On January 1, 2018, Victor Madrigal-Borloz began his mandate as the UN Independent Expert on Protection against violence and discrimination against violence and discrimination based on sexual orientation and gender identity.
In May 2017, together with Fanny Gómez-Lugo, he contributed to our State-Sponsored Homophobia report, providing insights into recent advances and setbacks for LGB people in the Americas.
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opening image: details from the ILGA overview map - sexual orientation laws in the world (May 2017)
There have been a number of developments in various countries in the Americas related to the human rights of lesbian, gay, bisexual, trans and intersex (LGBTI) people in 2016. This article will only address the rights of lesbian, gay and bisexual populations. In effect, significant advances in the continent were consolidated of which this article focuses on measures of recognition and protection against discrimination. More extensive analysis would reveal progress in other areas such as health, asylum, and employment such as guidance for health professionals in Uruguay, asylum-granting policies in Canada and Uruguay, and employment public policy actions in El Salvador. Despite these gains, there was an increase in the existing gap among the region States’ level of recognition of LGB people’s rights. Even in the States where there were significant advances, anti-rights sectors or leaders generate regression risks.
ADVANCES: REGIONAL LEVEL
OAS AND OTHER MULTI-STATE INITIATIVES
At the Organisation of American States (OAS), in the omnibus resolution adopted by the 46th General Assembly (AG/RES. 2887 XLVI-O/16), commitments on sexual orientation, identity and gender expression were inserted. In particular, the section of this Resolution on torture and other cruel, inhuman or degrading treatment or punishment included SOGI-related language. In turn, the Permanent Council of the organisation commemorated the International Day against Homophobia, Transphobia and Biphobia in its May calendar. Argentina, Brazil, Canada, Chile, Colombia, the United States of America, Mexico and Uruguay founded the OAS LGBTI Core Group, which held several activities in 2016, including an event on LGBT people and human trafficking.
A large number of States in the Americas, as well as regional, multilateral and civil society organisations and the private sector took part in establishing the Equal Rights Coalition to promote human rights of LGBTI people at the international level. The leadership and perseveration of several OAS Member States was also instrumental in the creation of the Independent Expert mandate on protection against violence and discrimination based on sexual orientation or gender identity issues at the United Nations, defending the initiative from attempts made by other groups of States aimed at debilitating the mandate. In turn, over the course of 2016, the World Bank adopted measures to further the work done involving LGBTI people.
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS (IACHR)
On 11 June 2016, a friendly settlement agreement was signed in the Peralta Wetzel case by which Chile admitted responsibility in denying access to civil marriage to three same-sex couples and to legally recognise marriages entered into in other countries. In the agreement, Chile took up significant responsibilities, such as promoting the equal marriage initiative as a matter of legitimate interest in a democratic and inclusive society and the revision of several articles of the Criminal Code. On 3 July 2016, the IACHR requested the adoption of precautionary measures for Juana Mora Cedeño and Mario José Delgado González, based on their complaints reporting the harassment they had suffered as a result of defending LGBT people’s human rights in Cuba.
In December 2016, the IACHR held a public hearing on case 12,982 (Luis Alberto Rojas Marín vs. Peru) regarding the alleged sexual violence and torture of Rojas Marín due to his sexual orientation and related situations involving discrimination and impunity. In this case, there is a discussion of State obligations regarding prevention, investigation and reparation of torture originated in sexual orientation perceptions.
Through the work of its LGBTI Rapporteurship, the IACHR continued to promote the Report on Violence against LGBTI People in the region, issued 23 press releases, sent four (4) letters requesting confidential information to countries in the region, held five (5) thematic hearings, gave training on the Inter-American System and protection standards related to the rights of LGBTI people in several countries in the region addressed to different stakeholders. In addition, it included the perspective of human rights of LGBT people in several thematic and country reports approved or published in 2016.
INTER-AMERICAN COURT OF HUMAN RIGHTS (COURT)
In 2016, the Court issued two sentences related to sexual orientation. In the Duque case (in Spanish only), the Court found Colombia responsible for the violation of the right to equality and nondiscrimination by not allowing Mr. Duque to equally benefit from a survivor’s pension after the death of his partner.
In the Flor Freire case (in Spanish only), the first case on discrimination due to perceived sexual orientation, the Court found Ecuador responsible for applying an administrative sanction based on military disciplinary regulations sanctioning “homosexual acts” with more severity than sexual acts between a woman and a man.
Finally, Costa Rica requested the Court to issue an advisory opinion on the interpretation of the Convention in relation to SOGI-related rights, including on the equity benefits for same-sex couples.
ADVANCES: NATIONAL LEVELS
FAMILIES AND INTER-PERSONAL RELATIONS
Although in the Caribbean the threat of criminalisation is still being faced, in August 2016 the Supreme Court of Justice of Belize declared Article 53 of the Criminal Code unconstitutional. This article criminalises “carnal access against the order of nature” and imposes a penalty of up to ten (10) years of prison. The Supreme Court ruled that the provision violated the right to human dignity, intimacy, freedom of expression, non-discrimination and equality, and excluded consensual sexual acts between adults taking place in private from its scope. In addition, the Supreme Court stated that the definition of “sex” contemplated in article 16.3 of the Constitution of Belize includes “sexual orientation”, in agreement with the international obligations taken up by the country.
The Belizean case is a good example of how jurisdictional actions seem to catalyse other processes of social change. In conversation with the authors, Caleb Orozco, the activist behind the case, points out that the words showing support to this decision by the Prime Minister’s wife and the Presidency of the National Commission on AIDS have caused “oceanic changes” in political thought. Similar observations can be made about other countries in the continent: in Antigua and Barbuda, the Social Transformation Minister spoke in favour of the decriminalisation of sodomy, in Canada and the United States of America, measures were implemented to commemorate and apologise for historical violations, and in Mexico, the participation of the President at the commemoration of the International Day against Homophobia is considered a historical event by some civil society sectors. In conversation with the authors, Josefina Valencia, a Mexican activist, indicates that at different levels of public policy, this event accelerated and triggered the work done by government agencies to guarantee the rights of LGBTI populations.
There were advances in the whole continent regarding the recognition of same-sex couples’ rights: in Aruba, the Parliament passed a law that extended civil union; in Colombia, the Constitutional Court endorsed same-sex marriage and the Office of the Registrar in Bogota authorised the minor daughter of a same-sex couple to be registered; in Costa Rica, in June 2016, the Social Security Governmental Agency (Caja Costarricense del Seguro Social, “CCSS”) agreed to grant survivor pensions to same-sex couples; in Ecuador, de facto partnerships were recognised as “civil status” and same-sex couples were included in the Organic Act of Management of Identity and Civil Data; in the United States, a Wisconsin judge recognised the right of two lesbian women to be registered as mothers in their son’s birth certificate, and in Arizona, presumption of maternity was recognised for both mothers; in Mexico, same-sex marriage was approved in the states of Michoacán, Campeche and Jalisco; and in Peru, the 7° Constitutional Court ordered the National Registry of Identification and Civil Status (RENIEC, as per its Spanish acronym) to register the marriage of a same-sex couple that had been entered into abroad.
In the United States, California approved that country’s first regulatory framework addressed at public schools for the inclusion of the contributions of American LGBT people and people with disabilities in History and Social Sciences classes; and in Peru, the Education Ministry adopted a new national syllabus for lower education aimed at boosting gender equality and respect for people regardless of their sexual orientation and/or gender identity, guaranteeing the same duties, rights and opportunities for all people.
OTHER MEASURES TO PREVENT DISCRIMINATION AND PATHOLOGISATION
In several States of the continent, significant measures were adopted in this regard: in Chile, the Health Ministry took an official stand against the so-called reparative therapies; in Costa Rica, circular No. 003-2016 issued by the Ministry of Justice ordered the modification of regulatory instruments that may incur in discrimination as well as the creation of a protocol to assist sexually diverse people deprived of freedom; in Colombia, the National Penitentiary Institute adopted a pioneer regulation in the region which contemplates direct protection measures for LGBTI people deprived of freedom; and in the United States, a federal judge in Mississippi blocked the implementation of a law that would allow for discrimination based on moral or religious convictions, and in Miami and Seattle measures were adopted against the so-called “conversion therapies”.
In 2016, at least two massacres in gay bars were recorded: in the city of Orlando, in the United States, 49 LGB people lost their lives and in Mexico, five LGB people were murdered at a bar in the city of Xalapa.
The absence of comprehensive statistical information on the violence indexes that affected LGB people in the region continues to be one of the most significant challenges. Even in this lacking context, the figures that are recorded—particularly by civil society organisations—are reason of great concern. For instance, the following murders have been recorded: 340 LGBT people in Brazil, 11 LGBT people in El Salvador and seven LGBT people and human rights advocates in Honduras (see IACH Press Releases 27/16 and 78/16). In other countries, the following murders of LGB people were recorded: two LG victims in Chile (see reports by MOVILH 1 and 2), three LG people—one of them a human rights defender—in Colombia (see reports by Caribe Afirmativo 1 y 2), and two gay men in Jamaica.
On the other hand, one of the paradigmatic advances in terms of systematic violence against LGBT people took place in Colombia with the inclusion of LGBT victims in Peace Agreements signed by the State and FARC-EP guerrilla groups. In communication with the authors, Marcela Sánchez, a Colombian defender, explained:
[f]or the first time in the world, some peace agreements include a gender perspective, place victims at the core of the debate and recognize a differential approach in their texts. In particular, agreements include a clause implying that in the regulatory development of the peace agreements nobody could be discriminated against for their sexual orientation.
DOORS CLOSED AND ATTACKS BY GROUPS AND PEOPLE AGAINST LGB PEOPLE’S HUMAN RIGHTS
Even in the countries showing significant advances, there were concerning regression tendencies and/or attempts to block the recognition of LGBT people’s rights in Brazil, Colombia, Mexico, Guatemala, Peru, Belize and Bolivia.
For instance, with respect to the meeting between the President of Mexico and LGBT activists in May 2016, Josefina Valencia pointed out to the authors that “conservative groups organised large demonstrations and used a vast number of resources to block the advances of LGBTI people and women rights”. Also in communication with the authors, Gloria Careaga added that “the articulation between local conservative forces and international networks has been very strong. Local business groups are also involved and have established a strong position from which to stop any advance”.
The National Congress decision not to support the presidential initiative to formally recognise equal marriage in the whole country was probably the result, among other things, of the opposition by conservative groups that demonstrated openly and massively.
Marcela Sánchez adds that in Colombia, the year 2016 was contradictory, since despite the advances regarding equal marriage and the inclusion in the Peace Agreements, this very same year and perhaps due to the advances that have been taking place throughout the country in the last decade, the existence of an unprecedented anti-rights movement led by evangelic groups wishing to generate regression in education, children rights and peace building in Colombia became evident.
In Argentina, the new administration did not openly oppose LGBTI people’s rights but, Marcelo Ferreyra, an Argentine activist, brought to the attention of the authors the fact that the government “is not willing to make the necessary investments required by public policies”. Even more, it appears to be ready to “tolerate a dissident policy, what has led police repression to worsen, limitations in terms of access to justice or discriminatory prosecutions”.
In a reflection on the importance of coalitions and joining forces, Caleb Orozco from Belize states that
while right-wing forces are everywhere, a social transformation process is going on in which families are not ashamed of supporting and loving their family members… LGBT coalitions in Latin American and Caribbean countries are everywhere and the thematic platform helps… demonstrations are taking place and repressive environments, violence and fear are no longer stopping us from voicing our thoughts… They may kill us, but they won’t stop us!
In 2016, there was significant progress in the recognition of lesbian, gay and bisexual people’s human rights in the Americas. However, violence due to bias against people with diverse sexual orientation continues to be the norm. Focus should be placed on the progress made, managing the great tension generated by regressive forces and processes, and making new breakthroughs.
Fanny Gómez-Lugo is Senior Director for International Advocacy and Policy, Global Initiatives for Human Rights, Heartland Alliance
and Víctor Madrigal-Borloz is the Secretary General of the International Council for Rehabilitation of Victims of Torture.
Particular thanks to Mariel Ortega de los Santos for her contribution to this article, and to the human rights defenders in the region with whom the authors coferred.