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How 3 bills violate the rights of the very people they seek to empower

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Breaking down the possible impact of three crucial bills, if passed.

Why are activists calling for three bills pending before the Rajya Sabha to be sent to a Select Committee? The three bills are the Transgender Persons (Protection of Rights) Bill, 2018, the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018, and the Surrogacy (Regulation) Bill, 2018. And all three violate the rights of the very people they seek to empower.

Here’s a closer look at the bills and what impact they will have if passed.

The Transgender Persons (Protection of Rights) Bill, 2018

What the bill says Impact
Its definition of ‘transgender’ is incomplete, it subsumes the intersex identity into the trans identity Onus will be on the individual to prove that they fall within the ambit of the law.

 

A distinction between transgender, intersex, and gender non-conforming people is necessary to cater to their individual needs.

A District Screening Committee will decide whether a person is transgender, and based on this will allow them to change their documents only to say that they are transgender. If a person identifies as a man or a woman, they will have to go through medical procedures and get a medical certificate in order for this to be officially acknowledged. The presence of the committee is a human rights violation, as gender identity is inherent and cannot be certified externally. Not all transgender people want to claim the legal or gender identity of transgender, and this will force people into getting surgery they do not want or cannot afford in order for their documents to reflect their identity.
In case parents or immediate family is unable to “take care” of a trans person (age not specified), they must be sent to a rehabilitation home. This is a denial of individual autonomy and agency to an adult trans person. It forces a gender nonconforming child to stay within a family that may likely be a site of violence and/or enforcement of assigned gender.

 

It criminalises any person who assists or shelters a trans person running away from family, and chosen family.

No opportunities in education, employment or healthcare. No affirmative action on the basis of gender or caste. Further marginalisation.
Quantum of punishment for harm/injury/endangerment against trans persons (including physical and/or sexual violence) less than that of violence against cis women. This is not a sufficient deterrent, and is discriminatory.
It criminalises anyone who “compels or entices a transgender person to indulge in the act of begging”. It criminalises a traditional form of employment for certain communities.
“No suit, prosecution or other legal proceeding shall lie against the appropriate Government or any local authority or any officer of the Government in respect of anything which is in good faith done or intended to be done in pursuance of the provisions of this Act and any rules made thereunder.” This holds scope for immense abuse.

 

The Surrogacy (Regulation) Bill, 2018

What the bill says Impact
Surrogacy to be made available only to heterosexual, married couples. Excludes queer people, single people, people in live-in relationships; does not address trans persons. Reinforces the idea that only straight and married people can make up a legitimate family.
Bans commercial surrogacy and only allows for “altruistic” surrogacy by a close relative of the intending couple. Commercial surrogacy will be fined and punishable by law. This constitutes a loss of livelihood option and denies individual autonomy and agency.

Women’s reproductive work seen as not deserving of compensation.

Commercial surrogacy will go underground and become more exploitative, not less.

Permits surrogacy only for couples who cannot conceive a child and does not allow for any other medical conditions that could prevent birth. This is ableist as there are many other situations where someone may not be able to conceive a child, including chronic illness and debilitating health conditions. It also presumes that only cis women have reproductive ability.
Intending parents should have no surviving children (biological or adopted or surrogate), except if the child is disabled or suffers from a life-threatening disorder. Ableist; will reinforce stigma and discrimination.
Authorisation of the appropriate authority is mandatory for an abortion to be done during the period of surrogacy. Violates reproductive rights. There is no stipulated time limit, so the people concerned could be kept waiting indefinitely.
If surrogacy occurs in circumstances other than those allowed, then it will be assumed that the surrogate was forced to do it. Denies agency of surrogate and presumes that surrogate is always a victim.
The child cannot be genetically related to the surrogate. Surrogate will be forced to go through highly invasive medical procedures.

 

The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018

What the bill says Impact
The bill has an unclear relationship with already existing laws around trafficking and bonded labour in the country. Important definitions such as forced labour are missing from the bill. It is unclear why this bill was needed in the first place, and its presence causes unnecessary confusion.
District Anti-Trafficking Committees shall have the final authority to dispose of cases for the protection, treatment and rehabilitation of victims. In cases of voluntary sex workers falsely rescued as trafficked persons, they will have to prove in courts of law that they are not trafficked.
The anti-trafficking police officer or unit is empowered to remove an individual in “imminent danger to life and person” from any place or premises and produce them before a magistrate or child welfare committee. The magistrate may send the (adult) victim to a rehab home. If the person makes an application for release, the magistrate may reject it on the grounds that it has not been made voluntarily. Adults have a right to decide what to do with their lives and bodies. This provision enables the conflation of trafficking with voluntary sex work and denies the person who has been “rescued” the right to speak for themselves.
The person may be repatriated across borders or to state of origin or committed to long-term rehabilitation as per a plan prepared by the person in charge of the rehab home. This is a violation of the right to freedom of movement.

In addition, the raid and rescue approach empowered by this bill has seen much documented police violence towards sex workers. Abuse of persons within rehabilitation homes, particularly sexual violence, has also been well documented.

It has a provision for freezing of bank assets and sealing of places used for “purposes of trafficking”. Persons can be evicted from any place merely on the premise that it may be used for exploitation. This gives a lot of power to the state to remove any person from any premises and detain them. It is unclear how they will establish that a place may be used for exploitation, as exploitation occurs in countless spaces, including homes and organised workplaces.

 

Shreya Ila Anasuya is a writer, independent journalist, and the managing editor of Skin Stories at Point of View; Brandt D’Mello, a trans person, feminist and freelance editor, deposed before the Parliamentary Standing Committee appointed for the Transgender Bill.

(This is an updated version of the original piece.)

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