Someone having some or all of the primary characteristics of both genders, male and female, is identified as Hermaphrodite/Khuntha/Intersex person (commonly known as Hijra in Bangladesh). In medical perspective, they are such persons whose body does not confirm to 'arbitrarily qualified' criteria either that of male or female physique and thus, confusing only so far their sex is concerned but are human beings. Therefore, being a creation of the Almighty there is no reason of not treating them as human having rights, liabilities and other privileges that naturally come along. Rightly, though from the beginning of the 20th century, countries of the then British-India, Nepal, Pakistan, Bangladesh and India began to recognise them as third gender by the years 2007, 2009, 2013 and 2014 respectively either through Government policy decision or by rulings from the apex court of the country.
The Constitution of Bangladesh, being solemn expression of the peoples' will and the supreme law of the land, recognises and guarantees its citizens the fundamental rights in order to protect their life, liberty and property. In these endeavours, sovereign legislate various municipal laws to ensure 'legal rights' in line with constitutional commitments and pledges. Although, at times they lack behind or could not leave up to common expectations and required need, and this is where the gap exists, which in most cases, are the cause of social discontent and resentment. In the Indian sub-continent, citizens are governed by their own personal laws (unlike western world) in relation to family matters as well as inheritance and succession. There is fallacy that rights of the Hijras are not specifically defined, specially the right of inheritance. However, authoritative jurist by construing the teaching of Sunnah, Izma and Qiyas opined that in Islamic jurisprudence, there are provisions to determine the gender of such human beings and once that can be done, inheritance is matter of calculation only (since the laws of inheritance is gender-based under most of the personal laws).
To embrace the issue in simpliciter, a Hijra will be characterised as a male when he has sexual associations with his male reproductive organ, has capabilities of nocturnal discharge like men, is inclined to woman, produces facial hair and his testimony of his inner-self. On the other hand, when a Hijra has sexual affairs with her female reproductive organ, becomes pregnant, practices menstruation, experiences growth of breasts like women along with lactation will be considered as female and thus, once the gender can be determined, the Hijra will succeed as male or female accordingly in all cases. However, if nothing or all of the above symptoms occurred, then such person will not be assigned a gender rather be termed as hermaphrodite difficulty/'khuntha mushkil' and here exists difference of opinions amongst Islamic jurists as to their share of inheritance [according to Hanafi School, they always would inherit lesser of the male or female share, whichever share is smaller, either as male or female while Abdullah bin Abbas (RA) opined that they will get half of the combined shares (both as male and female), hence making it as average share], but no disagreement on the issue that Hijras would have rights of inheritance as discussed above across contemporary Muslim world like in Iran, Iraq, Egypt, Syria, Kuwait etc. and they made provisions to that effect within their national legal regime.
Like Islamic jurisprudence, under the Dayabhaga School (prevailing law in Bangladesh) of Hindu jurisprudence the inheritance rule is also gender-based, and accordingly the same conceive that as Hijras are not categorised either as male or female, they remain excluded from inheriting their ancestral property. But, such rational does not stands in as much as the modern medical science is quite capable of determining the gender by applying medical test on Hijras through 'Chromosome Analysis', thus a human is either a male or female (even if they born with congenital disorder). Moreover, the orthodox jurists of Hindu law are also to some extent more conservative or rather rigid in the sense that they even opine and are eager to consider some congenital and incurable defect of a human (i.e., blindness, deafness, dumbness, absence of a limb/organ and impotency) as enough to exclude them from inheriting property. Other minority religious communities of Bangladesh, i.e. Christians and Buddhists used to follow the Succession Act, 1925 (not having personal laws of their own) and surprisingly here too the share of inheritance is based on gender.
In the preceding discussion, I have categorically showed that it is possible to identify Hijra either as a male or female, except in rare cases of 'khuntha mushkil' when gender may be ambiguous in terms of physique, but that also can be determined easily through medical test of 'Chromosome Analysis' of a human being. Therefore, there seems no problem to determine inheritance of the Hijras in Bangladesh or elsewhere (within British-India) whatever be their religion, cast or creed, unless there is lack of political will of the State which often seems to be the real cause.
Out of dissatisfaction, mistrust and social stigma, the Hijras often consider themselves as outcaste and at times feel lonely due to the agony that they used to bear with them in their up-bearing stages of life not having the opportunity to attend schools, mix with children of the same age and socialise generally in the community like others around them. Be that as it may, can we deny that they are not a part of our humanity and deserve usual treatment like others and thus lead normal livelihood and enjoy minimum social respect? I wonder whether law and for that matter, sovereign political will be enough without social empathy?
The writer is Professor and Dean, School of Law, BRAC University.