Salvadoran president Nayib Bukele agreed on December 15 to implement an Asylum Cooperative Agreement with the US government. It allows US immigration authorities to transfer non-Salvadoran asylum seekers to El Salvador, instead of allowing them to seek asylum in the US.
US President-elect Joe Biden has pledged to terminate the deeply flawed agreement, a deeply flawed deal that presupposes El Salvador can provide a full and fair asylum procedure and protect refugees. But for some groups, including lesbian, gay, bisexual and transgender (LGBT) people, El Salvador provides no safe haven. Its own LGBT citizens lack protection from violence and discrimination.
A recent Human Rights Watch report confirms the Salvadoran government’s own acknowledgmentthat LGBT people face “torture, inhuman or degrading treatment, excessive use of force, illegal and arbitrary arrests and other forms of abuse, much of it committed by public security agents.” Social and economic marginalization further increase the risk of violence. Many LGBT people flee from home.
Between January 2007 and November 2017, over 1,200 Salvadorans sought asylum in the US due to fear of persecution for their sexual orientation or gender identity. In a groundbreaking judgment, a UK court recently granted asylum to a non-binary Salvadoran, finding that their gender expression exposed them to police violence and daily abuse and degradation.
Five years ago, El Salvador seemed poised to champion LGBT rights. It joined the UN LGBTI Core Group. It increased sentences for bias-motivated crimes. Its Sexual Diversity Directorate trained public servants and monitored government policies for LGBT inclusiveness.
The Salvadoran government should back a gender identity law and comprehensive civil non-discrimination legislation, prosecute anti-LGBT hate crimes, and reestablish a well-resourced office to promote inclusion and eradicate anti-LGBT violence. It should axe the Asylum Cooperative Agreement.
As things stand, El Salvador fails to provide effective protection to its own LGBT citizens, let alone LGBT people fleeing persecution elsewhere.
On October 6, lesbian, gay, bisexual and transgender (LGBT) activists in Tunisia raised their voices and banners in the street, amid the hundreds of demonstrators who were peacefully protesting a draft law that would drastically limit criminal accountability for the use of force by the security forces. By a cruel irony, police attacked the demonstrators, including LGBT activists, and arbitrarily arrested them.
The proposed law, if passed, would embolden security forces in their use of excessive force and send an alarming message to Tunisians, especially members of marginalized groups, already vulnerable to police misconduct, that they will not be protected from police violence.
For LGBT people, who are often excluded from government protection, the passage of this law is terrifying. Here’s why:
On August 5, Ahmed El-Tounsi, a transgender Tunisian man and founder of the trans rights organization OutCasts, thought he would bleed to death on the street.
El-Tounsi and other trans activists were walking near the French Embassy in Tunis when police officers guarding the embassy approached them and asked for their IDs. When the officers saw the mismatch between their IDs and their gender expression, and after a verbal altercation, the police physically and verbally assaulted them, the activists said.
Bloodied and humiliated, they tried to run, but additional police officers arrived and beat the activists, while inciting bystanders to join in – cursing, hitting, and dragging the activists by their clothes on the street, they told me.
“Kill them, they are sodomites,” the officers told bystanders, El-Tounsi said.
“They [private individuals] followed us into alleyways and beat us unconscious,” he said. “They snatched our phones to delete evidence of the assault, and said, ‘We will slaughter you,’ It felt like our entire country beat us that day.”
When he sought medical care at Habib Thameur Hospital, El-Tounsi was denied treatment based on his gender expression. “The doctor said, “You’re a special case, I can’t treat you here. Go somewhere else,”” El-Tounsi said.
“My chest was swollen from the beatings, I couldn’t breathe, I was bleeding profusely, I could barely stay conscious,” he said. When he went to Charles Nicole Hospital, administrative staff refused him entry after seeing his ID, and referred him to a women’s hospital, despite his self-identification as a man.
Activists took El-Tounsi to Wassila Bourguiba Hospital, which specializes in women’s health. “I’m bleeding, I’m going to die, please treat me,” El-Tounsi pleaded, but the doctor responded, “You look like a man, this is a women’s hospital.”
After he waited for hours and negotiated with the doctor, she checked El-Tounsi’s injuries while seven nurses stood around him, interrogating him about his gender identity, and addressing him with female pronouns. “They mocked me. They didn’t treat my injuries. They didn’t even give me a medical report.”
Activists turned to the courts and filed a complaint, seeking to hold police and embassy officers accountable. Several lawyers involved in the case told me that the head of a first instance court in Tunis dismissed the request to review camera footage near the embassy, which lawyers said would show the officers’ role in the assaults. The lawyers appealed in late October and await a decision.
Saif Ayadi, a social worker at Damj, a Tunis-based LGBT rights group, was there during the attacks on trans activists in August, and was among those arbitrarily arrested and beaten at the protest in October. He spoke to me about the increasing police violence against LGBT people in Tunisia, and the insurmountable dangers that would accompany the passage of the draft impunity law.
Ayadi said that in 2020, Damj provided legal assistance to LGBT people at police stations in 75 cases and responded to 98 requests for legal consultations. “These figures are five times higher than those we recorded in 2019, indicating an alarming increase in persecutions of LGBT people during the Covid-19 pandemic,” he told me.
Ayadi said that between March and September, his organization recorded 21 cases of violence against trans people in public, 10 torture cases, and 2 cases of bullying by security officers against trans people in detention facilities. There were also 12 prison sentences against trans people and gay men under articles 230, 225, and 125 of Tunisia’s penal code, which criminalize “sodomy,” “indecent behavior in public,” and “insulting a public officer,” respectively.
Tunisian law does not provide a clear or accessible path to legal gender recognition for transgender people, who face systemic discrimination compounded by the incongruity between their official documents and gender expression.
Amal Ayari, a prominent advocate for women’s and LGBT rights in Tunisia, told me, “Tunisia is considered a country where rights and freedoms are protected, but such flagrant violations of citizens’ rights show that this discourse is just slogans, and is an attempt to whitewash Tunisia’s international image.”
Instead of granting more power to the police, the Tunisian government should decriminalize same-sex conduct and protect LGBT people from discrimination and police violence. The proposed bill, Number 25/2015, a shameful step backward, should not pass.
After training for hours on end, year after year, some women athletes – particularly those competing on the world stage – are getting their careers and successes ripped away because of “sex testing,” practices, which are invasive and medically unnecessary procedures based on disputed science that dictates what “natural” testosterone levels can be for women, and the role it plays in performance. Women from the global south are disproportionately targeted. Sporting officials demand that these women undergo irreversible sterilization surgeries or hormone therapies to have a chance at competing again. Philippa Stewart spoke to Dr. Payoshni Mitra, who has worked for years with affected athletes, about a new Human Rights Watch report, “‘They’re Chasing Us Away from Sport’” and why these tests have to end.
What is it that singles women out?
Often it is just that they look different, less “feminine” than men, and it often is men, in charge of the national or international sports federations, who think they should.
These policies disproportionately target women from the global south, specifically black and brown women. It is important to note that there aren’t any similar rules governing men’s bodies.
There is evidence of research studies by doctors affiliated to the World Athletics where women’s bodies have been investigated and operated on. They treated these women like guinea pigs. They would not have done this to an athlete from Europe or America.
Do the athletes give consent to be tested?
Not informed consent. They are normally not told exactly why they are being tested or what is going to happen. In the case of one athlete, she was told it was about high performance, others are told various things that aren’t true.
There is also no privacy, the coach is there when the physical exams are done. Then the women are pressured into surgery or hormone therapy as the only ways they could possibly be allowed to compete in their preferred event.
Often these women start competing because the prizes are a way to survive, to pull their family out of poverty. They love sports and see it as the thing that can change the fate of their family. And then suddenly they are told they don’t have a chance unless they take irreversible medical steps.
They are also told not to talk about it and to come up with some excuse about why they are not competing. This creates a feeling of shame for them, like there’s something wrong with them and they shouldn’t talk about it. It makes them feel inadequate, like they’re not the “correct” kind of woman. Athletes told me it feels like a way of telling them they aren’t good enough.
Are doctors willing to perform these tests without consent?
This isn’t a normal doctor-patient relationship. The athletic federations that are directly connected to the doctors are both requesting the invasive treatment and being given information by the doctors about the athletes. The athletes don’t have any autonomy around this process. Their medical information is passed on from the doctor to the athletic federation that decides their future and whether they will be allowed to compete.
Some people believe that if a woman doctor performs the test then it is fine. But it isn’t necessarily so. It is still an extra pair of eyes and hands on your body in a way you haven’t consented to. That is not fine.
The women are told not to speak about it because of “confidentiality,” but this protects the federations and the people performing the tests and not usually the athletes.
The World Medical Association has said these tests shouldn’t be performed. Has that made a difference?
Honestly, no. The WMA made it clear that the sex testing regulations are unethical and instructed doctors not to implement them. But the doctors are not controlled by medical authorities, they do what their collaborators – the athletic federations – tell them to do, and they follow what the international bodies say. There needs to be a change in sporting policy at the international level for these harmful practices to stop.
What happens after women are told they can’t compete?
Often these women start competing because of the prizes. Sometimes the prize is some food, and one woman told me she won a cow as a young girl, which meant her family could have milk every day. Sport, competing for the national team, it’s something to aim for because it pulls you out of poverty, it helps your family. Athletes in many countries get lifetime government jobs after they finish competing if they did well and brought pride to their country.
These policies disproportionately target women from the global south, specifically black and brown women. Dr. Payoshni Mitra
When that goes away, often the woman’s family stops supporting them. Especially because there are all these rumors around why they had to stop competing – that there is something shameful about them. These women can lose their support network overnight and they don’t even get told exactly why.
There are also long-term effects for these women if they try to stay in sports. They are constantly under scrutiny, they start to feel unsafe, people gossip about them constantly. It is a very hard thing to deal with when no one has told you why it is happening in a way that you understand.
South African runner Caster Semenya is probably the most famous case of gender testing. Is that where most people’s knowledge of these examinations comes from?
I am privileged to know Ms. Semenya, and she is a wonderful and extremely resilient champion, both on and off the field, who has a very important story to tell. But she is not the whole story. She was already at the top of her career when this happened and people are, rightly, rallying around to support her. She has support in a way that a lot of these women, at the start of their careers, often young and alone and not aware of their rights, do not have. It is, to my mind, a good thing more people are aware of these horrific tests now, but even with that, people don’t realize how many women it affects and what they go through, what they have to overcome.
She is a wonderful champion, but the media should highlight other stories too, of the women who don’t rise to those heights. The women who are just mid-level, proud to represent their country, and trying to build a better life, and then they have it ripped away.
What can be done to protect those women?
Education on rights – many athletes didn’t even know that the court of arbitration for sport existed, let alone that they could take their case there. I have been working with women athletes for years trying to make them aware of their rights. It is no coincidence that these policies affect women from poorer countries, where they don’t have the same level of awareness about their rights.
I advise athletes not to allow federations to communicate with them verbally. It is important to have evidence of what the federations ask athletes to do in writing. If they ask for every communication to be in writing, federation officials realize that they must take that athlete seriously and treat her respectfully.
Women are now challenging these policies in courts of law, both national and international. This is a recent development and it makes me happy to see that more and more women athletes from Asia and Africa are becoming conscious of their rights.
What about the testing policies?
They need to end. At a national level, and at an international level. There are some women who compete nationally, and then just as they are about to make it to the international stage, they get tested and dropped. There’s major downstream impact from the global regulations. That’s because the national federations or sport ministries see these international federation policies and think they have to test first. All levels of sport need to stop these tests now.
Is there anything that makes you hopeful things can change for the better?
These women have been scrutinized for so long and now, finally, that is being switched and it is the federations dealing with scrutiny for what they have done.
This report is the first time the world is truly hearing the voices of some of the women affected by these policies. Annet Negesa, the Ugandan runner who was sex tested and ruled ineligible, broke her silence for first time in an interview to Human Rights Watch last year. That was incredibly brave. Finally, after more than a decade of work, the world is paying attention.
I believe it is extremely powerful that all the affected athletes I am working with are now refusing harmful medical intervention. Dutee Chand and Caster Semenya have spoken openly about not succumbing to any pressure of taking medical steps. They have inspired athletes across the world to switch to a completely new, unrestricted event, rather than consent to these harmful and irreversible medical interventions. Switching events often outs them as having high testosterone. But that is not deterring them. It is a clear message to the World Athletics: “Enough is enough.”
William Alejandro Martínez, a trans man from Honduras, stood up for his rights when military police officers stopped him in Comayagüela in May 2019 and asked to see his identity card. They questioned him about his gender identity, physically assaulted him, and threatened to arrest him. “Don’t touch me, I’m a human rights defender,” Martínez insisted. That’s when an officer pointed a rifle at him, saying “I don’t give a damn what you are.” “My life passed before my eyes,” Martínez remembered.
Ten years before Martínez stared into the barrel of a gun, Vicky Hernández, a trans woman, sex worker, and activist, was killed on the streets of San Pedro Sula. Last week, the Inter-American Court of Human Rights heard a case arguing that the Honduran government is responsible for Hernández’s loss of life.
The petitioners acting for the deceased, Cattrachas Lesbian Network and RFK Human Rights, argue the government bore direct responsibility for Hernández’s death, and that in failing to conduct an effective investigation into her killing, including whether it was motivated by anti-LGBT prejudice, Honduras violated her right to life under the American Convention on Human Rights.
The case reached the Inter-American Court because Honduras failed to comply with recommendations the Inter-American Commission on Human Rights issued in 2018. These included establishing a rights-respecting process to secure legal recognition for trans people’s gender identity, mapping violence against LGBT people and introducing a comprehensive policy to address its structural causes, and training security forces on anti-LGBT violence.
Human Rights Watch made similar recommendations in a report published today, part of our work on anti-LGBT violence and discrimination in Central America’s Northern Triangle. The report found that the Honduran government has failed to effectively address violence and entrenched discrimination based on gender identity and sexual orientation, leading many to seek asylum in the US. In some cases, security officers themselves are perpetrators of violence.
After William Martínez survived a second assault by military police in June 2019, he fled the country. Exile should not be the only way to escape violence. Honduras should take urgent steps to protect LGBT people from violence and discrimination.
A Hungarian government proposal to amend the constitution to restrict adoption to married couples is designed to exclude lesbian, gay, bisexual, and transgender (LGBT) people and families and is an affront to common European values, Human Rights Watch said today.
The Hungarian parliament should reject it resoundingly. And the European Commission should make clear that the government’s latest slew of legal changes is not compatible in a European Union based on tolerance and nondiscrimination.
“It seems nothing will derail this government from cruelly and pointlessly targeting one of the most marginalized groups in Hungarian society, not even soaring coronavirus infections and Covid-19 related deaths,” said Lydia Gall, senior researcher in the Europe and Central Asia Division at Human Rights Watch. “Under the pretext of combatting a misguided conception of ‘gender ideology,’ the government further restricts rights and stigmatizes thousands of Hungarian citizens.”
The government presented to parliament a number of constitutional amendments on November 10, 2020, the same day parliament had voted to extend by 90 days the state of emergency Prime Minister Viktor Orban’s government declared on November 3. The ruling party, Fidesz, which has a two-thirds majority in parliament, is set to vote on the proposals within weeks. If passed, it would be the 9th of constitutional amendments since the Orban government came into power for the second time in 2010.
The bill states that only married couples will be eligible to adopt children, with the minister in charge of family policies able to make exceptions on a case-by-case basis. It effectively excludes same-sex couples, single people, and unmarried different-sex couples from adopting children.
The bill includes language that stigmatizes transgender people, stating that “children have the right to their identity in line with their sex at birth” and rejecting diversity and inclusivity by mandating that children’s upbringing should be “in accordance with the values based on our homeland’s constitutional identity and Christian culture.”
The bill is the latest attack on LGBT people in Hungary. In May, the parliament, during the first wave of the Covid-19 pandemic, banned legal gender recognition meaning transgender and intersex people in Hungary cannot legally change their gender or sex (both called “nem” in Hungarian) assigned at birth. The restriction has serious repercussions for people’s everyday lives, Human Rights Watch said. It also follows increasingly hostile anti-LGBT statements by high-ranking public officials, including Prime Minister Orban.
In September, a Hungarian children’s book was published, with new versions of well-known fairy tales, featuring members of marginalized groups, including LGBT people, Roma, and people with disabilities. It sparked a wave of homophobic attacks, with right-wing extremist politicians publicly shredding the book. Other key government officials added their voices to the hate campaign in October, and Orban, on a radio show, commented on the book, saying that the LGBT community should “leave our children alone.”
The vice president of the EU Commission, Vera Jourova, on November 12 stated that abuse against the LGBT community “belongs to the authoritarian playbook and has no place in the EU.” The increasingly homophobic policies of populist conservative governments in Hungary and Poland are at odds with the Commission’s proposed LGBTIQ strategy and the principles of tolerance and nondiscrimination it is designed to protect, Human Rights Watch said.
Hungary’s justice minister, Judit Varga, dismissed the strategy, calling it a “seemingly limitless ideology [being] forced on Member States” and saying that Hungary would “not accept any financial threats for protecting the traditional role of family and marriage.” The Hungarian government on November 16blocked the adoption of the seven-year EU budget because the budget ties access to some EU funds to respect for the rule of law.
Earlier in the year, parliament blocked ratification of a regional treaty on violence against women. The Council of Europe Convention on Combating Violence against Women and Domestic Violence, known as the Istanbul Convention, has established a gold standard for inclusion, recognizing everyone’s right to live free from violence, regardless of sexual orientation, gender identity, or other characteristics.
The government submitted a separate bill to amend the electoral law, which would make it much harder for opposition parties to win elections. It would effectively require opposition parties to create joint party lists and run joint candidates to have any chance of winning an election.
“The Hungarian government’s latest efforts to cement intolerance and remove safeguards against the abuse of power should set off alarm bells in Brussels,” Gall said. “The EU Commission and other member states should strengthen scrutiny and use the EU’s systems and funds to increase respect for EU’s common democratic values and to protect marginalized populations.”
An Algerian court on September 3, 2020 sentenced 2 men to prison terms and 42 others to suspended terms after mass arrests at what the police alleged was a “gay wedding,” Human Rights Watch said today. The authorities should void the charges and release them immediately.
On July 24, 2020, police raided a private residence and arrested the 44 – 9 women and 35 men, most of them university students – in el-Kharoub, a district in Constantine Province, northeastern Algeria, after neighbors complained. An Algerian lawyer involved in the case told Human Rights Watch that the court used police reports describing the decorations, flowers, and sweets indicative of a wedding celebration, and the men’s supposedly gay appearance, as evidence of guilt.
“Algerian authorities’ attack on personal freedoms is nothing new, but arresting dozens of students based on their perceived sexual orientation is a flagrant infringement on their basic rights,” said Rasha Younes, lesbian, gay, bisexual, and transgender (LGBT) rights researcher at Human Rights Watch. “They should immediately release from prison the two men who would be free today were it not for Algeria’s regressive anti-homosexuality laws.”
The court convicted the 44 of “same-sex relations,” “public indecency,” and “subjecting others to harm by breaking Covid-19-related quarantine measures.” Two men were sentenced to three years in prison and a fine, and the others to a one-year suspended sentence.
These convictions contradict the right to privacy under international human rights law. This right is also reflected in Algeria’s constitution, which provides for the protection of a person’s “honor” and private life, including the privacy of their home, communication, and correspondence. The convictions of the 44 for “same-sex relations” indicate that Algerian authorities are discriminating against them based on their perceived sexual orientation and gender expression, Human Rights Watch said. The appeal of their convictions has not yet been scheduled.
In Algeria, same-sex relations are punishable under article 338 of the penal code by up to two years in prison. Additionally, article 333 increases the penalty for public indecency to six months to three years in prison and a fine if it involves “acts against nature with a member of the same sex,” whether between men or women.
Arrests for “moral” offenses that involve consensual adult activities in private settings violate international human rights law, including the right to privacy, nondiscrimination, and bodily autonomy protected under the International Covenant on Civil and Political Rights (ICCPR), to which Algeria is a state party. Algeria has ratified the African Charter on Human and People’s Rights (ACHPR), which affirms the rights to nondiscrimination, and has joined the African Court on Human and Peoples’ Rights. However, Algerian law does not extend antidiscrimination protections to discrimination based on sexual orientation or gender identity.
In light of the Covid-19 pandemic and the risk of outbreaks in detention sites, Human Rights Watch recommended that governments refrain from custodial arrests for minor offenses that do not involve the infliction or threat of infliction of serious bodily injury or sexual assault or a known likelihood of physical harm. Officials should also release anyone held pretrial, unless they pose a specific and known risk of harm to others that cannot be managed through measures other than detention.
Since March, Algerian authorities have imposed a ban on all social gatherings to slow the spread of Covid-19. Breaking quarantine and social distancing measures to attend a social gathering does not justify arbitrary arrests and prolonged pretrial detention, Human Rights Watch said.
“While people in Algeria continue to demand their basic rights to protest, the authorities are dedicating their time and resources to crack down on students and stockpile discriminatory charges against them,” Younes said. “Instead of policing its citizens’ private lives, the Algerian government should carry out reforms, including decriminalizing same-sex conduct.”
The death of Justice Ruth Bader Ginsburg on September 18, 2020 leaves a vacancy on the United States Supreme Court and enormous uncertainty over the court’s future role in the protection of fundamental human rights. A nominee for Justice Ginsburg’s seat on the Supreme Court should be evaluated in terms of their likely impact on access to justice for critical human rights guarantees, including the rights to life, due process, free expression, privacy, health, freedom from arbitrary detention, and freedom from discrimination.
The following areas of Supreme Court decision-making–voting rights, the right to health, the right to reproductive freedom, and the interaction between religious freedom and other rights–are only some of the domains in which Justice Ginsburg’s replacement could either help to protect or weaken basic rights, with particularly significant impacts on people of color, women and girls, and lesbian, gay, bisexual and transgender (LGBT) people. The stakes of the decision before US elected officials are tremendous. We urge senators to thoroughly review any nominee’s record on these and other issues and to question a nominee closely about key rights protections that hinge on the Supreme Court’s jurisprudence.
The 15th and 19th Amendments to the US Constitution recognize the rights of all citizens to vote without discrimination. The International Covenant on Civil and Political Rights, to which the United States is a party, provides that “every citizen shall have the right and opportunity” without discrimination or “unreasonable restrictions” to “vote and be elected at genuine periodic elections … guaranteeing the free expression of the will of the electors.”
Over Justice Ginsburg’s dissent, the Supreme Court has already eviscerated federal oversight under the Voting Rights Act of 1965, enabling states to impose discriminatory restrictions on the right to vote. The Covid-19 pandemic has exacerbated these problems and the Supreme Court has already ruled to restrict voting rights, including by rejecting attempts by states in several cases to adapt voting procedures to the pandemic. With new legislation to restore federal oversight over voting pending in Congress, a new justice could play a pivotal role in either erecting new barriers or upholding the right to vote without discrimination.
Right to Health
The right to health under international human rights law does not guarantee a right to be healthy, but obligates governments to enact policies promoting available and affordable basic health services without discrimination. Governments should take particular care to ensure access to those most likely to face obstacles–people living in poverty, racial and ethnic minorities, persons with disabilities, women, and children, among others.
As the Affordable Care Act (ACA), Medicaid, and reproductive health care rights continue to be the subject of litigation in both federal and state courts, the Supreme Court is likely to act as the final arbiter on the constitutionality and permissibility of these programs. These decisions will have profound and far-reaching rights impact, at a time when the number of uninsured is already increasing. They will potentially determine whether millions of people in the United States will have access to health care during the Covid-19 pandemic and beyond.
Rights to Reproductive Freedom
Everyone should be able to exercise their reproductive rights and maintain their health, privacy, and dignity. In a series of cases over the last five decades, the Supreme Court has taken important steps to protect women’s health and human rights, including their freedom to access contraceptive care and abortion services. Recently, though, the court has shown it is willing to curtail those rights. Justice Ginsburg’s replacement will be poised to protect or undo jurisprudence ensuring women’s access to abortion.
A new justice could eliminate constitutional protections for women’s right to access abortion by upholding excessive regulation of abortion providers or by abandoning the Roe v. Wadeline of precedent and instead leaving it to individual states to determine access to legal abortion. If that happens, many states might criminalize abortion. At least four states already have “trigger laws” on the books that automatically outlaw abortion if Roe is overturned, and dozens of others have laws that put access to abortion at high risk.
Even without fully overturning Roe, a decision that narrows the court’s understanding of what kinds of restrictions or regulations present an undue burden on a person seeking an abortion, or one that redefines the test for analyzing the constitutionality of abortion regulations, could severely curtail reproductive rights in the United States.
Sexual orientation and gender identity are integral aspects of our being and should never lead to discrimination or abuse. International human rights law protects the rights of lesbian, gay, bisexual and transgender (LGBT) to privacy, nondiscrimination, and equal protection of the law. While a recent 6-3 Supreme Court ruling banning employment discrimination based on sexual orientation and gender identity should remain settled law, other issues that are likely to come before the court will also be highly consequential for LGBT people. The court is likely to be confronted with efforts to limit the scope of or reverse landmark decisions protecting the rights of LGBT people, such as Obergefell v. Hodges,which established that same-sex couples enjoy the same marriage rights as different-sex couples. Even if this decision were not overturned altogether, a new justice may be considering challenges aimed at allowing states to discriminate against same-sex married couples.
Ensuring Religious Freedom Without Undermining Other Rights
Freedom of religion is protected under international human rights law as well as the US Constitution. While a government can craft accommodations for religious objectors, they should ensure that these are carefully constructed so that they do not come at the expense of the equality or dignity of others.
The next justice will most likely weigh in on whether an employer’s religious liberty permits them to refuse contraceptive coverage to their employees. Under the Affordable Care Act, Congress delegated the authority to define the scope of reproductive health services to Department of Health and Human Services experts. A 2011 recommendation included all Federal Drug Administration-approved contraceptives, sterilization, and education and counselling as part of preventive health services.
But in a line of cases, including Hobby Lobby v. Burwell (2014) and Little Sisters of the Poor v. Pennsylvania(2020), the court has permitted employers to raise conscience-based objections to the contraceptive mandate. In Ginsburg’s dissent to the 2020 Little Sisters ruling, she stated, “Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.” Continued litigation on this issue is expected, as the question whether the expansion of the refusal exemption is reasonable has been returned to lower courts.
The new justice will also be central to deciding cases involving efforts to seek religious exemptionsfrom laws that protect the rights of LGBT people and reproductive rights. International human rights law recognizes the importance of the rights to freedom of conscience and religion, but also elaborates their limits, particularly where their exercise threatens to negatively impact the fundamental rights of others.
In recent years, litigants have sought to use the Religious Freedom Restoration Act and the US Constitution’s free exercise of religion clause to challenge laws requiring government officials to register the marriages of same-sex couples and laws prohibiting discrimination in education, employment, housing, health care, and public accommodations. In 2018, the Supreme Court issued a narrow ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, sidestepping the larger questions. The court is set to consider the issue this fall in Fulton v. City of Philadelphia, a case involving a religious foster care agency that argues that it has a right to receive state contracts and support even if it will not comply with the city’s nondiscrimination requirements.
On August 19, 2020, the United States Agency for International Development (USAID) released its draft 2020 Gender Equality and Female Empowerment Policy. According to the draft, this policy “supersedes and replaces the 2012 Gender Equality and Female Empowerment Policy in its entirety.”
Human Rights Watch writes today to raise its most significant concerns with the draft policy. Given that USAID has provided less than five full business days, with a last-minute extension of 2 days, to provide comments and feedback on the 40-page draft policy, we urge further discussion of the policy, including through meaningful and transparent civil society engagement, to ensure that it reflects the needs and opportunities of the current moment to advance gender equality globally. Such a short window for written comments, particularly during a global pandemic, is insufficient and makes engagement by many non-US-based organizations impacted by the policy nearly impossible.
Noting that our concerns with the draft policy are much broader, Human Rights Watch takes this opportunity to raise two overarching concerns:
“Unalienable rights” is a term with no legal significance and subverts the established framework of internationally recognized and binding human rights.
The draft policy begins by stating that USAID “believes that gender equality and women’s empowerment are fundamental for the realization of unalienable human rights and key to effective and sustainable development outcomes.” Human Rights Watch opposes the introduction of the term “unalienable” into the phrase “realization of human rights.” Internationally agreed-upon and binding human rights treaties, and mechanisms for interpreting human rights obligations of states, already exist at international and regional levels. Inserting the term “unalienable” into the USAID gender policy appears to reflect a shift by the agency away from internationally recognized human rights and continues a pattern whereby the United States shies away from its international human rights commitments.
The term “unalienable rights” is clearly a reference to the work of the State Department’s Commission on Unalienable Rights, which Human Rights Watch has consistently criticized as advancing the harmful idea that governments can decide which rights to respect and that the United States can unilaterally establish a hierarchy of rights. Such an approach is likely to fragment and weaken the international human rights system rather than strengthen its promise of greater gender equality and the realization of all rights for all people.
Throughout the draft, the policy also qualifies rights with terms like “basic” or “legal” rights, reducing the process of respecting and promoting women’s human rights simply to ensuring their recognition in domestic law, without recognizing the broader context for the realization of those rights. Legal barriers may exist that prevent the realization of human rights, and removing those barriers should be a priority. However, Human Rights Watch research has repeatedly shown that governments often violate women’s human rights or fail to achieve gender equality by failing to implement laws or policies, or by accepting rights-infringing social norms or practices. The human rights obligations of states to achieve gender equality cannot be reduced to ending de jure discrimination at the expense of the full realization of human rights and achievement of substantive equality.
As a result of this distorted framing of rights, the draft policy fails to adequately address women’s economic rights, including rights to health, to dignity and safety at work, and to equitable distribution of property. While global health is a significant proportion of USAID funded work, the draft policy entirely omits the right to health and to non-discrimination against women in accessing it, including any discussion of the importance of women’s sexual and reproductive health and rights. When discussing harassment in the workplace, the draft policy fails to mention the significant step forward made last year to adopt global standards through a treaty aimed at ending violence and harassment at work. This oversight detracts from global efforts to ratify the treaty. Further, when highlighting the importance of women’s property rights, the policy should address the need to ensure the equitable distribution of matrimonial property, including at the dissolution of marriage.
The policy lacks an inclusive approach to addressing gender equality that recognizes how gender discrimination intersects with other forms of discrimination.
The 2012 policy was explicitly “inclusive of all women and men, girls and boys, regardless of age, sexual orientation, gender identity, disability status, religion, ethnicity, socioeconomic status, geographic area, migratory status, forced displacement or HIV/AIDS status.” By glaring contrast, this draft policy makes no reference to gender identity, sexual orientation or sex characteristics, religion, ethnicity or race, socioeconomic status, geographic area, migratory status, forced displacement, or HIV/AIDS status as intersecting identities that might affect the achievement of gender equality. Age and disability are mentioned in just one passing reference. This omission raises concerns that implementation of the policy will be insufficiently attentive to intersectional forms of discrimination.
Human Rights Watch research has shown that while all women and girls face some forms of discrimination that constitute obstacles to achieving gender equality, not all women and girls experience discrimination in the same way. Marginalization based on various identities increases the risk of human rights abuses, and requires increased attention. For example, in Lebanon, transgender women are at heightened risk of being arrested, questioned, or treated violently by law enforcement because of their gender identity. In the United States, Black women are more than three times as likely to die from pregnancy-related complications as white women, and low-income women and women of color are more likely to die from cervical cancer than white women. In India, women and girls with disabilities face particular challenges accessing justice after being subjected to sexual violence. Governments’ human rights obligations to end discrimination require them to consider these intersecting forms of discrimination, and doing so can improve development efforts by donor governments like the United States.
It is particularly harmful to strike inclusive language from this policy at a moment of heightened awareness in the United States of the intersecting forms of discrimination that lead to disproportionate rates of mortality and morbidity from Covid-19 and other diseases, from impacts of climate change, and from state violence. The draft policy’s disregard for the current global context is further evident in its failure to address the Covid-19 pandemic and the climate crisis. Evidencealready shows how these global crises are disproportionately harming people based on intersecting marginalized identities, including gender identities.
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USAID’s 2012 Gender Equality and Female Empowerment Policy stated that “gender equality and female empowerment are now universally recognized as core development objectives, fundamental for the realization of human rights, and key to effective and sustainable development outcomes.” Gender equality is instrumentally important for the realization of human rights, but the achievement of equality and non-discrimination is also a human rights obligation in and of itself. The 2020 draft policy should be substantially revised to reflect a genuine commitment to equality and non-discrimination.
A draft bill before Russia’s parliament would significantly affect the rights of lesbian, gay, bisexual, and transgender (LGBT) people, Human Rights Watch said today. Among the proposed amendments to the family code are changes to the legal gender recognition rights for transgender people that will negatively affect their ability to marry and raise children. The bill also contains a superfluous ban on same-sex marriage.
Under Russia’s current laws, transgender people can change their legal gender by taking steps that include a psychiatric evaluation and medical procedures. The proposed law provides that a person’s sex on their birth certificate cannot be changed, and that trans people who have changed their birth certificates under the current law would have to change them back to the sex they were assigned at birth. That is discriminatory in and of itself and would flagrantly violate the European Convention on Human Rights (ECHR), to which Russia is a party. The European Court of Human Rights has long ruled that a government’s refusal to alter the birth certificate of a person who has undergone gender reassignment violates their rights to privacy and personal autonomy under the Convention.
“The proposed amendments to the family code are intentionally regressive and harmful,” said Graeme Reid, LGBT rights director at Human Rights Watch. “Deliberately creating more barriers for legal gender recognition and parenting rights for transgender people only further marginalizes an already-embattled community.”
This discrimination is compounded by the proposed law’s explicit ban on same-sex marriage. Heterosexual trans people forced to list their birth-assigned sex on their birth certificates would most likely not be able to marry, as their marriages would be considered same-sex marriages. This would, in turn, prevent such couples from raising children as legally recognized co-parents.
The new law falls into a pattern of the Russian government increasingly using so-called “traditional values” to trample human rights, particularly for LGBT people, Human Rights Watch said.
Russia’s notorious anti-gay “propaganda” law has been used increasingly in recent years as a tool for outright discrimination. Under the law, adopted in 2013, portraying same-sex relations as socially acceptable in the public domain and in the presence of children is illegal.
The “propaganda” law has been used to target peaceful public protests, individuals’ social media posts, teachers, and Deti-404, a website providing psychosocial – mental health – support for LGBT youth. It has been used to justify a criminal investigation of social workers who allowed a gay couple, married abroad, to adopt children, forcing the family to flee to the United States. In 2019, a court censored LGBT social media groups, citing the law. The judge deemed this content responsible for “rejecting family values, promoting non-traditional sexual relations and fostering disrespect for parents and/or other family members.”
The social and legal environment in Russia already creates significant difficulties for transgender people with children. The proposed law further entrenches the widespread antipathy toward LGBT people by creating additional barriers to fundamental rights. Limiting transgender people’s ability to parent – as these proposed amendments to the family code would do – fails not only to uphold the rights of the parents, but also the rights of the children. International human rights law says the best interests of the child should be a primary consideration in all matters that involve them, including custody issues.
In 2010 the Council of Europe recommended that: “Taking into account that the child’s best interests should be the primary consideration in decisions regarding the parental responsibility for, or guardianship of a child, member states should ensure that such decisions are taken without discrimination based on sexual orientation or gender identity.” The European Court of Human Rights is currently considering a case of a Russian trans woman who has been barred from visiting her children.
“These proposed amendments amount to a cruel solution in search of a problem,” Reid said. “Further restricting the rights of transgender people in the name of ‘traditional values’ in Russia does nothing but harm a group of vulnerable people.”
Since the Syrian conflict began in March 2011, men and boys and transgender women have been subjected to rape and other forms of sexual violence by the Syrian government and non-state armed groups, including the extremist armed group Islamic State (also known as ISIS). Heterosexual men and boys are vulnerable to sexual violence in Syria, but men who are gay or bisexual—or perceived to be—and transgender women are particularly at risk.
While women and girls are disproportionately targeted by conflict-related sexual violence (CRSV), men and boys are also impacted. However, existing services within gender-based violence (GBV) and child protection are focused almost exclusively on responding to the needs of women and girls and very little attention is paid to the needs of men and boys. Limited data and underreporting—in part fueled by stigma around male vulnerability and reluctance to talk about experiences of sexual violence or seek help for its long-term physical and psychological impact—have contributed to male survivors not receiving adequate attention and help.
This report is based on interviews Human Rights Watch conducted in Lebanon with 40 gay and bisexual men and transgender women—some of whom were perceived by perpetrators to be gay men—and non-binary individuals, as well as 4 heterosexual men. The survivors all described their experience of sexual violence in Syria. We also conducted interviews with 20 caseworkers and representatives of humanitarian organizations operating in Lebanon. While many of the men and boys and transgender women interviewed have also experienced sexual violence in Lebanon, those incidents lie outside the purview of this report.
The report finds that men and boys, regardless of their sexual orientation or gender identity, are vulnerable to sexual violence in the context of the Syrian conflict. According to interviewees, gay and bisexual men and transgender women are subject to increased and intensified violence based on actual or perceived sexual orientation or gender identity. The sexual violence described included rape, sexual harassment, genital violence (beating, electric shock and burning of genitals), threat of rape of themselves or female family members, and forced nudity by state and non-state armed groups. This violence has taken place in various settings, including Syrian detention centers, checkpoints, central prisons, and within the ranks of the Syrian army.
This report also finds that survivors of sexual violence may suffer from various psychological traumas such as depression, post-traumatic stress, sexual trauma, loss of hope and paranoid thoughts. Due to the sexual violence they have been subjected to, survivors may also suffer from physical traumas, including severe pain in their rectum and genitals, rectal bleeding, and muscle pain, and may have sexually transmitted infections (STIs), including HIV.
Men and boys, transgender women, and non-binary survivors of sexual violence told Human Rights Watch that they did not seek any medical or mental health services in Syria for a range of reasons, including shame, fear of stigma, and a lack of trust in the health care system. Syrian survivors of sexual violence who fled to Lebanon told Human Rights Watch they found limited services and inadequate support from humanitarian organizations. This is often due to lack of funding and personnel trained to respond to their specific needs. For example, there are no protection facilities in Lebanon, such as safe shelters, for men or trans women.
In 2013, the United Nations (UN) Security Council for the first time stated in Security Council Resolution 2106 that conflict-related sexual violence also affects men and boys. The United Nations Refugee Agency (UNHCR) and nongovernmental organizations (NGOs), including All Survivors Project, the Women’s Refugee Commission, Lawyers & Doctors for Human Rights and the Refugee Law Project, have provided significant documentation on the nature and extent of sexual violence perpetrated against men and boys in Syria and elsewhere, and the specific needs of male survivors. This has helped to address the dearth of research.
In March 2018, the Independent International Commission of Inquiry on the Syrian Arab Republic (the Syria COI) published a report with detailed evidence on sexual violence against men and boys in Syria. On April 23, 2019, the UN Security Council adopted resolution 2467 on conflict-related sexual violence, which recognizes that men and boys are also targets of sexual violence in both conflict and post-conflict settings. Resolution 2467 acknowledges the need for enhanced medical and mental health support for survivors of sexual violence and calls on UN member countries to ensure that survivors of sexual violence receive nondiscriminatory access to medical and psychosocial care based on their needs.
The explicit recognition and documentation of CRSV against men and boys as sexual violence is an important step to ensure provision of services tailored to the needs of all survivors of sexual violence. This moves the issue out from being considered only under the more general rubric of “torture,” under which it has previously fallen in reporting and legal analysis. This report aims to shed light on the sexual nature of crimes perpetrated against Syrian men and boys and transgender women.
In a context of shame, stigma, and silence surrounding sexual violence against men and boys—whatever their sexual orientation—and also for transgender women and non-binary people, acknowledging such violence is a prerequisite to providing adequate services and care. It is also vital in challenging the social and cultural assumptions that men are invulnerable, which often underpins the stigma experienced by male and transgender survivors. Increased research on the topic, and attention to the plight of male survivors at the UN Security Council, adds to the momentum toward more adequate service provision.
International donors, including the European Union, should urgently provide resources for tailored medical, psychological and social support programs in Lebanon for men and boys, trans women, and non-binary survivors of sexual violence, without diverting funding from services for women and girls, which is already very scarce. Without funding, humanitarian organizations and service providers in Lebanon cannot meet the needs of the full range of CRSV survivors. Service providers and humanitarian organizations in Lebanon should provide comprehensive and confidential medical and mental health services to male, transgender, and non-binary survivors of sexual violence, with staff trained to handle their needs effectively and appropriately.