Sunday, July 29, 2018

Women's Right to Reproductive Healthcare


SASOD Women's Arm Coordinator, Akola Thompson speaking on the Sexual and Reproductive Health and Gender Equality panel of the Caribbean Forum on Population, Youth and Development 2018.

Greetings all. Let’s gyaff about access to information, access to services and the inequalities that exists in the distribution of these as it relates to sexual and reproductive health and rights.  

Information has the ability to shape narratives and narratives have the ability to shape culture. So, when it comes to providing information, it is important that we get it right. One of the things affecting many Caribbean countries is the high rate of adolescent pregnancy. Yet, with very few notable exceptions, the Caribbean remains a place that is resistant to comprehensive sexual education due to miseducation, religious fundamentalism and political interests. 

Currently, Guyana has the Health & Family Life program, which includes sexual education. Unfortunately, this program does not exist in a majority of schools and most glaringly, it takes an abstinence only approach and is often very useless in explaining issues of consent, body, abuse and is not inclusive of varying sexualities and gender identities. 


I became a mother at 16, a lot later than many of my friends I went to school with. We became sexually active and later pregnant, not because we were “force ripe” as we would say in Guyanese parlance, but because we did not have access to information on our changing bodies due to abstinence only sex education programs or the complete absence of them. 

We were expected to know what to do or what not to do. At every point, we were reminded that the beginning of a pregnancy meant an end of opportunities – but yet no one thought it important for us to talk about sex because of fears that talking about something somehow encourages it. I honestly do not understand that misguided line of thinking. As my friend Andaiye would say, give me a confounded chance

For many of us who got pregnant, many of our educational, economic, social and political opportunities and dreams did end. The more privileged of us were able to reintegrate into private school, opportunities were slow but they still came. There was no school reintegration policy as is currently being worked on by the Ministry of Education and the Guyana Equality Forum, most notably the Guyana Responsible Parenthood Association and the Society Against Sexual Orientation Discrimination.

There have been adjustments over the years to the HFLE program, but it is still lacking and even in the most progressive of schools, falls short of touching on contraception and abortion care. 

We have 20-year-old mothers with three children, all different ages because they do not have information on family planning. When we speak of inter-generational poverty and breaking the cycle of repeat pregnancies in young mothers, we must examine the role in access to reproductive services plays in perpetuating a cycle of unequal gender balance relations and economic inequalities particularly in rural communities. 

While abortion has been legal in Guyana since the passing of the 1995 Medical Termination of Pregnancy Bill, we continue to have abortion related complications and deaths because neither information nor services are readily available. Making these inaccessible is a tactic used by the Right to hinder women’s access to reproductive healthcare. It is just one in many ways that religious fundamentalists seek to infringe on women’s rights and bodily autonomy. 

This often results in women from far-flung areas choosing to either take matters into their own hands, or going to a “bottom-house clinic” to have the procedure done. There are too many cases of women gaining injuries, becoming sterile and even dying as a result. This was seen in 2012 in the case of 19-year-old Karen Badal who died at the hands of a hack doctor and more recently in 2016, a young woman who injected her stomach with a poisonous substance – from which she died - because she was pregnant and did not want to be. 

The stigma associated with abortion in most societies such as Guyana, remains a hindering factor to women professionally getting rid of unwanted pregnancies, even if they are able to and can afford it. This stigma has been fostered over several generations, aided on by our deep religious values that we were pounded in to us from years of colonialist teachings and writings.

We do not need long failed approaches; we need ones supported by facts and not beliefs. They need politicians who care less about political interests and power and more about ensuring we have a safe and well-informed populace. As we’ve covered and proven many times already, not talking about sex and reproductive health can be dangerous. Not being able to access it can be even more so. That is why we as advocates and movement builders should demand more and hold our leaders accountable. We have way too many spaces such as these filled with bureaucracy and inefficiency under the guise of being apolitical and separate. We need to become more radical in our approach, we have way too many policies and bodies but very little implementation. It is time that cycle stops. Leaders, you cannot keep asking to hear our voices and then silence us when we speak. 

















Thursday, July 26, 2018

SASOD, GRPA meet Education Minister on Bullying, Reintegrating Teen Mothers

SASOD, GRPA meet Education Minister on Bullying, Reintegrating Teen Mothers
- Discusses amending the Teachers Code of Conduct, implementing the Reintegration of Adolescent Mothers into Schools’ Policy and anti-bullying campaign for new school year


Minister of Education, Hon. Nicolette Henry, M.P. (sixth from left) along with Ministry staff and the joint SASOD – GRPA delegation at her Ministry’s Brickdam office.
 Photo Credit: Ministry of Education

The Society Against Sexual Orientation Discrimination (SASOD) and the Guyana Responsible Parenthood Association (GRPA) met with the Minister of Education, Hon. Nicolette Henry, M.P. and ministry staff last Monday, July 16, to discuss issues of discrimination students are facing in schools, how they can support the implementation process of reintegrating adolescent mothers into schools, and the Ministry’s support to anti-bullying initiatives SASOD and GRPA are currently developing together.   

SASOD was represented by its Managing Director, Joel Simpson; and Homophobia(s) Education Coordinator, Anil Persaud. GRPA was represented by its youth leaders, Programmes Officer Jairo Rodrigues and President and Vice-President of its youth arm – the Youth Advocacy Movement (YAM) – Chelsie France and Kobe Smith, respectively.  

Updating the Teachers Code of Conduct

The civil society delegation requested that the Ministry of Education update the Code of Conduct for Teachers to expand the grounds for discrimination to include those in the Guyana Constitution, while adding sexual orientation, gender identity and gender expression.

SASOD and GRPA have asked the Minister to amend the non-discrimination clause of the Code under Section B, Commitment to Colleagues, to expressly prohibit discrimination on the  basis of race, place of origin, political opinion, colour, creed, age, disability, marital status, sex, gender, sexual orientation, gender identity, gender expression, language, birth, social class, pregnancy, religion, conscience, belief or culture, nor interfere with the free participation of colleagues in the affairs of their association(s).

The groups also proposed that the non-discrimination clause under Section D on Commitment to Students be similarly updated. It was recommended that place of origin, birth status, political opinion, age, disability, marital status, sex, gender, sexual orientation, gender identity, gender expression, language, birth, social class, pregnancy, religion, conscience, and belief or culture be included with the four grounds currently stated: ability, race, colour and creed.

Simpson explained that the Ministry needed an updated and comprehensive policy that is in line with the Guyana Constitution, the newly-crafted National Policy on the Reintegration of Adolescent Mothers into the Formal School System and a document that supports the goals and vision of the Ministry. He recalled that the Minister expressed in the previous year at the Spirit Day reception – an event hosted by SASOD and the British High Commission to commit to working against bullying of lesbian, gay, bisexual and transgender (LGBT) students – that bullying in no way will be tolerated in schools since it hinders children’s rights to live their lives free from abuse, violence and discrimination, and their right to education.
  
Anil Persaud explained that SASOD has recorded cases of students being bullied based on their perceived sexualities, particularly effeminate boys. The non-discrimination provisions would fulfil an obligation to students to protect them against homophobic and transphobic bullying. He added that although the stigmatizing nature of anti-LGBT bullying precludes robust data collection on the problem, minority students also need the Ministry’s full protection at all levels.

The Minister responded that she will be guided by the professional advice of the Ministry’s Legal Officer, Ms. Kellyann Payne-Hercules, who was also present at the meeting, but indicated that she does not see these amendments to be problematic or damaging since they are in line with her vision and the Ministry’s strategic plan to ensure a safe and comfortable environment where all students can play, learn and work together for the advancement of the nation.

Reintegration of Adolescent Mothers in Schools

Just over a year ago, in March 2017 SASOD and GRPA formed part of a civil society delegation at the Inter-American Commission on Human Rights where they reported that the Government needs to work on reintegrating teenage mothers into the formal school system – Kobe Smith, a member of the same delegation expressed thanks to the Minister for her leadership in the development of the national policy. He spoke of GRPA’s commitment to seeing the policy implemented to which the Minister responded that orientation and familiarization is already in its planning stages and the policy will come into full effect from the start of the new school year in September.

Minister Henry said that this particular policy was dear to her since she was on Main Street (alluding to when she was Junior Education Minister responsible for Culture, Youth and Sport); “A lot of young people are left behind in a system that doesn’t cater for second chances,” she said. “On a personal level I have committed to this and as I sit here, I want to see this policy fully enforced, particularly in the hinterland,” she added.

Chelsie France of GRPA’s YAM spoke about the ongoing work with marginalized youth in vulnerable communities across the country. Jairo Rodrigues of GRPA shared how the organization’s projects can support some aspects of the reintegration policy, particularly prevention of pregnancies through education and sensitization on use of contraception and termination of pregnancies.

The Minister said that the approach to community education in these areas would have to be culturally relevant and appropriate or else it would not be accepted by the stakeholders. “What I would like to see is our communities understanding that things are changing. We need community education for social impact. This comes with strategic planning and only then will people access services and then can we change the lives of people, particularly the disadvantaged and marginalized,” she elaborated. Minister Henry stressed that the evidence-based approach is important when doing community interventions and she really would like to see meaningful interventions and collaborations which are driven by sound data and deliver solid results.

National Anti-Bullying Campaign

Minister Henry was open to partnership on a National Anti-Bullying Campaign proposed by GRPA and SASOD, organized in collaboration with other key stakeholders for Education Month in September. Through this campaign, secondary school students will be sensitized on the various forms of violence, and made aware of social support services and redress mechanisms if they are being bullied. The campaign will include a nation-wide essay competition for Grades 7 to 9 students on bullying and discrimination based on gender in schools.

The campaign will run into Bullying Prevention Month in October and culminate on Spirit Day, which is commemorated on the third Thursday of the month, October 18 this year.


Thursday, July 19, 2018

“Crossdressing” Case Raises Deep Issues of Human Rights and Social Justice for Region




The four litigants had their final day in court in a constitutional challenge lasting over 8 years



On Thursday, June 28, 2018, a five-member panel of the Caribbean Court of Justice (CCJ), chaired by Justice Adrian Saunders, President, held a hearing in the appeal by Angel (Seon) Clarke, Gulliver (Quincy) McEwan, Peaches (Joseph) Fraser and Isabella (Seyon) Persaud (R–L), at the CCJ’s headquarters in Port of Spain, Trinidad and Tobago. The audio recording of the hearing is available at:http://www.caribbeancourtofjustice.org/audio/gycv2017-015/20180628/gycv2017015_280618.mp4

In February 2009, four transgender women were convicted for the offence of being “a man” appearing in female attire in a “public place” for an “improper purpose.” This offence falls under the 1893 Summary Jurisdiction (Offences) Act section 153(1)(xlvii) and, in its application, disproportionately targets trans women. Labeling the law “hopelessly vague,” and constitutionally invalid, the litigants argued that the offence infringes on their rights to due process, freedom of expression and non-discrimination and equality. The litigants further argued that the law is not formulated with enough precision and clarity to allow the ordinary person to regulate their conduct.

It is important to note that “man” under this summary offence has been treated by state officials as including persons whose birth certificates describe them as “male” at birth and who identify as transgender persons or trans women. However, there is growing acceptance and respectful treatment by judicial officers, and others, of persons whose gender identity does not accord with the gender marker on their birth certificate. It is a common and respectful practice to refer to a transgender person in a manner that is consistent with the gender that matches the individual’s identity, which in this case is female. 



 Lead counsel for the litigants, Senior Counsel Douglas Mendes

The four litigants who were all present at the CCJ hearing on June 28, were represented by attorneys-at-law Douglas Mendes, S.C. (Trinidad and Tobago), lead counsel, C.A. Nigel Hughes (Guyana), MishkaPuran (Guyana), Clay Hackett (Trinidad and Tobago) and Isat Buchanan (Jamaica). Solicitor General Kim Kyte-Thomas, Kamal Ramkarran and Selwyn Peiters represented the State. 

In addition to the four litigants, over twenty representatives from civil society organisations and universities were present to observe the proceedings. Civil society organizations (CSOs) present included the Society Against Sexual Orientation Discrimination (SASOD), one of the original litigants in this case, Guyana Trans United (GTU), Guyana Rainbow Foundation (GuyBow), Promoting Empowerment Through Awareness For Les/Bi Women (PETAL) from Belize and the Alliance for Justice and Diversity (ADJ), which is a coalition of seven organisations in Trinidad and Tobago. The Faculty of Law The UWI Rights Advocacy Project (U-RAP) was also present.



Advocates from across the Caribbean at the CCJ hearing 

Ifasina Efunyemi, an educator and representative from PETAL Belize, said, “Even though this was a case coming out of Guyana, it involves issues that are relevant to the LGBT community, and other social justice movements, throughout the region.” In a public forum held in the evening of June 28 at the City Hall in Port of Spain, hosted by the Trinidad and Tobago’s AJD, on “Administrative Violence and Structural Inequality,” panelist David Abdulah, leader of the Movement for Social Justice, commented on the intersections of social justice claims. The well-known labour rights leader said that “You cannot be fighting for workers’ rights and then discriminate between one worker and another.” Highlighting the need to recognize difference and diversity, the Very Reverend Shelley-Ann Tenia, Dean of the Holy Trinity Cathedral, also a panelist at the evening forum, said “There is space for us, even if we are different.”




(Left to Right) Panelists, Very Reverend Shelley-Ann Tenia and Sunity Maharaj, and moderator Khadija Sinanan, at AJD’s Public Forum on Administrative Violence and Structural Inequality at City Hall  

One of the major hurdles for the appellants in their challenge to the 125-year-old law was the existence of a savings law clause in the Constitution that made it harder to use the Guyana Constitution to question laws in force before the 1980 Constitution. However, the ground-breaking decision of the CCJ on Wednesday June 27, in the case of Nervais and Severin v AG of Barbados, provides an interpretation of savings law clauses that significantly limits their negative impact in cases challenging colonial laws.The CCJ declared that the mandatory death penalty in Barbados was unconstitutional and that the general savings law clause was not a barrier to that declaration.

Substantively, both sides appeared to agree that dress consistent with one’s gender identity, even if that identity is different from the gender assigned at birth, was wholly legal. As a result, the focus of the hearing became the element of an “improper purpose.” Mendes SC in his presentation argued that criminalizing just thought—an “improper purpose”—was impermissible. And he also pointed out the thought of only some (“man” in “female attire”/ “woman” in “male attire”) was criminalized. No offence was committed if a “man” was dressed in “male attire” for an “improper purpose;” likewise if a “woman” was dressed in “female attire” for an “improper purpose.”

At AJD’s public forum of June 28, panelist and Managing Director of the Lloyd Best Institute of the West Indies, Sunity Maharaj, said that, “To one degree or another, people of the Caribbean have been living lives of improper purpose,” making reference to histories of resistance and struggle in response to colonial oppression. 

Much of the discussion earlier that day between the CCJ judges and the attorneys focused on whether the term “improper purpose” was sufficiently certain to allow persons to know what was being prohibited. In his comments and questions, Justice Wit emphasized that the test must be based not on legal experts as the standard, but ordinary citizens and charges should stem from crimes and not one’s manner of dress. 

Mendes SC strenuously argued that those applying the law specifically targeted the appellants as trans women. The State suggested that any arbitrary and discriminatory enforcement of this law could be addressed through appeals and applications for judicial review. During the hearing, President Saunders commented that transgender persons who are not of great means or social influence may lack meaningful access to these procedures and thereby be at risk if the law is not sufficiently certain. Justice Wit gave the example of a rich person and a poor person, both of whom in principle could reserve a room at the fancy Waldorf Astoria Hotel, but, of course in real terms, this hotel was entirely out-of-reach to the poor person because of lack of means. 

It is important to recognize the experiences and efforts of the four transgender women leading this litigation over the past eight years. Being a part of an extremely marginalized community, they have faced significant barriers to legal representation and accessing justice due to various contributing factors such as poverty and discrimination. While they were successful in accessing partnerships and resources to help further their challenge of the law, the larger community of trans persons still face many of these barriers. This litigation is an important step towards a more progressive and accepting society but we should remain cognizant of the everyday realities of those who are still marginalized due to their identities. 

The CCJ has reserved judgment in this appeal. If the CCJ finds for the appellants, it can declare that the summary offence in section 153(1)(xlii) is inconsistent with the Constitution and therefore null and void. Alternatively, the CCJ may seek to modify the offence to bring it in conformity with the Guyana Constitution. The written decision in the McEwan appeal could be delivered during the remainder of 2018 or the first half of 2019, based on CCJ’s practice in other cases.

Friday, July 13, 2018

Transgender Guyanese Women ask CCJ to strike down colonial law






On Thursday June 28, four young working-class transgender Guyanese women will have their final day in court. In Port of Spain at the Caribbean Court of Justice (CCJ), Guyana's final appellate court, justices will hear oral arguments in the final appeal of a matter filed in 2010 by Gulliver (Quincy) McEwan, Angel (Seon) Clarke, Peaches (Joseph) Fraser and Isabella (Seyon) Persaud. The fourtransgender women are challenging the constitutionality of an 1893 post-slavery vagrancy provision under which they and three others were detained, convicted and fined by the then Acting Chief Magistrate following their February 2009 arrest in Georgetown, Guyana.

 

The four litigants had their final day in court in a constitutional challenge lasting over 8 years
The arrests and convictions in 2009 were under Part V: Offences Against Religion, Morality & Public Convenience of Guyana’s 1893 Summary Jurisdiction (Offences) Act. Section 153(1)(xlvii) makes it an offence for a man“in any public way or public place, for any improper purpose” to appear in female attire, or for a woman, “in any public way or public place, for any improper purpose” to appear in male attire.Other offences in the Act include roguery, practising Obeah and witchcraft, flying a kite, beating a mat and grooming an animal on a public way.

While outlawing cross-dressing for both men and women, these small charges disproportionately affectand criminalize transgender women as they inhibit their freedom of expression in public.  The 19th century colonial law contravenes Guyana’s Constitution which affords fundamental rights and freedoms of the individual. This case strikes at the heart of plantation colonial rule that sought to restrict the freedom of the individual and promote racial, religious, ethnic and social division amongst Guyanese.

The core claims being made by the four litigants involved in the case are that the 1893 law itself is unconstitutionally vague, engages in sex stereotyping, and disproportionately affects transgender and gender-non-conforming persons. They also argue that the conduct of state officials was unconstitutional. At stake is also the interpretation of sections of the Guyana Constitutionand how it applies international law to human rights.Of particular relevance to the rest of the Caribbean is the question of whether the law is “saved” from constitutional challenge.Very importantly, the litigants will argue that theConstitution’s “savings law clause” does not prevent the court from reviewing this colonial law.

The four litigants involved in the case have already had some wins. There was an important step forward in 2013 when Guyana’s then Acting Chief Justice, Ian Chang, ruled that dressing to express one’s identity is not a crime. Unfortunately, his ruling did not resolve the uncertainty surrounding “an improper purpose.” A second achievement came in 2017 when Guyana’s Judicial Service Commission said that the practice of a magistrate who repeatedly refused to allow trans women with matters before him to enter his courtroom dressed as themselves, violated their right to access the courts and access justice.

Two Guyanese NGOs are deeply involved in the case. Guyana Trans United (GTU) was formed by McEwan, the first-named litigant,now itsDirector. GTU worksto empower the Guyanese trans community to advocate for their human rights and participate as equal citizens in decisions which affect their lives. The Society Against Sexual Orientation Discrimination (SASOD), a 15-year-old NGOworking to end discrimination based on sexuality and gender identity in Guyana, responded to the initial arrests and was originally also an applicantin the proceedings. One of the policy matters before the CCJ is the decision of the trial judge to strike SASOD out of the case as this precedent may impactmarginalised communities’ access to justice.

Senior Counsel Douglas Mendes will argue the case for the four women, leading a team of pro-bono lawyers from Guyana, Jamaica and Trinidad and Tobago, convened by the Faculty of Law UWI Rights Advocacy Project (U-RAP). U-RAP’s mission is to promote human rights and social justice in the Caribbean in collaboration with Caribbean lawyers, civil society organisations and its students.

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For further background information on the case, visit:

(i)                 10 Frequently Asked Questions Answered: http://bit.ly/mcewanccj
(ii)               Case Summary: http://bit.ly/mcewan180628

Tuesday, May 22, 2018


SWAG   Gifts Night Shelter Women for Mother’s Day



As part of its community service efforts to support vulnerable women, the Society Against Sexual Orientation Discrimination: Women’s Arm Guyana (SWAG) concluded its feminine hygiene and sexual health drive by handing over 30 gift bags to the women of the Night Shelter on Thursday, May 10, 2018, ahead of Mother’s Day celebrations on Sunday.



SWAG representatives distributed the gift bags to both the women residents and staff at the 24-hour homeless shelter. Aimed at promoting body safety, good hygiene and healthy lifestyles, the gift bags contained feminine hygiene products, sexual and reproductive health commodities and informational brochures.



Massy Distribution Guyana Inc., Dr. Nastassia Rambarran, Terianna Bisnauth, and Her Excellency, First Lady of the Cooperative Republic of Guyana, Mrs. Sandra Granger, donated the gift items. The sexual health commodities and brochures were provided by the National AIDS Programme Secretariat of the Ministry of Public Health.



Established in 2017, SWAG seeks to work towards the equality, safety and protection of lesbian, bisexual and transgender women and other vulnerable women.



Photo 1:



Photo 2:



SWAG Chairperson, Terianna Bisnauth (left) handing over to a Night Shelter Representative







Monday, March 19, 2018

VACANCY: Legal Officer

VACANCY: #SASOD is looking for a full-time Legal Officer to work on our Community Paralegal Services Initiative under our Human Rights Programme. Eligible candidates must have a Bachelor of Laws Degree. Email sasod@sasod.org.gy for terms of reference. Start date is April 3, 2018.



VACANCY: SWAG Coordinator

VACANCY: #SASOD #Women's Arm #Guyana is looking for a vibrant #feminist to serve as part-time #SWAG Coordinator. Eligible candidates must have at least a Diploma from an accredited university. Email sasod@sasod.org.gy for terms of reference. Expected start date is April 3, 2018.



Wednesday, March 14, 2018

LGBTTTI COALITION OF LATIN AMERICA AND THE CARIBBEAN CONGRATULATES THE INTER-AMERICAN COURT FOR RECOGNIZING THE RIGHT TO THE IDENTITY OF TRANSGENDER PEOPLE AND THE RIGHTS OF SAME SEX COUPLES  

The Coalition of LGBTTTI Organizations of Latin America and the Caribbean that work within the framework of the OAS,[1] composed of the undersigned organizations, commend the Inter-American Court of Human Rights for the recognition of the human rights of transgender persons and same-sex couples, as affirmed in its Advisory Opinion 24/17 dated November 24, 2017 and published on January 9, 2018.


With this historic Opinion, the Inter-American Court recognizes that the human rights obligations of States vis-à-vis the principles of equality and non-discrimination on the basis of sexual orientation, gender identity and gender expression, include the obligation to recognize families composed of same-sex couples and the right to gender identity. This Opinion reinforces the urgent need of States in the region to adopt measures to ensure both formal and substantial equality of persons with non-normative or diverse sexual orientations, gender identities and expressions in the Americas.


The Advisory Opinion of the Court reaffirms what the social organizations of the LGBT movement have been promoting for decades in the countries of the region: that we are rights’ bearers, and that the States owe us the full recognition, guarantee and respect of our rights without discrimination.

We congratulate the Inter-American Court for categorically stating that States must guarantee the right to rectify gender or sex markers, name, and image in official records and/or identity documents, in accordance with individuals’ self-perceived gender identity. In its Opinion, the Court specified the requirements for this process, including that it must be based solely on the free and informed consent of the person requesting the change.
We congratulate the Inter-American Court for categorically stating that it is necessary for States to guarantee same-sex couples the same rights of different sex couples, including the right to marriage, to ensure the protection of all the rights of families composed of same-sex couples, without discrimination.
We urge all OAS Member States to take measures to promote the legislative, administrative and judicial reforms necessary to bring their legal systems, interpretations and practices in line with the standards established in Advisory Opinion No. 24, issued by the Inter-American Court.
The Coalition of LGBTTTI organizations from Latin America and the Caribbean working within the framework of the OAS has decided to publish along with this press release, a summary of the Advisory Opinion, with the aim of highlighting some of the main standards that have been developed by the Inter-American Court. The Advisory Opinion includes standards that have been advocated by non-governmental organizations that are part of this Coalition for decades in the countries of the region, with varying degrees of success.
SUMMARY of Advisory Opinion 24/17 issued by the I/A Court of Human Rights, dated November 24, 2017 - Gender Identity, and Equality and Non-Discrimination of Same-Sex Couples[2]
BACKGROUND
The State of Costa Rica requested an Advisory Opinion to the Inter-American Court so the highest regional court could interpret the American Convention on Human Rights, in light of the rights of LGBT people.
In January 2017, sixteen organizations belonging to this Coalition of LGBTTTI Organizations of Latin America and the Caribbean working within the framework of the OAS (“LGBTTTI Coalition”) presented a brief of amicus curiae to the Inter-American Court (“Court”). Several human rights defenders from the organizations belonging to this Coalition also presented oral arguments during the hearings before the Court that were held in Costa Rica in May 2017.
In the proceedings before the Court, several OAS Member States presented observations: Argentina, Bolivia, Brazil, Colombia, Guatemala, Honduras, Mexico, Panama and Uruguay. A large number of stakeholders also submitted observations, such as the Inter-American Commission on Human Rights, the Office of the United Nations High Commissioner for Human Rights, several state entities, international associations, academic institutions and non-governmental organizations.
Below we highlight some excerpts from Advisory Opinion 24/17 (not the official translation),[3] containing the main standards developed by the Court.

GENERAL OBSERVATIONS
On the lack of consensus in some countries on guaranteeing the human rights of LGBT people, the Court affirms that the lack of a consensus in some countries on the need to respect the rights of certain groups or persons because of their sexual orientation, gender identity or gender expression, whether real or imputed, cannot be considered a valid argument to deny or restrict their human rights or to perpetuate and reproduce the historical and structural discrimination that these groups or individuals have suffered (para. 83).
On the prohibition of discrimination against LGBT people, the Court stated that
ü  a right that is recognized to someone cannot be denied or restricted to anyone, and under no circumstances, can this denial or restriction be based on their sexual orientation, gender identity or gender expression. Otherwise, this would violate Article 1.1. of the American Convention. The Inter-American instrument prohibits discrimination, in general, including on the basis of categories such as sexual orientation and gender identity. These categories cannot be used to deny or restrict any of the rights established in the Convention (para. 84).

ü  Any discriminatory norm, act or practice based on a person's sexual orientation, gender identity or gender expression is prohibited under the Convention. Consequently, no norm, decision or practice at the domestic level, coming either from state authorities or from individuals, can diminish or restrict, in any way, the rights of a person based on their sexual orientation, gender identity and/or gender expression (para. 78).
Regarding discriminatory discourses and attitudes against LGBT people, the Court affirmed: discriminatory discourses and the resulting attitudes that stem from these, based on the stereotypes of heteronormativity and cisnormativity, with different degrees of radicalization, end up generating homophobia, lesbophobia and transphobia that drive hate crimes (para. 47).
Regarding "gender expression", the Court stated that: perception-based discrimination has the effect or purpose of preventing or nullifying the recognition, enjoyment or exercise of the human rights and fundamental freedoms of the person subject to such discrimination, regardless of whether that person identifies with a certain category. In this regard, it must be understood that gender expression is a protected category under Article 1.1 of the American Convention (para. 79).
Furthermore, the Court affirms that States as guarantors of all rights, must respect and guarantee the coexistence of individuals with different gender identities and expressions, and sexual orientations. As such, States should ensure that all individuals can live and develop with dignity and are granted the same respect to which all people are entitled to (para. 100).
***
I.                    THE RIGHT TO RECTIFY DOCUMENTS ACCORDING TO SOMEONE’S GENDER IDENTITY
The Inter-American Court recognizes the right to gender identity based on the human rights enshrined in the American Convention, including: dignity, private and family life, personal autonomy, the principle of the free development of personality, personal liberty, identity, freedom of expression, legal personality, name, and equality and non-discrimination.
Thus, the Court affirms that States must guarantee people’s gender identity, as this is key to the full enjoyment of other human rights (para. 113). In the trend, the Court establishes that, in accordance with the principle of equality and non-discrimination, it is not reasonable to establish different treatment between cisgender and transgender people who intend to carry out corrections in the official registries and their identity documents (para. 131).
Obligation of States regarding requirements to ensure recognition of peoples’ gender identity
In its decision, the Inter-American Court affirms that:

1.   The rectification of the registries and/or identity documents in accordance with someone’s self-perceived gender identity (rectification of the gender or sex marker, modification of the name and adaptation of the image) constitutes a human right protected by the American Convention.

2.       States, in accordance with Article 2 of the American Convention, are obliged to recognize, regulate and establish the appropriate procedures to ensure that people interested in rectifying their gender or sex marker, changing their name and adapting their image in official records and/or in the identity documents, can do so in accordance with their self-perceived gender identity. As such, States must ensure that they have access -without interference by the public authorities or by third parties- to a procedure that complies with the following requirements: (a) a procedure focused on the full adaptation of the self-perceived gender identity; (b) based solely on the free and informed consent of the person without requirements such as medical and/or psychological certifications, surgical and/or hormonal interventions or others that may be unreasonable or pathologizing; (c) must be confidential; (d) changes, corrections or adjustments made in accordance with the gender identity, should not be reflected in the records, and/or identity documents; (e) it must be expeditious and, in as much as possible, free; (f) the procedure that best complies with these requirements is the administrative or notarial procedure. States can also provide an administrative proceeding, in parallel, so interested persons have a choice.
Likewise, the Court indicates that States should make efforts so that persons interested in
having their self-perceived gender identity recognized in the registries and in their identity documents are not subject to “unreasonable burdens.” People requesting this change do not have to undertake several proceedings before a variety of authorities so that their gender identity is reflected in all relevant registries and official documents (para. 124).
Regarding the requirement of good behavior certificates or police records, the Court is of the view that while this requirement may have a legitimate purpose so the procedure is not used to evade justice, it can also be considered a disproportionate restriction on the interested party, to the extent that a State’s obligation -the harmonization of State records which register identity data- is transferred unreasonably to the applicant of the procedure. The protection of third parties and public order must be guaranteed through different legal mechanisms that do not imply, allow or result in the impairment, violation or sacrifice of people’s fundamental rights. Otherwise, the essential core of the rights to the free development of the personality, the right to privacy, the right to personal and sexual identity, the right to health, and, consequently, the right to health, would be completely affected, and as a result, this would also hinder people’s dignity and their right to equality and non-discrimination (para. 132).

Sex and gender are part of the construction of someone’s identity
The Inter-American Court has affirmed that sex, as well as gender, are part of the construction of someone’s identity resulting from each person’s free and autonomous decision, regardless of their genitalia (para. 94). In more detail, the Court affirmed that sex, as well as the socially constructed identities and attributes assigned to biological differences around the sex assigned at birth, far from constituting objective and immutable components that individualize someone, ... end up being traits that depend on each person’s subjectivity and are linked to each person’s construction of their self-perceived gender identity, which is related to the free development of personality, sexual self-determination and the right to privacy. Therefore, transgender people are bearers of legally protected interests, which under no circumstances can be subject to restrictions for the simple fact that the social conglomerate does not agree with certain lifestyles, as a result of fears, stereotypes, and social and moral prejudices lacking reasonable grounds (para. 95)

Link between the recognition of gender identity and the human rights of trans people
The Court affirms that the lack of recognition of the right to gender identity of transgender people contributes to reinforcing and perpetuating discriminatory behaviors against them (para. 134). Thus, the Court points out that since gender identity is a key element of people’s identity, its recognition by the State is of vital importance to guarantee the full enjoyment of the human rights of transgender people, including protection against violence, torture, ill-treatment, right to health, education, employment, housing, access to social security, as well as the right to freedom of expression, and association. Therefore, the lack of recognition of someone’s identity may imply that the person does not have legal proof of their existence, hindering the full exercise of their rights (para. 98).
Right to recognition of the gender identity of children
In its Advisory Opinion, the I/A Court HR also indicated that the considerations related to the right to gender identity that were developed are also applicable to children who wish to submit applications so that their self-perceived gender identity is recognized in identity documents and official records (para. 154). The Court affirms that any restriction imposed on the full enjoyment of this right through provisions that have the purpose of protecting children, can only be justified in accordance with these principles and should not be disproportionate.
Concerning Article 54 of the Civil Code of Costa Rica
Regarding the interpretation of Article 54 of the Civil Code of Costa Rica, the Court indicated that, by virtue of the “control of conventionality” (control de convencionalidad), this provision must be interpreted in accordance with the standards indicated in the Advisory Opinion. Further, the Court notes that Costa Rica may issue regulations to incorporate the standards indicated in the Advisory Opinion into domestic law.

II. THE INTERNATIONAL PROTECTION OF SAME SEX COUPLES
A restrictive interpretation of the concept of "family" that excludes same-sex couples would frustrate the aim and purpose of the American Convention
The Court reiterated on this occasion that the American Convention does not establish a specific concept of family, and does not protect a particular model of family (para. 174). Further, that the definition of family should not be restricted to the traditional notion of a couple and their children (para. 178). It also affirmed that a family may also consist of persons with different gender identities and/or sexual orientations (para. 179), and that the protection of family ties is not limited to relationships based on marriage (para. 181). The Court points out that as long as there is a will to be related permanently and to form a family, there is a bond that deserves equal rights and equal protection regardless of the sexual orientation of its members (Articles 11.2 and 17 of the American Convention) (para. 225).

While it is true, the Court points out, that Article 17.2 literally recognizes "the right of men and women of marriageable age to marry and to raise a family," such wording is not a restrictive definition of how the marriage is to be understood or how to form a family (para. 182). Moreover, the Court categorically affirms that a restrictive interpretation of the concept of family that excludes the affective bond between same-sex couples from the protection afforded by the inter-American System would frustrate the aim and purpose of the Convention. The Court recalls that the aim and purpose of the American Convention is the protection of the fundamental rights of human beings without distinction (para. 189).
Establishing a different treatment between heterosexual couples and same-sex couples is discriminatory
The Court affirms that establishing a different treatment between different-sex couples and same-sex couples regarding the way in which they form a family -whether through a union or a civil marriage- fails to pass a “strict equality test,” since, in the view of the Court, there is no aim that is acceptable under the Convention for this distinction to be considered necessary or proportional (para. 220).

States must protect the rights derived from same-sex couples
The Court states that the American Convention protects -by virtue of the right to privacy and family life (Article 11.2), as well as the right to the protection of the family (Article 17)- the family bond that can arise from a same-sex relationship. The Court is also of the opinion that all the economic rights that derive from the family bond established by same-sex couples should be protected, without any discrimination, to the same extent as different-sex couples, in accordance with the rights to equality and non-discrimination (Articles 1.1 and 24) (para. 199).
The creation of "new legal figures" for same-sex couples
The Court affirms that creating a legal figure to regulate same-sex couples, with the same effects and rights as marriage, but with a different name, does not make any sense, except to send a social message that highlights the difference in treatment, with the effect of stigmatizing, or at the very least, demonstrating contempt towards same-sex couples. According to this, couples, which according to the stereotype of heteronormativity, were considered "normal," would be legally protected under “marriage.” Meanwhile, those considered “abnormal,” according to the aforementioned stereotype, would be protected under a different institution with identical effects but with a different name. Based on this, for the Court, the existence of two types of solemn unions is not admissible to legally consolidate same-sex and different-sex union, since a distinction based on sexual orientation would be discriminatory, and therefore incompatible with the American Convention (para. 224).
Further, the Court indicates that to guarantee the rights of same-sex couples, establishing new legal figures is not necessary, and therefore, it chooses to extend the existing institutions to same sex couples - including marriage. The Court is of the view that this would be the simplest and most effective way to secure the rights derived from the relationship between same-sex couples (para. 218).
Obligations of States regarding same-sex couples
In this regard, the Court noted that there are various administrative, judicial and legislative measures that can be adopted by States to guarantee the rights of same-sex couples (para. 217).
In relation to countries that still do not recognize same-sex couples their right of access to marriage, they are equally obliged not to violate the norms prohibiting discrimination in this regard, and therefore must guarantee them the same rights derived from marriage, in the understanding that it is always a transitory situation (para. 227).
The Inter-American Court indicates that States must guarantee access to all existing legal systems in order to ensure the protection of all the rights of families composed of same-sex couples, without discrimination with respect to those that are constituted by different-sex couples. For this, it may be necessary for States to modify existing legal figures, through legislative, judicial or administrative measures, to extend them to same-sex couples. States that have institutional difficulties to adapt the existing figures, temporarily, and in good faith promote these reforms, also have the duty to guarantee to same-sex couples, equal enjoyment of rights with respect to different-sex couples, without any discrimination (para. 228).
In relation to the obstacles that States may face in making the modifications at the domestic level in a manner that conforms to the standards established in the Advisory Opinion, the Court recognizes that it is possible that some States must overcome institutional difficulties to adapt their domestic legislation and extend the right of access to the institution of marriage to same-sex couples, and in this regard, urges States to effectively, and in good faith, promote the legislative, administrative and judicial reforms necessary to adapt their domestic law, interpretations and practices (para. 226).
In sum, the Court unanimously affirmed that the State must recognize and guarantee all the rights derived from a family relationship between persons of the same sex. By six votes in favor and one against, the Court indicated that according to Articles 1.1, 2, 11.2, 17 and 24 of the Convention, it is necessary for States to guarantee access to all the existing legal figures in the legal systems, including the right to marriage, to ensure the protection of all the rights of families formed by same-sex couples, without discrimination with respect to those that are constituted by different-sex couples.

What does this Advisory Opinion mean for OAS Member States?
As the Court points out, the objective of Advisory Opinions is to contribute to the States’ compliance with their international human rights obligations, and for them to define and develop human rights public policies (para. 22).

The Inter-American Court affirms that its advisory function constitutes a service that the Court is able to provide to all members of the inter-American system, with the purpose of contributing to the fulfillment of its international commitments on human rights. In this sense, it is of the view that based on the interpretation of the relevant norms, its response to the question posed will be of great importance for the countries of the region insofar as it will make it possible to specify the state obligations in relation to the rights of the LGBTI persons within the framework of their obligations to respect and guarantee human rights to every person under their jurisdiction. This will lead to the determination of the concrete principles and obligations that States must comply with in the area of ​​the right to equality and non-discrimination.

The Inter-American Court is clear in affirming that when a State ratifies an international treaty, such as the American Convention, it obligates all its agencies and branches of government, including the judiciary and the legislative. Thus, violation by a State’s branch of government generates international responsibility for the State as a whole. That is why the Court is of the view that the various state organs must perform "conventionality control", which is applicable to its contentious jurisdiction and also to its advisory jurisdiction (para. 26), regarding the objective of the inter-American human rights system, which is, the protection of fundamental rights of human beings.

The Advisory Opinion of the Court has legal relevance for all OAS Member States, not only for Member States to the American Convention
In relation to OAS Member States that are not parties to the American Convention, the Court affirms that all organs of OAS Member States -including those that are not signatories to the American Convention but which have committed to respecting human rights under the OAS Charter (Article 3(l)) and the Inter-American Democratic Charter (Articles 3, 7, 8 and 9)- are bound by these instruments, which also contribute, and especially preventively, to achieve effective protection and guarantee of human rights and, in particular, they are a guide to be used to solve issues related to the respect and guarantee of human rights within the framework of protection of LGBTI people and thus, to prevent possible violations of human rights (para. 28).

Regarding laws that criminalize same-sex intimacy between consenting adults in private
The Court indicates that there are still several States in the region that criminalize consensual sexual relations between adults of the same sex in private. These laws have been considered by the Court (Case of Flor Freire v. Ecuador, para. 123) and by various international human rights bodies as contrary to international human rights law for violating the rights to equality and non-discrimination as well as the right to privacy. Coupled with this, these types of norms have a negative impact on the quality of health services, discourage people from resorting to these services, and can lead to denial of care or to the absence of services that respond to specific health needs of LGBTI people. In addition, in jurisdictions where sexual behavior is criminalized, preventive measures that should be specifically tailored to these communities are much more likely to be suppressed. Further, the fear of being judged and punished may deter those who engage in same-sex from accessing health services. These problems are exacerbated in the case of people living with HIV/AIDS. In addition, the Office of the High Commissioner for Human Rights (OHCHR) has found that, because of this type of laws, victims are often reluctant to report acts of violence perpetrated by a family member for fear of the criminal consequences of revealing their sexual orientation.

***
The text of the Advisory Opinion can be read in full (currently only available in Spanish) here: http://www.corteidh.or.cr/docs/opiniones/seriea_24_esp.pdf.

The link to the English version will be made available by the I/A Court, here: http://www.corteidh.or.cr/index.php/en/advisory-opinions.
Organizations of the LGBTTTI Coalition of Latin America and the Caribbean working within the framework of the OAS:

1.       Argentina - AKAHATÁ Equipo de Trabajo en Sexualidades y Género

2.       Argentina - ATTTA (RedLACTrans)

3.       The Bahamas - The D Marco Organization(RedLACTrans)

4.       Belize - TIA Belize (RedLACTrans)

5.       Belize - United Belize Advocacy Movement (UNIBAM)

6.       Bolivia - Red Nacional de Mujeres Trans en Bolivia (REDTREBOL) (RedLACTrans)

7.       Bolivia - Fundación Diversencia

8.       Brazil - Articulação Política das Juventudes Negras

9.       Brazil - Grupo Ativista de Travestis, Transexuais e Amig@s (GATTA)

10.   Brazil - Grupo Esperança

11.   Brazil - Liga Brasileira de Lesbicas (LBL)

12.   Brazil - Rede Nacional de Negr@s e Afros LGBTTT (Rede-afros-lgbts)

13.   Chile - Asociación OTD Organizando Trans Diversidades

14.   Chile - Sindicato Amanda Jofré (RedLACTrans)

15.   Colombia - Asociación Lideres en Acción

16.   Colombia - Colombia Diversa

17.   Colombia - Fundación Santamaría

18.   Colombia - Red Comunitaria Trans (RedLACTrans)

19.   Costa Rica - Mulabi - Espacio Latinoamericano de Sexualidades y Derechos

20.   Costa Rica - TRANSVIDA (RedLACTrans)

21.   Dominica - Dominica Chapter of the Caribbean HIV and AIDS partnership (ChapDominica) 

22.   Ecuador - Asociación Alfil (RedLACTrans)

23.   Ecuador - Taller de Comunicación Mujer

24.   El Salvador - Asociación Aspidh Arcoiris (RedLACTrans)

25.   Grenada - Grenada Chapter of the Caribbean HIV and AIDS Partnership (GrenCHAP)

26.   Guatemala - Organización Trans Reinas de la Noche (OTRANS) (RedLACTrans)

27.   Guyana - Society Against Sexual Orientation Discrimination (SASOD)

28.   Honduras – Asociación para una Vida Mejor (APUVIMEH)

29.   Honduras - Colectivo Unidad Color Rosa (RedLACTrans)

30.   Jamaica - J-FLAG

31.   México - Letra S SIDA, Cultura y Vida Cotidiana

32.   México - Red Mexicana de Mujeres Trans (RedLACTrans)

33.   Nicaragua - Red Nicaragüense de Activistas Trans (REDTRANS)

34.   Nicaragua - ODETRANS (RedLACTrans)

35.   Panamá - Asociación Panameña de Personas Trans (RedLACTrans)

36.   Paraguay - Aireana Grupo por los Derechos de las Lesbianas

37.   Paraguay - Asociación Panambi (RedLACTrans)

38.   Paraguay - Asociación Escalando

39.   Perú - Centro de Promoción y Defensa de los Derechos Sexuales y Reproductivos (PROMSEX)

40.   Perú - Instituto Runa de Desarrollo y Estudios sobre Género

41.   Perú - Red Trans Perú (RedLACTrans)

42.   Regional - Caribbean Forum for Liberation and Acceptance of Genders and Sexualities (CARIFLAGS)

43.   Regional - Red Latinoamericana y del Caribe de Personas Trans (REDLACTRANS)

44.   Regional - Synergía – Initiatives for Human Rights

45.   Dominican Republic - Colectiva Mujer y Salud

46.   Dominican Republic - Comunidad de Trans Travesti y Trabajadoras Sexuales Dominicana COTRAVETD (RedLACTrans)

47.   St Lucia - United & Strong

48.   Suriname - Women's Way

49.   Trinidad and Tobago - Allies for Justice & Diversity (AJD)

50.   Uruguay - Asociación Trans del Uruguay (ATRU)

51.   Uruguay - Colectivo Ovejas Negras

52.   Venezuela - Venezuela Diversa Asociación Civil

53.   Venezuela - Diversidad e Igualdad a Través de la Ley (DIVERLEX)


[1] The Coalition of LGBTTTI organizations from Latin America and the Caribbean working within the framework of the OAS is a regional network of organizations that promotes visibility and mobilizes around the OAS and its regional system for the protection of human rights, in order to ensure their full and systematic commitment in the protection and promotion of the human rights of LGBTI people in the Americas. It was conceived and promoted in 2006 by local activists, within the framework of the Regional Conference of the Americas - Progress and Challenges of the Plan of Action against Racism, Racial Discrimination, Xenophobia and Related Intolerance, which took place in July in Brazil. The first meeting of the Coalition was held in Panama, in May 2007, on the occasion of the 37th OAS General Assembly. The Coalition is currently composed of 53 organizations from 27 countries in the Latin American and Caribbean region.
[2] I/A Court HR, Advisory Opinion OC-24/17 - Gender Identity, and Equality and Non-Discrimination of Same-Sex Couples, State Obligations in relation to the change of name, gender identity, and rights derived from a same sex relationship (interpretation and scope of Articles 1.1, 3, 7, 11.2, 13, 17, 18 and 24, in relation to Article 1 of the American Convention on Human Rights), requested by the Republic of Costa Rica, dated November 24, 2017, published on January 9, 2018, available (only in Spanish, at the moment) at:
http://www.corteidh.or.cr/docs/opiniones/seriea_24_esp.pdf. The link to the English version will be made available by the I/A Court, here: http://www.corteidh.or.cr/index.php/en/advisory-opinions. This Summary was drafted by Fanny Catalina Gómez Lugo, Synergía – Initiatives for Human Rights and reviewed by the LGBTTTI Coalition.

[3] As of January 30, 2018, the Inter-American Court has yet to release its official English translation of the Advisory Opinion. In this regard, in this Summary of the Advisory Opinion, the LGBTTTI Coalition has translated the excerpts from the Court’s official version in Spanish. As these excerpts are not official quotes, quotation marks have not been included.