In the past decade, regional awareness, multilateral norms, international jurisprudence, and protections for lesbian, gay, bisexual, transgender, and intersex (LGBTI) rights have evolved dramatically across most of the Western Hemisphere. Within the Organization of American States’ (OAS) inter-American system of human rights, both the Inter-American Commission on Human Rights (IACHR or the Commission) and the Inter-American Court of Human Rights (Court) have interpreted the concepts of sexual orientation and gender identity as essential rights to be protected under the categories of “any social condition,” protected under Article 1.1 of the Inter-American Convention on Human Rights. And the Court has interpreted the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Belém do Pará Convention), which defines “violence against women” as “any act or conduct based on gender,” to be applicable to transgender individuals.
Beyond the legal interpretations and protections of LGBTI communities and individual rights, the OAS and the inter-American system have taken steps to institutionalize and embed these rights in the bodies’ practices. In 2008, the OAS General Assembly adopted the first of several resolutions on human rights, sexual orientation, and gender identity. Later resolutions called on OAS member states to eliminate all forms of discrimination against LGBTI individuals, to adopt laws and policies to combat discrimination, to collect data on violence against LGBTI persons, and to prevent and investigate crimes against LGBTI individuals. In November 2011, the Commission created the Unit on the Rights of LBGTI Persons within its Executive Secretariat, and in 2014 the Commission created a Rapporteurship for LGBTI rights, which is funded by the Arcus Foundation, Chile, Denmark, the Netherlands, the United Kingdom, the United States, and UNAIDS (Joint United Nations Programme on HIV/AIDS). By mid-2015, the Rapporteurship had heard more than 50 petitions from more than 16 OAS member states, issued 11 precautionary measures to protect LGBTI human rights defenders, held six regional meetings of experts and 30 public hearings,8 and issued a comprehensive, 284-page report titled Violence against Lesbian, Gay, Bisexual, Trans and Intersex Persons in the Americas.9
In December 2014, the Commission also published a Registry of Violence against LGBTI persons in 25 OAS member countries, which cataloged incidents between January 2013 and March 2014.10 In addition to finding 770 acts of violence committed against LGBTI individuals during the period, the Commission concluded that in-country methods for collecting such data and information are deficient. The Rapporteurship’s report noted that there have been some advances, such as the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act in the United States, a 2009 amendment to the Hate Crimes Statistics Act; the 2011 initiative in Brazil to collect reports on homophobic violence in the country; and the Guatemalan human rights ombudsman’s efforts in 2014 to collect information from the courts. But the Commission report warned that many states do not collect such information systematically, making it difficult for the inter-American system to disaggregate the data according to the victim’s sexual orientation or gender identity. For example, the report noted that in Chile, “there is no legislation establishing hate crimes regarding sexual orientation, gender identity and expression.”11 Across the region, the Commission recommended that states better coordinate government offices and improve data collection to systematically identify, gather, and disaggregate information and report on acts of violence committed against lesbian, gay, bisexual, transgender, and intersex persons.
Though varying dramatically by country, there have also been significant advances in domestic laws in protecting and guaranteeing equality for LGBTI communities and individuals. Amherst College professor Javier Corrales’ annual Gay-Friendliness Index tracks the legal environment for LGBTI safety and rights and the social environment for LGBTI communities. The legal environment component tracks nine measures of legal equality for LGBTI communities: legalization of homosexual activity between consenting adults; recognition of same-sex relationships; legalization of same-sex relations; gay couples’ rights of adoption; rights of military service; the existence of an anti-discrimination law; gender identity protections; the criminalization of hate crimes against the LGBTI community; and the ease of legally changing names for transgender or intersex individuals. In addition, in recent years the index has also included public opinion attitudes toward same-sex marriage and general levels of violence to capture the societal environment component of the index. The accompanying table provides the 2016 Gay-Friendliness Index results for most countries in the region.
There is significant variation in terms of legal rights in the hemisphere, with the countries of Barbados, Guyana, Jamaica, and Trinidad and Tobago scoring a 0 on a scale of 0 to 9, failing even to have the most basic protections: laws decriminalizing homosexual relations between consenting adults and anti-discrimination laws. Venezuela, which has no laws recognizing same-sex relationships, permitting adoptions, or defining hate crimes, also scores toward the bottom end of the index, with a 2. Not surprising, the lowest-scoring countries in legal rights of LGBTI persons also have tepid public support for marriage equality—though a surprising range of other countries show low, minority popular support for same-sex marriage, including the Dominican Republic, Ecuador, El Salvador, Haiti, Honduras, Nicaragua, and Peru.
On the other end of the spectrum are Argentina (9 out of 9 in legal rights and 2 out of 2 in social environment); Colombia, which has made great strides in legal reforms in recent years (9 out of 9 but 0 out of 2 in social environment); Brazil (7 out of 9 and 1.33 out of 2); Uruguay (9 out of 9 and 2 out of 2); United States (7 out of 9); and Canada (8 out of 9).
While the number and quality of hate-crime laws have improved in the region, violence against LGBTI persons and impunity for the perpetrators remain serious issues. One of the most under-protected, at-risk communities in the Americas is transgender persons, as the variables in the index regarding gender identity protections and ease of changing gender or name in national documents would indicate. Only 11 of the countries included in the index have developed national laws or regulations to protect transgender individuals,12 while the United States and Canada receive a half point for having some protections at the state level but no protections at the federal level. Only eight countries13 have provisions that allow a person to change their gender identity on national documents without a medical intervention, medical certification, or judicial proceeding. The six countries that received a half point (Costa Rica, Guatemala, Mexico, Peru, United States, and Canada) either have relatively low barriers for changing gender identity, or the law varies by state or province and there are no federal rules.
The report by the IACHR’s Rapporteurship for LGBTI rights has called on OAS member states to adopt such gender identity laws to “recognize the right to identity of trans persons in a way that does not pathologize trans persons.” The report highlights the 2012 Argentine Gender Identity Law as a positive example; the law grants trans persons the right to be legally recognized by their gender identity of choice. According to one study, the law has reduced discrimination against trans persons in Argentina.
Discrimination, including violence against trans persons, remains a serious problem in the region. Discrimination against trans persons often means reduced access to education, health services, shelter, and the formal labor market. According to the IACHR report, drawing from studies conducted by various organizations, the life expectancy of trans women in the region is between 30 and 35 years of age. Based on its own study, the IACHR found that 80 percent of the trans women killed in a 15-month period were 35 years old or younger.14 According to the organization Transrespect, between October 1, 2015, and September 30, 2016, reported murders of trans and gender-diverse individuals numbered 123 in Brazil, 52 in Mexico, 23 in the United States, 14 in Venezuela, 14 in Colombia, 10 in Argentina, six in Honduras, and seven in El Salvador.15
Despite noteworthy advances in the region in the past decade, especially in terms of legal environment in the hemisphere’s more progressive countries and attention paid to LGBTI issues in hemispheric multilateral bodies, serious challenges remain. Those challenges include wide disparity across the region in terms of legal protections and public attitudes, violence against LGBTI people and impunity for offenders, as well as insufficient data collection that could help civil society and governments address those trends. Transgender persons are still largely without legal protections and are vulnerable to violence, even in the most liberal countries in the Americas.
