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Washington, D.C. - The Inter-American Commission on Human Rights (IACHR) welcomes the progress made in the last few months on the human rights of lesbian, gay, bisexual, trans, and intersex persons (LGBTI), particularly in Argentina, Canada, Chile, Colombia, Costa Rica, Mexico, Paraguay, Peru, Suriname, the United States, and Uruguay. Nonetheless, the IACHR expresses its concern over ongoing challenges to the continued recognition of LGBTI rights that had already been achieved in the region.

In terms of adoption of anti-discrimination measures, the IACHR recognizes the fact that in Peru, Legislative Decree No. 1323 was adopted by the executive branch on January 6, 2017. This decree establishes that the commission of a crime based on intolerance or discrimination—for reasons that include, among others, the victim’s sexual orientation or gender identity—constitutes an aggravating circumstance in determining criminal liability. The decree also defines the crimes of discrimination and incitement to discrimination based on—among other reasons—sexual orientation or gender identity. The Inter-American Commission also welcomes Canada’s initiative giving travelers who use the Electronic Travel Authorization to enter the country the option to indicate “other” under gender. The IACHR regards this as a pioneering measure in the region to ensure a certain neutrality in travel documents as a way to recognize and respect diverse gender identities. In Colombia, meanwhile, the General Rules of Procedure for National Prison Facilities of the National Institute of Prisons and Jails (INPEC)—adopted on December 19, 2016—contemplates direct protection measures for LGBTI persons deprived of liberty. These measures are a concrete step toward preventing violence inside correctional facilities.

In addition, the IACHR welcomes a federal rule—adopted by the United States on October 25, 2016— banning contractors who administer USAID foreign assistance programs from discriminating against LGBT people in providing services. The Commission also recognizes the city of Miami’s decision to approve an ordinance prohibiting the use of “conversion therapy” with the goal of “changing” a minor’s sexual orientation or gender identity. Likewise, the Commission welcomes the ordinance adopted in the city of Seattle banning “conversion therapy” and imposing penalties of up to $1,000 for providers who practice such therapies, while also imposing misdemeanor penalties for advertising such services. 

As for the adoption of measures to recognize the human rights of trans people, a judgment issued by Peru’s Constitutional Court on October 21, 2016, establishes an important change in case law with respect to recognition of the gender identity of trans persons. In that decision, the Constitutional Court determined that people may request a change of name and sex in their national identification documents through a summary process handled by civil court judges. Also of note is a January 11, 2017, decision by a civil court in Paramaribo, Suriname, requiring the Civil Registry to modify the records of a trans woman and establish that her registered sex is female. This decision was appealed, and the IACHR will be interested to know the final decision. The lack of recognition of gender identity relegates trans people to spheres of poverty, exclusion, and criminalization. The IACHR thus urges States in the region to recognize gender identity through administrative procedures that are based on free and informed consent and that do not include stigmatizing or pathologizing requirements such as requesting psychological or psychiatric certifications or medical exams.

With regard to the rights of intersex people, the IACHR takes note of a decision by New York’s Department of Health and Mental Hygiene on December 15, 2016, ordering that an intersex woman’s birth certificate be corrected to read “intersex” instead of the traditional designation of either “female” or “male.” The Commission urges States in the region to take steps, in consultation with civil society organizations and intersex people, to guarantee that intersex individuals are protected and their rights respected, that they are not pathologized, and that their intersex identity is fully recognized in their personal documents.

Regarding the collection of statistical data, Uruguay’s Ministry of Social Development (MIDES) conducted the country’s first census of trans people and presented the preliminary results on September 21, 2016. Meanwhile, Chile’s Ministry of Social Development (MIDEPLAN) for the first time included indicators in its National Socioeconomic Characterization Survey (CASEN) to determine information related to the sexual orientation and gender identity of individuals over 18 years of age, the results of which were presented on October 18, 2016. The Commission welcomes these developments and urges States in the region to adopt measures designed to collect accurate statistics on LGBTI people in the region, a necessary step to uniformly measure the various situations they face and to design appropriate public policies that provide an effective response to those circumstances.

In terms of health, Resolution 695 issued on October 31, 2016, by Paraguay’s Ministry of Public Health and Social Welfare provides that for medical records, clinical histories, and forms, trans people may use the name by which they identify themselves; this extends to medical treatment and care throughout the Ministry’s networks of health services. The Commission welcomes this initiative and recognizes the role civil society had in bringing it about. The IACHR also urges States in the region to adopt effective measures that will enable LGBTI people to receive better care and full access to health services, and to create safe spaces that respect diverse sexual orientations and gender identities.

In the labor sector, the IACHR welcomes the fact that the rules of procedure of Costa Rica’s Civil Service Statute were modified to establish that public servants must respect people’s right to express themselves in the work environment without fear of being mocked, rejected, or harassed in any way for reasons related to sexual orientation, gender identity, or gender expression. The modification also provides for the use of the name by which a person identifies him or herself; considers information about sexual orientation or gender identity to be discretionary and confidential; calls for refraining from any practice or decision that could diminish, restrict, or undermine the rights of “sexually diverse persons”; and ensures respect for the right to gender identity in the handling of personal data in public servants’ personnel files. The IACHR also recognizes an initiative of the Office of the Public Ombudsmen for Audiovisual Communication Services of Argentina’s Ministry of Justice and Human Rights, which on November 10, 2016, adopted Resolution 164/2016 establishing a minimum 2 percent permanent staff quota for trans, transvestite, transsexual, transgender, and intersex persons who meet the job requirements. It also establishes that whenever job vacancies are posted, at least one position is set aside for someone from this group until the 2 percent minimum quota for permanent staff is reached. The IACHR welcomes these measures, underscores their relevance in encouraging effective access by LGBT people to the formal labor market, and calls on States in the region to adopt practices that seek to offset the high rates of labor exclusion faced by LGBT people.

In the educational sector, the IACHR recognizes the initiative by Peru’s Ministry of Education to adopt a new national curriculum for basic education that promotes gender equality and respect for people regardless of their sexual orientation or gender identity, guaranteeing the same duties, rights, and opportunities for everyone. The IACHR underscores the importance of this measure to ensure that education policies are specially designed to change social and cultural patterns of behavior, counteract prejudices and customs, and put an end to practices based on stereotypes of LGBT people that can have the effect of legitimizing or exacerbating violence based on prejudice. The IACHR urges States in the region to adopt these types of measures that seek to end historical patterns of discrimination against LGBT people.

Finally, in terms of the family sphere, the 7th Constitutional Court of Peru adopted a decision on December 21, 2016, ordering the National Registry of Identification and Civil Status (RENIEC) to register in its records the marriage of a same-sex couple celebrated abroad. In the United States, the Washington State Supreme Court issued a decision on February 16, 2017, which found that a florist’s refusal to provide services for a same-sex wedding on grounds of Christian faith constitutes discrimination based on sexual orientation. For its part, Mexico’s Supreme Court issued an opinion on January 27, 2017, establishing that “same-sex family life is not limited only to life as a couple, but may also extend to the procreation and rearing of children in accordance with the parents’ decision, which could include children procreated or adopted by one parent, or couples who procreate by means available through scientific advances.” The Commission applauds these steps to protect diverse families and urges States in the region to adopt legislative or other measures to recognize the rights of different types of families within their jurisdictions.

Despite all these steps forward, the Inter-American Commission concurs with the concern expressed by various civil society organizations in the region regarding the danger of losing ground in the recognition of the rights of LGBT people. According to information the Commission has received, this situation is manifested in disinformation campaigns about measures some States are taking in the area of LGBT rights. Such campaigns further stigmatize LGBT people, encourage violence, intensify hate speech, and hamper the implementation of certain measures already adopted by States. The IACHR is concerned to observe situations in Mexico, Colombia, and Peru in which, according to information it has received, there have been incidents involving attacks, the spread of hate speech, and rejection of LGBT people by conservative sectors. Along these lines, the Commission observes that following the adoption of the new national curriculum for basic education in Peru, campaigns were launched to spread disinformation about the content of the curriculum. In response, the Ministry of Education undertook efforts to clear up questions about the content, making sure that it provided timely, reliable, and complete information about the national education curriculum.

The IACHR singles out this initiative by Peru’s Ministry of Education and urges other States in the region to adopt measures to counteract the spread of stigma, stereotypes, and violence against LGBT people, ensuring the quality of the public information available about the various measures to recognize rights adopted by the State in this area.

A principal, autonomous body of the OAS, the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 028/17