Public Communiqué: we urge the Colombian State to immediately address the disappearance of Afro-Colombians exiled in Ecuador after being threatened

Public Communiqué: we urge the Colombian State to immediately address the disappearance of Afro-Colombians exiled in Ecuador after being threatened

Bogotá, Colombia, March 4, 2019 – The International Institute on Race, Equality, and Human Rights (Race & Equality) joins its voice to the denunciation issued by the Asociación Nacional de Afrocolombianos Desplazados [National Association of Displaced Afro-Colombians] (AFRODES) to forcefully and urgently call on the Colombian State to immediately address the disappearance, since February 27 in Quito, Ecuador, of Plácido Tercero Escalante and Ana Gloria Cabezas, Afro-Colombian victims of forced displacement in Colombia and members of FUNDAFRO, an organization affiliated with the National Association of Displaced Afro-Colombians (AFRODES).

Plácido and Ana Gloria were forced to flee Colombia and request asylum in the neighboring country of Ecuador together with their families in January after receiving numerous threats and receiving no protection from Colombian authorities to guarantee their lives and [physical] integrity.

Erlendy Cuero, Vice President of AFRODES, notes that some days prior to their disappearance Ana Gloria and Plácido had denounced seeing in Quito the persons who had threatened them in their own territory, and for that reason were summoned to issue a declaration before the Office of the Public Prosecutor of Ecuador after they had reported their state of risk.  According to what AFRODES reports, since that day the whereabouts of the two popular social leaders have been unknown.

We strongly condemn what has transpired [and] urge the Colombian State to immediately address the situation of defenselessness and lack of guarantees confronted by popular social sectors that are immersed in an ongoing war in territories being fought over by illegal groups.  Likewise, we urge the international community to publicly denounce the systematic state of risk in which Colombia’s ethnic peoples find themselves, as they are particularly impacted by the social, political, and economic conflict faced by the country.  In addition, we urge Colombian State authorities to act promptly in order to find Ana and Plácido alive.

Nicaraguan Delegation Meets with United Nations High Commissioner for Human Rights Michelle Bachelet

The International Institute of Race, Equality, and Human Rights (Race & Equality) facilitated a private meeting on February 1 between 10 representatives of Nicaraguan civil society organizations and United Nations High Commissioner for Human Rights Michelle Bachelet.

In the meeting held in Geneva, Switzerland, Nicaraguan human rights defenders presented a report detailing the grave state of human rights in the country following the persecution of activists, women, journalists, independent media outlets, youth, political prisoners, and human rights defenders by the government of Daniel Ortega and Rosario Murillo.

“We have met with the High Commissioner.  She listened to our requests and expressed her sincere concern regarding the situation in Nicaragua and her commitment to include and note the situation that is transpiring in all of her interventions and contribute in any way she can to bring about improvements in the conditions in the country,” affirmed Ana Quirós, the CISAS human rights defender who was recently arbitrarily thrown out of Nicaragua.  Likewise, Heydee Castillo, Director of the Instituto de Liderazgo de Las Segovias [Las Segovias Leadership Institute], said, “We were able to tell her verbally what we have experienced and what is being experienced by the people of Nicaragua, the levels of criminalization, violence, [and] crimes against humanity committed . . .”

Eight of the 10 civil society organizations present in the meeting have been arbitrarily censured by the current government following its decision to cancel their legal status in retaliation for complying with their missions and objectives: attending to the populace within the context of the Nicaraguan crisis.  It is thus that Luciano García of Hagamos Democracia [Let’s Build Democracy] expressed, “The most important thing was that we were able to bring her up-to-date in a timely manner regarding the abuses being committed by the regime against all Nicaraguans and all civil society organizations, and she [Michelle Bachelet] listened to our demands and is extremely concerned and surprisingly well-informed about the case of Nicaragua.”

One of the requests the representatives presented to Commissioner Bachelet related to asking the State of Nicaragua to stop the repression, persecution, and criminalization of the populace, human rights defenders, indigenous peoples, social [and] political leaders, and journalists.  They additionally called on the State to provide guarantees for the prompt and safe return to the country of the human rights defenders who were forced into exile as a result of the criminalization and prosecution, as well as the reinstatement of the arbitrarily-canceled (illegally withdrawn) legal status to human rights and civil society organizations.

[/vc_column]
[/vc_row]

See here the document containing the requests presented to the United Nations High Commissioner for Human Rights

Throughout the meeting, the High Commissioner displayed great sensitivity and commitment to the situation.  Anibal Toruño of Radio Darío noted that the meeting provided not only a space for them to discuss the national reality, but also a chance to find other partners with whom to promptly resolve the crisis.  “It was an encouraging moment: we received the full support of the High Commissioner.  A window, a hope, and of course, the possibility of finding partners who can help us resolve the crisis we are currently experiencing in Nicaragua.”

Mónica Baltonado, representative of Fundación Popol Na [Popol Na Foundation], emphasized how important it was to tell the Commissioner about the pain that is being inflicted not only on human rights defenders and activists, but also on the nation: “It is of transcendent importance for the Nicaraguan organizations as well as for the entire society.  First, because we were able to directly communicate to her the pain and suffering of the Nicaraguan people and the enormous concern we have, but above all, the sense of urgency to find a solution in the shortest period of time possible.”

Since April 2018, Nicaragua has been submerged in a grave human rights crisis that has become ever more acute, insomuch as the causes that provoked it have not been addressed, nor has the Nicaraguan people’s demand for justice and democracy been heeded.  In recent months the government has implemented a strategy of dismantling all spaces of criticism, while the violence is manifested in a more selective manner to target human rights defenders.  To date, the Nicaraguan government’s repressive actions have produced 325 assassinations, more than 2,000 injured individuals, 767 political prisoners, and more than 80,000 people have been forcibly displaced to Costa Rica.

Brazil is the country with the greatest number of assassinations of trans persons in the world

Washington, DC, January 30, 2019 – With a rate of 41% in the world ranking of assassinations of trans persons, Brazil has become the country that kills the most individuals with this gender identity, according to the 2018 Dossier on Assassinations and Violence against Transvestites and Transsexuals in Brazil, a report published this Tuesday by the Asociación Nacional de Travestis y Transexuales [National Association of Transvestites and Transsexuals] (ANTRA) of Brazil and the Instituto Brasileño Trans de Educación [Brazilian Trans Institute of Education] (IBTE).

According to the report, in 2018 alone, a total of 163 trans persons violently lost their lives through assassinations related to their sexuality, 158 of whom were transvestites and transsexual women, four were trans men, and one a non-binary person.

As set forth in the report, these data are dramatically influenced by a 30% increase in the cases that have not been publicized in the national news media, an element that impacts and distorts the real situation of this population in the country.  According to what is reported in the document, at first blush it would appear that there was a decrease in cases between 2017, in which 179 homicides were reported, and 2018, when 163 were reported.  The fact is that during the first reporting year, there were only 34 cases that were not reported on, while in 2018, the number of cases that were unreported or unpublished in the national media rose to 44; as such, we are not truly talking about a decrease in assassinations but rather, a decrease in the publicizing of cases in the news media, which presupposes a direct impact on how cases are recorded, thereby leading to under-reporting in the counting of victims.

The Dossier seeks to produce a detailed analysis of the assassinations and violations against the transvestite and transsexual populations in Brazil in order to denounce the cases of human rights violations to which this population is subjected.  In this way, the civil society organizations that fight for the recognition of the Brazilian LBGTI population’s rights, especially those of trans persons, reveals the omission of the Brazilian State by ignoring the alarming indices of violence against this population in the country.  To date, the national government has not provided legal support that guarantees the removal and effective investigation of the systematic patterns that characterize these acts.

The violence in figures

The states that reported the greatest number of homicides of trans persons were Río de Janeiro (16), Bahía (15), and São Paulo with 14 cases.  Keeping in mind the data reported, the average age of the victims assassinated in 2018 was 26.4 years old, which indicates a decrease of 1.3 years in relation to 2017.  In addition, the data from the latest Violence Map show an increase of 54% in the homicides of black women, while the assassinations of white women dropped by 9.8%.  All in all, 82% of the cases were identified as black persons and brown (mestizo) persons, thereby ratifying the sad datum regarding the assassinations of young black people in Brazil.

According to the report, 53% of the victims were assassinated with firearms, 21% by knives, and 19% by blows, asphyxiation, and/or strangulation.  The deaths of trans persons in Brazil are generally due to the hatred or vicious cycle of exclusion to which they are subject.  The presidents of ANTRA and IBTE noted in the letter they addressed to the readers at the end of the recently-published report that the assassinations are normally distinguished by the large number of violent blows inflicted or the cruelty of the method employed.

According to the data gathered by ANTRA, 90% of the population of transvestites and transsexuals use prostitution as a source of income and subsistence method, due to the low level of schooling resulting from the process of school exclusion, which in turn makes it more difficult for them to join the formal job market and handicaps them in terms of professional qualifications caused by social exclusion.

The International Institute on Race, Equality, and Human Rights (Race & Equality) expresses extreme concern regarding the data reported in the map of assassinations of trans persons and transvestites in 2018, especially the increase in the figures, systematization of the violence against young people, trans persons, and Afro-descendants, and the ‘invisibilization’ by the State of Brazil [of these acts] faced by the entire trans population.  We join our voices to the call made by the report’s organizations, asking the national government to immediately address the human rights crisis confronted by the LGBTI population in the country.

Download here Dossier on Assassinations and Violence against Transvestites and Transsexuals in Brazil

14 Afro-descendant, indigenous, and campesino leaders assassinated during the first month of 2019

Bogota, Colombia.  January 29 2019. The International Institute on Race, Equality, and Human Rights (Race & Equality) expresses profound concern regarding the alarming number of grassroots social leaders assassinated in Colombia through the end of the first month of the year, a period in which approximately 14 homicides of male and female indigenous people, Afro-descendants, and campesinos were reported.

We emphatically reject and condemn the systematicity of the acts of violence, especially those directed against the Afro-descendant and indigenous populations in the country – peoples who have been historically marginalized and abused due to structural poverty, forced displacement, [and] a lack of access to healthcare, education, employment, and protective guarantees that ensure the integrity of their fundamental rights.

We urge the Colombian State and people to not ignore the number of Afro-Colombian human rights defenders who were assassinated through the end of 2018, which according to the figure reported by the Consultoría para los Derechos Humanos y el Desplazamiento [Consulting Office on Human Rights and Displacement] (CODHES) totals 20 homicides (17 men and three women) out of the 54 assassinations of leaders of ethnic communities.

We also demand that the Colombian State undertake efforts to guarantee the lives and protection of those men and women who dedicate their lives to the territory.  Likewise, we issue a special call on the State to provide differentiated protection mechanisms that are necessary for ethnic communities, especially recognizing the impacts suffered by Afro-Colombian and indigenous women who are direct victims of the armed conflict and at a great disadvantage as compared with the rest of the population: in light of not having guarantees of social protection, economic autonomy, or recognition of their rights, their rights are doubly violated.  We demand justice, truth, and guarantees that NO impunity will shroud the lives of the leaders Maritza Ramírez Chaverra (Tumaco), Maritza Quiróz Leiva (Magdalena), and María Ortega (Norte de Santander).  The deaths of these women – who are today victims of the bloody state of violence in the country – leave great voids not only in their families but also in society due to their absence, due to a generalized fear generated by the continuing fight for and defense of human rights in the territory.

With extreme concern we urge the national government to undertake all possible efforts to guarantee there will be NO impunity surrounding the more than 500 homicides of social leaders that have plunged the country into its current mourning.  Likewise, we highlight the need to adopt all possible protective measures to ensure the lives and integrity of the leaders who continue in a state of risk, the reason for which we call on the international community to show solidarity in the face of the national emergency and continue to monitor the grave and systematic violations of the fundamental rights of human rights defenders.

We urge the Colombian government and all social groups involved in making possible the construction of a stable and lasting peace throughout Colombian territory to make dialogue the only legitimate method tor finding a negotiated and peaceful exit from the armed conflict that continues to be latent in the country.

Nicaraguan Delegation meets with the United Nations Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association

Washington, DC. January 28, 2019. Representatives of Nicaraguan civil society organizations met with the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, Mr. Clement Nyaletsossy Voule, to apprise him of the persecution of organizations and their leaders by the government of Daniel Ortega and Rosario Murillo that has been ongoing since April 18 in the country.

The representatives of the organizations detailed to the Rapporteur the arbitrary nature of the cancelation of the legal status of nearly a dozen organizations with extensive experience in human rights defense and democracy, as well as the threats, assaults, and criminalization of human rights defense work faced by civil society leaders and their teams.

During the meeting, the Nicaraguan delegation asked the Rapporteur to speak to the Nicaraguan State about the arbitrary cancelation of the organizations’ legal status.  In addition, they detailed the need to demand that the State stop persecuting defenders, issue a public declaration condemning violations of the right to association, publicly recognize the work of defenders, and urge the State to permit the Special Procedures of the Human Rights Council access to the country.

To that end, Rapporteur Nyaletsossy confirmed that he is monitoring the situation in the country [and] deems it very important to have the opportunity for spaces for exchange among different actors of civil society.  Likewise, he expressed an understanding of the suffering being generated by the situation in Nicaragua.

During the meeting, the representative of the United Nations noted that despite having made a request to the current government to visit the country, he had yet to receive an answer from the heads of State.

Lastly, the Rapporteur said he would undertake actions within the framework of the mandate of the Rapporteurship he heads.

COLOMBIA: NOT ONE STEP BACK, ONWARD TOWARD PEACE! – Pronouncement –

Bogotá, Colombia, January 18, 2019 – The International Institute on Race, Equality, and Human Rights (Race & Equality) emphatically rejects and condemns the acts of violence that have plunged Colombians into mourning during the first 15 days of the year.  We condemn all types of violence that threaten the intention of the Colombian people to advance in the joint construction of a stable and lasting peace throughout the territory.

The assassination of the 10 social leaders that increases the shocking number of deaths of human rights defenders following the signing of the Peace Accords in September 2016 and the recent terrorist attack on the Escuela General Santander [General Santander School] in the city of Bogotá have to date left a total of 21 dead and 68 injured, according to what has been reported by national media outlets, are evidence of the looming need for the Colombian government and society in general to continue working on behalf of the peace process.

Despite the environment of uncertainty generated by the incidents that have occurred in the country in the midst of a growing awakening of the social mobilization rejecting the arbitrary governmental policies, among other things, and in favor of access to education, the financing law, and everything related to land access, tenure, and use, as well as a general repudiation of the assassination of more than 365 leaders who were assassinated in 2016 and 2018 (which still does not appear to have produced a sufficient response in the form of urgent and immediate measures the national government should put in place to guarantee the lives of its people), we encourage Colombians to continue to pursue with determination the search for and construction of peace, employing dialogue as the only path in all social spheres in order to process the conflicts that threaten the legitimate right to enjoy a decent life.

As an organization that is committed to defending and promoting human rights, we urgently call on the Colombian government, all of its institutions, dissident groups of the former guerrilla group Fuerzas Armadas Revolucionarias de Colombia [Revolutionary Armed Forces of Colombia] (FARC EP), and the allied armed group Ejército de Liberación Nacional [National Liberation Army] (ELN), so that, with an awareness of the profound responsibility to construct a society in peace, they will commit themselves to the need to make progress through peaceful dialogue in the face of a war that has lasted more than 50 years and left an abhorrent number of victims who deserve the emphatic commitment of their leaders, social organizations, and society in general as an alternative for negotiating differences and constructing a society defined by social justice.

We urge the international community to continue monitoring and accompanying the Colombian State in the process of constructing peace through truth, justice, reparations, and guarantees of no repetition.

 

Organizations supporting LGBTI persons’ rights issue a warning regarding the grave crisis over human rights in the country

The International Institute on Race, Equality, and Human Rights (Race & Equality), Instituto Transformar [Transform Institute] of Brazil, TRANS Siempre Amigas [TRANS Always Friends] (TRANSSA) of the Dominican Republic, Corporación Caribe Afirmativo [Affirmative Caribbean Corporation] of Colombia, Fundación Arcoiris de Tumaco [Tumaco Rainbow Foundation] of Colombia, [and] Red Peruana de Jóvenes Afrodescendientes Ashantí [Ashanti Peruvian Network of Afro-Descendant Youth] of Peru express extreme concern regarding the grave state of vulnerability of LGBTI persons’ rights in Brazil.  In light of the more than 160 recorded homicides in 2018 of LGBTI persons, the occurrence of 10 homicides due to prejudice during the first days of 2019, the majority of them Afro-descendant trans persons, is extremely concerning.  Additionally worrisome is Provisional Measure 870/19 that excludes the LGBT population as a subject for the promotion of human rights.  Likewise, the recent resignation of Congressman Jean Wyllis, the sole Afro-gay legislator in the country, who today announced he would step down from his post due to multiple threats, defamation, and acts of harassment orchestrated against him through social media.

State of LGBTI persons’ rights

According to figures reported by the Asociación Nacional de Travestis y Transexuales [National Association of Transvestites and Transsexuals] (ANTRA) of Brazil, every 48 hours a trans person is assassinated in that country.  Over the last two years, approximately 332 homicides of trans persons have been recorded – acts prompted especially by hatred and imaginary negatives that deepen the ignorance regarding LGBTI persons’ rights and begin to normalize and/or legitimize the violence perpetrated against this population.

In just 2017 alone, a total of 179 trans persons violently lost their lives in assassinations related to their sexuality, 80% of whom were black or mulatto and 70% of whom were sex workers.  “Eighty-five percent of the assassinations showed a refinement of cruelty such as dismemberment, hanging, and other brutal forms of violence,” noted the organization.

Deterioration in the area of rights

The recent election of President Jair Bolsonaro represents a real danger to LGBTI persons, Afro-descendants, human rights defenders, indigenous peoples, and quilombola groups [settlements established by escaped slaves], among other political minorities.  A real war was declared against these groups – or at least against the minorities – noted Alessandra Ramos, a trans female defender of LGBTI persons’ rights and a member of Congressman Jean Wyllis’ staff.  She went on to say that the cases of violence against LGBT persons by Bolsanaro’s followers have multiplied in the country.  According to a figure provided by the activist, more than 80 cases of assaults and assassinations of LGBTI persons were recorded during the current President’s campaign; she further noted that the trans population is one of experiencing the greatest state of vulnerability given that it embodies the figure and maximum expression of hatred due to its visibility and the degree of social exclusion to which it is subject.

Although the indices of violence against political minorities, particularly against LGBT persons, indicate an alarming increase during Jair Bolsonaro’s campaign promoted by the production of more than 700 million items of fake news disseminated though the principal social media, with regard to the enforceability and recognition of LGBTI persons’ rights, according to multiple denunciations made by human rights organizations in the country, the polarization [brought] by Jair Bolsonaro could already be seen before, even before the start of the campaign.  In strong speeches filled with hate, he espoused a narrative regarding corruption, the election of the Workers’ Party (PT) government, the promise of a law that would grant the right to police officers to shoot without legal repercussions, a defense of the traditional family and/or a fight against the ideology of gender, and another promise to free people to bear arms, noted Ramos during her remarks.  She further added that all of this represents a concrete threat to the lives of some political minorities and in and of itself is a risk to Brazilian democracy and the progress that has been made in the field of human rights.

It is concerning that within this framework of violence, Provisional Measure No. 870/19, adopted by President Bolsonaro on January 1, 2019, removed the LGBTI population from the list of policies and guidelines whose aim it is to promote human rights.  In addition to that, the creation of the new Ministry of Women, Family, and Human Rights, led by Pastor Damares Alves.

Persecution and harassment

“The discourse of hate cannot be downplayed!  He is possibly an assassin and has produced victims!” exclaimed Congressman Jean Wyllis from [the] PSOL [party] after announcing his resignation from office due to diverse acts of harassment, persecution, defamation, and death threats made against him recently.

The openly gay Congressman – who during his time in office had fought for the recognition of LGBTI persons’ rights – noted in various interviews with national news media that his resignation was not exclusively due to the election of Bolsonaro to the presidency but rather, the increasing level of violence since the latter’s election.  As an example, the Congressman mentioned the case of the transvestite whose heart was ripped out of her some days earlier and on whose person was left a sacred image.  All of these barbaric acts represent a threat against life.  “I need to remain alive for the future of the cause!” exclaimed the former Congressman who has protective measures issued by the Inter-American Commission on Human Rights (IACHR).

Pronouncement

The aforementiond diverse human rights organizations, out of a strong state of concern and rejection issue a warning call to the Brazilian State to immediately address the grave situation produced by the violation of the fundamental rights of political minorities, especially historically marginalized groups such as Afro-descendants, indigenous peoples, and LGBTI persons.  We urge the State to be on alert for the multiple and systematic acts of barbarism committed against LGBTI persons promoted by hatred and imagined negatives that ignore people’s rights and incite and legitimize the violence committed against this population.  

We remind the country that regression in the recognition of minorities’ rights can have repercussions at the regional level.  It additionally represents a direct break with a series of international commitments adopted by Brazil by being a signatory of diverse international human rights treaties and agreements of that nature.

We urge the international community [and] human rights organizations throughout the world to take a stance in the face of the serious human rights problem that exists today in the Latin American country and requires immediate monitoring.

“This is a person who deserved to die.  She should not be in this life”. Review of Colombia’s first-ever conviction for Femicide of a Trans woman

The facts

Ányela Patricia was a trans woman who worked as a hairdresser in the municipality of Garzón in the department of Huila.  In contrast to the life experiences of other trans women in Colombia that have been marked by stigma, she was recognized and loved by the community.  It is thus that when Ányela was assassinated in February 2017, the community of Garzón took to the streets during her funeral to march with posters and flags, calling for an investigation into her homicide (see here the image and news about it: http://www.lanacion.com.co/2017/02/11/lo-mate-porque-me-hizo-dano-homicida-de-estilista/).

The incidents that occurred in February 2017 apparently transpired quickly in Ányela’s hair salon in the morning hours: she was shot several times by Mr. Davinson Estiven Eraso, who on a previous occasion in August 2016 had tried to attack Ányela with a machete and was stopped by the intervention of [her] friends and relatives.  Although on this occasion the alleged assailant was taken to a police station, no further consequences ensued with regard to this antecedent (particularly serious because the matter was limited to a police detention proceeding without a criminal investigation that delves into the gravity [of the act], as occurs in many cases in Colombia).

When Mr. Eraso finally achieved his goal in 2017, he was caught by the authorities, before whom he declared he had carried out unfinished business, additionally adding in front of regional media of the department of Huila that Ányela was a person who should die: “This is a person who deserved to die.  She should not be in this life.”

The sentence

The Second Criminal Circuit Court, led by Judge Catalina María Manrique Calderón, sentenced Mr. Eraso as the author of the crime of aggravated femicide for the crimes established in the Criminal Code, Articles 104 A and 104 B, and the crime of illegally bearing arms.  Nonetheless, he was declared immune from prosecution because during the criminal process he demonstrated signs of schizophrenia associated with, among other things, drug dependence and in any case, with “the existence of a permanent mental disorder.”  As such, the assailant was ordered imprisoned for 20 years in a psychiatric institution or an establishment that could appropriately attend to him.

There are several elements that are fundamental to understanding this sentence and that represent important progress in terms of the approach to violence committed against trans women, including the following we wish to highlight: recognition of gender identity; recognition of the motivation behind gender-based violence and indictment for the crime of femicide; [and] use of national and international regulatory frameworks.  Nonetheless, other issues should [also] be carefully reviewed in the name of criminal procedural guarantees.

Recognition of gender identity

One of the first signs of clear progress made by this sentence represents a milestone in Colombia: the express recognition of the victim’s gender identity.  It might seem to be a small thing, but keeping in mind that while sentences and decrees exist in Colombia that recognize the gender identity of trans persons, in this case the scope of the recognition of gender identity also translates into the possibility of applying a criminal regulation that traditionally has been utilized exclusively to protect the lives of cisgender women, despite the fact that Article 104 A also recognizes gender-based violence against women.

This recognition is important because it clarifies the concerns of public prosecutors and lawyers in this matter, as evidently the Office of the Public Prosecutor in this case adopted an interpretation regarding gender identity consistent with Colombian jurisprudence and the recommendations and international declarations in this area.  This had very concrete effects, one of the most interesting of which was the acceptance by the Office of the Public Prosecutor in a court of first instance as supporting evidence regarding the female gender identity of the victim the testimonies of friends and relatives who recognized Ányela as a transgender woman, as well as her expression of feminine gender.  Secondly, while the Office of the Public Prosecutor mentions the existence of surgical interventions that had been performed on the victim’s body (breast augmentation), this is considered to be a supplementary part of the construction of her own identity.

Recognizing the victim’s identity is very important because for some public prosecutors and jurists working in this field, gender identity could only be proved through changes in identification documents – the personal identification credential.  This, of course, would be an unnecessary requirement that would contravene Colombian constitutional jurisprudence, as well as international standards in this matter, in the sense that gender identity is made up of actual life experiences and is not based on legal recognition.  This proposition of the Office of the Public Prosecutor was seconded by the judge hearing the case that, although it delves into the description of the autopsy which describes the surgical intervention, it takes up anew the social construction of Ányela as a woman who was well-known in her community.

In conclusion, there is no single standard for proving gender identity; therefore, demanding a sex change that is recorded in the public registry as proof would not acknowledge the personal and social processes for constructing gender identity.

 Recognition of the motivation behind gender-based violence and indictment for the crime of femicide

As a result of the Office of the Public Prosecutor’s recognition of the victim’s gender identity, it is not only possible to indict for the crime of femicide, but in addition, the gender identity itself of the victim becomes a central element for understanding the motivation for the violence.

When there is an indictment for femicide in the case of a trans woman, it not only requires a woman to be the victim but also for the motivation behind the violence to be related to the fact that she is a woman or due to her gender identity.  In this case, both the Office of the Public Prosecutor as well as the judge who heard the case agreed that in light of the fact that the assailant followed the victim and saw her repeatedly in her hair salon, he was able to establish the victim’s gender identity; this was also evidenced in situations of verbal aggression in which he insultingly mentioned Ányela’s gender identity.

The fact that the assailant had followed Ányela, verbally attacked her, and even progressed to the point of trying to attack her with a bladed weapon (machete) in 2016 prior to the homicide denotes a context of persecution and violence based on the victim’s gender identity.

While the sentence could have been richer in detail in order to make a clear connection between the assailant’s prejudice, the violence, and its relationship to the victim’s gender identity over the course of the trial, the Office of the Public Prosecutor was able to demonstrate that the fact that Ányela was a trans woman played a fundamental part in her homicide.  In declarations made by the assailant to some media outlets, Mr. Eraso clearly manifested a series of social prejudices and stereotypes that were negatively linked to his perception of trans persons.  This type of declaration accords with the investigation standards such as those employed in the United States for gathering data on hate crimes [and] denotes prejudice by the assailant against trans persons in this case.

Use of national and international regulatory frameworks

Another aspect that, while previously mentioned, merits being highlighted: the application by the judge hearing the case of national and international standards for understanding gender identity in this case.  For the judge, understanding her duty is framed by the protection and recognition of gender identity, whether through constitutional jurisprudence pursuant to the C-584 sentence in 2015 (among others) that recognizes gender identity, or the interpretation of the scope of the Colombian State’s responsibility to investigate this type of violence, in accordance with the OAS declarations signed by the State, adherence to the Inter-American Court sentence in the Karen Atala case that explains gender identity as a different category of sexual orientation, and the use of the Yogyakarta principles as an important referent.

While the judge does not delve into all of these legal referents, she employs them as points of reference for juridically positioning the discussion regarding the recognition of gender identity, the obligation to investigate, and the appropriate application of criminal justice in this concrete case.

The discussions that remain outstanding

An initial observation that can be made regarding the body of the sentence would be to give preference both in the text as well as throughout the entire criminal trial to the recognition of identity vis-à-vis the victim’s name.  While the name ‘Ányela’ is recognized in the text of the sentence, throughout the text her masculine name, as recorded in the National Civil Registry [‘registraduría’], is repeated over and over, whereas Ányela’s identity-based name should have been given preference in the reasoning of the sentence.  In future, the identity-based name could be utilized throughout the sentence, with an initial clarification that the victim’s identity is fully established in the registry with a masculine name but that, as an integral part of the sentence, the identity-based name of the victim will be given preference.  This should also be standard practice throughout all legal proceedings involving a trans person, whether the person is the victim or the suspect.

A larger problem covers the use of aggravating circumstances.  On one hand, while an aggravating circumstance is applied related to the state of the victim’s defenselessness at the moment she was attacked, an[other] aggravating circumstance is applied related to the victim’s gender identity.  This is an important discussion and merits careful analysis in order to prevent the violation of procedural guarantees of the accused.

As has been mentioned, in this case the recognition of the victim’s gender identity allowed for the application of the crime of femicide because the gender identity of the victim was recognized and [the fact that] she was socially recognized as a trans woman.  Nonetheless, this same crime considers one of its aggravating circumstances to be that the violence be committed due to the victim’s sexual orientation (or gender identity, taking into account constitutional jurisprudence).  It is strange that a person who is charged with criminal responsibility for an action – in this case, assassinating a person due to her gender identity – in addition has his sentence increased because he committed the action due to the victim’s gender identity.

This double jeopardy for criminal responsibility would be a clear violation of the rights of the accused and in this case, be susceptible to being appealed.  A clearer or more logical example of when this aggravating circumstance could be applied would be in the case of a cisgender female victim of femicide who had additionally been assaulted due to being bisexual or lesbian, in which case the aggravating circumstance would clearly be in effect due to sexual orientation.

These theoretical clarifications in criminal matters are essential for safeguarding the procedural guarantees of the accused who in all cases has criminal rights and guarantees that must be protected.

In conclusion

We have here a sentence that makes progress in recognizing trans women’s identity and resolves some practical discussions that should be held during the course of criminal proceedings, both in the investigation process and imputation by the Office of the Public Prosecutor, as well as in the legal proceedings themselves.

Other aspects that could be expanded in the future are the standards for establishing the connection between the assailant’s prejudice and the violence he/she visits upon the victim; for the time being, the express knowledge of gender identity [and] prior existence of verbal and physical violence are useful for demonstrating the occurrence of a femicide-focused assault in this type of case.

Other aspects meriting greater discussion are preventing double jeopardy for criminal responsibility for the same actions with the use of aggravating circumstances that center the analysis on gender identity in the case of trans persons.  Giving preference to other aggravating circumstances – such as in this case the victim’s state of defenselessness – appears clearer and more protective for the victimizer.  In any case, the defense of those of trans persons is not at odds with the procedural guarantees of the accused.

 

About the Autor:  Mauricio Noguera
LGBTI Program Officer for Latin America

UP WITH RIGHTS, UP WITH LIFE! INTERNATIONAL HUMAN RIGHTS DAY

“Depriving people of their human rights is calling into question  their own humanity.”  Nelson Mandela

 Washington, DC, December 10, 2018 – Human Rights Day is celebrated today, December 10th, in commemoration of a historic milestone in the progress toward worldwide recognition of fundamental human rights.  In 1948, the General Assembly of the United Nations (UN) approved the Universal Declaration of Human Rights.  That was the first document adopted by a multi-regional organization containing a broad spectrum of political, civil, social, cultural, and economic rights recognized as being “for all peoples and nations.”

Since the approval of the Universal Declaration of Human Rights 70 years ago, great progress has been made throughout the world in recognizing the rights of diverse populations, respecting human dignity, and creating legal instruments that lay the foundation for eliminating inequality, exclusion, and discrimination in nations.

Nonetheless, there are many human rights that continue to be violated throughout the world – and Latin America and the Caribbean are no exception.  In countries such as Brazil, Colombia, Cuba, Nicaragua, Dominican Republic, Panama, and Peru, human rights defenders continue working strenuously to promote and protect the human rights of populations in marginal conditions, whether due to their national or ethnic origin, sexual orientation, or gender identity.  Likewise, there exists an alarming degree of systematic and structural violence faced today by Afro-descendants, LGBTI persons, women, boys, girls, adolescents, persons with disabilities, and older adults, who in situations of extreme vulnerability continue to confront discriminatory policies and deficient implementation plans to effectively guarantee fundamental rights.

We see a worrisome weakening of the guarantee and protection of human rights throughout the world committed by States, especially in the case of Latin America and the Caribbean, a product of the high indices of violence, waves of homicides, arbitrary detentions, forced disappearances, and rising and systematic violence against human rights defenders, journalists, and independent media outlets in the region, all of which serves to increase the state of impunity in which Latin American countries have historically lived.

Indigenous peoples and Afro-descendants continue being the victims of multiple forms of aggravated discrimination, among other things, related to the negation of economic, political, and cultural rights, including the rights to the land and free, prior, and informed consultation vis-à-vis the use of ancestral, historically inhabited spaces.  LGBTI groups continue being the target of diverse forms of hate and intolerance that intensifies the state of defenselessness and imminent violation of the rights to freedom of expression, identity, and autonomy.

The elevated number of persons and entire communities in the region facing violations of their fundamental rights is thoroughly alarming, as it is a clear sign of the backward movement in legislation, policies, and practices implemented by the States, which far from guaranteeing and protecting human rights to ensure the effective enjoyment of them, turn to repressive tactics, making wrongful use of force and the justice systems to silence the denunciations of dissident persons or groups, which translates into an unsustainable increase in the violations of fundamental rights, as well as corrupt motives that perpetuate impunity and injustice in the territories.

The International Institute on Race, Equality, and Human Rights (Race & Equality) defends the position that the struggle for rights requires joining forces in a commitment to transform societies so as to ensure scenarios that are more just, diverse, equitable, and free.  We call on all States in the region to make a real, effective commitment to undertake efforts to implement policies that promote justice, recognition, peace, and inclusive social, economic, and cultural development that guarantees tranquility and the full enjoyment by communities of their freedoms and the possibility to construct a region in a participatory, dialogical, and differentiated manner.

LGBTI defenders face great challenges in Latin America

Washington, D.C. December 5th, 2018. During the last decade, the recognition of human rights for the LGBTI community and their legal protections have been strengthened in Latin America. Nevertheless, the LGBTI population still faces serious patterns of discrimination and violence that have been fueled by hate speech expressed by religious groups or circumstantial political issues, according to experts working in the region who held a conversation last week in Washington DC.

During the panel “Defending LGBTIQ Rights in Latin America: Obstacles and Advancements in Law and Culture,” organized by the Inter-American Dialogue, the speakers also focused on problems that further limit access to LGBTI rights, such as racial discrimination and poverty.

Fanny Gómez, Senior Director of Policy & Advocacy at Synergía; Carlos Quesada, Executive Director and Founder of the International Institute on Race, Equality and Human Rights (Race and Equality); Iván Chanis Barahona, President of Iguales Foundation in Panama; and Abraham Banegas Molina, Technical Officer of Cozumel Trans in Honduras, spoke on Tuesday with Michael Camilleri, Director of the Peter D. Bell Rule of Law Program at the Inter-American Dialogue to share their opinions and experiences on the topic.

Continued violence and discrimination

The continued violence towards the LGBTI population was a central topic in the conversation held by regional experts, in which different perspectives were highlighted.

According to Gómez from Synergía, in the last 5 or 7 years, there has been progress in terms of protecting people based on their sexual orientation and gender identity, ranging from an increase of official statements supporting the LGBTI community to the approval of gender identity laws or same-sex marriage. “But this has not meant that the violence has decreased,” she added.

Carlos Quesada also emphasized that the advances in LGBTI human rights in the region impact the Afro-descendant population differently. Consequently, they are more vulnerable to violence.

“In the specific case of Brazil, every 30 hours a person dies because of their sexual orientation and gender identity, and 90% of those people are Afro-descendants,” the director of Race and Equality stated.

Regarding the trans community, Quesada said, violence towards their bodies has become “a disease in the region.”

“On one hand, there are countries like Colombia that have formally created institutions to defend and investigate hate crimes, but they don’t have sensitized staff that can do their job effectively,” Quesada said, noting that situations like these lead to continued violence and impunity.

Abraham Banegas from Honduras agreed that the trans men and women in his country are the “most affected” by violence directed at the LGBTI community.

Hate speech

Banegas also stressed that the “main adversary” to LGBTI rights in Honduras is religious fundamentalism.

“They attack our comrades in the name of God,” the activist said. He regretted that some religious congregations with thousands of followers promote hate messages to their parishioners, politicians, and decision makers.

For Fanny Gómez, the recent growth and strengthening of those “hate messages” promoted by conservative groups also puts the lives of human rights defenders at risk.

“Every time there is a homophobic, transphobic, or lesbophobic message coming from a leader, that means that a person of our community will die after,” lamented Banegas.

Advances in legislation

Regarding legislative advances in the Americas, experts mentioned some resolutions on sexual orientation adopted by the Organization of American States (OAS), or the Advisory Opinion Number 24 issued by the Inter-American Court of Human Rights in November 2017. The latter recognizes that States have the duty and obligation to recognize people’s gender identity and to recognize marriages and families of same-sex couples.

However, Carlos Quesada said that civil society organizations still lack the technical training necessary to be able to use the Inter-American System and the Universal System properly.

“As a challenge, we have to train ourselves on how to use the national legislation but also on how to use the Inter-American System and the Universal System for the defense of the LGBTI population.”

Obstacles in legislation

Ivan Chanis Barahona, from the Iguales Foundation, explained that in Panama “there is no law or any public policy that recognizes gay, lesbian, trans, bisexual or intersex people,” and that the only law against discrimination does not include LGBTI persons.

Recently, according to Chanis, the refusal of the Panamanian authorities to register three same-sex marriages carried out in foreign countries started a national discussion on that issue. The topic has even been debated by the presidential candidates for the 2019 elections. “Panama is a country that has always respected human rights and the Inter-American System, but after this topic came to light, people started to dislike the Inter-American Court of Human Rights because of the Advisory Opinion on LGBTI rights.”

“The States in Latin America and especially in the Caribbean have failed in the modern world to protect their democracies by maintaining policies that are totally discriminatory towards LGBTI population,” Chanis emphasized.

Regarding the specific case of Honduras, Banegas said that in the new Criminal Code, discrimination based on sexual orientation and gender identity was penalized more lightly, and a Honduran law prohibits same-sex marriage.  Besides, a recent reform to the Code for Children established that same-sex couples cannot adopt children.

“In Honduras, legislation is being adjusted to block LGBTI rights,” the activist complained.

However, he said that they are currently working on an “Equality and Equity Law,” a legal instrument that could provide more protection for the rights of the LGBTI population in Honduras if it is approved by Congress.

.

Join Our Efforts

Help empower individuals and communities to achieve structural changes in Latin America.

Donate Contact Us