By Juliana Martínez
Colombia Diversa / Flickr / Creative Commons Attribution-NonCommercial-ShareAlike 2.0 Generic (CC BY-NC-SA 2.0)
Colombia has again shown itself to be a country of contrasts – a society ostensibly ruled by Catholic and conservative morals with one of the hemisphere’s most progressive Constitutional Courts – with two important legal decisions on LGBT rights. The Court has defended the democratic, pluralistic, and inclusive spirit of the Colombian Constitution against powerful authoritarian and conservative forces for years. In 2007 and 2008, it granted pension, social security, and property rights to registered same-sex couples, and it ruled that same-sex couples “constitute a family” in 2011. In spite of some recent rulings tarnishing its liberal record, last month the Court made two decisions that, though limited, have historic implications.
- It ruled in favor of step-child adoptions by gay couples. After much political, legal, and even religious debate, the Court broke a four-year silence on the highly contested issue, ruling 6 to 3 that Verónica Botero could legally adopt the biological children of her wife, Anna Leiderman. The ruling does not explicitly allow joint adoption by gay couples, but the decision cites ample scientific evidence and declares that parental homosexuality cannot be considered a risk factor for children, thus leaving the door open for further LGBT-friendly jurisprudence in the matter.
- The court recognized the gender identity of trans women by declaring that they do not have to comply with the compulsory military service required of all Colombian males. The case centered on Gracy Kelly Bermúdez, a transgender woman who filed a lawsuit against the mayor’s office in Bogotá when she was denied a job for failing to provide proof of her military service. Bermudez had not entered the military because she identifies as a woman, and therefore did not have the Military Service Registration Certificate (libreta militar) required when applying for jobs, studying at the university level or accessing health care services. She would have been exempted if she had undergone an official sex change – the right to change one’s sex has been protected in Colombia since 1993 – but this can only be legally done after undergoing sex realignment surgery, a procedure that most trans women do not have access to, cannot afford, or do not want. Therefore, despite their gender identity and expression, the legal sex of the majority of trans women continues to be “male.” The Court decided in favor of Bermúdez and ordered the mayor’s office to hire her immediately.
These decisions are far-reaching. In the Bermúdez case, the Court was essentially prioritizing gender identity over assigned sex at birth. It declared that asking trans women for the Military Service Registration Certificate when hiring them is unconstitutional because it violates their right to define their own gender. Furthermore, the Court told Congress to draft a bill that regulates the rights of transgender people in Colombia, paving the way for a much-needed Gender Identity Law. The ruling also has deep regional implications. Since Argentina passed a groundbreaking Gender Identity Law in 2012, many countries have been struggling to achieve similar results – and the Colombian legal precedent can become a viable alternative for impact litigation. Currently, at least ten countries in Latin America have compulsory military service with different levels of enforcement attached to non-compliance. But as the Bermúdez case illustrates, military conscription mandates can turn into strange, yet effective platforms to denounce how the state routinely imposes gender identity on its citizens, often against their own will, and to catalyze legal reform that advances LGBT rights in the Americas.
* Dr. Juliana Martínez teaches gender and sexuality and Latin American Literature in the Department of World Languages and Cultures at American University.
September 25, 2014
Posted by clalsstaff on September 25, 2014
By Emily McGranachan
Marcha de Orgullo, Buenos Aires, Argentina / Photo credit: blmurch / Foter.com / CC BY
Social and structural discrimination limit the economic, health, and social prospects of transgender individuals, often leading to precarious lives fraught with human rights violations. According to Argentine psychologist Graciela Balestra, transgender people around the world have an average life expectancy of only 30 years. In Latin America, they have the highest rate of HIV infection (35 percent) and frequently face violence and insecurity. According to the 2012 Trans Murder Monitoring Project report, of the total reported murders of transgender people in the world between 2008 and 2011, 79 percent took place in Latin America. International HIV/AIDS Alliance and Red Latinoamericano y del Caribe de Personas Trans (REDLACTRANS) published similarly startling statistics in a 2012 report titled “The Night is Another Country.” While the report focused on the experiences of transgender women, it also reveals that transgender men also experience high rates of discrimination and violence throughout Latin America. Of the transgender women interviewed in the study, about 80 percent reported experiencing violence or threats by police and other officials. Throughout Latin America the prevalence of transphobia – defined as the fear or hatred of transgender people – has led to impunity for violence and discrimination against transgender people, and these crimes, including murder, are seldom prosecuted. The transgender community also faces challenges of social discrimination and the lack of access to health care and jobs, marginalizing transgendered people in society.
While the current situation is stark, some societies have shown greater openness to transgender people. Whereas Brazil and Colombia allow identity card changes only after surgery and board evaluation, Argentina in 2012 became the first country in Latin America to pass a progressive law easing the rules with regard to gender identity and identification. Now a person in Argentina can change the name and sex on their identity card without having to go through the long and discriminatory process of sex reassignment surgery or going before a judicial review board. In 2009, Uruguay slightly loosened its controls when it began requiring only board approval for identity card changes. Government initiatives, like that of Argentina, have direct impacts on the lives of transgender people, who are able to access jobs and other securities, according to Balestra. Greater inclusion in society and stronger legal protections by the government can signify or signal a change in social values within the broader society.
The Obama Administration has been a vocal supporter of LGBT (Lesbian, Gay, Bisexual and Transgender) rights as part of a broader human rights agenda in international diplomacy. Among its initiatives are the Global Equality Fund to support local LGBT organizations and advocates, a greater recognition of refugee rights for LGBT people, and a general promotion of rights abroad through working with NGOs and states. Recognizing the situation in Latin America, the State Department highlights its work trying to establish a special rapporteur for LGBT human rights within the Inter-American Commission for Human Rights. As some aspects of LGBT rights progress in the United States (the U.S. still has a high rate of violence against transgender people as well), it is expanding its understanding and definition of human rights. While the right to security, health care, employment and dignity have long been international human rights, only recently has the discrimination and violence transgender people face become an important part of the human rights platform. The incorporation of LGBT human rights into U.S. foreign policy, backed by a strong U.S. example of justice and security for transgender citizens, will encourage other countries to follow suit.
Posted by clalsstaff on June 24, 2013