This letter to India’s Ministry of Social Justice and Empowerment concerning the Rights of Transgender Persons Bill has been reproduced from the Sampoorna Blog [original linked here]
Sampoorna Working Group Response to MSJE’s Rights of Transgender Persons Bill, 2015
January 5, 2016
Sampoorna Working Group
Dear Smt Ghazala Meenai,
Joint Secretary (SD),
Room No. 616,
This document has been structured as follows:
1. Overall comments
2. Key points
3. Chapter-wise comments
1. The time frame allocated to us for giving feedback has been extremely short. This does not allow for extensive and comprehensive group processes to be undertaken and compromises the quality of our feedback to you. We request that a reasonable period, of atleast 4 weeks, be allocated as extension to the current deadline.
2. Certain existing judgments and reports are not comprehensively reflected by the current TG draft bill. Some of these documents are, the Supreme Court judgment relating to the rights of transgender persons, the MSJE Expert Committee Report and the TG Bill of DMK member of parliament, Mr Tiruchi Shiva. It will be a great loss to go ahead with the current draft without benefitting from the achievements of these documents.
1. We strongly believe that the Bill should be expanded to include intersex people. All intersex people face acute issues like lack of access to healthcare, education, employment and face violence, stigma and discrimination at multiple levels. Moreover, there are people with intersex variations who also identify as transgender. We recommend that the bill be renamed THE RIGHTS OF TRANSGENDER AND INTERSEX PERSONS BILL.
2. We recommend self-identification for legal gender recognition of transgender and intersex persons. This self-identification can be done through notarised legal affidavits which can then be used to change legal gender markers on all identity cards including, but not limited to, educational certificates, ration cards, driving license, PAN cards, passports etc.
3. For claiming state benefits, we propose a 2-step procedure towards transgender & intersex recognition. The first is the issuing of a diagnosis of being transgender and/or intersex, by an appropriate medical professional. This is a [diagnosis] certification, mentioned in this document
as: TRANSGENDER/INTERSEX [DIAGNOSIS] CERTIFICATION, or simply, the TRANSGENDER/INTERSEX CERTIFICATION.
The second is the issuing of a transgender identity/intersex card, that will be a document to be issued only by the appropriate state authority, mentioned in this document as TRANSGENDER IDENTITY/INTERSEX CARD. Following this:
3A. We strongly de-recommend the issuing of a TRANSGENDER/INTERSEX CERTIFICATION, by any state authority or any trans or intersex group, including the TG Welfare Board. It will lead to the setting up of gatekeepers and power brokers at multiple levels, both within the state mechanisms and the trans/intersex communities.
We recommend, as is the international practice, that the only person/s authorized to issue a TRANSGENDER [DIAGNOSIS] CERTIFICATION, is a mental health professional and the only person/s authorized to issue a INTERSEX [DIAGNOSIS] CERTIFICATION, is the appropriate medical professional [endocrinologist/gynecologist/urologist]. The Bill should therefore aim at ensuring mental health professionals and appropriate medical professionals for intersex persons in government hospitals, with special training in the best practices, as recommended by WPATH, the World Professional Association of Transgender Health and the use of non-pathologising diagnostic frameworks for trans and intersex people.
3B. We strongly de-recommend the issuing of a TRANSGENDER IDENTITY/INTERSEX CARD, by any trans/intersex group, including the TG Welfare Board. It will similarly lead to the setting up of gatekeepers and power brokers at multiple levels within the trans and intersex communities.
We recommend that the TRANSGENDER IDENTITY/INTERSEX CARD be issued to self-identified trans persons having the TG [Diagnosis] Certificate and to intersex people having that diagnosis from the appropriate medical professional, by central and state government appointed authorities alone. These ID cards can be utilized for accessing state benefits including reservations.
4. Additional chapters:
Health is a huge concern for trans and intersex people. We recommend that a separate chapter on health be brought into the bill that fully addresses trans and intersex healthcare as well as general healthcare for these communities.
Another additional chapter we recommend is on sports, given the rampant discrimination and lack of international guidelines trans and intersex sports people face in the country.
5. In Chapter 7 – DUTIES AND RESPONSIBILITIES OF APPROPRIATE GOVERNMENT, ‘Awareness raising’ was the only area covered. We believe that formulating & implementing legal protections and safeguards for trans and intersex people is one of the prime duties of the appropriate government and have included these in this feedback.
6. We recommend that all trans and intersex people be considered socially backward and affirmative action be sought in education and employment. Special consideration in terms of benefits and affirmative action be given to trans and intersex people who are SC/ST/OBC and a mechanism be instituted for issuing caste certificates for trans and intersex people who leave home young.
CHAPTER 1- PRELIMINARY
We find that the definitions given in the draft bill are not comprehensive or exhaustive enough and therefore will, in turn, adversely affect the contents, interpretations and implementation of the same. We strongly believe that a national level transgender bill should attempt to encompass and reflect broad definitions with a strong vision of change.
1. HUMAN RIGHTS
(h) ‘human rights’ shall have the meaning assigned to it in Clause (i) of Section 2 of the Protection of Human Rights Act, 1993;
‘Human Rights’ shall have the meaning assigned to it in both, the Clause (i) of Section 2 of the Protection of Human Rights Act, 1993, as well as, the Universal Declaration of Human Rights [UDHR], 1948, of which India was not only a signatory, but also an active drafting member.
2. (p) `rehabilitation’ refers to a process aimed at enabling transgender persons to attain and maintain maximum independence, full physical, sensory, intellectual psychiatric, social and vocational ability, and inclusion and participation in all aspects of life
The above description is inaccurate, discriminatory and pathologising. Instead of focusing on criterions like full physical, intellectual, psychiatric, social and vocational ability, rehabilitations should be conceived of as the removal of barriers that mainstream society has placed in the way of the trans and intersex communities, leading to their historical disenfranchisement. The very idea of ‘rehabilitation’ comes from outdated disability discourses and in the given context is misapplied since it is clear that such a conceptual framework cannot make for a desirable social & political strategy.
Remove the framework of ‘Rehabilitation’ and replace it with ‘Transgender & Intersex Inclusion in Society’.
3. (r) Stigma against Transgender Persons refers to devaluing of transgender- identified or gender non-conforming people, and negative attitudes toward and lower levels of status accorded to non-cis-gender identified people and communities.
Stigma against transgender and intersex persons refers to the labeling, stereotyping, status loss and discrimination, exercised by those who hold power, and has a bearing on the life chances of trans*, intersex and gender non- conforming people, seriously impacting their access to education, health [including sexual and reproductive health], employment, housing, formation of families and life itself.
4. TRANSGENDER PERSON
(s) ‘Transgender Person’ means a person, whose gender does not match with the gender assigned to that person at birth and includes trans-men and trans-women (whether or not they have undergone sex reassignment surgery or hormone therapy or laser therapy etc.), gender-queers and a number of socio-cultural identities such as — kinnars, hijras, aravanis, jogtas etc. A transgender person should have the option to choose either ‘man’, ‘woman’ or ‘transgender’ as well as have the right to choose any of the options independent of surgery/ hormones.
TRANSGENDER PERSON, INTERSEX PERSON
‘ Transgender Person’
Transgender Person’ means a person whose gender identity and/or expression challenges the existing medical framework that co-relates sex and gender in a one-to-one manner. These include intersex persons, transmen, transwomen, gender-non conforming persons, gender-queers, hijras, kinnars, aravanis, jogtas and others.
The current medical system conceives of sex as binary, i.e. male and female. Anything that cannot be clearly understood as either of these two categories, is seen as intersex. Intersex is always congenital. In such a context, an ‘Intersex Person’ is one whose biological attributes, primary and/or secondary sexual characteristics maybe comprised of both the medical sex categories of male and female, or have only some of these attributes that are considered medically necessary to be defined as one or the other sex.
A ‘Transgender person’ and an ‘Intersex person’ should have the right to self- identify their gender and should be free to choose between any of the gender categories: Man, Women, Transgender. This choice should be available independent of both, the sex of the person, i.e. male, female, intersex, as well as any gender affirming procedure [popularly understood as sex reassignment] through surgery and/or hormones.
CHAPTER 2- TRANSGENDER IDENTITY
IDENTIFICATION OF TRANSGENDER PERSONS
1. Transgender should be declared as the third gender, and a Transgender Person should have the option to identify as ‘man’, ‘woman’ or ‘transgender’ as well as have the right to choose any of the options independent of surgery/hormones. Only the nomenclature ‘transgender’ should be used and nomenclatures like ‘other’ or ‘others’ should not be used.
There is an inherent contradiction in this statement. In this document, as well as in the NALSA judgement, it has been stated unequivocally that the transgender person should have the right to self-identity, i.e. the transgender person can self-identify as male, female, transgender/third gender. While maintaining this, the state cannot simultaneously propose that all transgender persons be declared as a third gender. This proposal is against the very right to self-identity, already granted under the law of the land.
A ‘Transgender/Intersex person’ should have the right to self-identify their gender and should be free to choose between any of the gender categories: Man, Woman, Transgender/third gender. This choice should be available independent of both, the sex of the person, i.e. male, female, intersex, as well as any gender affirming procedure [popularly understood as sex reassignment] through surgery and/or hormones.
For the gender category ‘Transgender’/’Third Gender’, the currently used equivalent, ‘Other/s’ should be discontinued.
2. Certificate that a person is a transgender person should be issued by a state level authority duly designated or constituted by respective the State/UT on the lines of Tamil Nadu Aravanis Welfare Board, on the recommendation of a District level Screening Committee headed by the Collector/District Magistrate and comprising District Social Welfare Officer, psychologist, psychiatrist, a social worker and two representatives of transgender community and such other person or official as the State Govt/UT Administration deems appropriate.
For claiming state benefits, we propose a 2-step procedure towards transgender & intersex recognition. The first is the issuing of a diagnosis of being transgender and/or intersex, by an appropriate medical professional. This is a [diagnosis] certification, mentioned in this document as: TRANSGENDER/INTERSEX [DIAGNOSIS] CERTIFICATION, or simply, the TRANSGENDER/INTERSEX CERTIFICATION.
The second is the issuing of a transgender identity/intersex card, that is a document to be issued only by the appropriate state authority, mentioned in this document as TRANSGENDER IDENTITY/INTERSEX CARD. Following this:
1. We strongly de-recommend the issuing of a TRANSGENDER CERTIFICATION, by any state authority or any trans group, including the TG Welfare Board. It will lead to the setting up of gatekeepers and power brokers at multiple levels, both within the state mechanisms and the trans communities.
We recommend, as is the international practice, that the only person/s authorized to issue a TRANSGENDER [DIAGNOSIS] CERTIFICATION, is a mental health professional and the only person/s authorized to issue a INTERSEX [DIAGNOSIS] CERTIFICATION, is the appropriate medical professional [endocrinlogist/gynecologist/urologist]. The Bill should therefore aim at ensuring mental health professionals and appropriate medical professionals for intersex persons in government hospitals, with special training in the best practices, as recommended by WPATH, the World Professional Association of Transgender Health and the use of non-pathologising diagnostic frameworks for trans and intersex people.
2. We strongly de-recommend the issuing of a TRANSGENDER IDENTITY/INTERSEX CARD, by any trans/intersex group, including the TG Welfare Board. It will similarly lead to the setting up of gatekeepers and power brokers at multiple levels within the trans and intersex communities.
We recommend that the TRANSGENDER IDENTITY/INTERSEX CARD be issued to self-identified trans persons having the TG [Diagnosis] Certificate and to intersex people having that diagnosis from the appropriate medical professional, by central and state government appointed authorities alone.
These ID cards can be utilized for accessing state benefits including reservations.
3. The certificate issued should be acceptable to all authorities for indicating the gender on official documents like ration card, passport, birth certificate, aadhaar card, etc.
The certificate issued should be acceptable to all authorities for indicating the ‘gender’ on all official documents including but not limited to, ration card, voter-id card, aadhar card, passport, PAN card, driving license, birth certificate, school leaving certificate, college certificate and banking documents.
Special instructions to be issued to District Supply Officer/District Food and Supplies Controller/Assistant Food and Supplies Officer/Inspector Food and Supplies in all regions to stop the practice of displaying both the previous name as well as the new name on ration cards (For example: Sukanya Alias Govind). Only the new name to be displayed on the ration cards.
CHAPTER 3 – RIGHTS & ENTITLEMENTS
7. The appropriate Government and local authorities shall take all necessary measures to ensure that transgender and intersex children enjoy human rights on an equal basis with other children and also ensure that they have the right to freely express their views on all matters affecting them on equal basis with other children.
The wording ‘transgender children’ needs to be expanded to include ‘transgender and gender-nonconforming’ children.
8. (2) No person shall be deprived of his personal liberty only on the ground of being a transgender and intersex.
No person shall be deprived of his/her/their personal liberty only on the ground of being transgender.
Applicable similarly to Subsection 10 of this Chapter III
11. The appropriate Government and local authorities shall take all appropriate administrative and other measures to protect persons from being subjected to torture, or cruel, inhuman or degrading treatment or punishment.
Specify persons as ‘transgender and intersex persons’
12. (4) Necessary amendments in IPC to cover the cases of sexual assault on Transgender Person.
Amendments to the IPC to expand the category of victim/survivor to include the wide spectrum of trans identities/expressions and intersex persons that exist in society.
12 (8) Criminal and disciplinary action against delinquent police official in cases of violation of human rights of Transgender Persons.
Criminal and Disciplinary (Departmental Proceeding, show cause, suspension, transfer – need to specify?) against all state actors – and not just police officials.
13. (1) No child who is a transgender shall be separated from his or her parents on grounds of being a transgender except on an order of competent Court, if required in the best interest of the child.
The intent of this section needs discussion. How is ‘parent’ defined – what structures of kinship are being defined/ held up especially as the definition of family is given as: “Explanation—‘Family’ means a group of people related by blood, marriage or adoption to the Transgender Person. What about adoption of transgender/ intersex children? What about Transgender persons willing to adopt Transgender/ Intersex children? What about the Hijra family?
CHAPTER 4 – EDUCATION
1. Special focus has to be brought to school education for trans & intersex students since many are reported to drop out due to hostile environment, harassment and discrimination amongst other reasons.
2. Sensitisation programmes on Trans and intersex issues to be part of syllabus.
3. Strict action to be taken against any institution or person holding a position of authority that is found to be discriminatory to Trans and/or intersex students.
4. Counselling sessions for parents of Trans and intersex kids to help them come to terms with their children’s identity and expression.
5. Teacher trainings on Trans and intersex issues and sensitisation to be done.
6. Affirmative action in education to be extended to Trans and intersex people.
7. Specify the promulgation of text material – inclusion of transgender lives and realities by Syllabus Committees, NCERT et al or any other appropriate bodies at all levels – Secondary, Higher Secondary, College and University levels
– Admission of Transgender and Intersex persons in Educational Institutes at all levels
– Extension of Anti Ragging Legislation and UGC Guidelines for covering Transgender/ Intersex students
CHAPTER 5 – SKILL DEVELOPMENT AND EMPLOYMENT
1. Medical leave to be granted for sex reassignment surgeries in government and private jobs and directions for the same to be issued by the government.
2. Affirmative action to be provided in employment for Trans and intersex people.
3. Amendment to relevant Acts (such as the recent amendment to Factories Act 1948 – Section 66 A for the inclusion of Transgender persons) that guarantee employment or make provisions for employment of transgender persons amendment for extension of welfare schemes / regulating/ promoting safety, protecting against occupational diseases and promoting health and hygiene in the workplace/ Factories for Transgender Persons
– For example Amendment of Sexual Harassment At Workplace (Prevention, Prohibition And Redressal) Act, 2013 to include Transgender and Intersex Persons’ experiences of workplace harassment
CHAPTER 6 – SOCIAL SECURITY, HEALTH, REHABILITATION & RECREATION
1. Healthcare is a major concern in the life of a trans/intersex person. As a result, it deserves an independent and dedicated chapter and should not be clubbed with others like in the current title.
2. Categories of Rehabilitation and Recreation to be removed.
ADDITIONAL CHAPTER – HEALTH
1. All Major Government Hospitals should follow protocols recommended by the World Professional Association for Transgender Health [WPATH], with special attention to the following:
(i) To stop pathologising human bodies through the now outdated diagnostic frameworks that do not fit into the neat biological categories of male and female.
(ii) To stop the requirement of a GID [Gender Identity Disorder] diagnosis as a basis for accessing trans healthcare.
2. The ‘appropriate government’ should host the WPATH meeting in India, at least once in 5 years, to bring the latest in trans healthcare to both the trans communities, as well as, medical professionals working with trans populations.
3. Being a highly interdisciplinary area of work, a Transgender and Intersex Health Department should be established in these hospitals.
(i) Sensitization and training drives to be undertaken in all government healthcare facilities about the special needs of the trans and intersex population w.r.t general health and in medical emergencies.
(ii) Dedicated trans and intersex wards to be established in Government Hospitals.
4. Monitoring and review of this department’s performance should ensure participation of National & State Transgender Commissions.
5. Transgender and intersex health should be incorporated as a subject in medical education, right from the stage of MBBS.
(i) Negligence cases related to transgender and intersex patients to be treated stringently and medical license to be revoked.
(ii) Several psychiatrists have been known to provide false diagnoses and subject their patients to invasive treatments and drug control in order to subdue the person. This is almost always done in collusion with the family and without the patient’s informed consent. Any psychiatrists attempting to “cure” persons of their gender identity and/expression, will be guilty of malpractice and liable to lose their license and this should be made punishable by law.
7. To make the “corrective surgeries” performed on intersex infants illegal.
8. Address the vulnerability of certain Transgender Women Communities to HIV, Hepatitis and Malnutrition as well as Mental health of Trans and Intersex Persons including clinical depression and suicidal tendencies
SEX REASSIGNMENT SURGERY
20(b) sex reassignment surgery, free of cost;
In government hospitals gender affirming procedures, popularly known as sex reassignment procedures, including counseling, surgeries and hormone therapy, to be made free of cost. Costs to be regulated and subsidized in private hospitals and quality of surgeries to be ensured.
1. State Housing should be provided to Trans and intersex people.
2. There must be a free hostel for transgender and intersex persons set up near all major government train and bus hubs in cities to ensure safe accommodation for trans people fleeing their homes.
3. A free government LGBTIH helpline and other emergency services should be provided around the clock and should be well advertised by video and audio messages in rural and urban areas. Emergency telephones to this helpline must also be available at all bus and train stations.
21. REHABILITATION OF TRANSGENDER PERSONS
Remove the framework of rehabilitation/s.
23. Those Transgender Persons who by birth do not belong to Scheduled Caste or Scheduled Tribe may be declared as Backward Class and be entitled for reservation under the existing ceiling of OBC category. Provided that those Transgender Persons who by birth belong to Scheduled Caste or Scheduled Tribe would be entitled or reservation under their respective categories as per the existing Rules.
Since the majority of transgender people are socially disempowered and economically dispossessed, being transgender can be seen as belonging to a backward class. However, when providing benefits and affirmative action, special consideration and reservations to be given to those transgender persons who by birth belong to SC/ST and OBC categories. As a lot of Trans people leave homes without caste certificates when they are very young, provision to be made for these to be issued.
ADDITIONAL CHAPTER – SPORTS
1. Transgender and Intersex people should have equal opportunity to participate in sports.
2. Policies governing transgender and intersex athletes in sports should be based on sound medical knowledge and scientific validity but should also take into account experiential knowledge of transgender people and views of experts on bioethics, gender and sports.
3. Privacy of medical documents of transgender and intersex athletes should be respected. A panel of experts consisting of medical as well as non- medical experts especially, those who work on bioethical issues around sports participation of transgender and intersex people must be created to ensure that athletes are explained pros and cons of any medical intervention enabling them to make informed choices and thus safeguarding athlete’s welfare concerns.
4. Informative and effective educational resources related to transgender and intersex issues must be compiled and made available to sport administrators, staff, athletes and doctors affiliated to Sports Authority of India centres and all national governing bodies of sports.
5. A panel of experts comprising of medical and non-medical people working with transgender and intersex people as well as transgender and intersex athletes and representatives of the communities should be created to formulate a policy for inclusion of transgender and intersex people in sports – a policy that may follow IOC recommendations but must also borrow from best practices in the world in order to provide a progressive model of inclusion.
6. Adequate compensation and alternate government jobs to be provided to transgender and intersex athletes who have suffered loss of employment and livelihood due to their gender identity/intersex status.
CHAPTER 7 – DUTIES AND RESPONSIBILITIES OF APPROPRIATE GOVERNMENT
Request substitution of the term “Transgenderism” in this section as it pathologises Trans identities and persons.
The duty of the appropriate government goes far beyond just raising awareness around Trans issues. Primary amongst its duties would be to ensure implementation of the guidelines of this bill. This implementation will only be possible when specific structural mechanisms are set-up that will allow the government to execute the provisions and will give a platform to the communities to hold their governments responsible. In addition to this, an important duty of the government is to provide legal protections and safeguards to trans and intersex people.
1. Appropriate budgetary allocation to implement the provisions of this bill.
2. The establishment of State and National Transgender Commissions.
3. The censor board to be instructed to disallow material in film and television that portray trans and intersex communities in a negative light.
4. The establishment of fast track special courts for the redressal of complaints by transgender and intersex persons.
5. There must be a comprehensive Anti-Atrocities Act that spells out the rights of transgender and intersex people to gender identity and or expression of their choice and punishes any atrocities against them. The atrocities perpetrated against transgender and intersex persons range from rape, rape by insertion of objects, stripping, mutilation of genitals, by forcibly cutting the hair of trans women, forcibly imposing a dress code, confinement etc. Verbal, physical, sexual and psychological abuse to be brought under the purview of this act and penalised.
6. An Anti-Discrimination Act must enable transgender and intersex people to take legal action against any form of discrimination encountered in pursuing their education, seeking employment, getting access to housing, access to healthcare, access to bathroom space, access to public transport, etc.
7. Acts like the Karnataka Police Act and the Hyderabad Eunuch Act that place the entire transgender community under suspicion and demand their routine reporting to the police act as a vehicle for police harassment to be repealed.
8. Detention places like police stations & prisons to have dedicated units for trans and intersex inmates with proximity to/provision for regular family and community support.
9. Trans and intersex inmates to have access to trans/ intersex and general healthcare and HIV treatment in prisons.
10. State Human Rights Commissions and the National Human Rights Commission [NHRC] to have a dedicated cell for documentation of Human Rights Violation against trans and intersex communities.
11. Complaints about harassment, atrocities, discrimination etc made to the state or national commission for trans and intersex people must ensure the setting up of an enquiry through the police or a state enquiry commission whose evidence or findings will be permissible in a court of law.
12. Any complaint made by a trans or intersex person in any police station should be forwarded to and brought to the notice of the state or/ and national commission for trans people which will then assist the complainant in their complaint, follow up and further proceedings without fear of further victimisation or discrimination.
13. Transgender and intersex people must be handled by women police officers and not by male police officers. The rules about arresting and detaining women at night should strictly apply to transgender people.
14. Trans women should be imprisoned in female prisons. Trans men or gender non-conforming people to have separate cells in women’s prisons to prevent sexual violence.
CHAPTER 3 – RIGHTS & ENTITLEMENTS
12 (2) Any police officer who receives a complaint or otherwise comes to know of abuse, violence or exploitation towards any Transgender Person shall inform the aggrieved person of:
(b) the particulars of the nearest organization or institution working for the rehabilitation of Transgender Person who have been subject to abuse, violence or exploitation;
[b] the particulars of the nearest organization or institution working for transgender and intersex people.
CLARIFICATIONS SOUGHT ABOUT THIS DRAFT
CHAPTER 8- MISCELLANEOUS
This chapter begins with No 5. It seems that this is either mis-numbering, or, the points No 1 – to – No 4, have gone missing.
1. EXISTING TEXT
30. (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removing the difficulty: Provided that no such order shall be made after the expiry of the period of two years from the date of commencement of this Act.
This is not clear. Please elaborate further the following point: Provided that no such order shall be made after the expiry of the period of two years from the date of commencement of this Act.
2. EXISTING TEXT
9. (2) The appropriate Government and local authorities shall take appropriate measures to ensure full enjoyment of the right mentioned in sub-section (1) of section 7 by:—
A section 7, with subsection , is mentioned above. No such section exists in this document.
3. EXISTING TEXT
12 (2) Any police officer who receives a complaint or otherwise comes to know of abuse, violence or exploitation towards any Transgender Person shall inform the aggrieved person of:
(a) the right to apply for protection under sub-section (2) of section
The provision is left unmentioned: ‘subsection  of section……’ Intersex perons to be added to this clause.
12 (5), (6) and (7) are missing.
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