The Fight Against Sex Selection

Deepali Gaur Singh

Increased international exposure of sex selective abortions in India is leading the first female president to pledge reform. Will this be any different than laws already on the books, or just more control over women's lives?

This is the third post in a series of articles examining sex-selective abortion in India, by our Global Perspectives correspondent Deepali Gaur Singh.  For the complete series, please click here.

“We must banish malnutrition, social evils, infant mortality and female feticide” is what India’s first woman president (in sixty years since independence) had to say at her investiture ceremony as she promised to bring an end to the "widespread practice of aborting female fetuses."

While many do hope that the new president will manage to bring about a more comprehensible shift in focus to issues of particular importance to women, what is especially crucial is how she negotiates this path. The reality of the situation is that the government has introduced one failed scheme after the other and the state of affairs only seems to be worsening. Early this month police recovered over a dozen female fetuses packed in plastic containers from a drain near a medical diagnostic and ultrasound clinic, in Bhubaneswar (the capital of the eastern state of Orissa) very close to the residence of Chief Minister of the state, Naveen Patnaik. Bangalore’s image as the IT hub almost took a beating when several fetuses packed in gunny bags were found dumped in a ground in the heart of the city.

However, preliminary investigations do not point to a case of sex-selective abortions since a majority of the fetuses were male. One almost heard a collective sigh of relief. And that is the tragedy of the situation — the lopsided sex ratios and frequent discoveries of female fetuses are being understood more as a matter of national and international embarrassment rather as a tragedy borne out of deeply entrenched gender-discriminating value systems. Even as the rather regressive cradle, or palna, scheme (in which the government will take responsibility for raising unwanted daughters) does more for institutionalizing the practice of abandonment of the girl child than anything else, has yet to take off.

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The Minister for Women and Child Development (WCD) has come up with yet another scheme which she, with the support of the Union Health Minister, intends to introduce in Parliament soon. The Bill, if passed, would make it mandatory for public and private health centers to register their operations in a centralized record under the Clinical Establishment Act. The new scheme will create a databank of all pregnant women. Meant to put a stop to illegal sex-selective abortions, this system would also put the reproductive health of the women at such critical risk. If the patterns of sex-selective abortions are anything to go by, then the new law is doomed to fail. Laws, albeit quiescent, like the Integrated Child Development Scheme (ICDS) and Pre-natal Diagnostic Techniques Act (PNDT) and the Registration of Births and Deaths Act 1969 with similar objectives, already exist.

Do we really need another such a law? Is the new law going to be yet another census that the government is introducing apart from the pre-existing ones? The more important question is how many doctors abetting sex-selective abortions have been prosecuted? Having a law in place that makes determination of the sex of the fetus a crime evidently is not enough. Does the law have enough teeth to ensure that the law breakers are punished?

While the minister is armed with alarming statistics on sex-selective abortions and the skewed sex ratio to justify every new scheme, what does the government have to show in terms of prosecutions of the erring doctors and clinics? Most flourishing doctoral practices dealing with natal and pre-natal care are running on the single-handed earnings of sex-selective abortions reflecting the extent people are willing to pay to have the choice of bringing up a male child but not a female. Sex-selective abortions are a part of the social set-up and have little to do with whether the woman had much of a say in the matter in the first place.

With already very limited agency within her marital home, with regard to child bearing and rearing, monitoring pregnancy by the state will become yet another tool to take away whatever little control has remained with women, especially with regard to birth control. More often than not, whether the girl child is to be borne is a not a choice that the pregnant woman makes but a choice that is made for her by the immediate and extended members at her marital home. “Abortion will be allowed when there must be an acceptable and very strong valid reason,” according to the minister.

So the minister wants women to provide "valid and acceptable reasons" for an abortion. And who decides that the reason is valid enough? The registration of pregnancy moves into the realm of the contentious issue of privacy and hence is not just intrusive but also a coercive measure. The ministry would do better to look into the root cause of female feticide rather than entering a personal domain as the basic tenets of the law threaten to rob from women even the little independence that they were able to exercise when it came to themselves and their bodies.

The distorted sex ratio has to be seen within the context of bigger social problems and state control or monitoring is not going to change the distorted, prejudicial value structures that these practices are hinged upon.That an ostensibly educated, elite medical fraternity is not averse to breaking the law and disclosing the gender of the fetus and facilitating a sex-selective abortion is what should be of graver concern. Another law will only place women at greater risk by further forcing abortions into the hands of quacks operating out of make-shift, ill-equipped clinics in decrepit gallis (back alleys).

The mindset against the girl child is still negative and this cuts across the socio-economic spectrum. And so it's hardly surprising that in many families with daughters even the blueprint for rearing a girl child tends to vary from that of a boy. Rather than give people the legitimized space to abandon their daughters advocacy programs undertaken at the policy level need to be taken out of the files of the government offices down to the grassroots.

In introducing the palna scheme the minister seems to have buckled in acceptance that it is tougher to change age-old social norms and beliefs and prejudices and much easier for the state to rear the girl child while boys enjoy the privilege of biological families and homes.

Roundups Law and Policy

Gavel Drop: The Fight Over Voter ID Laws Heats Up in the Courts

Jessica Mason Pieklo & Imani Gandy

Texas and North Carolina both have cases that could bring the constitutionality of Voter ID laws back before the U.S. Supreme Court as soon as this term.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts

Texas Attorney General Ken Paxton intends to ask the U.S. Supreme Court to reinstate the state’s voter ID law.

Meanwhile, according to Politifact, North Carolina attorney general and gubernatorial challenger Roy Cooper is actually saving taxpayers money by refusing to appeal the Fourth Circuit’s ruling on the state’s voter ID law, so Gov. Pat McCrory (R) should stop complaining about it.

And in other North Carolina news, Ian Millhiser writes that the state has hired high-powered conservative attorney Paul Clement to defend its indefensible voter ID law.

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Alex Thompson writes in Vice that the Zika virus is about to hit states with the most restrictive abortion laws in the United States, including Alabama, Louisiana, Mississippi, and Texas. So if you’re pregnant, stay away. No one has yet offered advice for those pregnant people who can’t leave Zika-prone areas.

Robin Marty writes on Care2 about Americans United for Life’s (AUL) latest Mad Lib-style model bill, the “National Abortion Data Reporting Law.” Attacking abortion rights: It’s what AUL does.

The Washington Post profiled Cecile Richards, president of the Planned Parenthood Federation of America. Given this Congress, that will likely spur another round of hearings. (It did get a response from Richards herself.)

Kimberly Strawbridge Robinson writes in Bloomberg BNA that Stanford Law Professor Pamela Karlan thinks the Supreme Court’s clarification of the undue burden standard in Whole Woman’s Health v. Hellerstedt will have ramifications for voting rights cases.

This must-read New York Times piece reminds us that we still have a long way to go in accommodating breastfeeding parents on the job.

Analysis Law and Policy

Federal Court Says Trans Worker Can Be Fired Based on Owner’s Religious Beliefs

Jessica Mason Pieklo

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

When the U.S. Supreme Court ruled in 2014 in Burwell v. Hobby Lobby that the owners of secular for-profit businesses could challenge laws they believed infringed on their religious liberties, civil rights advocates warned that the decision was just the start of a new wave of litigation. On Thursday, those predictions came true: A federal district judge in Michigan ruled that a funeral home owner could fire a transgender worker simply for being transgender.

The language of the opinion is sweeping, even if the immediate effect of the decision is limited to the worker, Aimee Stephens, and her boss. And that has some court-watchers concerned.

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

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According to court documents, Stephens, an employee at Detroit’s R.G. & G.R. Funeral Homes, gave her boss—the business’ owner—a letter in 2013 explaining she was undergoing a gender transition. As part of her transition, she told her employer that she would soon start to present as a woman, including dressing in appropriate business attire at work that was consistent both with her identity and the company’s sex-segregated dress code policy.

Two weeks later, Stephens was fired after being told by her boss that what she was “proposing to do” was unacceptable and offensive to his religious beliefs.

In September 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Stephens, arguing the funeral home had violated Title VII of the federal Civil Rights Act, which prohibits employment discrimination. According to the EEOC, Stephens was unlawfully fired in violation of Title VII “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Title VII of the Civil Rights Act allows those employees who have been discriminated against in the workplace to collect money, known as civil damages. Those damages usually come in the form of lost wages, back pay, and funds to make up for—to some degree—the abuse the employee faced on the job. They are also designed to make employers more vigilant about their workplace culture. Losing an employment discrimination case for an employer can be expensive.

But attorneys representing Stephens’ employer argued that the Religious Freedom Restoration Act (RFRA) protected their client from legal liability for firing Stephens. On Thursday, a federal court agreed. It said that paying such damages for unlawfully discriminating against an employee could amount to a substantial burden on an employer’s religious beliefs. 

According to the court, despite the fact that Stephens’ boss admitted he fired her for transitioning, and despite the fact that the court found this admission to be direct evidence of employment discrimination, RFRA can be a defense against that direct discrimination. To use that defense, the court concluded, all the funeral home owner had to do was assert that his religious beliefs embraced LGBTQ discrimination. The funeral home had “met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” the court wrote.

In other words, Hobby Lobby provides employers a defense to discriminating against LGBTQ people on the basis of religious beliefs.

“The RFRA analysis is extremely troubling, and the implications of it [are] as well,” said Knight. “I believe this is the first case applying RFRA to a Title VII claim with respect to nonministerial employees.”

If the scope of the opinion were broader, Knight continued, “this would allow [employers in general] to evade and refuse to comply with uniform nondiscrimination law because of their religious views.”

This, Knight said, is what advocates were afraid of in the wake of Hobby Lobby: “It is the concern raised by all of the liberal justices in the dissent in Hobby Lobby, and it is what the majority in Hobby Lobby said the decision did not mean. [That majority] said it did not mean the end of enforcement of nondiscrimination laws.”

And yet that is exactly what we are seeing in this decision, Knight said.

According to court documents, Stephens’ boss has been a Christian for more than 65 years and testified that he believes “the Bible teaches that God creates people male or female,” that “the Bible teaches that a person’s sex is an immutable God-given gift, and that people should not deny or attempt to change their sex.” For Stephens’ former boss, Stephens’ transition to a woman was “denying” her sex. Stephens had to be fired, her boss testified, so that he would not be directly complicit in supporting the idea that “sex is a changeable social construct rather than an immutable God-given gift.”

If the “complicit in denying God’s will” sounds familiar, it should. It has been the exact argument used by businesses challenging the birth control benefit of the Affordable Care Act. Those business owners believe contraception is contrary to God’s will and that complying with federal law, which says birth control should be treated in insurance policies as any other preventive service, makes them complicit in sin. Thursday’s decision cites Hobby Lobby directly to support the court’s conclusion that complying with federal nondiscrimination law can be avoided by asserting a religious objection.

Think of the implications, should other courts follow this lead. Conservatives have, in the past, launched religious objections to child labor laws, the minimum wage, interracial marriage, and renting housing to single parents—to name a few. Those early legal challenges were unsuccessful, in part because they were based on constitutional claims. Hobby Lobby changed all that, opening the door for religious conservatives to launch all kinds of protests against laws they disagree with.

And though the complaint may be framed as religious objections to birth control, to LGBTQ people generally, and whatever other social issue that rankles conservatives, these cases are so much more than that. They are about corporate interests trying to evade regulations that both advance social equity and punish financially those businesses that refuse to follow the law. Thursday’s opinion represents the next, troubling evolution of that litigation.

CORRECTION: This article has been updated to clarify John Knight’s position with the American Civil Liberties Union of Illinois.

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