Rights Wire

The Human Rights Blog of the Leitner Center for International Law and Justice


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Human rights of transgender individuals and finding hope in California’s policy for inmates to receive sex reassignment surgery

By Amaury A. Reyes-Torres

The LGBT movements in the U.S. and in Europe have taken significant steps towards legal equality and political change. However, much still remains to be done to ensure transgender rights. Many still face challenges related to their gender identity and its intersection with race, employment, equal access to accommodations and health. One such population is transgender inmates whose medical needs are often disregarded.

THE PROBLEM: MEDICAL TREATMENT FOR TRANSGENDER INMATES

Trans individuals are a vulnerable population in prisons. According to the National Center for Transgender Equality, almost one of every six trans individuals have been incarcerated at some point in their lives, and this ratio tends to increase dramatically when discussing trans black inmates. These inmates face a variety of challenges, including abuse from other prisoners and lack of adequate healthcare.

In particular, trans prisoners often lack the necessary facilities and healthcare options to make the transition to their chosen gender. Many trans people are not afforded hormone treatment or surgical procedures while incarcerated, consequently leading to or aggravating gender dysphoria, a serious medical condition often affecting trans individuals.

Gender dysphoria is “[t]he distress that may accompany the incongruence between one’s experienced or expressed gender and one’s assigned gender,” according to the American Psychiatric Association. It is “characterized by a persistent and intense distress about assigned sex, together with a desire to be, or insistence that one is, of the other sex,” according to the World Health Organization. Gender dysphoria severely affects individual well-being, and may lead to depression and even death. Appropriate treatment of this condition includes hormone treatment and sex reassignment surgery.

Many prison rules are not conducive to beginning or continuing medical treatment for gender dysphoria. Despite their medical needs, transgender inmates are often denied necessary medical services on a daily basis. Freeze frame rules, which many prisons across the country still adhere to, only allows prisoners to receive hormone therapy if they had been receiving treatment prior to incarceration. Since many trans individuals buy hormones on the black market, they are not allowed to continue their hormone therapy due to a lack of medical documentation. This leads to a physical reversal of previous therapy and exacerbation of gender dysphoria. Trans individuals are also often denied beginning hormone therapy or undergoing sex reassignment surgery while in prison.

TRANSGENDER RIGHTS AND ADEQUATE MEDICAL TREATMENT AS A RIGHT

Under international human rights law, the lack of proper medical treatment for inmates is deemed cruel, inhuman or degrading treatment. The European Court of Human Rights has held that prisoners must be detained in a condition compatible with his or her human dignity, meaning that prison conditions must ensure prisoners’ health and well-being. There must be, according to the court, compatibility between the standard of treatment and the illness faced by the prisoner. By the same token, the Inter-American Court of Human Right has held that the government is a guarantor of the health of the inmates, and must provide inmates with necessary and adequate medical treatment when it is required. According to the United Nations Standard Minimum Rules for the Treatment of Prisoners, medical services shall be provided for the sake of the physical and mental health of the inmate.

This practice clarifies the scope of article 7 of the International Covenant on Civil and Political Rights (ICCPR), which forbids cruel, inhuman or degrading treatments. The ICCPR Human Rights Committee has held that a state party has a positive duty to maintain adequate standard of health for the inmate. A state party violates article 7 of the ICCPR when it does not afford inmates appropriate medical treatment.

These human rights laws can be applied in the context of transgender inmates in the U.S. Although the U.S. is a party to the ICCPR and other relevant international documents that obligate it to protect human rights, the U.S. does not consider itself directly bound by human rights treaties, as they are not self-executing. Nonetheless, the proliferation of references to the importance of providing healthcare to prisoners in international standards as a factor in ensuring human dignity reflects a trend in the development of international law and underscores the respect for prisoner rights and transgender rights. Furthermore, both through its obligation as a state party to the ICCPR and through the eighth amendment of the U.S. Constitution, the U.S. must prohibit cruel and unusual punishment. Therefore, a denial of adequate healthcare to prisoners may violate both the ICCPR and the U.S. Constitution.

In fact, in April 2015, a federal U.S. court ordered the State of California to provide a sex surgery reassignment to Michelle-Lael B. Norsworthy, a trans female prisoner in California. Bringing a claim under Section 1983, a civil rights remedy for constitutional rights violations, Norsworthy argued that the continuous refusal of the state to provide her with appropriate healthcare, including sex reassignment surgery, violated the eighth amendment. The court agreed, and held that the state acted with deliberate indifference to the medical needs and concerns of Norsworthy as an inmate.

Not only have the courts upheld trans rights in prison, but the Department of Justice filed a statement of interest in a similar case arguing that “[f]ailure to provide individualized and appropriate medical care for inmates suffering from gender dysphoria violates the Eighth Amendment’s prohibition on cruel and unusual punishment.” The United States considers gender dysphoria to be “a serious medical need requiring appropriate treatment,” the statement said. Thus, failure to provide adequate medical services to trans prisoners, including hormone therapy and sex reassignment surgery, is a cruel and usual punishment under both the eight amendment and article 7 of the ICCPR.

TRANSGENDER RIGHTS: CALIFORNIA GUIDELINES FOR SEX REASSIGNMENT SURGERY

Despite all the barriers that trans prisoners face in attaining adequate healthcare, there has been significant progress and reason to hope for a better future. Recently, California settled a case in which the state agreed to pay for a trans inmate’s sex reassignment surgery. In the aftermath of this settlement, California Prison Officials announced guidelines under which inmates could opt for sex reassignment surgery. This is a significant breakthrough. California has become the first state to sponsor this kind of measures in favor of trans inmates. Moreover, California has one of the largest inmate populations in the United States, making this decision even more meaningful.

Under the guidelines, an inmate requesting these services will submit an application to a committee (the Headquarters Utilization Management Committee), which will then refer the inmate to a subcommittee (the Sex Reassignment Surgery Review Committee) for evaluations and findings. The subcommittee will decide whether or not there are any medical reasons that justifies withholding the surgery until they are resolved or mitigated. They will also consider whether the treatment that the inmate is currently receiving is effective. Lastly, it will decide whether or not the candidate should receive sex reassignment surgery.

This process is a significant victory for trans rights and human rights overall. Undoubtedly, there will be further questions that will need to be answered, and this system will require oversight to see if this new proceeding is effective and rights-respecting. But this practice could set an example for other U.S. states and other countries facing similar situations in which proper healthcare services are being denied to trans inmates. Most importantly, California has set an example of how it is possible to fulfill human rights obligations using domestic mechanisms.

Amaury A. Reyes-Torres is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo credit: Joseph Kranak/Creative Commons


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Inadequate justice: the case of Jennifer Laude and the call to end unequal military agreements

By Rodrigo Bacus

On Dec. 1, 2015, Joseph Scott Pemberton, a U.S. marine, was found guilty by a Philippine court of homicide in the death of Jennifer Laude, a transgender Filipino citizen. It has been over a year since the beginning of the trial of Pemberton for the murder of Laude. Since that night, her friends, family, and advocates have strongly urged the U.S. and the Philippines to uphold the rule of law and ensure justice. While the conviction was a small, yet incomplete, victory, the greater issue that looms is the uneven power relationship between a country occupied by a foreign military presence, and the unjust arrangements produced as a result. Although the trial brought the case to a close, the justice that advocates sought is still far from achieved.

A DEATH

According to reports, on Oct. 11, 2014, Laude decided to have drinks with her friend Barbie, whose full name on government documents is Mark Clarence Gelviro. While in the bar, Ambyanz Night Life, Laude and Barbie met Pemberton, who was out on leave that night. Engaged to Marc Sueselbeck at the time, Laude had previously engaged in sex work off and on for six years, but had not done so for the past six months. That night, however, she decided to take customers as a way to compete with friends and have fun. After spending some time together, Laude agreed to leave with Pemberton. Laude, Barbie and Pemberton headed together to the Celzone Lodge, a nearby hotel. Barbie left Pemberton’s room to another part of the hotel and left Laude and Pemberton in the room alone. About 30 minutes later, Pemberton left the building. When he returned to his ship, he confessed what happened that night to his roommate, Jairn Rose, who listened as Pemberton told him about the two girls he met. Pemberton said he had noticed that when Laude undressed, she had a penis. Out of rage, he said he choked her from behind and then, when her body stopped moving, dragged her to the bathroom and left. “I think I killed a he-she,” Pemberton said, assuring his friend that he was serious.

Later that night, a hotel employee found Laude naked and dead with her head submerged in the bathroom toilet. Pemberton was the last person seen with Laude that night. Local police arrived at the crime scene, as well as a team from the Naval Criminal Investigative Service, which seemed to have knowledge that the incident involved an American serviceman even before Pemberton confessed to Rose. At this time, local authorities had neither brought Pemberton in for questioning nor requested an affidavit. Soon after, the police released an official report confirming that Laude had died due to asphyxia. Laude’s mom, upon hearing about the incident, took a 24-hour bus to where Jennifer lived and was surprised that the government had not taken any action. Four days later, lacking assurance from the government that they would move forward with a case, Laude’s family filed a murder complaint against Pemberton.

A CASE

As the case began, the Philippine court subpoenaed Pemberton for the preliminary investigation, but he was aboard the USS Peleliu at the time and did not appear. In a statement, Philip Goldberg, American Ambassador to the Philippines, cited the Visiting Forces Agreement (VFA), a bilateral agreement between the Philippines and the United States, as a reason why a U.S. ship held Pemberton in custody instead of a local precinct. Under the VFA, the U.S. can request the ability to retain custody over a suspect until judicial proceedings are completed. The U.S. invoked its ability to do so without a formal request, stating that it is its right under the agreement to exercise this power. The decision sparked outrage and united many activist groups and human rights defenders, some calling the incident a “hate crime.” It took until December 2014 to issue an arrest warrant for Pemberton, though the US had moved Pemberton to a Philippine army camp while still retaining custody of him in late October 2014. Pemberton stayed in a room within the camp and was guarded by US soldiers.

About a year after the incident, Pemberton finally appeared in court for the first time to recite his testimony of events to the public. Pemberton testified that he and Laude had begun to fight once he discovered that Laude had a penis. Pemberton pushed Laude. Laude slapped him. He punched her and then put her in a chokehold until she was no longer moving. Then, he tried to revive her in the bathroom over the toilet and eventually left in a taxi. The defense attorney wrote in an email to the New York Times that Pemberton did not kill Laude and had left her alive in the bathroom. The defense included this testimony to introduce complicating circumstances, including self-defense and the controversial trans panic defense. The trans panic defense attempts to equate the shock of discovering that a person is gay or trans to traditional scenarios where a “sudden quarrel” or the “heat of passion” would make it less likely that a person actually had malicious intent to kill another. Defendants have used the argument to persuade courts and juries to base rulings on unjust and damaging stereotypes about LGBT victims. California banned the trans panic defense in 2014, referring to the discriminatory effects it had on LGBT victims. The Philippine court had the opportunity with Laude’s case to decide that the use of such a defense in the Philippines is equally unacceptable.

INADEQUATE JUSTICE

On Dec. 1st 2015, the court found Pemberton guilty of the lower charge of homicide, which has a sentence of between six to 12 years. The court found that evidence supported the fact that Pemberton had killed Laude. However, it lowered the conviction from murder to homicide. The court was convinced that Pemberton should be considered less blameworthy for Laude’s death because Laude had kept the fact that she is a trans woman from Pemberton. Activists and supporters of Laude criticized the court’s consideration of this fact to lower the charge. By its finding, the court has tacitly admitted that the trans panic defense is a valid way to get away with murder.

In addition to their criticism of the validation of the trans panic defense, supporters of Laude have also criticized the actual enforcement of justice in this case. As soon as the court rendered the guilty judgment, U.S. troops in Camp Aguinaldo, where Pemberton is held, moved to block attempts by police to take Pemberton to custody. Because of the VFA, the U.S. has power to influence the determination of where Pemberton can serve his sentence. The agreement does not give the Philippine government the same power if the roles were reversed. Activists criticized the agreement and its practical effects in this case as yet another intrusion into Philippine sovereignty and another impediment to achieving justice.

For activists, Laude’s case is yet another reminder of how unequal agreements can allow one side to commit crimes with impunity. For instance, without active intervention by supporters of Laude, Pemberton’s case may have never been filed or given any attention in the first place. Moreover, activists had to ensure that Pemberton was not removed from the country. Finally, even at the point of judgment, Pemberton was given a lesser sentence for using a highly controversial defense, and has not yet been taken into custody.

BEYOND THE CASE: UNJUST TREATIES

Beyond Laude’s case, activists see unequal and unjust defense treaties as the overarching issue. Human rights group, KARAPATAN, actively condemns bilateral defense agreements such as the VFA and supports their cancellation. In its statement, KARAPATAN underscores that the death of Laude is not just a marker of the violence that trans people face globally, but also of the impunity by which American soldiers can conduct themselves due to the unequal agreements that protect them while failing to protect the rights of certain communities in the Philippines. KARAPATAN has documented five other cases in which Filipinos died as a result of actions by or in service of U.S. military troops, without any justice or accountability for those deaths.

In regions of the Philippines where the U.S. military has a strong presence, complicated relationships between communities also arise. For example, most people in region where Laude died value the business of American soldiers, and some even blamed Laude for the recent drop in business. However, trans and LGBT people, among others, face beatings, discrimination and other abuse from American soldiers, who do not fear punishment or accountability. They are increasingly frustrated by continuing abuses and injustice.

Meanwhile, the Philippine government recently signed a tighter supplemental agreement to the VFA with the United States, the Enhanced Defense Cooperation Agreement (EDCA). With EDCA, U.S. soldiers no longer have to stay temporarily as “visitors,” and the U.S. can deploy them to any agreed upon location in the Philippines. KARAPATAN predicts a surge in human rights violations and further erosion of Philippine sovereignty, which were the very reasons U.S. naval bases in the Philippines were closed in 1991. Furthermore, increased funding from the U.S. based on EDCA has strengthened the current regime’s counterinsurgency military campaign, Oplan Bayanihan, which has spurred human rights violations in Southern Philippines where 50 percent of Philippine forces are located.

In the face of this, human rights defenders are calling for justice for Filipinos who have experienced human rights abuses at the hands of the U.S. military. They are urging the Philippine government to revoke unequal bilateral defense agreements such as the VFA and EDCA. Most importantly, they are seeking solidarity in bringing to light the violence faced by the LGBT community and in securing LGBT rights as guaranteed under international human rights law.

Rodrigo Bacus is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo Credit: U.S. Pacific Fleet/Creative Commons


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Pushing for a return of LGBTI rights in Pakistan

By Urooj Rahman

In Pakistan, lesbian, gay, bisexual, transgender, and intersex (LGBTI) people are often systemically marginalized, with very few of their basic rights protected and little opportunity to live openly without fear of physical or emotional violence. Transgender individuals in particular typically earn a living through begging or working as hired dancers for weddings ceremonies and other celebrations in which men and women are often segregated. Gay and bisexual men as well as transgender and intersex people also take part in sex work in order to make ends meet.

Although Pakistan actually has a tacitly-accepted underground gay and queer subculture in certain areas—particularly when it comes to male-to-male sexual or intimate interactions—speaking openly about one’s status as an LGBTI individual is still considered taboo and can be dangerous.

RAMPANT ABUSES

LGBTI people are often blackmailed, kidnapped, sexually assaulted and detained for voicing their concerns or asserting their rights. A 2014 International Gay and Lesbian Human Rights Commission (IGLHRC) report revealed that discrimination and violence against lesbians, bisexual women and transgender people continues to remain widespread throughout many Asian countries, including in Pakistan. The report highlighted that LGBTI individuals often face emotional and psychological abuse as well as physical and sexual violence. Often, the perpetrators of such abuse are family members who do not respect their relative’s gender non-conforming identities. For instance, one of the respondents from Pakistan often felt that the emotional and psychological abuse of being forced to wear girls’ clothing as a child—when he identified as a male—was just as traumatic as the physical violence he endured because of his transgender identity.

The report also documented that lesbians, bisexual women, and transgender people in Pakistan reported high levels of domestic violence, with heterosexual men often being the perpetrators of such violence. According to the Neengar Society, a youth-led LGBT rights organization, threats or violence by family members against LGBT people usually go unreported and are often resolved within the family, even if individuals are badly beaten. Moreover, many lesbian and bisexual women said they were forced to enter into heterosexual marriages in order to escape lasting emotional, physical and sexual abuse from their communities.

Gay and bisexual men are also discriminated against, despite Pakistan’s reputation for a lively homosexual underground. The Neenjar Society documented ten cases of gay men being prosecuted for same-sex sexual activity; two cases resulted in ten-year prison sentences. These cases and many other instances of homophobia show that the tacit and silent acceptance of the widespread underground gay male sex culture is not actually tolerated when exposed in Pakistani society.

This structural discrimination and violence waged against LGBTI communities in Pakistani society occurs through both through the legal system as well as through patriarchal, cis-gendered hijacking of Pakistani culture. For example, the laws that are primarily meant to end violence against women are insufficient in extending adequate protections to lesbians, bisexual women and transgender people. Government officials and leaders not only often fail to prevent violence, but also create a culture of permissiveness through such laws, which condone violence and discrimination against lesbian, bisexual women and transgender individuals.

Another discriminatory law in Pakistan is section 377 of Pakistan’s Penal Code, which criminalizes same-sex sexual conduct or sexual activity that is “against the order of nature,” making offenses punishable by life imprisonment or a fine. The law is not just one part of the systemic violence and oppression that LGBTI individuals face in Pakistan, but it is also a remnant of British colonial times, which brought about a destruction of long-standing queer subcultures that were openly accepted in pre-colonial times on the Indian subcontinent.

NOT ALWAYS A CRIME

Being an LGBTI individual was not always a crime in present-day Pakistan. Before the British colonized South Asia, the rights of transgender, intersex and queer individuals were much more respected and protected, according to scholars. Gender non-conforming people and sexual minorities were readily accepted in the pre-colonial Mughal Empire, which ruled over modern-day India and Pakistan. For centuries, in fact, the existence and recognition of the “third gender” was widely accepted in India, present-day Pakistan, Bangladesh, Nepal, the Middle East, the Ottoman, Safavid, and Mamluk empires and beyond.

While Western states either failed to give recognition to or further oppressed their queer communities, the Mughals of South Asia treated gender and sexual minorities with dignity and created an environment of inclusion and prosperity, rather than marginalization and poverty for LGBTI people. The Mughals enabled gender non-conforming individuals to become part of their royal courts and to be given positions of high esteem. Many gender non-conforming and queer people were able to achieve positions of high regard and respect, while also having the opportunity to accumulate wealth. The Khwaja-sira and Hijra communities of Pakistan also draw their histories and identities from this time. Furthermore, transgender and queer individuals have a long history in South Asia. The texts of the Kama Sutra, the ancient Indian Hindu text on human sexual behavior, written as far back as 300 to 400 B.C., even refer to a “third sex” in Sanskrit literature.

Though many Western LGBTI advocates attribute conservative religiosity, such as Islamic and Hindu extremism, to the marginalization of LGBTI people in South Asia, this is not the case. The Mughals, despite their secular ways, were Indian Muslim rulers, who held onto their Muslim identities while governing. For example, they worked to incorporate the Islamic concept of “doing justice,” which promotes egalitarian values, by creating an inclusive environment for many minorities in India, including queer communities.

This long-standing norm of acceptance of queer communities came to an end largely when the British imperialists colonized India. Of course, the sharp decline in LGBTI rights on the sub-continent cannot wholly and completely be attributed to the British colonizers, as there is some personal accountability South Asians must take in enabling the steady decline of queer rights in India. But in the late 19th century, anti-homosexual criminal laws were imposed upon newly conquered colonies by Britain. The British Parliament approved and enacted the Indian Penal Code (IPC), including section 377 in 1860. British colonial legislators and jurists passed such laws without any regard for cultural traditions, principles, local customs, laws and social policies. These laws essentially promoted structural divisions, institutional cleavages, and encouraged deeper wedges of hierarchy, which gave rise to widespread discrimination and violence against gender non-conforming people and sexual minority populations. They consigned people to inferior status on the basis of their identities and biological and anatomical ambiguities. Essentially, people were “otherized” and criminalized because of their physical attributes, how they looked, with whom they chose to become intimate and/or who they chose to love, among various other factors.

British imperialists, who clearly had the all-too-common and disturbingly-misguided “white savior” complex, thought their colonial subjects needed to be taught “proper sexual ethics.” Imperial rulers found it their burden to ensure that newly established British settler societies in colonial India (and elsewhere throughout the British empire) did not fall prey to immoral temptations influenced by native ideals of sexual openness and expression, which imperialists viewed as hedonistic promiscuity. They instituted these barbaric penal codes in order to subjugate the masses, whose “native cultures did not punish ‘perverse’ or ‘unacceptable’ sexual conduct enough.” Part of this was to push the indigenous (pre-partition) Indian population (which included the ancestors of present-day Pakistanis) to adopt what the British perceived to be “civilized and morally superior” European principles into the resistant indigenous Indian society. In their quest to do this, the British imperialists instituted a discriminatory system that still lives on today in Pakistan, India, and other former colonies.

A LONG WAY FORWARD

Nonetheless, more recently, Pakistan saw a reversion back to its pre-colonial acceptance of LGBTI individuals when the Pakistani Supreme Court acknowledged a third gender option on national identity cards in 2012. This decision came a few years after a transgender man, Shumail Raj, and his wife, Shahzina Tariq, were initially convicted and jailed for perjuring about their marriage in May 2007. Their marriage was deemed an illegal same-sex marriage arrangement by the Lahore High Court (an intermediary court). The court did not recognize Shumail to be a man, even after he received gender-reassignment surgery to match his anatomical sex with his gender identity. Though they were sentenced to three years of imprisonment, the couple was jailed for a period of three months, after which they were finally released on bail by the Pakistani Supreme Court, which agreed to hear their appeal. However, because the Chief Judge of the Supreme Court was ousted when martial law was later declared in 2007, their appeal has yet to be heard.

Still, Pakistan has a long way to go in order to ameliorate the institutional and systemic discrimination that it perpetuates against the LGBTI community, among many other marginalized groups. Pakistan, among many other Asian countries, has the ability to revive the respect for queer subcultures it once proudly boasted. The acknowledgement of the third sex is a step in the right direction. However, a full integration and acceptance of the LGBTI community in Pakistan must occur so that they can live openly without fear of poverty, abuse or violence. This should include adhering to international human rights law, alleviating social and economic hardships faced by LGBTI individuals and ending institutionalized discrimination.

Urooj Rahman is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo Credit: Shahzeb Ihsans/Creative Commons


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Human rights defender training in South Africa helps empower LGBTI refugees

By Hailey Flynn, Takahisa Juba and Urooj Rahman

When we began our human rights defender training in South Africa by asking participants to give examples of discrimination they faced as lesbian, gay, bisexual, transgender and intersex (LGBTI) refugees, we didn’t expect many people to share. What we heard, however, was an outpouring of tragic events. Participants openly discussed how their partner or friend had been killed and how they had lost their livelihood and homes because of their sexual identity. Some even bore the scars of recent physical assault. We were there to work together to overcome this endemic abuse, and were inspired by their courage because, even in the face of such tragedy, they chose to empower themselves and others.

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Student Hailey Flynn works with a small group of trainees.

A few stories come to mind as we remember the dozens of stories of tragedy and resilience. One participant discussed how she was repeatedly raped and sexually assaulted by her landlord who would threaten to evict her if she didn’t comply with his demands. However, this individual took matters into her own hands and decided to go to the police in order to put a stop to the abuse she was facing. Her efforts to end the abuse paid off and the police finally arrested the landlord. However, many of the other participants did not have such triumphant conclusions to their stories; all of the participants still endure ongoing abuse as a result of their sexual orientation, gender identity and nationality.

Facing persecution in their home countries because of their sexual orientation or gender identity, many LGBTI refugees have fled to South Africa in search of a safe haven. Since South Africa’s constitution and domestic laws are liberal and progressive, they believed that these legal protections would provide them with safety from discrimination based on their sexual orientation and ethnic origin. Rather than finding a safe, supportive environment, however, these individuals continue to face discrimination and violence because of their sexual orientation or gender identity and their nationality.

In spite of the overwhelming challenges in South Africa, including physical assault, difficulty in finding housing and work, harassment from both private and public actors, and from living in a foreign country, many LGBTI refugees wanted to empower themselves by learning how they could advocate for their rights and the rights of others in the LGBTI refugee community. In November 2014, the Walter Leitner International Human Rights Clinic partnered with People Against Suffering Oppression and Poverty (PASSOP), a South African non-profit organization that advocates for refugees and asylum seekers, to conduct a 3-day human rights defender training for LGBTI refugees in Cape Town, South Africa. Supervised by Clinic Director, Professor Chi Mgbako, five students developed a training manual that defined the human rights violations that the South African LGBTI refugee community faces and identified the relevant international, regional and domestic mechanisms to redress these human rights abuses. The manual also includes instructions on how to submit shadow reports or complaints to the relevant human rights mechanisms.

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Student Takahisa Juba discusses human rights mechanisms during the training.

This training enabled the participants to garner practical knowledge about the human rights framework and to understand how to effectively fight for their own rights as well as the rights of their fellow LGBTI refugees. Since all of the trainees had personally experienced human rights violations, these injustices motivated them to participate in the training and work to ensure rights for all. The advocacy skills that the training focused on not only empowered them to fight for their own rights, but also encouraged them to defend the rights of other survivors of human rights abuses.

It was an energy-filled three days of training and the participants’ enthusiasm was overwhelming. The first day kicked off with an overview of the human rights legal framework. Then, we dove into the relevant rights that protect LGBTI refugees specifically and covered what international, regional and domestic laws enumerate those rights. To test their knowledge on the material, quizzes and interactive activities were included throughout the training. Participation in these games not only reinforced the trainees’ comprehension of the material, but also fostered a competitive and enthusiastic atmosphere.

Despite having rights, these participants knew all too well that many people and institutions often fail to hold perpetrators responsible for human rights violations. As a result, documentation of abuses and demanding accountability are crucial to redressing human rights abuses. A significant portion of the training was dedicated to reconciling what rights LGBTI refugees actually have with the reality of how to enforce those rights when they are violated. We explained how various human rights monitoring mechanisms—including the Human Rights Committee, African Commission, South African Commission on Human Rights, Committee Against Torture, Human Rights Council (the Universal Periodic Review Process and Special Procedures), the United Nations High Commissioner for Refugees and the South African Human Rights Commission—can be used to enforce the relevant rights and how each of these mechanisms can be used most effectively. Showing that there are available remedies and methods of accountability gave the participants the tools to change their circumstances and empower themselves. We also devoted a session on fact-finding through interviewing and non-interviewing methods, which is an essential skill-set for documenting abuses and seeking accountability.

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Student Urooj Rahman gives a presentation as part of the human rights defender training.

With new knowledge and tools in hand, the participants concluded the training by envisioning a brighter future. Trainees broke into several groups and designed strategic plans to hold the South African government accountable for protecting LGBTI refugee rights. These plans laid out a framework for addressing specific rights violations through engaging a particular human rights monitoring mechanism. Moreover, they paved a path forward for participants to continue to fight for their own rights and for those of their fellow LGBTI refugees.

The trainees left feeling empowered and optimistic, as they were now better aware of their rights and how to protect them. The training also made us realize the importance of human rights work and having the tools to advocate for and with marginalized members of society. It was a moving experience for us to see that the knowledge we shared allowed many of the trainees to feel invigorated to advocate for the LGBTI refugee community. We feel fortunate to have had this opportunity to work with these courageous participants who have had the resilience to stand up for the rights they deserve. Our hope is that our training imparted useful information for their advocacy work, which will allow them to live safer, better lives. We are hopeful that the trainees will utilize the vast amount of information they learned and demand that their guaranteed rights under South African, regional and international law are respected, protected and fulfilled.

Hailey Flynn, Takahisa Juba and Urooj Rahman are a 2L student, alumnus and 3L student, respectively. They participated in the Walter Leitner International Human Rights Clinic.


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Pushing back against oppression and finding inspiration at a LGBTI rights training in South Africa

By Tessa Juste

When Beatrice* got up to speak, I had no idea what to expect. She was soft-spoken, and admittedly terrified to speak in front of the group of conference attendees. But for the sound of her voice, the small room packed with Lesbian, Gay, Bisexual, Transgender, and Intersex (“LGBTI”) rights advocates and activists was silent.

“Torture is our living reality,” she said. “Uganda’s Parliament passed the anti-homosexuality act earlier this year. It has since been nullified by the courts, but there is still so much abuse from both state and non-state actors. Government hospitals refuse to offer services the minute they identify you as an LGBTI person. It becomes humiliating when they call a whole bunch of people over to see the homosexual. The LGBTI community right now would rather stay home than seek services from these hostile service providers.”

And this was just one of many heart-wrenching anecdotes shared at the Conference on the Rights of LGBTI Persons under International and Regional Law in Pretoria, South Africa. Uganda is not unique as an African country in terms of its state-sanctioned mistreatment of LGTBI persons. LGBTI individuals, their families, and their allies are at extreme risk of physical harm, social denigration, and being barred from government protections and services because of their sexual orientation or gender identity. These challenges are precisely why the Leitner Center for International Law and Justice’s International Law and Development in Africa Clinic organized the conference in partnership with AIDs Rights South Africa (“ARASA”) and the UN Office of the High Commissioner on Human Rights (“OHCHR”). The conference was held in the first week of November at the University of Pretoria’s law school facility.

I first became involved with this project during my 2L spring semester as a student in the Walter Leitner International Human Rights Clinic. Under the supervision of the Leitner Center’s Director of Special Projects in Africa, Professor Jeanmarie Fenrich, and Crowley Fellow in International Human Rights Zach Hudson, two other students and I helped draft a training manual in collaboration with the United Nations on the rights of Lesbian, Gay, Bisexual, Transgender, and Intersex (“LGBTI”) persons under international law, and how these rights can be promoted and protected using the international and regional human rights systems. During my 3L fall semester—this time through the International Law and Development in Africa Clinic—it was decided that we would conduct a training on LGBTI rights based on the manual in South Africa with LGBTI rights activists from all across Africa. My fellow 3Ls, Alexandria Strauss and Vincent D’Aquila, joined the team and we spent several months refining and editing the training manual to apply specifically to protecting and promoting LGBTI rights in sub-Saharan Africa using the international and African regional human rights systems. Then, since each of us students would be responsible for teaching a portion of the training manual at the conference, we practiced as often as possible and in front of as many students we could entice with the promise of free pizza.

My primary role at the conference was to teach the introductory section on international treaty law. Even though I was familiar with the training materials after so many months working on this project, I was fairly nervous about presenting in the days leading up to the training. Apart from typical public speaking jitters, I was simply in awe of the people attending the training. They were all members of organizations working courageously to further the rights of LGBTI individuals in their respective countries, and I wondered whether I would be enough of an ‘authoritative’ speaker to effectively convey information that I believed could be very helpful in their future work. As it turned out, this was one of the warmest, most receptive groups of people I have ever come across.

Several LGBTI advocacy organizations from across sub-Saharan Africa sent representatives to attend the training conference. These representatives hailed from Botswana, Cameroon, Kenya, Malawi, Mozambique, Nigeria, Uganda, South Africa, Zambia, and Zimbabwe. The activists all had varying levels of experience in utilizing the international and African regional human rights systems, and this created quite a beautiful patchwork of diverse opinions. The three days of the conference were peppered with many thought provoking questions as well as powerful anecdotes of the training participants’ work as LGBTI rights advocates.

Beyond the technical successes of the conference, it was a joy to see friendships forged, and in some cases, rekindled, between everyone there, including the training participants, those of us representing Fordham and the Leitner Center, and our partners from ARASA and the UN OHCHR. We did more than learn together; we ate all our meals together, spent downtime together, and one night after training, a few of the participants even organized an ad hoc breakout session for queer and trans women at the conference. This was a genuine success of human connection over a heartfelt common cause on both the professional and personal levels, and it was privilege to share in that experience.

I am so grateful for having been afforded the opportunity to be a part of a project that offered an additional set of tools that these activists might use in the struggle to ensure that the rights of LGBTI persons are protected in each of their respective countries and regions. In a time when it seems that the only news that makes it out of Africa on the subject of LGBTI individuals is news about persecution and fear, it was inspiring be reminded that the dominant narrative that denigrates sexual orientation and gender identity minorities has a steadfast opposition—opposition like Beatrice.

You could have heard a pin drop as she wrapped up her remarks to the group. And before she opened the floor to questions, her final words reverberated throughout the room. “We are faced with the fact that people in positions of power advocate for LGBTI individuals to be put in positions where they’re tormented and humiliated constantly. It’s very demeaning to be constantly referred to as the scum of the community, or un-African beings of our society. Every other day since the law was passed you hear about an LGBTI person who was attacked, and what were once safe spaces are targeted.”

There are amazing people on the front lines of this fight to live and love in peace, and they are doing remarkably brave work to push back against oppressive forces in the face of daunting obstacles. I believe it is incumbent upon us as allies in the fight for all human rights to provide them support in any way that we can.

*Please note this name has been changed for safety reasons.

Tessa Juste is a 3L student at Fordham Law School, where she participated in the Walter Leitner International Human Rights Clinic and the International Law and Development Clinic in Africa.