Commissioners: José de Jesús Orozco Henríquez, James L. Cavallaro, Francisco José Eguiguren Praeli

Petitioners: Communicando y Capacitando Mujeres Trans (COMCAVIS Trans), Fundación de Estudios para la Aplicación del Derecho (FESPAD), Center for Justice and International Law (CEJIL)

State: El Salvador

On March 21, 2017, at a hearing before the Inter-American Commission on Human Rights (IACHR) on March 21, 2017, Petitioners discussed the issues facing LGBTI people in El Salvador, including hate crimes committed against the LGBTI community, the justice system’s failure to provide the LGBTI community access to justice and conduct proper investigations, and the attack and criminalization of individuals defending LGBTI rights.

Bianca Rodriguez, a civil society representative and member of the trans community, cited a reported fourteen hate crimes occurred against the LGBTI community in the first two months of this year. These crimes involved torture and genital mutilation, demonstrating the level of prejudice which still exists in Salvadorian society. In the last thirteen years, an estimated 600 LGBTI individuals were victims of hate crimes. In May 2015, Francela Mendez, a trans woman and activist, was beaten and strangled. Additionally, trans women constitute the group most affected by sex trafficking, in part because their families are unwilling to accept them, pulling them into a cycle of violence and criminalization.  Societal patterns and the State’s refusal to recognize trans people’s gender identities contribute to the violence against the LGBTI community. Prejudices are often evidenced in religious and political discourse in El Salvador.

Carolin Bellosa and Ambar Alfaro, two other civil society representatives, discussed intolerance and discrimination aimed at the LGBTI community. The disregard of LGBTI basic rights contribute to hostility and generate many attacks against this community. Additionally, those who defend LGBTI rights are frequently subject to attack. After an attack, a trans person has limited access to justice, and the government’s dismal attempts at investigation leads to few prosecutions. Because perpetrators of these acts do so with impunity, they are not deterred from committing similar hate crimes in the future.

The government responded  to petitioners by detailing the steps it has taken to advance trans rights and include the LGBTI community in El Salvador, including creating the National Directorate for Sexual Diversity within the Secretary for Social Inclusion in May 2010. This year, the government submitted the 56th objective decree to prevent all forms of identity discrimination in public administrations, and specifically  identified the LGBTI community as a class protected by the decree. This kind of decree is unprecedented. In 2015, lawmakers in El Salvador made changes to the penal code to deal directly with hate crimes. The government stressed that it recognizes the importance of investigation of crimes against the LBTI community and has requested the participation of the public prosecutor. The government ensured that the advances discussed are only a few of the changes that have made to tackle the challenge of including the LGBTI community in El Salvador.

The commissioners were primarily concerned with the public perception of the LGBTI community and continued prejudices that has lead to widespread discrimination and violence.

Author’s Legal Analysis:

The United Nations has established discrimination based on sexual orientation and gender identity are prohibited under international human rights law. The International Covenant on Civil and Political Rights (ICCPR) mandates all states recognize all persons as equal before the law, and should protect against discrimination of any particular group. The United Nations Human Rights Committee, in its opinion in Toonen v. Australia, held that the sex discrimination protections mandated by Article 2, paragraph 1, and Article 26 of the ICCPR include sexual orientation. Additionally, the United Nations General Assembly has called upon member states to effectively ensure every person’s right to life by promptly and thoroughly investigating killings driven by individuals’ sexual orientation.

El Salvador does not recognize the right of transgender men and women to officially change their names and gender on their national identity documents. The government’s denial of a trans person’s ability to self-identify violates Article 26, which requires each state to guarantee protection against discrimination.

The culture of impunity that pervades hate crimes committed against members of the LGBTI community further demonstrates the state’s shortcomings in protecting every individual’s right to life and security of person ensured by Articles 6 and 9 of the ICCPR.