Thursday, January 30, 2014

Latin America: The usual forces, with surprising Results

Reposted January 30th, 2014

The Usual Forces, With Surprising Results

Javier Corrales
Javier Corrales is the John E. Kirkpatrick 1951 professor of political science at Amherst College.
January 29, 2014

The expansion of L.G.B.T. rights in Latin America has followed a storyline that is similar to the expansion of civil rights more generally across the globe, but with some twists. The key forces include rising incomes, social movements, political parties and conservative actors. But in the politics of gay rights in Latin America, these forces have defied expectations.

Gay rights in Latin America have expanded the most in countries whose incomes are highest, namely Brazil, Argentina, Chile, Uruguay and Mexico. This much was predictable. Yet high income has been neither sufficient nor necessary. Not-so-rich Ecuador established same-sex civil unions constitutionally, whereas the very rich Venezuela and Trinidad and Tobago have dismal records on gay rights.

We know that when social movements are strong, widespread and committed to human rights for all, they help push for political rights. This too helps explain the legislative successes of those five high-income countries, home to some of the strongest social movements in the region.
However, social movements are also strong in Bolivia, Colombia, Costa Rica and Peru, and activists in these countries are having trouble expanding L.G.B.T. rights.    What seems to make a difference, therefore, is not so much the strength of social movements, but rather, whether they forge strong ties with national-level political parties. In Chile, for instance, gay rights groups, despite their commitment to the left, worked closely with the center-right ruling party to promote the country’s first hate crime law.
It is not enough to look at the forces pushing for change. Barriers are also important, and in Latin America, as elsewhere, the most important barriers against L.G.B.T. rights are posed by religious groups. Where religious groups have strong ties to political parties, legislative progress for L.G.B.T. rights suffers. Sometimes it’s the Catholic Church that is closely tied to a party (e.g., Conservatives in Colombia); sometimes it’s the Protestant right (as in the United States and many English-speaking Caribbean countries); sometimes it’s both (as in Central America). Even in presumably revolutionary Cuba and Nicaragua, the ruling parties strengthened their ties with the Catholic Church hierarchy in the 2000s, and this is one reason they have lagged behind on L.G.B.T. rights. Civil rights in general often depend in upholding the separation of church and state, but in the politics of gay rights, the separation of church and party is just as vital.
Even within the five high-income countries, religious groups have strong ties with at least one party in Chile, Mexico and Brazil, which explains why L.G.B.T. legislation in these countries is less sweeping than in Argentina and Uruguay. In those two cases, the separation of church and party is the norm, and the type of Catholic practice is less fundamentalist; these nations’ Catholics attend church less often and are less opposed to same-sex marriage than Catholics elsewhere generally are.
Parties in Latin America could do more. They could encourage more politicians to come out, for instance. Even in the very pro-gay Argentina, openly gay politicians are rare, and this perpetuates a culture of complacency. Until parties transform themselves, they will only push for L.G.B.T. rights based on the allies they get. The more they align themselves with the progressive social movements, and less with religious groups, the more they can be counted on to bring about pro-gay change. 

High Court Have Taken a Stand

Reposted: January, 30th, 2014

  High Courts Have Taken a Stand

Omar G. Encarnación
Omar G. Encarnación, a professor of political studies at Bard College, is the author of the recent essay “International Influence, Domestic Activism, and Gay Rights in Argentina.”
January 29, 2014

Written:January 29, 2014
Latin America’s gay rights revolution has highlighted the ingenuity of gay activists and the leadership of politicians like Argentina’s president, Cristina Fernández de Kirchner. In July 2010, she became a gay rights heroine when she signed Latin America’s first same-sex marriage law, over vigorous opposition from the archbishop of Buenos Aires (today Pope Francis). But the celebration of activists and politicians has overlooked another hero in this campaign: the region’s high courts. Their embrace of gay rights has been nothing short of audacious, especially in contrast to recent decisions by the U.S. Supreme Court.
It is striking that the U.S. Supreme Court has yet to find a constitutional right to same-sex marriage. Last June’s ruling against the Defense of Marriage Act was relatively narrow: It requires only that the federal government recognize same-sex marriages conducted in states where such marriages are legal. It does not invalidate some 30 state constitutional amendments banning same-sex marriages, civil unions and, in some cases, even domestic partnerships. By contrast, the high courts of Brazil, Colombia and Mexico have broadly endorsed a constitutional right to same-sex marriage, and Argentina was primed to do the same before stepping back to give politicians the chance to act first.
Judges south of the border built on a decision from U.S. Supreme Court, which struck down a ban on interracial marriage.
So why are Latin America’s high courts acting faster and more boldly than the U.S. Supreme Court? It is not as if Latin America has a tradition of gay rights advocacy from the bench. As recently as 1991, Argentina’s Supreme Court upheld a ban on gay organizations, stating the government’s need to protect society from pernicious influences.

For a start, marriage laws in the United States and Latin America stem from distinct legal traditions. Marriage in Latin America is strictly a civil institution, and as such it is separate from any religious context, quite unlike the situation in the United States. The judicial systems in the U.S. and Latin America also operate from different constitutional frameworks. While the U.S. Constitution remains remarkably faithful to its 18th century foundations, most Latin American nations have in the last three decades introduced new constitutions or wholly revamped old ones. These reforms have made Latin American constitutions especially sensitive to human rights claims, and especially inclined to see gay rights as human rights.

Last but not least are divergent stances on international jurisprudence. Believing that foreign laws should have no role in shaping American laws, the Supreme Court has traditionally been loath to consider foreign legal precedents in its deliberations. But the Latin American high courts have in recent years indulged in “trans-national legalism” to advance gay rights, by borrowing legal precedents from other countries, including the United States. The unanimous 2012 ruling by the Mexican Supreme Court that supported same-sex marriage pointedly drew upon Loving v. Virginia, the 1967 case in which the U.S. Supreme Court struck down laws banning interracial marriage in the United States. The American case, the Mexican ruling noted, “was relevant because the historical disadvantages that homosexuals have suffered create an analogy with the discrimination that interracial couples endured in another era.” 

Tuesday, January 14, 2014

Hate crime vs Hate Incident and Joseph Sanchez

14th January, 2014

Was it a crime of passion? Was it a hate crime or incident? That is what a community is asking itself ! The police suggests the motive was robbery, the family disputes that. UniBAM says the murder of Joseph Sanchez was a hate crime. What do we really know? First let us define what is a hate crime and how the laws are structured in other countries. We know, hate crime laws speak to the following:
  1. laws defining specific bias-motivated acts as distinct crimes;
  2. criminal penalty-enhancement laws;
  3. laws creating a distinct civil cause of action for hate crimes; and
  4. laws requiring administrative agencies to collect hate crime statistics.
Hate crimes are criminal acts--such as vandalism, arson, assault, or murder--committed against someone because of his or her race, religion, sexual orientation, ethnicity, disability, age, or gender. In a hate crime, the person is selected because of a characteristic that he or she cannot change. Hate incidents are actions motivated by prejudice that aren't necessarily crimes, but are harmful nonetheless. A hate incident is any act, whether consisting of conduct, speech, or expression, to which a bias motive is evident as a contributing factor, without regard for whether the act constitutes a crime. Hostile or hateful speech, for example may be motivated by bias but is not illegal. They become crimes only when they directly incite perpetrators to commit violence against persons or property, or if they place a victim in reasonable fear of physical injury. So let's look at the comments from the family in a couple of the interviews

In an Amandala Report dated January 14th, 2014 the article can be quoted as saying:

 "Sanchez’s family is disputing the police’s theory that his death is as the result of a robbery, however. They say that that theory does not hold water because his cell phone and money were not stolen. They believe that the well-known cross-dresser was killed simply because he liked to dress as a woman."

 "She said that he had been receiving death threats, and had been told on several occasions that he would be killed."

" Abner Sanchez, Joe’s brother, said that his brother was frequently harassed and threatened because he dressed in women’s clothing."

"Abner said that when he saw his brother at the morgue, he saw marks on his hands and face which made him believe that Joe fought with his attackers. He believed his brother was lured out of their house, and that whoever did so intended to kill him. He said that his brother’s phone had been handed over to police."

 "A man who thought that he was a girl began to come to the house for him, but would stay at a distance, said Abner. When the man found out that the “girl” was really a man, he began to threaten him."

Even when one looks at at the channel five interview, the brother alluded to," di man neva know he da wa man, so it look like when dat person fine out he da wa male (see link below), is when e start d death threats after a." Joseph, may have been robbed and stabbed in the chest, its clear that it was not just a robbery. Despite the reporter leading comments, the case is not so cut and dry.

A case in the US, that happened in 2002 points out, even if the person had sex with the victim and engaged in sexual acts with the defendant, the bias motivation was what matters. In this case the 17 year old, Araujo, from Newark, was kicked, beaten in the head with a shovel and strangled by a rope at a home in the southern Alameda County city the night of October 3, 2002. Prosecutors say Gewn Araujo, born Edward Araujo had engaged in sexual acts with at least two of the defendants going back several weeks before the slaying. The perpetrators of the crime was charged with a hate cime (see link below).

 In Andorra, discriminatory acts constituting harassment or infringement of a person's dignity on the basis of origin, citizenship, race, religion, or sex (Penal Code Article 313). Courts have cited bias-based motivation in delivering sentences, but there is no explicit penalty enhancement provision in the Criminal Code.
While in the Czech Republic its different. The Czech legislation finds its constitutional basis in the principles of equality and non-discrimination contained in the Charter of Fundamental Rights and Basic Freedoms. From there, we can trace two basic lines of protection against hate-motivated incidents: one passes through criminal law, the other through civil law. The current Czech criminal legislation has implications both for decisions about guilt (affecting the decision whether to find a defendant guilty or not guilty) and decisions concerning sentencing (affecting the extent of the punishment imposed). It has three levels, to wit: • a circumstance determining whether an act is a crime – hate motivation is included in the basic constituent elements. If hate motivation is not proven, conviction for a hate crime is not possible. • a circumstance determining the imposition of a higher penalty – a hate motivation is included in the qualified constituent elements for some types of crimes (murder, bodily harm). If hate motivation is not proven, the penalty is imposed according to the scale specified for the basic constituent elements of the crime. • general aggravating circumstance – the court is obligated to take the hate motivation into account as a general aggravating circumstance and determines the amount of penalty to impose. Nevertheless, it is not possible to add together a general aggravating circumstance and a circumstance determining the imposition of a higher penalty. (see Annex for details) Current criminal legislation does not provide for special penalties for acts that target another by reason of his sexual orientation, age or health status. Only the constituent elements of the criminal offense of Incitement to hatred towards a group of persons or to the curtailment of their rights and freedoms, and general aggravating circumstances include attacking a so-called different group of people. Such a group of people can then, of course, be also one defined by sexual orientation, age or health status. A certain disparity has thus been created between, on the one hand, those groups of people who are victimized by reason of their skin color, faith, nationality, ethnicity or political persuasion and enjoy increased protection, and, on the other hand, those groups that are victimized by reason of their sexual orientation, age or health status and are not granted increased protection. This gap in protection against attacks motivated by the victim's sexual orientation, age or health status cannot be successfully bridged by interpretation. Interpretation by analogy is inadmissible in criminal law, sanctionable motivations being exhaustively enumerated.

While language may differ between countries, the intent or structure of the laws don't change that dramatically. For Belize, we do not have a definition for hate crime and the police is under no legal obligation to say anything else so we remain in limbo as to the motive and the identification of the suspects.

Monday, January 13, 2014

No Justice for Guyanese Transgender murdered

Reposted January  13th, 2014

Justice urged for transgender murders during vigil
Posted By Staff Writer On January 13, 2014 @ 5:06 am In Local News | No Comments
One year after sex worker Wesley Holder was brutally slain and his bloodied body left near a city church, police are yet to apprehend those responsible.
In his memory, his relatives, friends and members of the Society Against Sexual Orientation Discrimination (SASOD) held a vigil and walk on Saturday.
The small group of about 20 persons holding a banner, flag and placards first gathered at the site where Holder’s body was found on the morning of January 11, 2013 – just off of High Street behind the Carnegie School of Home Economics. The area is now overgrown with high grass but all of those taking part in the vigil walked to the spot where Holder’s body was found.
Wesley Holder
Wesley Holder
Tears flowed and the grief was evident. A moment of silence was observed before the group headed to Smyth Street as they chanted “We need justice! We need justice!” The group continued into Brickdam and then to King Street en route to the Brickdam Cathedral where the then 19-year-old Holder often went. As the group passed the police station, police officers occupying the barracks could be heard shouting derogatory remarks before erupting into bouts of laughter.
Wiping tears from her eyes, Holder’s aunt Paula Niles said, “me ain’t feel nice a tall because since me nephew dead, up to now me ain’t really hearing nothing.” She told Stabroek News that persons were held in connection with the murder but they all claimed they had nothing to do with it. Niles said that since then, she has heard nothing about whether a suspect was being sought or any other aspect of the police investigation. “I personally feel hurt because ah day like today he woulda deh with we. He was so loving, enjoyable… If he wasn’t enjoyable and if he wasn’t so nice he wouldn’t have been having this today,” the woman wept as she followed the procession.
The woman stressed that they need justice, noting that visiting the spot has brought back memories. She said that since his body was found last year, this was the first time she had returned to the spot.
Asked if she still has confidence in the police after such a long time had passed, Niles responded in the negative. “Honestly we don’t have no confidence that the police are gonna do anything, because this is a year already and we the family is every day you does hear somebody say something different about my nephew’s death,” she said.
The woman said the persons responsible for Holder’s killings will eventually pay for it. She said she was certain about this and as such has left the matter in the hands of God. “Whoever do it and lef me in such a grief and a hurt you will pay for it… Y’all hurt we. Y’all tek away we whole joy; everything y’all take away from us,” she sobbed.
Co-chairperson of the
 Society Against Sexual Orientation Discrimination (SASOD), Joel Simpson (right) and secretary Zenita Nicholson during the walk in memory of Wesley Holder..
Co-chairperson of the Society Against Sexual Orientation Discrimination (SASOD), Joel Simpson (right) and secretary Zenita Nicholson during the walk in memory of Wesley Holder..
She said that despite her nephew’s sexual orientation he, like every man had the right to life. “Come on people, stop this killing,” she shouted.
Meanwhile co-chairperson of SASOD, Joel Simpson told Stabroek News that the vigil was not only in relation to the anniversary of Holder’s death but to highlight other incidents of violence particularly against transgender sex workers which occurred within the last year.
He reminded this newspaper of a similar case in Berbice a few months ago in which the victim was killed and his body left lying on the roadway and the countless brutalities committed against persons who fall into this category. He said the cases become “cold cases” since there is no follow up by the police.
Simpson said that there is an “inner epidemic of hate inspired crimes” adding that his organisation was seeing more murders on the basis of sexual orientation and gender identity in Guyana.
The vigil was the initiative of the Guyana Trans United, a new transgender group focusing on the rights of people who fall into this grouping but SASOD was present to lend its support. Simpson said his organisation’s message to the police was that they need to take incidents against transgender people seriously, investigate and follow up. “There are so many incidents that have become cold cases. I can’t think of a single incident in recent years where there has been a prosecution for the murder of a transgender person and that in
Two of the persons participating in the walk holding a placard.
Two of the persons participating in the walk holding a placard.
itself is telling,” he said.
Asked if this was a surprise to him, Simpson said it was more disappointing because it would be hard to convince him that in these cases there are no suspects or evidence leading to any of the perpetrators. He expressed the view that at least one of these incidents, which has occurred in recent years should have led to a prosecution and the fact that this has not occurred is troubling. “It is saying that the police are not doing their jobs,” he said.
Simpson said one of the challenges is that murders of lesbians, gays, bi-sexuals and transgender people (particularly the last grouping when they are sex workers) seem to have fallen on the “lowest scale of priority when it comes to investigating homicides and that is troubling. My message is to treat every human life as important. (And) to investigate all of these murders to their best based on the resources that the police have available.” He noted that a larger issue is that there needs to be an improvement in the level of criminal science, crime scene investigation and forensic science. “I think that we are still in the 20th century where that is concerned and more resources need to be dedicated to that,” he added.
He said that while he was not affiliated with Holder, he knew he was involved in some of the organizations that are standing up for the rights of transgender persons and sex workers.
Holder, known as “Tiffany” and “Ole Boy” of Cross Street, Werk-en-Rust, was found dead clad in a green fishnet dress. A post-mortem examination found that he died from haemorrhaging and shock as a result of stab wounds and blunt trauma from a blow to the head.
Holder’s handbag and a knife which he walked with for protection along with his slippers were all found at the scene of the crime. The police subsequently said that the items mentioned above and a number of used condoms which were wrapped in toilet tissue were discovered.
Persons who knew Holder are convinced that he was killed because of his lifestyle.
It was based on information received that police arrested a teen boy who reportedly confessed to being present when the crime occurred. He had confided in a relative but after being arrested he changed his story. Police later released him after they said there was a lack of evidence to charge him.

Saturday, January 11, 2014

A dollar amount linked to Homophobia, a lack of security and dignity in Belize

January 11th, 2014

The far right in Belize has spoken of homophobia as not being a problem in Belize because gay men are not killed in Belize like Jamaica or they are jailed like in Uganda. While the state has no laws, or intention to move aggressively against its L.G.B.T citizens, the lack of a legal framework that compensates individuals who experience hate and abuse will continue, as the state by indifference, omission or inaction have chosen to make the social and economic rights concern of its L.G.B.T citizens invisible. Through a lack of visibility in legislation, in proactive planning, in investment in training in the justice system, in public education are the main points of  concern. To be fair, the gender policy while progressive offers not guarantee of substantive commitment in the short-term, but only sets normative values in policy which can be considered in baby steps. Additionally, the government of Belize has made no no investment in research, nor ensuring that discriminatory concerns have a workable mechanism through which arbitration and penalization can occur. This gap in the system has led to the intensification of functional impunity by individuals and non-state actors who seek to ensure that the current legal framework remain the status quo. Not to be outdone, technical officers working within the confines of the Ministries of government, have limited their commitment to the population to health, but failed to tackle the barriers which promote institutionalized discrimination. So many are complicit through inaction, indifference and omission to avoid the concrete concerns of its L.G.B.T citizens without realizing that their unwillingness to address the concerns of L.G.B.T citizens, is in of itself, helps to sustain the status quo and helps to further support institutionalized homophobia and the issue of functional impunity.

The personal cost to violated personal sense of security, dignity and experiences of homophobia has been mounting since 2012. Just because I was tying to hawk out cold out of chest while walking up my stairs, my homophobic neighbor, passed the usual homophobic slurs, cause my sister to step unto the porch to argue with him and my mom from her house. The police eventually came to arbitrate the issue, but unbeknown to us, I discovered this evening the damage to my window. A damaged cause by by neighbor throwing a Guinness beer bottle at the side of my house, hours, just before the New Years, 2014, resulting in a cost of ($600bze). Other cost, as a result to homophobia has been lost of two teeth that needed a root canal and cap ($2,000bze); cost of insurance and license for the pass two years ($660bze), transportation cost ($12,480bze); damage to my car window ($150), lost of car battery($200) have been mounting. The total cost mounting to an estimated $16,090bze or ($8,045us) and counting. This does not include security cost, nor the cost of a second hand car from 1999.Imagery of the physical cost can be seen below:  

It all gets tiring to know the mounting cost, the psychological cost, cannot even be given a dollar value.  What can be noted, is self-induced social exile from anyone outside my immediate family; in ability to feel secure when strangers say high in support on the street. Limited social engagements to workshops, meetings and private social events which for the latter is few. Gone are the days when the bicycle was the preferred choice to get around Belize City. Gone are the days when I hated being in a car, but had to learn to drive at age 39. The side benefit is that I no longer have sustained motion sickness, but the down side is that I have gained six pounds in two years because of my sedimentary lifestyle of getting around. Most folks can take a run up the street, I have to worry how far I can go, where I can go and for how long without the usual homophobic slur. Still, while I accept my vulnerability associated with this work and in life, I do work through my fears and walk as far as possible, take the bus and use taxis as needed. To be clear, I don't see my situation as victimizing, but an opportunity that builds character, strengthens resolve to act, and shapes a personal vision that change must come. The clocking is ticking, so is the space for results. Still, the future is now!     

Thursday, January 9, 2014

Legal Analysis of Guyana cross-dressing analysis

Reposted January 9th, 2014
(By Sheila I. Velez-Martinez)
A Commentary on McEwan, Fraser, Clarke, Persaud and SASOD vs. AG of Guyana
On September 6, 2013, the High Court of the Supreme Court of Judicature of Guyana released an important decision regarding the country’s law prohibiting cross dressing “for an improper purpose.” The decision and order in McEwan, Fraser, Clarke, Persaud and SASOD vs. AG of Guyana includes both encouraging and troubling elements.
In the case, the High Court was called to address a constitutional challenge to section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act. Section 153(1)(xlvii) makes a criminal offence of a man wearing female attire, and a woman wearing male attire, publicly, for any improper purpose.
Chief Justice Ian Chang decided that section 153 (1) (xlvii) is immune from the constitutional challenge brought by the four transgender litigants and their supporting organizations. As an 1893 law, pre-dating Guyana’s independence, the Chief Justice stated “legislative rather than curial action is necessary to invalidate the provision.” In as much this provision was covered by the “savings clause” of the Guyana Constitution.
I join Inter American Human Rights Commissioner Rose-Marie Belle Antoine in her criticism. The savings clauses inserted in the independent constitutions across the Caribbean serve to perpetuate laws that were not products of the independent nations’ own desires; not the result of deep reflection about the nature and direction of the new Caribbean societies.
In a way the saving clause perpetuates legislation that is more foreign to the current Caribbean that the conducts they proscribe, which as Commissioner Bell Antoine has said “is quite ironic”.
The High Court in this decision decisively engaged in a discoursive change regarding the transgender community. Discourse elucidated by courts can be as important as the decision inasmuch as it can have democracy enhancing consequences as social movements move forward.
Chief Justice Chang went to great lengths in the tone and style of his opinion to distance the High Court from the conduct of the Chief Magistrate who handled their cases after the initial detention. According to the Decision, the Former Chief Magistrate Melissa Robertson told them that they were “confused about their sexuality and they were men and not women and that they must go to church and give their lives to Jesus Christ.”
The court referred to the plaintiffs consistently as “a transgendered person” – who although possessing male primary sexual characteristics, was identifying with the female gender. Because of his orientation, he was not conforming to masculine sex stereotypes such as the manner of dressing and comporting himself.”
In rendering the decision, the court recognised the existence of transgender identities, declaring that the law “does not proscribe trans-gender dressing per se.” The High Court went even further, stating, “it is not criminally offensive for a person to wear the attire of the opposite sex as a matter of preference or to give expression to or to reflect his or her sexual orientation”.
As the decision articulates the transgender right to self it also demonstrates the inherent limitations of a formal equality framework for facilitating meaningful critical engagement with concepts of sex and gender. Although formal equality – treating trans-people the same as non-trans-people despite gender non-conformity – may reduce instances of blatant discrimination, it also serves to conceal and perpetuate the underlying stigmatisation of non-conformity to gender norms.
This is evident in the failure of the High Court to understand another crucial point raised by the plaintiffs. That in its application Section 153 also discriminates against the transgender plaintiffs inasmuch as because of their expression of their sexuality they are subject to additional criminal penalties if engaged in conduct vaguely labelled “improper”. The High Court reasoned that since the “prohibition is against persons of both genders for doing the same kind of acts; it cannot be successfully argued that the provision discriminates on the basis of gender”.
It is commendable that the High Court opens the door to the possibility of challenging discriminatory acts based on gender under the anti-discrimination provisions of article 149(2) of the Constitution. Unfortunately, the analysis of the High Court conflates the concepts of sex and gender. Gender is not merely the cultural manifestation of one’s biological sex. In order for gender to be understood as a topic for legal and political reform, it cannot be understood as flowing from one’s inclusion in one of two biologically determined sexes.
In other words, sex denotes the biophysical aspects of personhood associated with man and woman while gender denotes the social constructions understood as “male and female” or “masculine and feminine”. Gender tends to signify the personal appearance, personality attributes, and socio-sexual roles that society considers to be “masculine” or “feminine,” and which society imposes on individuals on the basis of sex assignments. Gender non-conforming people challenge this binary and expose the infinite possibilities of gender identities.
If we aspire to a system of justice that operationalises the protection of human rights and the principles of anti-subordination then, the formal binary articulation of gender rights will be incompatible with the complete protection of the rights of the gender nonconforming. Protecting this community requires acknowledging the ontological incompleteness of gender essentialism in representing the relational dynamics in our societies.