LexisNexis

Fighting transfemicide in the Americas

Jennifer VenisMonday 26 July 2021

A demonstrator takes part in a protest against the murders of transgender people in Bogotá, Colombia, 3 July 2020. REUTERS/Luisa Gonzalez

The ruling in the first transfemicide case to come before the Inter-American Court of Human Rights is set to change the landscape of rights for transgender people across the Americas. Global Insight considers the judgment and the dangers facing trans people in the region.

In Honduras and across Latin America, transgender women don’t tend to live past 35. Thanks to social stigma reinforced by a lack of rights and legal protections, they face extreme violence and limitations on the scope of their lives.

The murder of one trans woman – Vicky Hernández – over 12 years ago has shone a spotlight on the deadly nature of state-sanctioned discrimination. Now, the landmark ruling in her case could change the lives of transgender people across the Americas.

Vicky Hernández v Honduras

In late June, the Inter-American Court of Human Rights ruled that the state of Honduras was responsible for the murder of Vicky Hernández during the first night of the country’s 2009 coup d’état.

Lawyers for the government argued there was no way that the state could be held directly responsible for Hernández’s death.

But local group Red Lésbica Cattrachas and its co-counsel, the international human rights organisation Robert F. Kennedy Human Rights (RFK), argued that Hernández’s murder was an extrajudicial killing, and that state authorities violated her right to life by discriminating against her and not investigating her murder properly.

Kacey Mordecai, Latin America and Caribbean Staff Attorney at RFK, tells Global Insight that ‘[Hernández’s] body was found on the street, in the middle of a curfew when police and military were the only ones that were on the streets. The last time that Vicky was seen alive, it was in the presence of [a] military patrol, who approached her and two of her friends during the curfew.’

In Mordecai’s view, Hernández was in state custody by being on the street. And the way that Hernández was killed – and that other trans women were over the next few months – speaks to a pattern indicating state involvement or knowledge of the trend, says Mordecai.

Cattrachas is a collective of advocates, experts and activists aiming to advance the human rights of LGBTI people in Honduras. The organisation’s observatory tracks violence against the community and several incidents, including Hernández’s murder, had been reported to them.

Astrid Ramos, a lawyer for Cattrachas, tells Global Insight that ‘when we looked at the statistics registered by our observatory, we figured out that there was an actual pattern of social cleansing against trans women during the coup’.

There was an actual pattern of social cleansing against trans women during the [Honduran] coup

Astrid Ramos
Lawyer, Red Lésbica Cattrachas

She says the killings were localised, and shared certain characteristics. ‘The majority of the 15 trans women were sex workers. Their bodies were found in the streets. All of their bodies reported several signs of extreme violence. And most of them were killed by gunshots during curfews.’

That pattern became part of their argument in court, where they set out that Hernández’s death was an extrajudicial killing. ‘We used all this evidence that was registered by our organisation to try to reverse the burden of proof and say that because there was no investigation by the state, they were the ones who had to prove that Vicky’s murder was not an extrajudicial killing. Not us, because we had all this indicatory evidence that made us logically think that it was’, Ramos says.

The team also argued that protocols for investigations into extrajudicial killings, such as the Minnesota Protocol on the Investigation of Potentially Unlawful Death, were not followed, and that discrimination had shaped the investigation.

Forensic evidence found next to Hernández’s body was never tested. State authorities say an autopsy was performed, but witnesses saw no signs of one when preparing Hernández’s body for her funeral, and the file has never been shared with the advocates or with the Court.

‘We believe that the gaps in investigation are very clearly connected to the bias she experienced as a trans woman that followed her into death’, Mordecai says. She also highlights signs of bias in the notes from the police authorities that found Vicky’s body. ‘It’s very clear in my mind how the lack of investigation, particularly due to her status as a trans woman, is part of the violation of her right to life’, adds Mordecai.

Sweeping social change

Ultimately, the Court agreed, and ordered the State to restart its investigation, publicly acknowledge its role in Hernández’s death and pay financial compensation to her family.

The Court also demanded social reforms as reparations. Specifically, it ordered Honduras to adopt measures to enable gender identity changes in official documents and records; to train police and security forces in the prejudices behind violence enacted against the LGBTI community; and to create a Vicky Hernández educational scholarship for trans women.

‘We know that can mean a lot to them and actually change lives’, Ramos says. A mandate for official data gathering is also meaningful, as Cattrachas has been supplying anti-LGBTI violence data to the state and international human right bodies.

But, Ramos says, what’s ‘most important for [Cattrachas] is that now the Honduran state has no excuses not to approve special procedures for name and gender change on official documents’.

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Source: Cattrachas.org

The Honduran Attorney-General’s office told Global Insight in a statement that the government would comply with the ruling and is ‘aware of its national and international commitments to respect, promote and protect human rights’.

But Hernández’s case reached the Court because the state failed to comply with previous recommendations from the Inter-American Commission on Human Rights. The Commission, an autonomous organ of the Organization of American States (OAS), reviews cases and makes recommendations to promote the protection of human rights.

Cattrachas filed a petition before the Commission in 2012, and in its merits report – published in late 2018 – the Commission found Honduras had violated Hernández’s right to life, right to equal protection and non-discrimination and right to judicial protection under the American Convention on Human Rights. It presented Honduras with a series of recommendations, and the Commission submitted the case to the Court when Honduras failed to comply.

Honduras has also not complied with obligations regarding gender identity included in the Yogyakarta Principles – a set of international principles relating to sexual orientation and gender identity – and a 2017 advisory opinion from the Court, which requires a path to legal recognition for transgender people. In January, Honduras renewed a ban on marriage equality.

For advocates, it was vital that although many of the reparations they requested did not directly relate to Hernández’s murder, the Court acknowledged the way limitations on her rights contributed to the circumstances of her death.

‘Vicky wasn’t able to find stable employment because of her identity as a trans woman’, Mordecai explains. ‘She had to provide for her family but faced constant discrimination, so she had to leave the country at one point and go to Guatemala to find work, because she wasn’t able to find it in Honduras. She left school early. She faced violence from police and other authorities in her life. As an activist she faced consistent hostility, just being out on the streets and trying to tell people about the rights of trans people in general and just trying to live her life.’

Lloyd Vergara, Member of the IBA LGBTI Law Committee Advisory Board, says, ‘The cold-blooded way Hernández was killed […] is very indicative of how Honduras has failed to take steps to remove, or at least, mitigate bias and discrimination against the trans community at the hands of its law enforcement agents.’

‘The obligation to protect must also be read together with the obligation to fulfil’, he adds, ‘that is, Honduras has the obligation to effect political, social and cultural change so that sexual minorities can exercise and enjoy their human rights, most especially the freedom of expression. Obviously, this was not done’.

For Ramos, the ruling recognised two important contexts. Firstly, the violence that LGBTI people face in Honduras, ‘but also the context of militarisation and human rights violations during the coup d’état’.

She argues the coup shaped a culture of violence and impunity towards the LGBTI community. ‘[Cattrachas] believe that all that we are living today is an actual consequence of what happened during the coup. Before the coup, from 1998–2008, 20 violent deaths of LGBTI people were reported and registered by our observatory. During the seven months of the coup, 29 LGBTI people were murdered.’

Honduras has the obligation to effect political, social and cultural change so that sexual minorities can exercise and enjoy their human rights, most especially the freedom of expression

Lloyd Vergara
Member, IBA LGBTI Law Committee Advisory Board

Nadia Mejía, another lawyer for Cattrachas, adds, ‘from Vicky’s murder until now, our observatory [has reported] 389 violent LGBTI deaths. Of these, 123 were transgender people, 220 were gay and 46 were lesbian. Out of these cases, 83 have been prosecuted, but only 34 have reached a conviction. That means there is over 91 per cent impunity’.

The nature and perpetrators of violence have also changed, Mejía explains. ‘Before the coup, the actors that most affected trans women were police officers and military, because the arrests they made were legitimised by a law from 2002, which permits officers to make arrests just based on immoral perceptions of the person they are arresting.’

Honduras’ Law on Police and Social Affairs empowers the National Police to arrest anyone who ‘goes against modesty, proper conduct and public morals and disturbs the neighbours’ tranquillity with their immoral conduct’. It contains sanctions for what it terms ‘vagabonds’, meaning ‘street people, scoundrels, street prostitutes, drug addicts, drunkards, and gamblers’. In a 2009 report, Human Rights Watch found that this law was being used to arbitrarily justify the arrests of trans women.

The violence perpetrated against LGBTI people during the coup, Mejía argues, sent a message to the rest of society. ‘Now, anyone feels in the right to kill LGBTI people and especially trans women because they are the most marginalised and most visible because of the work they do to survive.’

For Mordecai, the Court’s ruling fulfils the case’s potential to reinforce transgender people’s identities, recognise their existence and provide protections specific to that community.

‘Vicky’s case was the first case of anti-LGBTI violence before the Court, but it was also the first case of lethal violence against a trans woman who was an activist and who was a sex worker’, says Ramos. ‘And that is a message that her life has to be remembered, and that it mattered. That she deserves dignity.’

Reflecting the region

Advocates hope that the message will reach across the region, where trans women face many of the same limitations that curtailed Hernández’s life.

‘We know that Vicky’s life is a reflection of what it is to be a trans woman in Latin America, where life expectancy for a trans woman is 35 years old’, Ramos says. ‘Vicky was 26 years old. She was a sex worker, she was an activist, she was HIV positive, she was marginalised by a state that did not offer opportunities to her. She was killed while she was working in the streets, by public agents. Vicky’s life is a reflection of all the intersectional violence that a transgender woman faces in this part of the world.’

In fact, the term ‘transfemicide’ was coined by activists in Latin America due to the extreme, prevalent violence against transgender women in the region.

A 2020 report from Human Rights Watch explains that ‘the term acknowledges the intersectional violence and discrimination that trans women face under patriarchal social structures built around rigid gender norms and roles’.

In November 2020, on the International Transgender Day of Remembrance, the Transrespect versus Transphobia Worldwide (TvT) project shared data gathered through its Trans Murder Monitoring observatory.

It reported that the murders of 350 transgender and gender-diverse people were recorded worldwide between the start of October 2019 and the end of September 2020, and 98 per cent of those killed were trans women or transfeminine people. Eighty-two per cent of the murders took place in Central and South America. Brazil was the deadliest place to be transgender, followed by Mexico.

This marks an increase on 2019, and the violence seems to be even worse in 2021. In Guatemala, LGBTI Pride Month turned from celebration to mourning after two transgender women and one gay man were killed. That took the total of LGBTI murders reported in 2021 to 13 so far, compared to 19 across the whole of 2020.

In 2015, the Inter-American Commission released a statement urging OAS states to increase the life expectancy of transgender people, having found ‘a close link between exclusion, discrimination and the short life expectancy of trans persons’.

It noted that ‘violence and discrimination against trans children and trans youth begins early, because they are often expelled from their homes, schools, families and communities, because of their gender identity’.

The result is that trans persons face poverty, social exclusion and a lack of access to housing, pressing them to work in highly criminalised informal economies, such as sex work or survival sex. As a result, the Inter-American Commission says, trans women are profiled as dangerous, ‘making them vulnerable to police abuse, criminalisation, and to be imprisoned’.

The TvT data found that of those whose occupation was known, 62 per cent of murdered transgender people in 2020 were sex workers.

The Commission has also previously noted that throughout the Americas there is a lack of official data collected on violence against the LGBTI community. It’s worried that ‘insufficient training of police agents, prosecutors, and forensics authorities might also lead to inaccurate reporting. For example, when trans victims are registered according to their sex assigned at birth, their gender identity is not reflected in the records. Trans women are frequently identified in public records as “men dressed in women’s clothes”’.

Police documents from Hernández’s murder reflect this trend.

More positively, Argentina and Uruguay had by 2019 adopted the world’s most advanced laws guaranteeing full recognition of gender identity, and national courts were holding governments across the region accountable to their human rights obligations.

In early 2020, the Inter-American Convention Against All Forms of Discrimination and Intolerance – which protects against discrimination on the grounds of gender identity, gender expression and sexual orientation, among others – entered into force. But some states, including Honduras, have not signed or ratified the Convention.

And violence from the public, state and gangs has consistently forced members of the LGBTI community to flee their countries. Many joined the migrant caravans making the dangerous journey on foot to the US in 2017 and 2019.

In July, with the support of the IBA, the Inter-American Institute of Human Rights produced The Human Right to Respect for Sexual Orientation and Gender Identity in the Caribbean and Latin America: Current Situation and Prospects. The report presents an investigation conducted by a number of researchers across the region, and highlights laws, practices and procedures that violate the rights of LGBTI people.

Even though legal protections for transgender people have increased across the region during the last years, there is still a long road ahead

Catalina Santos Angarita
Diversity and Inclusion Officer, IBA Latin American Regional Forum

The report found that LGBTI people continue to suffer discrimination, persecution and violence across the region. In the foreword, the Director of the UN Latin America Institute for the Prevention of Crime and the Treatment of Offenders, Douglas Durán Chavarría, acknowledged that the recognition of fundamental rights through international instruments is not enough, and that the gap between formal recognition of rights and their fulfilment needs to be overcome.

Chavarría argues it also requires articulation of a social policy that ‘addresses the profound inequality that limits sustainable human development in our societies and that seriously affects populations that face multiple conditions of vulnerability’.

Catalina Santos Angarita, Diversity and Inclusion Officer of the IBA Latin American Regional Forum and a partner at Brigard & Urrutia in Bogotá, says that ‘even though legal protections for transgender people have increased across the region during the last years, there is still a long road ahead. Moreover, although many Latin American countries are developing legislation to protect transgender people, culture values remain the same. Therefore, it is really important to align these changes with cultural sensibilization and education’.

Landscape of change

Mejía sees Vicky’s case as the ‘milestone that can change the current situation of human rights’ across the region.

In practical terms, she says, the Court set two major international standards. Firstly, ‘that trans women are protected by the Inter-American Convention Against Discrimination and Any Forms of Violence Against Women, and also that gender identity and gender expression are protected by the right to freedom of expression’.

Because the Court developed the Conventionality Control doctrine – which places human rights treaties above countries’ domestic law where those states are party to them – in 2006, Mejía explains that every country that has accepted the competence of the Court has to integrate the standards developed by the ruling into their national laws.

Some are hoping the ruling will even have an impact on countries not bound to the Court’s standards.

‘This is a very meaningful verdict because it sets specific standards on how the state obligations to protect and to fulfil human rights can be applied on trans people and, by extension, the LGBTQ+ community’, Vergara tells Global Insight.

He adds that ‘although other human rights courts cannot simply copy the analytical approach in the Hernández judgment because of the differences in the human rights frameworks within which they operate, it can have [a] very persuasive value. The judgment is a very good resource for human rights advocates trying to hold states accountable for failing to abide by human rights treaties or customary international law’.

Dru Levasseur, Director of Diversity, Equity, and Inclusion at the National LGBT Bar Association in the US, says the ruling ‘recognises the active role that governments play in the lives of LGBTQ+ people, particularly transgender people, which, as in this case, can mean the difference between whether someone will live or die’.

‘When the state chooses to ignore the existence of a politically unpopular group, or knowingly fails to protect them from harm, the state is complicit in the violence that the community faces’, adds Levasseur.

According to TvT, the US was the third deadliest country for transgender people in the world in 2020, and 79 per cent of those killed were people of colour.

Levasseur highlights that at the same time, the community also faced the worst year on record in terms of anti-LGBTI political backlash, which had a particular focus on transgender youth. ‘The connection must be drawn here in the US courts between the impact of state-based violence and the very real violence that the transgender community faces on a daily basis.’

Now that President Biden is in office, he says that ‘many are feeling hopeful that our government has our backs, or at least is not out to actively target or harm us’.

But the battle has moved to individual US states, where an onslaught of anti-LGBTI laws from state legislatures target trans healthcare and participation in school sports.

The US Department of Justice filed statements of interest supporting lawsuits in Arkansas and West Virginia to fight such laws in June. In July, a federal judge temporarily blocked Arkansas’ ban on gender-affirming medical care for trans children.

The connection must be drawn here in the US courts between the impact of state-based violence and the very real violence that the transgender community faces on a daily basis

Dru Levasseur
Director of Diversity, Equity, and Inclusion, National LGBT Bar Association

‘These laws are part of a very strategic plan by opponents to LGBTQ+ equality to target the most marginalised in the community’, Levasseur says. ‘Our opponents’ strategy is to play upon the widespread lack of information people have about transgender people. These laws do not stand a chance in the courts when faced with the facts about transpeople in sports or the realities of trans healthcare, yet we are seeing the damage that is being done on transgender youth just by the introduction of these bills.’

Victor Madrigal-Borloz, the UN’s Independent Expert on Protection against violence and discrimination based on sexual orientation and gender identity, warned in 2019 that LGBTI issues were being deliberately politicised to advance political and religious causes.

He stressed that this ‘vicious cycle of hatred’ increases social exclusion and hinders the community’s ‘access to healthcare, education, housing, employment, political participation, personal security and freedom from violence’.

In that climate, 2021 is already set to surpass 2020’s record of anti-LGBTI violence.

But for Vergara, the picture is complicated. ‘In my opinion, the rise in statistics could mean that more instances of violence against trans people are being reported, but does not necessarily mean that such numbers were not there before’, he says. ‘More people now have an awareness about the framework regarding trans people and are equipped to identify such attacks as separate and distinct from other crimes. I believe there is a slow paradigm shift.’

But, he adds, ‘as long as the efforts to mainstream LGBTQ+ ideals have a political dimension to it, we will continue to see the push and pull on their advancement and acceptance by main society. We can only continue to educate and advocate, in the hope that we will gain very wide acceptance and understanding in the near future.’

Jennifer Venis is a freelance journalist and can be contacted at jennifer@jennifervenis.co.uk