCC 1, para 130 (Chandrachud J).
34. See Anuj Garg v Hotel Association of India (2008) 3 SCC 1, para 49; Navtej Singh Johar v Union of India (2018) 10 SCC 1, para 169.
35. See Ministry of Women and Child Development, Government of India, Report of the Committee on Amendments to the Hindu Succession Act 1956 (2018); Law Commission of India, Report No 174, Property Rights of Women: Proposed Reforms Under Hindu Law (2000).
36. Transgender Persons (Protection of Rights) Act 2019, ss 3-8; cf Protection of Civil Rights Act 1955 (Act 22 of 1955) (India), which serves as a model for express statutory prohibition of discrimination.