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LGBTI rights: transfemicide ruling has far-reaching implications across Latin America

Jennifer VenisTuesday 3 August 2021

In late June, the Inter-American Court of Human Rights ruled that the state of Honduras was responsible for the death of transwoman and activist Vicky Hernández, in the first transfemicide case to come before the Court.

Hernández was killed on the first night of the 2009 coup d’état in Honduras, during a 48-hour curfew maintained by state military police. She had been shot in the head, her body left on the street until the morning.

The Court agreed with local grassroots group Red Lésbica Cattrachas and the international organisation Robert F Kennedy Human Rights (RFK), which had argued that Hernández’s death was an extrajudicial killing, and that Honduras had also violated Hernández’s right to life by discriminating against her and failing to investigate the extrajudicial killing in line with international standards. 

Vicky’s life is a reflection of all the intersectional violence that a transgender woman faces in this part of the world

Astrid Ramos
Lawyer, Red Lésbica Cattrachas

Kacey Mordecai, Latin America and Caribbean Staff Attorney at RFK, says ‘it’s very clear […] how the lack of investigation, particularly due to [Vicky’s] status as a transwoman, is part of the violation of her right to life. In her death, the preconceptions of state authorities and the lack of protection for individuals like Vicky robbed her family of the ability to know what happened to her and to get closure.’

Official documents pertaining to the investigation showed signs of discrimination based on Hernández’s gender identity, and gaps in the investigation include untested forensic evidence and a missing autopsy report.

Mordecai adds that ‘the case is about Vicky’s death because it has to be […] but through her death we also learn about the limitations on her life.’

Mordecai highlights that transwomen in Honduras and across the region typically don’t live past their mid-30s. ‘To think that because of who you are and all of the limitations and lack of protections that you encounter shortens your lifespan by that much, that’s obviously a problem that’s not just about death,’ she says. ‘That’s a problem that’s about how people are able to live in their country and the lack of protections that exist for them.’

Lloyd Vergara, Member of the IBA LGBTI Law Committee Advisory Board, says ‘the obligation to protect must also be read together with the obligation to fulfil – 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.’

He says the ruling is a reminder that states must actively and positively endeavour to protect and promote human rights within their jurisdictions.

The Honduran government had argued that it could not be proven responsible for Hernández’s murder. Following the ruling, the country’s 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.

As reparations, the Court demanded Honduras undertake sweeping reforms to facilitate societal change and prevent further transphobic violence, as well as continuing the investigation into Hernández’s death and paying financial reparations to her family.

The state must acknowledge its role in Hernández’s death, adopt measures to enable gender identity changes in official documents and records, create a Vicky Hernández educational scholarship for transwomen and train police and security forces in the prejudices behind violence enacted against the LGBTI community.

The ruling was delivered on 28 June, which is international LGBTI Pride Day, but also the 12th anniversary of Hernández’s death and the start of the coup d’état.

For Astrid Ramos, a lawyer with Cattrachas, it was notable that the Court recognised not only the context of violence against LGBTI people, but the broader context of militarisation during the coup d’état, which she argues shaped a culture of impunity for violence towards the LGBTI community.

Nadia Mejía, another member of Cattrachas’s legal team, believes the case ‘is a milestone that can change the current situation of human rights [across the region]’.

She explains that two major international standards were set by the Court. ‘One is that the Court decided that transwomen 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 in 2006 – which places human rights treaties above countries’ domestic law where those states are party to them – Mejía emphasises that every single country that has accepted the competence of the Court has to integrate all of the standards developed by the ruling into their national laws. ‘This ruling is not only an obligation for Honduras, but all those countries, to adopt these standards,’ she says.

‘We know that Vicky’s life is a reflection of what it is to be a transwoman in Latin America, where the life expectancy for a transwoman is 35 years old,’ says Ramos. ‘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.’

The Court’s jurisdiction covers most of Central and South America, but the impact of the verdict may reach even further.

Dru Levasseur, Director of Diversity, Equity, and Inclusion at the National LGBTQ+ Bar Association and Foundation in the United States, tells Global Insight, ‘this is a powerful ruling because it 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.’

Statistics from monitoring group the Transrespect versus Transphobia Worldwide project from November 2020 showed that the US, meanwhile, has become the third deadliest country for transgender people in the world, and 79 per cent of the transgender people killed there were people of colour.

Levasseur says at the same time, ‘we saw the worst year on record in terms of anti-LGBTQ+ political backlash with 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.’