The 2017 NCRB report suggests a 23% increase in cases of human trafficking since 2016. However, while the total data availability regarding victims of human trafficking has been consistent over three years (2015- 17); the details and categorisation of the victims of trafficking are largely binary in nature. While the report has included the reportage of cases of abduction of trans children as another category; there is no such categorisation which can be seen in the case of adults who have been victims of trafficking over the years.
The UNODC(United Nations office of Drugs and Crimes) studies define trafficking as “an action” which constitutes recruitment, transportation, transfer, harbouring or receipt of persons. It also specifies the “means by which this action is achieved” to be through an agency of force or through a place of vulnerability for the victim. It also includes an exchange of payments in order to receive consent of a person under another’s control. Additionally, the purpose of the act and/ or means is included in the definition of victims. According to Article 3 of Trafficking in Persons Protocol, ‘purpose’ constitutes “the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.” All these conditions are imperative for an act to be constituted as human trafficking.
However, there are special exclusions made for determining a case of trafficking where children are concerned. In such cases there is no necessity for the presence of the element of ‘means’. The UNODC studies on trafficking provide a structural framework for defining the profiles of victims of human trafficking. These studies which have been undertaken by the UNODC regarding human trafficking associate the victims with characteristics of exploitation, vulnerability and consent. While the main focus of the study are women and children who have been victims of trafficking, the studies cited refer to the association of victims to certain characteristics mentioned above which make them prone to exploitation in this regard.
Notably, while there are special definitions and provisions for vulnerable groups involved in cases of human trafficking, there is gross ignorance of the transgender community and their protection when such a form of exploitation is concerned. The shortcomings of the structural institutions of India in recognising these unique vulnerabilities of this community, much less addressing them has exposed the transgender community to exploitation.
The consent of the victim is considered irrelevant when any of the stipulated ‘means’ are used. Therefore, it may be assumed that notwithstanding the financial vulnerablities of a victim of trafficking who particularly identifies as transgender; their social standing in relation to their identity is threatening for their safety.
In this perspective, the policies which affect the transgender community and their overall standing in the Indian society play critical roles in determining their standing and vulnerability in cases of human trafficking.
As is apparent from the NCRB data the 418 out of 3,05,267 people who were missing identified as transgender, while 103 children (below 18 years of age) out of 63,349 children who were missing identified as transgender (see figure). Earlier (2016 and 2015) NCRB reports where transgender victims were only included in the footnotes or as part of the statistics for women. This is a step forward in the reportage of statistics in inclusion of the identity while reporting crimes. Additionally, it is also indicative of the importance of the government’s addressal of the problem.
In 2018, The Anti-Trafficking Bill 2018 was passed in the parliament. This bill is being considered to have endangered the rights of the people of the transgender community. According to the provisions of this bill, sex work, which is known to be one of the main sources of income for individualswho identify as transgender, would be punishable under the law. Additionally, the Bill does not draw distinctions between consenting sex work and trafficking. This may lead to exploitation of consensual sex workers, for whom this may be the primary source of income.
Additionally, even for the victims of trafficking, the immunity which is provided by law is only for those who face serious sentences (eg. imprisonment of more than 10 years or death); and the burden of proof for offences committed under coercion lies with the victim.
LGBTQ activist Vikramaditya Sahai cited concerns of the bill leading to criminalisation of trans-identities. This is owing to the provisions which “prescribe life imprisonment for trafficking leading to AIDS or begging or injecting hormones” thus exposing the community to an increased violence.
As is mentioned above, the vulnerabilities of the transgender community fall outside of the binaries of gender, as much as they are inclusive of the vulnerabilities of the common man in a socially vulnerable position. In spite of having been visibly present and active part of the society in the country for ages, it is evident that the transgender community is one which is not very well accepted, respected, protected or even considered a part of the Indian society.
This is apparent in the recent Transgender Persons Act of 2019. This bill has created a stir in the community owing to its derogatory nature concerning the rights and recognition of people who identify as transgender. This bill is being claimed to not only not recognize, but criminalize this identity. Such judgements not only possess a threat of reversing the rights which were enshrined in the NALSA judgement, but also require bureaucratic procedures to affirm how individuals choose to identify. Thus the welfare provisions which were earlier reserved for them are now rendered meaningless.
Therefore, the Transgender Persons (Protection of Rights) Act, 2019 has made the people in the transgender community more vulnerable than they used to be. This not only exposes, but also often compels them to resort to alternate means of income like begging, sex work and the likes.