IACHR

Press Release

IACHR Welcomes Progress on Recognition of the Rights of Trans Persons in the Region

March 29, 2019

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María Isabel Rivero
IACHR Press and Communication Office
Tel: +1 (202) 370-9000
mrivero@oas.org

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Washington, D.C. – In the context of International Transgender Day of Visibility, the Inter-American Commission on Human Rights (IACHR) welcomes recent progress made in several States in the region who are seeking to protect the rights of trans and gender-diverse persons. The Commission calls on Member States of the Organization of American States (OAS) to continue to move toward a full, comprehensive recognition of the rights of those persons, and also to keep fighting the root causes of the discrimination, exclusion and violence they face.

The IACHR stresses that the recognition of their gender identity is vital for trans persons to be able to fully enjoy their human rights. That right is inherently linked to the rights to personal identity, the right to a name, and the rights to health, employment, housing, education and culture, among others. Further, given the interdependence and indivisibility of human rights, the failure to recognize gender identity is the main hurdle for trans persons to live their lives fully, free from any sort of discrimination and violence. The Commission welcomes progress made in gender identity legislation in the region. For instance, the laws of Argentina, Bolivia, Chile and Uruguay ensure the full recognition of gender identity and document adjustments for all trans persons in their territory. The Commission commends, in particular, the laws of Argentina and Uruguay, which are among the most advanced globally on this issue, for ensuring gender identity based on inter-American standards and adopting integral protection measures concerning the human rights of trans persons. 

The IACHR further acknowledges the role of the courts in terms of defending the human rights of trans persons and ensuring recognition and respect for those rights. In that context, the Commission stresses the decision made by Brazil’s Federal Supreme Court, who in March 2018 enabled trans persons to change their name at the Register Office without undergoing gender reassignment surgery (as previously required). In Mexico, the Supreme Court of Justice of the Nation has made important decisions that ensure access to corrected identity documents that reflect the holder’s self-perceived gender.

Concerning gender expression, one of the main signs of progress happened in November 2018, when the Caribbean Court of Justice ruled that the State of Guyana’s Summary Jurisdiction (Offences) Act was unconstitutional. That piece of legislation said it was a crime to use clothing that was socially associated with another gender (cross-dressing). The IACHR commended the Court’s decision for acknowledging that the exercise of this specific form of freedom of expression cannot be a valid reason to justify any acts of discrimination. The IACHR warns that discrimination and violence against trans persons can be based on preconceptions against those persons’ gender expression, which sometimes challenges the binary patterns that are socially recognized as female and male. The IACHR’s Special Rapporteurship for Freedom of Expression has estimated that these sorts of expressions are in fact discourses that express essential elements of a person’s identity or dignity and are protected by the American Convention.

The Commission further notes some progress promoted by civil society in States that have taken concrete action to protect the access of trans persons to specific rights and to correct historical situations of social exclusion involving trans persons. The IACHR was informed about Circular Letter 768 issued by Chile’s Education Department, which makes it mandatory to use a person’s social name in educational settings. That circular letter further notes that the use of school uniform and restrooms must be based on a person’s own gender identity. The Commission was further informed that several public universities in Brazil have adopted quotas for trans persons. That includes Bahía Federal University (UFBA), the first federal university in Brazil to hold places for trans persons in 2017, and Cariri Federal University (UFCA) and South Bahía Federal University (UFSB), who both implemented such quotas in 2018.

Concerning democratic participation, the IACHR acknowledges the measures adopted by some States which, given the lack of legislation on gender identity, have sought to ensure trans persons’ full enjoyment of their right to vote, without hurdles or discrimination regarding their gender identity or expression. For example, El Salvador’s Supreme Electoral Tribunal ensures since 2014, in its instructions on how votes must be cast, the right of trans men and women to vote in an atmosphere that is free from discrimination. Along similar lines, the Supreme Electoral Tribunal of the State of Guatemala has included in its instructions guidelines to assist trans persons when they vote. Mexico’s National Electoral Institute approved in December 2017 a protocol that sought to prevent discrimination and to protect the right to vote while respecting the voter’s gender identity.

The Commission further welcomes the increase in the number of elected positions held by trans persons in countries around the region. In Canada, Julie Lemieux was elected in November 2017 as the country’s first openly transgender mayor. In the United States, Danica Roem was elected in November 2017 to the state of Virginia’s House of Delegates, while Gerri Cannon and Lisa Bunker became in the 2018 election the first trans women ever elected to the House of Representatives of the state of New Hampshire. Also for the first time in Brazilian history, trans woman Duda Salabert was a candidate to a seat in the Federal Senate in 2018.

Concerning access to justice, the Commission was informed of progress made in terms of recognizing gender identity and adopting a perspective on sexual diversity. In May 2018, the IACHR recorded the region’s first-ever court decision recognizing the legal concept of transfemicide aggravated by hatred of the victim’s gender identity, in the decision to convict the suspect charged with the death of transgender social activist Diana Sacayán in Argentina. For the first time in Colombia, in December 2018, the Criminal Court in Huila convicted the man who murdered a trans woman of femicide. This was the first case where femicide as a crime had ever been applied to the death of a trans woman in the country. The Commission stresses the high rates of violence and discrimination against trans and gender-diverse persons and insists on how important it is to prevent, investigate with due diligence and punish any acts of violence and discrimination committed against them, as well as providing reparations for such acts.

Regarding the right to health, Brazil’s Single Health System (SUS, by its Portuguese acronym) has been performing gender reassignment surgery on trans women since 2008. In January 2018, Brazil’s Federal Council of Psychologists banned psychologists from holding or supporting in any other way events that mention conversion, reversion or reorientation of gender identity. Concerning the right to employment, the State of Argentina operates a job bank for trans persons, through its Ministry of Justice and Human Rights’ General Department for Comprehensive Sexual Diversity Policies. This service enables contact between private firms and public institutions who offer positions and candidates who post their CVs on that platform. According to the IACHR, States need to ensure that trans persons are not denied access to economic, social and cultural rights based on discrimination or prejudice. States must implement affirmative action measures that specifically address the needs of trans persons and seek to overcome the structural and historical hurdles those persons face to exercise their rights. 

Finally, the Commission considers that all the above instances of progress are positive examples of measures taken to make it easier for trans persons to live their lives with dignity, free from all forms of violence and discrimination. The IACHR calls on all Member States of the OAS to keep making and implementing laws and public policies that promote the social inclusion of trans persons. The Commission further notes that such measures must be built with the people whose lives they directly affect, so the participation of civil society is an essential element of their design and implementation. The IACHR stresses its call on States to promote cultural changes aimed at ending discrimination against LGBTI persons, and particularly trans persons.

“It is essential for States to take effective measures aimed at cultural transformation, in order to end violence and discrimination against LGBTI persons, based on the principle of equality and the ban on discrimination, a fundamental tenet for the full exercise of human rights as well as a requirement and a precondition for that exercise,” said Commissioner Flávia Piovesan, IACHR Rapporteur on the Rights of Lesbian, Gay, Bisexual, Trans and Intersex Persons.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 085/19