1 [Name] [Firm] [Address] [Phone Number] [Fax Number] United States Department of Justice Executive Office for Immigration Revie

[NAME] [FIRM] [ADDRESS] [PHONE NUMBER] [FAX NUMBER]

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT [CITY, STATE]

______) In the Matter of: ) ) File No.: A ______) ) In removal proceedings ) ______)

INDEX TO DOCUMENTATION OF COUNTRY CONDITIONS REGARDING PERSECUTION OF HIV-POSITIVE INDIVIDUALS IN MEXICO

TAB SUMMARY GOVERNMENTAL SOURCES 1. Research Directorate, Immigration and Refugee Board of Canada, Situation of sexual minorities in Mérida and Monterrey, including legislation, treatment by authorities and society; state protection and support services available (Aug. 18, 2019), available at https://irb-cisr.gc.ca/en/country- information/rir/Pages/index.aspx?doc=457877&pls=1. • “The report states that some employers ask job candidates questions about sexual orientation, pregnancy, and HIV status (Mexico and Fundación Arcoiris Nov. 2018, 33).” (p. 7) • “Sources report that in February 2019, the federal government announced it would no longer fund civil society organizations for activities such as outreach and HIV testing (Letra S 27 Feb. 2019; Reuters 17 Apr. 2019).” (p. 9)

2. Bureau of Democracy, Human Rights and Labor, U. S. Dep’t of State, Mexico Country Reports on Human Rights Practices— 2018 (Mar. 13, 2019), available at https://www.state.gov/wp-content/uploads/2019/03/MEXICO-2018.pdf.

TAB SUMMARY • “There were reports that public health doctors occasionally discouraged women from giving birth to HIV-infected babies.” (p. 25)

3. Bureau of Democracy, Human Rights and Labor, U. S. Dep’t of State, Mexico Country Reports on Human Rights Practices— 2017 (Apr. 20, 2018), available at https://www.state.gov/wp-content/uploads/2019/01/Mexico.pdf. • “… forced, coerced, and involuntary sterilizations were reported, targeting mothers with HIV.” (p. 27)

INTER-GOVERNMENTAL SOURCES 4. Organization of American States et al., Human Rights of Women Living with HIV in the Americas (2015), available at https://www.oas.org/en/CIM/docs/VIH-DD.HH- Final-EN.pdf. • “Other sources have documented the discrimination in health services against women living with HIV. The Estudio técnico-jurídico de las violaciones a los derechos reproductivos de mujeres con VIH en cuatro países de Mesoamérica [Technical-legal study of violations of the reproductive rights of women with HIV in four countries of Mesoamerica] found that 41% of the women interviewed in Mexico…reported having noted a discriminatory attitude on the part of the healthcare staff. The following situations illustrate these attitudes: the staff are reproachful or “rub in” the fact that the women have the disease; the women are blamed for getting pregnant or for transmitting the virus vertically before they even knew they had it; their identity is tied up with the disease (i.e. being “AIDS”); and they are fired without justification, among others.” (p. 29) • “Likewise, the interviewees reported that they are sometimes refused medical/surgical procedures (e.g., they were not given gynecological check-ups; a spine surgery was not performed; staff did not want to attend a delivery). They further reported other practices through which medical personnel exclude women because of their HIV status, such as forcing them to be seen last or speaking to them from the office door. The most extreme expression of discrimination is the involuntary sterilization of women living with HIV, which was reported in the four countries studied.” (p. 30) • “Among the individuals interviewed in stigma and discrimination studies in seven Latin American countries, the percentage of women who reported having felt coerced by a health professional on some occasion to undergo sterilization was 26.1% in Colombia, 50% in Mexico, 20.6% in Guatemala, 14.4% in El Salvador, 11.1% in Ecuador, and 19.8% in the Dominican Republic.” (p. 41)

NON-GOVERNMENTAL SOURCES 5. Cogent Psychology, “Improving health and coping of gay men who live with HIV: A case study of the ‘Healthy Relationships’ program in Mexico” (Oct. 9, 2017), available at https://www.cogentoa.com/article/10.1080/23311908.2017.1387952.pdf. • “[I]n their daily lives, HIV patients are still victims of stigma and discrimination and still encounter vestiges of inequality. This might force them to either conceal their diagnoses 2

TAB SUMMARY to avoid being discredited in public (Goffman, 1970) or, through revelation of their HIV status, become victims of discriminatory practices in the home, workplace, or community.” (p. 2) • “Social problems that have been observed in the case of HIV-infected gay men in Mexico are—among others—: the absence of social support networks, lack of access to the country’s social security system (which offers low-cost health care), scarce opportunities for employment and higher education, and limited access to information, to mention just a few (Flores-Palacios & De Alba, 2006; Flores-Palacios & Leyva-Flores, 2003).” (p. 3) • “Moreover, the lack of sex education and open discussion about HIV can inhibit the personalization of risk by promoting the idea that HIV can only be contracted by “others” who belong to socially marginalized groups.” (p. 3) • “In the particular case of Mexico’s sociocultural milieu (similar representations have been described in other countries; see: Herek & Glunt, 1988), it appears that a widely shared public opinion relates this illness to death, generates fears of contagion, and links it to moral deviations (Flores-Palacios & De Alba, 2006; Flores-Palacios & Leyva- Flores, 2003).” (p. 2) • “Together with the multiplicity of elements involved in constructing the normative male body and its projection in the social space (Prieur, 2008), homophobia emerges as a imposed burden on the moral status of people with HIV, who are forced to live amidst discrimination and rejection at home, at school, at work, and in the community at large, while their illness runs its course (Castro et al., 1998).” (p. 2) • “Other investigations (e.g., Herek & Glunt, 1988; Yi, Sandfort, & Shidlo, 2010) have demonstrated the (double) stigmatization and discrimination that HIV patients encounter. These authors have moreover described the effects that this can have: internalized homophobia (negative attitudes toward one’s own homosexuality and a negative self- image as a gay man) and disengagement coping strategies that orients patients away from their problem (their HIV status).” (p. 2)

6. Austrian Centre for Country of Origin & Asylum Research and Documentation, Austrian Red Cross, Mexico Sexual Orientation and Gender Identity (SOGI), COI Compilation (May 31, 2017), available at http://www.refworld.org/pdfid/5937f12d4.pdf.

• “[I]n March 2014, police officers in Chihuahua, Mexico arrested five transgender women for not carrying a health card, even though this is not a crime. […] The police then illegally forced the women to take HIV tests.” (p. 21) • “Increased visibility has actually increased public misperceptions and false stereotypes about the gay and transgender communities. This has produced fears about these communities, such as that being gay or transgender is ‘contagious’ or that all transgender individuals are HIV positive.” (p. 34)

7. Transgender Law Center and Cornell University Law School LGBT Clinic, Report on Human Rights Conditions of Transgender Women in Mexico (May 2016), 3

TAB SUMMARY available at https://transgenderlawcenter.org/wp- content/uploads/2016/05/CountryConditionsReport-FINAL.pdf. • “A national survey found that 59% of Mexicans believe that HIV/AIDS is caused by homosexuality. These misconceptions and stigma exist even among medical providers. In fact, most hospitals view homosexuality as a risk factor for HIV and often discriminate against those who do seek treatment.” (p. 24)

8. Amnesty International, The State as a Catalyst for Violence Against Women: Violence Against Women and Torture or other Ill-treatment in the Context of Sexual and Reproductive Health in Latin America and the Caribbean (March 2016), available at http://www.refworld.org/docid/56de959b4.html. • “And it is the story of Michelle in Mexico whose abusive treatment in the health facility, was largely the result of the stigma experienced by women living with HIV.” (p. 43) • “The Rapporteur on torture recognizes that the task of ending torture and ill-treatment in health-care settings faces unique obstacles due, among other things, to the perception that the authorities can defend certain health-care practices on grounds of administrative efficiency or medical opinion or to modify behaviour.” (p. 43) • “When she was four months pregnant, the hospital informed her that she was HIV- positive. From that moment on and even after the birth of her child, she was subjected to various forms of ill-treatment by health-care providers in the State of Veracruz.” (p. 29) • “On 27 September 2014, Michelle arrived at the General Hospital in labour, but the surgeon on duty did not want to carry out a caesarean section. She had to wait several hours for a doctor to arrive who was willing to carry out the procedure on women with HIV.” (p. 29) • “While she was in the General Hospital, she was subjected to discriminatory treatment and verbal abuse; a large sign was placed above her bed giving her name, age, date of admission and the letters HIV. Likewise, health workers repeatedly ignored her requests for help for basic things, like going to the toilet.” (p. 29) • “Michelle suffered a hemorrhage and health personnel responded by thrusting a piece of cloth at her and telling her to clean up her own blood, shouting that she had to do it because hospital staff didn’t want to be infected. Michelle also remembers that she was the only one who was given her food on disposable plates and then only after all the other women in the ward had eaten.” (p. 29) 9. Pines, Goodman-Meza, Pitpitan et al., HIV testing among men who have sex with men in Tijuana, Mexico: a cross-sectional study, in BMJ Open (Jan. 15, 2016), available at https://bmjopen.bmj.com/content/bmjopen/6/2/e010388.full.pdf. • “Internalised homophobia was associated with never having tested for HIV, while prior HIV testing was associated with identifying as homosexual or gay and being more ‘out’ about having sex with men. These findings are consistent with research documenting internalised homophobia as a barrier to accessing HIV testing and prevention services.” (p. 8) • “Cultural norms of machismo and homophobia contribute to stigma towards same-sex sexual behaviours in Mexico. Previous research suggests that non-gay identifying, HIV-

TAB SUMMARY positive men who have sex with both men and women in Mexico avoid gay community affiliation out of fear of homophobic reactions.” (p. 8) • “The most frequently reported barrier to HIV testing was “I worry that testing HIV- positive will change my life,” suggesting that MSM in Tijuana may perceive testing HIV-positive as a death sentence or worry about the potential for negative social consequences on testing positive.” (p. 8) • “[G]iven the stigmatisation of same-sex sexual behaviours in Mexico, MSM may be reluctant to disclose their sexual orientation or same-sex sexual practices to healthcare providers.” (p. 8) • “…national HIV prevention strategies have not emphasised targeted HIV testing for key populations, including MSM.” (p. 2) • “Given that regular HIV testing is integral to the implementation of comprehensive HIV prevention, treatment and care services, efforts to scale up testing among sexual minorities in Tijuana are urgently needed.” (p. 6)

10. University of Toronto Faculty of Law, International Human Rights Program, ‘Unsafe’ and on the Margins: Canada’s Response to Mexico’s Mistreatment of Sexual Minorities and People Living with HIV (2016), available at https://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/Report- UnsafeAndOnMargins2016.pdf. • “…people in Mexico living with HIV remain vulnerable to human rights abuses, stigma and discrimination in all realms of life. In terms of education, employment, and access to healthcare, individuals living with HIV face substantial discrimination.” (p. 13) • “According to an international health service organization, assailants in a small town in Chiapas marked homes with spray-paint to indicate that people living with HIV resided there, so that other residents could avoid and ostracize them.” (p. 13) • “Stigma traumatizes many people living with HIV. As the Executive Director of Balance told the IHRP, “an HIV diagnosis is often seen as a death sentence because of insufficient or misinformed counselling and education.”” (p. 14) • “A recurring problem is that many health professionals outside of CAPASITS refuse to treat individuals living with HIV, due to a misguided fear of exposure to the virus.” (p. 13) • “According to the Executive Director of the women’s rights organization, Balance, persons living with HIV are often last to be seen, and forced to wait in a separate room, essentially quarantined from the other patients. In many cases, patients are required to come with their own medical supplies so as not to “contaminate” the clinics’ instruments.” (p. 13) • “When prison authorities refused to provide the young man with HIV treatment, Alejandro Brito intervened and was able to arrange a visit to a CAPASITS. However, the doctor at the CAPASITS told the young man that “when he was sent to prison he lost his right to treatment.”” (p. 14) • “[D]espite Mexico’s legislated provision of universal, free and quality access to healthcare, many people in Mexico living with HIV or at high risk of infection are unable

TAB SUMMARY to access Seguro Popular. For those who do have access to healthcare, many face discrimination and receive sub-par and inconsistent treatment that seriously jeopardizes their health.” (p. 10) • “The Director of Clinica Condesa, the leading HIV/AIDS clinic and the only publicly funded free clinic with expertise in serving transgender clients, told the IHRP that individuals living with HIV seeking healthcare are routinely denied assistance at health centres.” (p. 11) • “In a 2013 study, health providers in Tijuana reported an insufficient availability of ART medications in some CAPASITS in Mexico. The IHRP was told that some health centres delay providing HIV treatment until a patient is showing visible signs of the illness in order to preserve their limited supplies.” (p. 11) • “In many Mexican states, HIV tests are mandatory to obtain marriage licences, and the judge performing the marriage has access to the results.” (p. 13) • “…staff at an international health-service organization told the IHRP that individuals are commonly barred from employment because of their HIV status, or their employment is terminated when their status is disclosed or discovered.” (p. 13) • “Although Mexico has a national healthcare system that, by law, “guarantees” access to healthcare for all, including migrants, it failed Julio. He almost died from a cerebral infection after being denied HIV treatment for 18 months because of a lack of sufficient personal identification to access services.” (p. 2) • “Health advocates report breaches of confidentiality, segregation within healthcare centres and other discriminatory practices that undermine the right to health of minorities and people living with HIV” (p. 2) • “Even with federal and state laws declaring protection for human rights, compliance is far from assured. Human Rights Watch reports that, because of corruption, collusion of government actors and public defenders and a general lack of resources, the criminal justice system in Mexico “routinely fails to provide justice” to victims of human rights violations and violent crimes.” (p. 6)

MEDIA SOURCES 11. The Borgen Project, Targeting the Roots of HIV/AIDS Stigma in Mexico, (Apr. 7, 2020), available at https://borgenproject.org/hiv-aids-stigma-in-mexico/. • “The social stigma around HIV and discrimination based on sexual orientation in Mexico is one of the issues that discourage many people from getting tested. Tradition and religion, especially in rural and poorer areas, are major obstacles to destigmatizing HIV. At the root of this issue are the “machismo” culture and anti-gay beliefs.” (p. 2) • “As a result of this stigma, people have associated getting tested for HIV with being gay or promiscuous.” (p. 2) • “A study in 2016 that examined the prevalence of HIV among men who have sex with men (MSM) in Tijuana, Mexico concluded that there is an urgent need for new testing

TAB SUMMARY methods. These interventions include non-stigmatizing, confidential testing for younger and less educated MSM, as well as timely referral to HIV treatment.” (p. 3)

12. Associated Press News, 2nd Mexican state allows conscience objection for doctors (Oct. 22, 2019), available at https://apnews.com/2d827fc502db4fb28efe71edac6d5151. • “Rights officials expressed concern Tuesday after a second state congress in Mexico passed a “conscience objection” law that would allow medical personnel to refuse to perform procedures that violate their religious or ethical convictions.” (p. 1) • “The governmental National Human Rights Commission has filed a Supreme Court appeal against the first law, approved in the central state of Morelos in August. […] “Medical personnel and nurses could deny services based on health reasons, including HIV and AIDS, or based on gender or sexual preferences,” the commission warned.” (p. 1)

13. Reuters, Thousands Feared at Risk After Mexico Reforms HIV+ Regime (Apr. 17, 2019), available at https://www.reuters.com/article/us-mexico-health-aids/thousands- feared-at-risk-after-mexico-reforms-hiv-regime-idUSKCN1RT1FC. • “AIDS experts say government clinics could run out of certain antiretrovirals, leaving thousands who depend on the public health program untreated for weeks or even months.” (p. 2) • “In February, the government also said that it would no longer fund civil society organizations, leaving more than 200 groups fighting the disease without resources for core activities, such as HIV testing.” (p. 1) • “Thousands of Mexicans living with HIV or at risk of infection could be left without life- saving services after the government changed the way it funds treatment, according to public health experts and LGBT+ rights advocates.” (p. 1) • “If the HIV+ lack access to medication, even for a few weeks, rights groups say they face serious health risks themselves and have a greater chance of passing on the virus.” (p. 3)

14. Excelsior, “Disbelief and Stigma Maintains the HIV Epidemic in Mexico” (Jan. 20, 2019) (with translation), available at https://www.excelsior.com.mx/nacional/incredulidad-y-estigma-mantienen-epidemia- del-vih-en-mexico/1291448. • “She emphasized that 17 percent of the population diagnosed do not immediately sign themselves up to the treatment [.] […] Given this, they work together with psychiatrists and psychologists of the clinic, institutions that offer therapies and support groups, since one of the principal barriers for joining is stigma, a person that is known to have HIV faces denial through the discrimination and the stigma in his or her workplace, family or with his or her partner.” (p. 2 of translation) • “The test should be done as a couple, the stigma towards HIV tests should be removed, should not create an assumption that a person living with HIV has a promiscuous sexual life or has men with other men relationships, it is just a typical test.” (p. 4 of translation)

TAB SUMMARY • “[G]enerally, around 20 percent suspend or lose their treatment, either due to migration, discrimination, stigma, change of institution and, in the worst case scenario, by abandonment of the treatment.” (p. 3 of translation) 15. HIV Justice Network, Mexico: Mexican Network of Organisations against HIV criminalisation calls on Veracruz State Congress to stop proposed criminalisation legislation (July 23, 2018), available at https://www.hivjustice.net/news-from-other- sources/mexico-mexican-network-of-organisations-against-hiv-criminalisation-calls-on- veracruz-state-congress-to-stop-proposed-criminalisation-legislation/. • “The Mexican Network of Organizations Against HIV Criminalization, called upon the deputy chairwoman of the Administration and Budget Commission of the Veracruz State Congress, Jessica Ramírez Cisneros, to stop the legislative process of her proposal to reform articles 157 and 158 of the Criminal Code of the State , where it is intended to impose from six months to five years in prison and a fine of up to 50 Units of Measurement and Update (UMA) who, fraudulently, endangers of “contagion” of a serious illness to another person.” (p. 2) • “In this, it is considered among these serious and communicable diseases to “syphilis, gonorrhea, hepatitis B and C, herpes, HIV, tuberculosis”…” (p. 2)

16. HIV Justice Network, Mexico: The Network against the Criminalisation of HIV report that 30 out of 32 states criminalise "exposure to infection" in Mexico (Nov. 7, 2017), available at https://www.hivjustice.net/news-from-other-sources/mexico-the- network-against-the-criminalisation-of-hiv-report-that-30-out-of-32-states-criminalise- exposure-to-infection-in-mexico/. • “The Network against the Criminalisation of HIV, a coalition formed by 29 associations in favour of human rights in Mexico, reported that 30 of the 32 states that make up the Mexican Republic include in their Penal Codes the category “Crime of exposure to infection”, which punishes people who transmit or can transmit a “non-curable disease” to another person.” (p. 2) • “[T]his legal statute endangers people with HIV, as it criminalizes and undermines strategies aimed at combating the epidemic. Specifically, laws sanction the possibility of transmitting an illness, even if it happens involuntarily.” (p. 2) • “Only Aguascalientes and San Luis Potosí do not have this legal statute in their penal codes, while in Sonora the law could be toughened, since there is currently a proposal that is being analyzed to establish sentences of up to 15 years in prison.” (p. 2) • “Members of the Network against Criminalization warned that these types of laws do not help to combat the increase in HIV cases and only contribute to stigmatization and make it difficult for strategies focused on combating HIV transmission to meet their goals.” (p. 3)

Dated: [DATE] Respectfully submitted, [CITY, STATE]

[FIRM] Pro Bono Counsel for Respondent______

By: ______[NAME] [FIRM] [ADDRESS] [PHONE NUMBER] [FAX NUMBER]

TAB 1 6/15/2020 Responses to Information Requests - Immigration and Refugee Board of Canada

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18 August 2019 MEX106340.E

Mexico: Situation of sexual and gender minorities, including in Mérida (Yucatán) and Monterrey (Nuevo León), including legislation, treatment by authorities and society; state protection and support services available (2017-August 2019) Research Directorate, Immigration and Refugee Board of Canada

1. Legislation 1.1 Legislation Regarding Discrimination

The Federal Law to Prevent and Eliminate Discrimination (Ley Federal para Prevenir y Eliminar la Disriminación) provides protection against discrimination based on sex, gender and sexual preferences (Mexico 2003, Art. 1). In 2011, the ﬁrst article of the constitution was updated to include discrimination based on sexual preference (Mexico 29 June 2018, 4; ILGA Mar. 2019, 110).

The National Council for the Prevention of Discrimination (Consejo Nacional para Prevenir la Discriminación, CONAPRED) [1] indicates that all 32 states in Mexico have antidiscrimination laws (Mexico 29 June 2018, 5). Nuevo León passed its state law in 2017, https://irb-cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=457877&pls=1 1/23 6/15/2020 Responses to Information Requests - Immigration and Refugee Board of Canada including discrimination based on sexual orientation, and discrimination against transgender individuals and intersex people (Nuevo León 2017, Art. 4). Yucatán’s state law covers [translation] “sexual orientation and gender other than heterosexual” (Yucatán 2016, Art. 17).

1.2 Legislation on Same-Sex Marriage and on the Right to Adoption

According to sources, Mexico City legalized same-sex marriage in 2009 (ILGA Mar. 2019, 110; Pew Research Center 17 May 2019). Sources indicate that, in 2015, Mexico’s Supreme Court (Suprema Corte de Justicia de la Nación, SCJN) issued a ruling that bans on same-sex marriage were unconstitutional (ILGA Mar. 2019, 110, 278; Jones Day 21 Sept. 2015). The same sources note that marriages performed in a state with legalized same-sex marriage must be recognized by other states (ILGA Mar. 2019, 110, 278; Jones Day 21 Sept. 2015). Similarly, the Pew Research Center, a "nonpartisan fact tank" conducting "data-driven social sciences research" on "issues, attitudes and trends shaping the world" (Pew Research Center n.d.), reports that the decision permitted same-sex couples to "seek a court injunction against state laws banning gay marriage" (Pew Research Center 17 May 2019).

According to the Mazatlán Post, a news website, same-sex marriage is "not allowed" in the state of Yucatán (The Mazatlán Post 12 Feb. 2019). Similarly, the Yucatan Times, an English language news website based in the Yucatan peninsula (The Yucatan Times n.d.), states that Article 94 of the state constitution provides that in "Yucatán, only heterosexual couples can get legally married" (The Yucatan Times with Notimex 12 Apr. 2019). On 10 April 2019, the local Congress of Yucatán voted against reforming the constitution of the state to allow same-sex marriage (The Yucatan Times with Notimex 12 Apr. 2019; Diario de Yucatán 10 Apr. 2019). Sources state that Mexico’s Supreme Court ruling of 2015 requires all states to recognize same-sex marriages, but that in states where legislation does not provide for same- sex marriage (ILGA Mar. 2019, 278; Jones Day 21 Sept. 2015), same-sex couples must request an amparo ("special injunction") to have their marriage recognized in (Jones Day 21 Sept. 2015) or receive decisions on a "case-by-case" basis (ILGA Mar. 2019, 278). Sources state that the amparo process works, but that it takes time (Austrian Red Cross and ACCORD May 2017, 6; The Mazatlán Post 12 Feb. 2019) and costs money (Austrian Red Cross and ACCORD May 2017, 6; Notimex 12 June 2019; The Mazatlán Post 12 Feb. 2019). Sources state that the amparo process costs approximately US$1,000 (Austrian Red Cross and ACCORD May 2017, 6) or 20,000 to 50,000 Mexican pesos (MXN) [approximately C$1376 to C$3440] (Notimex 12 June 2019). Regarding the prevalence of access, the Mazatlán Post reports that in the past five years, 90 couples have used the amparo process in Yucatán (The Mazatlán Post 12 Feb. 2019). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response. https://irb-cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=457877&pls=1 2/23 6/15/2020 Responses to Information Requests - Immigration and Refugee Board of Canada In February 2019, Mexico’s Supreme Court declared as invalid articles 140 and 148 of the civil code of Nuevo León, which define marriage as a union between a man and a woman, and legalized same-sex marriage (Mexico 31 May 2019). The newspaper Milenio reports that on 11 March 2019, the first couple registered their same-sex marriage without an amparo (Milenio 11 Mar. 2019).

Sources report that in 2011 (Stonewall Aug. 2018) or in 2015 (Jones Day 21 Sept. 2015), Mexico’s Supreme Court declared the constitutional right of same-sex married couples to adopt (Stonewall Aug. 2018, 1; Jones Day 21 Sept. 2015). However, according to Jones Day, a global law ﬁrm which publishes information on same-sex legislation around the world (Jones Day Feb. 2015), not all states recognize this right and couples may have to seek an amparo (Jones Day 21 Sept. 2015). The same source adds that an amparo is not legally binding for all Mexican courts and "same-sex couples may use the above-mentioned Mexican Supreme Court ruling in order to substantiate their petition, but judges will still be free to deviate from such ruling” (Jones Day 21 Sept. 2015). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

1.3 Legal Process to Change the Gender on a Birth Certiﬁcate

Sources report that the administrative process to change the gender on a birth certiﬁcate is available in Mexico City, Michoacán, Nayarit (Mexico 29 June 2018, 6; Stonewall Aug. 2018; ILGA Nov. 2017, 98), Colima, Coahuila and Hidalgo (El Universal 2 July 2019; Centro de Apoyo a las Identidades Trans, AC 15 July 2019). In correspondence with the Research Directorate, a representative from Centro de Apoyo a las Identidades Trans, AC, an NGO that supports the human rights of the transgender population in Mexico, stated that it is not possible to legally change your gender in the state of Nuevo León (Centro de Apoyo a las Identidades Trans, AC 15 July 2019). However, in correspondence with the Research Directorate, a representative from Fundación Trans Amor, AC [2] stated that [translation] "it is possible today to change your name and your birth gender, through a simple judiciary process that does not usually take more than four weeks and requires a minimum of requirements that do not violate your rights" (Fundación Trans Amor, AC 9 July 2019). The same source added that changing your birth certiﬁcate is a necessary step to changing your school documents, banking information, social security and housing documents (Fundación Trans Amor, AC 9 July 2019).

According to sources, it costs approximately 70 MXN [C$4.82] to process the form to change the name on identity documents (El Universal 29 June 2019; ILGA Nov. 2017, 99). Sources report that transgender people travel to Mexico City from other states to change their birth certiﬁcate (ILGA Nov. 2017, 99; DW 23 July 2017). Sources note that Mexico’s Supreme https://irb-cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=457877&pls=1 3/23 6/15/2020 Responses to Information Requests - Immigration and Refugee Board of Canada Court ruled in favour of a transgender person from Veracruz who was then allowed to change their name and gender without having to go before a judge, as it was then required by the Veracruz state (Pink News 9 May 2019; Human Rights Watch 29 Oct. 2018). Human Rights Watch adds that, instead, the person has to undergo a "simple administrative process, based solely on their own declaration of their gender identity" (Human Rights Watch 29 Oct. 2018).

2. Treatment by Society 2.1 Discrimination and Societal Attitudes

According to sources, machismo is still embedded in Mexican culture, which increases homophobia and discrimination against sexual minorities (Mexico and Fundación Arcoiris Nov. 2018a, 27; Corral July 2018, 60). For further information on machismo and gender norms in Mexico, see Response to Information Request MEX106111 of May 2018. Sources state that in smaller towns and rural areas, there is less acceptance than in cities (US 30 May 2019; Stonewall Aug. 2018, 2). The representative from Fundación Trans Amor indicated that while there have been changes in legislative, judicial and health matters, the social situation in Monterrey has changed "very little" and that violence and discrimination are still present in society and families (Fundación Trans Amor, AC 9 July 2019). The same source indicated that Nuevo León was the last state in Mexico to pass a law that criminalizes homophobia and transphobia (Fundación Trans Amor, AC 9 July 2019). Diario de Yucatán, a newspaper based in Yucatán, reported in May 2019 that a couple was denied service at a restaurant in Monterrey for being gay; according to the source, the couple entered the restaurant holding hands and were told to leave because it is a [translation] “'family environment'” (Diario de Yucatán 2 May 2019). El Universal, a Mexican newspaper, reported that in May 2019 a group called Strong Families United for Nuevo León (Familias Fuertes Unidas por Nuevo León) sued a group of drag queens who read stories to children, on grounds of [translation] “corruption of minors” (El Universal 25 June 2019).

Sources indicate that most sexual minorities have experienced physical acts of violence or harassment based on their sexual orientation or gender identity (Mexico and Fundación Arcoiris Nov. 2018b, 26-28; Letra S May 2019, 10). The 2017 National Survey on the State of Discrimination (Encuesta nacional sobre discriminación, ENADIS), co-authored by the CONAPRED and the National Institute for Statistics, Geography and Information (Instituto Nacional de Estadística, Geografía e Informática, INEGI), surveyed 102,245 people to identify experiences of discrimination in different social contexts and to [translation] "grasp attitudes, prejudices and opinions" that people have about distinct populations that are discriminated against (Mexico 2018a, 3). According to the survey, in Nuevo León, 72-79.4 percent of respondents, and in the Yucátan 64.3-71.9 percent of respondents, answered that they agreed [translation] “very little” or “not at all” that same-sex couple should be able to live together https://irb-cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=457877&pls=1 4/23 6/15/2020 Responses to Information Requests - Immigration and Refugee Board of Canada (Mexico 2018a, 17). The same source reports that 30 percent of female and 35 percent of male respondents across the country would not rent a room to a gay or lesbian person, and that 33 percent of female and 41 percent of male respondents would not rent a room to a transgender person (Mexico 2018a, 14).

The 2018 edition of the National Survey on Discrimination Based on Sexual Orientation and Gender Identity (Encuesta sobre discriminación por motivos de orientación sexual e identidad de género, ENDISOG) [3] ﬁnds that 75 percent of 9,328 respondents belonging to sexual minorities reported that they avoid showing affection to their partner in public, due to fear (Mexico 2018b, 26). The same survey states that 40 percent of parents reacted with [translation] “total support,” 33 percent “support and dislike” and 26 percent “rejection” when the respondent disclosed their sexual orientation (Mexico 2018b, 11). The source adds that 85- 90 percent of respondents reported [translation] “total support” when disclosing their sexual orientation to their schoolmates, co-workers and friends (Mexico 2018b, 12).

Sources indicate that sexual minority students reported discrimination and harassment based on their gender identity or sexual orientation at school (Mexico and Fundación Arcoiris Nov. 2018a, 29; Corral July 2018, 60) and that the use of homophobic slurs in school is common (Mexico and Fundación Arcoiris Nov. 2018a, 28). In 2013, the state of Nuevo León passed the Law to Prevent, Address and Eradicate Discrimination and Harassment and Violence in Schools in the State of Nuevo León (Ley para Prevenir, Atender y Erradicar el Acoso y la Violencia Escolar del Estado de Nuevo León) (Nuevo León 2013). However, the representative from Fundación Trans Amor noted that educational institutions have refused to enforce it (Fundación Trans Amor, AC 9 July 2019). Desastre, a Mexican news website on LGBTI issues, reported a case of two lesbian students facing harassment and physical aggression at a University in Nuevo León, wherein the school responded by suspending the two victims (Desastre 28 Jan. 2019). Further and corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

2.2 Treatment of Transgender and Non-Binary Individuals

According to the 2018 ENDOSIG, when disclosing their gender identity, respondents reported a response of [translation] “total support” 65.9 percent of the time from school mates, 66.9 percent from coworkers, and 79.9 percent from friends (Mexico 2018b, 12). When respondents disclosed their identity to their parents, the reported reaction varied between fathers and mothers: respondents reported [translation] “total support” 30.7 percent of the time from fathers and 36.9 percent from mothers, “support and dislike” 29.9 percent from fathers and 24.1 percent from mothers, and “rejection” 39.4 percent from fathers and 38.9 percent

https://irb-cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=457877&pls=1 5/23 6/15/2020 Responses to Information Requests - Immigration and Refugee Board of Canada from mothers (Mexico 2018b, 11). The same source indicates that 65 to 79 percent reported [translation] “total support” when they disclosed their gender identity to their school colleagues, co-workers and friends (Mexico 2018b, 12).

The National Study on Discrimination of LGBTI People in Mexico: Rights at Work (Diagnóstico nacional sobre la discriminación hacia personas LGBTI en México: Derecho al trabajo) by the Executive Commission for Care of Victims (Comisión Ejecutiva de Atención a Víctimas, CEAV) and the Fundación Arcoiris for the Respect of Sexual Diversity (Fundación Arcoiris por el Respeto a la Diversidad Sexual, AC, Fundación Arcoiris) [4] states that transgender women reported the highest rate of employment out of all respondents with 82 percent employed at the time of the survey (Mexico and Fundación Arcoiris Nov. 2018c, 29). In comparison, bisexual respondents and transgender men have the lowest employment rate, with respectively 65 percent of bisexuals and 66 percent of transgender men having employment (Mexico and Fundación Arcoiris Nov. 2018c, 29). However, without providing further details, the Alliance for Diversity and Inclusion in the Workplace (Alianza por la Diversidad e Inclusión Laboral, ADIL) [5] also states that among LGBTI populations, transgender and non-binary people earn less on average than lesbians, gay men and bisexuals (ADIL Aug. 2018, 21).

According to the CEAV and Fundación Arcoiris, 25 percent of transgender women respondents engage in sex work (Mexico and Fundación Arcoiris Nov. 2018c, 30). The same source writes that almost all respondents who engaged in sex work were transgender, noting that this may be related to the lack of other employment options, which is caused by lack of acceptance (Mexico and Fundación Arcoiris Nov. 2018c, 30). Similarly, Asistencia Legal por los Derechos Humanos (Legal Assistance for Human Rights, Asilegal), a civil society organization that works with individuals deprived of their liberty (Asilegal 2019, 2), states the following in their alternative report to the UN Committee Against Torture:

As a result of the discriminatory and excluding social context against LGBT persons, many trans women see their labor opportunities restricted to access ideal working conditions which allow them to have economic independence and solvency, which inclines them into doing sex labor. Regardless of the reasons behind the job performance, this activity puts them in riskier situations of suffering violence, torture and other ill-treatment. (Asilegal 2019, 26)

Mexico’s Ministry of Health (Secretaría de Salud) has guidelines on treating LGBTI people; the guidelines cover guidance for working with transgender individuals, including providing access to hormonal therapy and gender afﬁrming surgery (Mexico 15 May 2019, 52- 65). According to the representative of Fundación Trans Amor, there are very few cases in which a transgender person, who has been denied health care, has managed to carry out the applicable protocols, such as successfully requesting a consultation with an endocrinologist, a laboratory analysis, or obtaining a hormonal assessment (Fundación Trans Amor, AC 9 July https://irb-cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=457877&pls=1 6/23 6/15/2020 Responses to Information Requests - Immigration and Refugee Board of Canada 2019). Without providing further details, sources reported cases of transgender and non-binary people having to stop hormonal treatment against their will (Mexico 2018b, 18) or being denied access to gender conﬁrmation medical treatment (Mexico and Fundación Arcoiris Nov. 2018d, 55).

According to the National Electoral Institute (Instituto Nacional Electoral, INE), sexual minorities experience prejudice, stigmatization and violence which can impact their right to vote (Mexico May 2018, 47, 49). The INE's guide to electoral inclusion includes a section on the rights of transgender people to vote which states that all transgender people with voting credentials who are registered on the electoral list have the right to vote, and that they should not be discriminated against if their gender expression or photograph does not match their voting credentials (Mexico May 2018, 50). However, Human Rights Watch states the following:

If your gender marker contrasts with your appearance, any juncture in daily life that requires showing your identity card – a trafﬁc stop, a ﬁnancial transaction, a medical appointment – is laden with the risk of ridicule, interrogation, and even violence. (Human Rights Watch 29 Oct. 2018)

3. Access to Employment

According to the national study on LGBTI discrimination in the workplace by CEAV and Fundación Arcoiris, which was completed by 3,451 respondents across the country (Mexico and Fundación Arcoiris Nov. 2018c, 23), 30 percent of respondents reported that being LGBTI was an obstacle to employment occasionally, 21 percent said frequently, and 10 percent said always, while 30 percent estimated that it was never an obstacle (Mexico and Fundación Arcoiris Nov. 2018c, 34). The report states that some employers ask job candidates questions about sexual orientation, pregnancy, and HIV status (Mexico and Fundación Arcoiris Nov. 2018c, 33). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

Sources state that the number of companies in Mexico that have adopted policies to promote LGBT equality and inclusion is increasing (Human Rights Campaign n.d.; Fundación Trans Amor, AC 9 July 2019). The UK-based LGBT organization Stonewall’s Global Workplace Brieﬁngs 2018 on Mexico, a report that “outlines the legal, socio-cultural and workplace situation for LGBT people in the speciﬁed country” (Stonewall 31 May 2016), reports that " [m]any multinational organizations have diversity and inclusion initiatives that promote LGBT equality in the workplace" (Stonewall Aug. 2018). On 8 May 2019, the government of Mexico created an LGBTI Support Network for the Public Service (Red de Apoyo LGBTI de la Función Pública), with the objective of [translation] “creating an inclusive and respectful organizational

https://irb-cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=457877&pls=1 7/23 6/15/2020 Responses to Information Requests - Immigration and Refugee Board of Canada culture” (Mexico 8 May 2019). Further information on the LGBTI Support Network could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

Other sources indicate that sexual minorities experience discrimination in the workplace (Vela Barba 11 Dec. 2017, 90; Mexico and Fundación Arcoiris Nov. 2018c, 36; CE Noticias Financieras 28 June 2019a). According to Stonewall, "many" LGBTI people hide their sexual orientation or gender identity at work out of fear that it will have a negative impact on their career (Stonewall Aug. 2018, 2). Similarly, ADIL states that 56 percent of the respondents to the Survey on Diversity and LGBT Talent in Mexico (Encuesta sobre la diversidad y talento LGBT in México) do not disclose their sexual orientation or gender identity at work (ADIL Aug. 2018, 18). In the 2018 national study on discrimination of LGBTI people in the workplace by CEAV and Fundación Arcoiris, 43 percent of respondents reported being harassed, bullied or discriminated against in the workplace, and Afro-Descendant sexual minorities reported the highest rate at 58.49 percent (Mexico and Fundación Arcoiris Nov. 2018c, 29, 38). However, 89.5 percent of respondents to the 2018 ENDOSIG survey reported [translation] “total support” from their boss when they disclosed their sexual orientation (Mexico 2018b, 12). For respondents who disclosed their gender identity to their boss, 66 percent reported [translation] “total support” and 25 percent reported “rejection” (Mexico 2018b, 12).

4. Access to Health Care and Social Beneﬁts

In 2017, according to UNAIDS, a new Ministry of Health Code of Conduct was introduced to "guarantee effective access" to health care services for sexual minorities (UN 25 Aug. 2017). However, sources indicate that sexual minorities reported experiences of discrimination related to their gender identity or sexual orientation when accessing medical services (Fundación Trans Amor, AC 9 July 2019; Mexico and Fundación Arcoiris Nov. 2018d, 58). According to the 2018 National Study on Discrimination Against LGBTI Persons in Mexico: Right to Health (Diagnóstico nacional sobre la discriminación hacia personas LGBTI en México: derecho a la salud) by the CEAV and Fundación Arcoiris, 50 percent of the 3,451 respondents said “no,” 18 percent said “occasionally,” 6 percent said “frequently,” and 3 percent said “always” when asked about derogatory or discriminatory comments from health care providers based on their sexual orientation or gender identity (Mexico and Fundación Arcoiris Nov. 2018d, 59). The ENDOSIG survey reports that 24 percent of transgender people, 11.7 percent of lesbian women and 9.3 percent of gay men responded that they had experienced discrimination based on their gender identity or sexual orientation when accessing health care (Mexico 2018b, 22).

https://irb-cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=457877&pls=1 8/23 6/15/2020 Responses to Information Requests - Immigration and Refugee Board of Canada According to the 2018 national study on discrimination against sexual and gender minorities in Mexico, 41.8 percent of the respondents answered [translation] “No” and 31.1 percent answered “I don’t know” when asked about the existence of adequate public health services for sexual minorities (Mexico and Fundación Arcoiris Nov. 2018d, 43-44). According to the source, this denotes the absence of adequate LGBTI health services as well as a lack of knowledge of those services among sexual minorities (Mexico and Fundación Arcoiris Nov. 2018d, 43-44). Sources report that in February 2019, the federal government announced it would no longer fund civil society organizations for activities such as outreach and HIV testing (Letra S 27 Feb. 2019; Reuters 17 Apr. 2019). Further information on the implementation of this decision could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

According to sources, same-sex couples can register as partners to receive benefits from the Mexican Social Security Institute (Instituto Mexicano del Seguro Social, IMSS) (Notimex 28 June 2019; El Universal 7 Nov. 2018), a federal institution that provides medical and social benefits to insured workers and their families (Mexico n.d.a). However, sources report that same-sex partners were denied benefits and had to seek legal recourse to access them (Animal Político 17 Nov. 2017; The Mazatlán Post 19 Aug. 2018). El Universal reports that, in November 2018, reforms to the social welfare regulations were passed to ensure same-sex couple’s equal access to social security benefits (El Universal 7 Nov. 2018). The website for the Institute of Social Security and Services of State Workers (Instituto de Seguridad y Servicios Sociales de los Trabajadores del Estado, ISSSTE) indicates that it is free for same-sex couples to register as concubinarios (civil union) without a marriage certificate, but they must confirm that they have been cohabitating for at least 5 years (Mexico n.d.b). Same-sex couples who are married can register by providing a marriage certificate (Mexico n.d.c). The ISSSTE reports that 457 same-sex couples have registered since 2014 - 400 as married couples and 57 as concubinarios (Mexico 18 May 2019).

According to sources, conversion therapy [6] is still practiced in Mexico (YAAJ 4 May 2017; Letra S 31 Oct. 2018; CE Noticias Financieras 28 June 2019b). Sources report experiences of sexual minorities with conversation therapy, with many youth reportedly sent for “religious therapies” that attempt to change their identity (Notimex and TV Azteca 13 June 2019; El Universal 18 May 2017; Letra S 31 Oct. 2018) to centres where patients are held against their will and subject to corrective therapy (CE Noticias Financieras 28 June 2019b; El Universal 18 May 2017; Letra S 31 Oct. 2018).

5. Violence Against Sexual and Gender Minorities

https://irb-cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=457877&pls=1 9/23 6/15/2020 Responses to Information Requests - Immigration and Refugee Board of Canada In its annual report on extreme violence against sexual minorities, the organization Letra S, AIDS, Culture and Daily Life (Letra S, Sida, Cultura, y Vida Cotidiana, AC, Letra S) [7] indicates that more LGBT individuals were killed in 2017 and 2018 than in previous years (2013-2016), for reasons believed to be due to their real or perceived sexual or gender identity (Letra S May 2019, 21). The same source speciﬁes that, from 2013 to 2018, 18 people from Nuevo León and 12 people from Yucatán were murdered (Letra S May 2019, 30). In some cases, there was evidence of sexual violence or torture, and the most common weapons were blunt objects and ﬁre arms (Letra S May 2019, 36-38). Without providing further details, sources report occurrences of gay men being targeted by gangs, often seducing and then robbing them (Pink News 19 May 2017; Desastre 27 Sept. 2018). News sources also reported cases of LGBT activists being targeted and murdered (Agencia EFE 18 June 2018; Pink News 13 Feb. 2019; Agencia Presentes 27 Mar. 2018).

5.1 Violence Against Transgender Individuals

According to Stonewall, transgender individuals are "regularly" victims of "violent hate crimes [that] often end in murder" (Stonewall Aug. 2018, 2). According to the CEAV and Fundacion Arcoiris, 66 percent of transgender women, 41 percent of transgender men and 41 percent of intersex people who responded to the survey on LGBTI discrimination regarding the rights to safety and to justice declared that they were victims of physical assault (Mexico and Fundacion Arcoiris Nov. 2018b, 28). In a compilation of "reported murders of trans and gender- diverse people," the Transrespect vs. Transphobia Worldwide (TvT) project, a comparative research project by the advocacy network Transgender Europe (TGEU) (TGEU n.d.), reports, without providing further details, that in 2008, 4 transgender people were murdered in Mexico while in 2017, the number was 65 (TGEU 2018).

6. Treatment by State Authorities

Sources state that sexual minorities have reported cases of violence or aggression by the police (Asilegal 2019; Nuevo León Aug. 2018, 61) and of being detained for their LGBT status (Mexico and Fundación Arcoiris Nov. 2018b, 33). According to a report on discrimination of LGBTI people regarding access to justice and security by the CEAV and Fundación Arcoiris, 31 percent of transgender women respondents and 15 percent of homosexuals said they had been detained because of their LGBTI status (Mexico and Fundación Arcoiris Nov. 2018b, 33). In the 2018 ENDOSIG survey, 30.8 percent of respondents reported that they received [translation] "arbitrary and discriminatory treatment from police" (Mexico 2018b, 21). In Monterrey, the Nuevo León State Human Rights Commission (Comisión Estatal de Derechos

https://irb-cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=457877&pls=1 10/23 6/15/2020 Responses to Information Requests - Immigration and Refugee Board of Canada Humanos Nuevo León, CEDH) received complaints of [translation] "alleged" human rights violations from same sex couples who reported physical and verbal aggression from municipal police (Nuevo León Aug. 2018, 61).

According to the CEDH, [translation] "vague terminology" in laws such as “abnormal sexual life” makes LGBT people vulnerable to the interpretation by local authorities (Nuevo León Aug. 2018, 67-68). The representative from Centro de Apoyo a las Identidades Trans indicated that there are laws in the Monterrey Penal Code that "criminalize" LGBT populations such as [translation] “article 195 that describes affronts to morality or decency (ultrajes a la moral o a las buenas costumbres)” (Centro de Apoyo a las Identidades Trans 15 July 2019).

7. State Protection

The National Justice Procurement Conference (Conferencia Nacional de Procuración de Justicia) produced a protocol for the personnel of the courts for cases involving sexual orientation or gender identity on how to interview victims and investigate crimes involving sexual minorities (Mexico Dec. 2017, 20). According to La Jornada Maya, a newspaper in Yucatán, protocols need to be expanded at the state level (La Jornada Maya 12 Dec. 2018). Conversely, the representative from the Fundación Trans Amor noted that progress has been made judicially, and that police bodies tend to follow the different protocols of action that have been issued by the federal government (Fundación Trans Amor, AC 9 July 2019).

According to sources, the government does not adequately investigate crimes against sexual minorities (US 13 Mar. 2019, 30; Mexico and Fundación Arcoiris Nov. 2018b, 39; Asilegal, et al. 2019, 71). According to the US Department of State's Country Reports on Human Rights Practices for 2018, on 5 August 2018, a young man was beaten to death by a group of taxi drivers outside a gay bar in San Luis Potosí (US 13 Mar. 2019, 30). The source further states that local LGBTI rights defenders argued that the young man was killed because of his sexual orientation and that homophobia in the police force led to negligence in the investigation (US 13 Mar. 2019, 30). The report on discrimination against LGBTI people regarding access to justice and security notes that [translation] “the high percentage of people who don’t report the aggressions or crimes is alarming," and indicates that the two main reasons for not reporting are mistrust and alleged inaction of the authorities (Mexico and Fundación Arcoiris Nov. 2018b, 35).

Sources report that when sexual minorities are murdered, 8.4 percent (17 of 202 cases between 2014 and 2016) (Pink News 20 June 2018) or 10.5 percent of cases are classified as "hate crimes" (Letra S May 2019, 41). Agencia Presentes, a non-profit regional LGBTI news source for Latin America (Agencia Presentes n.d.), reports that in Mexico City, the police did not investigate the murder of a transgender woman as a hate crime because she used to be a sex worker (Agencia Presentes 24 Apr. 2019). Letra S explains that many cases are treated as https://irb-cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=457877&pls=1 11/23 6/15/2020 Responses to Information Requests - Immigration and Refugee Board of Canada [translation] “crimes of passion” or as assault or robbery, and that perpetrators often use the justification of “legitimate defense” against sexual insinuations or harassment or of a “heated emotional state” as defense strategies (Letra S May 2019, 41, 46). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

8. Community and Support Services 8.1 Mérida, Yucatán

The website of the Yucatán State Human Rights Commission (Comisión de Derechos Humanos del Estado de Yucatán, CODHEY) indicates that it provides free legal services in cases of human rights abuses at a municipal or state level (Yucatán n.d.a). According to their website, there is no formal process to initiate their services and citizens can start the process by telephone, email or [translation] “any other existing means of communication” (Yucatán n.d.b).

Yucatrans is a collective of transgender people in Mérida that promotes the human rights of transgender and non-binary people (Yucatán n.d.c). Further information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

The Psychological, Sexological and Educational Attention Unit for Personal Growth, AC (Unidad de Atención Sicológica, Sexológica y Educativa para el Crecimiento Personal, AC, UNASSE) provides rapid HIV testing, support group for HIV positive clients and a free semi- structured support group for transgender persons every week (UNASSE n.d.; UNASSE 3 June 2019).

In February 2019, the mayor of Mérida, Yucatán announced the formation of the Municipal Council Against the Discrimination of Sexual Diversity (Consejo Municipal Contra la Discriminación de la Diversidad Sexual), whose activities would include planning and evaluating activities aimed at ﬁghting discrimination against sexual minorities (El Grillo 22 Feb. 2019; Yucatán en Corto 23 Feb. 2019). Further information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

8.2 Monterrey, Nuevo León

Sources indicate that there are organizations that speciﬁcally serve sexual minorities in Monterrey (MovINL n.d.; Gay Monterrey n.d.). Organizations that provide legal advocacy and legislative lobbying include:

Litiga, AC is an organization that provides legal support for amparos related to marriage and protection of rights for LGBTTI citizens (Litiga n.d.); https://irb-cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=457877&pls=1 12/23 6/15/2020 Responses to Information Requests - Immigration and Refugee Board of Canada The CEDH runs a program to promote and protect the rights of LGBT persons (Nuevo León n.d.a). The CEDH website indicates that it provides support for ﬁling cases of human rights abuses (Nuevo León n.d.b) and provides support to victims throughout the legal process (Nuevo León n.d.c); Gender, Ethics, and Sexual Health (Género, Etica y Salud Sexual AC, GESSAC) is a non-proﬁt organization that [translation] “promotes the visibility of LGBTTTI people, and legal changes to grant the same rights to all people without discrimination” (GESSAC n.d); Fundación Trans Amor is an NGO that provides support to transgender girls, boys, and adolescents and their families in Monterrey; they offer personal, family, school, work and legal programming (Fundación Trans Amor, AC 9 July 2019); Acción Colectiva por los Derechos de las Minorías Sexuales, AC (ACODEMIS, AC), a civil society organization, provides rapid HIV testing and outreach services to men who have sex with men through initiatives on STI and HIV education (ACODEMIS, AC n.d.). Comunidad Metropolitana, AC (COMAC) provides rapid HIV testing (COMAC n.d.a) and outreach to LGBTI spaces to dispense education and free condoms (COMAC n.d.b), as well as providing psychological services such as individual or couples counselling (COMAC n.d.c).

8.3 Educational Institutions

Educational institutions that have LGBTI student collectives include:

Tecnológico de Monterrey's student group Association for the Integration, Respect and Equality (Asociación por la Integración, Respeto y Equidad, AIRE) promotes community, wellness and visibility of sexual and gender diversity (AIRE n.d.a), and hosts LGBTI events on campus and in the community (AIRE n.d.b); Universidad Autónoma de Nuevo León’s student group University Students for Equity and a Full and Inclusive Society (Universitarios por la Equidad y una Sociedad Íntegra e Incluyente, UNESII), provides information on sexuality, and seeks to empower young LGBTI people to avoid harassment, discrimination and violence (UNESII n.d.a), and hosts LGBTI events on campus and in the community (UNESII n.d.b); Universidad de Monterrey’s student group Sexual Diversity Representation Community (Comunidad de Representación de la Diversidad Sexual, CREDS) promotes dialogue and inclusive education, sexual diversity representation (CREDS n.d.a.), and hosts LGBTI events on campus (CREDS n.d.b).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please ﬁnd below the list of sources consulted in researching this Information Request.

Notes

[1] The National Council for the Prevention of Discrimination (Consejo Nacional para Prevenir la Discriminación, CONAPRED) is a federal agency that promotes policies and measures to contribute to cultural and social development, to advance social inclusion, and to guarantee https://irb-cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=457877&pls=1 13/23 6/15/2020 Responses to Information Requests - Immigration and Refugee Board of Canada the right to equality (Mexico City n.d.). CONAPRED is responsible for receiving and investigating complaints for alleged discrimination committed by individuals or public servants (Mexico City n.d.).

[2] Fundación Trans Amor, AC is a civil society organization that supports transgender girls, boys and adolescents and their families in the city of Monterrey, Nuevo León (Fundación Trans Amor, AC 9 July 2019).

[3] The 2018 National Survey on Discrimination Based on Sexual Orientation and Gender Identity (Encuesta sobre discriminación por motivos de orientación sexual e identidad de género, ENDISOG) was conducted by the CONAPRED and the National Commission of Human Rights (Comisión Nacional de Derechos Humanos, CNDH) and was aimed at [translation] "individuals aged 16 and older, who are residing in Mexico and who self-identify as gays, lesbians, bisexuals, trans (transgender, travestit, transsexuals) and of other non- normative sexual orientations and gender identities (SOGI)" (Mexico 2018b, 2).

[4] The National Study on Discrimination of LGBTI People in Mexico: Rights at Work (Diagnóstico nacional sobre la discriminación hacia personas LGBTI en México: derecho al trabajo) is a study describing the situation of sexual minorities regarding their right to employment (Mexico and Fundación Arcoiris Nov. 2018c, 7). The study was conducted from 2015 to 2017 by the Executive Commission for Care of Victims (Comisión Ejecutiva de Atención a Victimas, CEAV) and the Arcoiris Foundation for the Respect of Sexual Diversity (Fundación Arcoiris por el respeto a la diversidad sexual, AC, Fundación Arcoiris) (Mexico and Fundación Arcoiris Nov. 2018c, 8). The CEAV supports victims of federal crimes or of violation of their human rights (Mexico n.d.d). The Fundación Arcoiris is a [translation] "social organization focused on the analysis of sexuality in Latin America and the Caribbean" seeking to inﬂuence the key actors in the rights protection of people discriminated against because of their sexuality (Fundación Arcoiris n.d.).

[5] The Alliance for Diversity and Inclusion in the Workplace (Alianza por la Diversidad e Inclusión Laboral, ADIL) is a professional group that promotes inclusion and respect towards LGBT people in the workplace, through training and communication strategies, events and studies with national and international companies (ADIL n.d.). Its members gather years of work experience with LGBT populations in different ﬁelds (agencies international, education, companies, government agencies, media and civil society organizations) (ADIL n.d.).

[6] The American Psychiatric Association (APA) position statement on conversion therapy and LGBTQ patients states that “[s]ince 1998, the American Psychiatric Association has opposed any psychiatric treatment, such as 'reparative' or conversion therapy, which is based upon the assumption that homosexuality per se is a mental disorder or that a patient should change his/her homosexual orientation" (APA Dec. 2018).

https://irb-cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=457877&pls=1 14/23 6/15/2020 Responses to Information Requests - Immigration and Refugee Board of Canada [7] Letra S, AIDS, Culture and Daily Life (Letra S, Sida, Cultura, y Vida Cotidiana, AC, Letra S) is a "non-proﬁt civil society organization aimed at the dissemination of information and the defense of human rights. [It] focus[es] on topics related to the trinomial of sexuality, health and society. [It particularly focuses on] topics of sexual diversity, gender, HIV, sexually transmitted diseases, and sexual/reproductive rights" (Letra S n.d.).

References Acción Colectiva por los Derechos de las Minorías Sexuales, AC (ACODEMIS, AC). N.d. “Actividades.” [Accessed 4 July 2019]

Agencia EFE. 18 June 2018. “Asesinan a tres activistas de los derechos LGBT en el sur de México.” [Accessed 4 July 2019]

Agencia Presentes. 24 April 2019. Milena Pafundi. “Asesinaron a 3 mujeres trans en un mes en Ciudad de México.” [Accessed 4 July 2019]

Agencia Presentes. 27 March 2018. "#México Asesinaron a una activista lesbiana y feminista en Guanajuato." [Accessed 15 July 2019]

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Additional Sources Consulted Oral sources: Acción Colectiva por los Derechos de las Minorías Sexuales, AC (ACODEMIS, AC); Comunidad Metropolitana, AC; Fundación Arcoiris AC; Investigaciones Queer; Nuevo León — Plataforma Nacional de Transparencia; Universidad Autonóma de Yucatán — Programa Institucional de Igualdad de Género; Universidad Veracruzana; Yucatán — Plataforma Nacional de Transparencia.

Internet sites, including: The Advocates for Human Rights; Amnesty International; Centro Prodh; Familias por la Diversidad; Inter-American Commission on Human Rights; La Jornada de Oriente; Mexico Gay Map; Oveja Rosa; Pagina Abierta; UN – Refworld; US Social Security Administration.

Date modiﬁed: https://irb-cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=457877&pls=1 22/23 6/15/2020 Responses to Information Requests - Immigration and Refugee Board of Canada 2020-06-01

https://irb-cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=457877&pls=1 23/23

TAB 2

MEXICO 2018 HUMAN RIGHTS REPORT

EXECUTIVE SUMMARY

Mexico is a multiparty federal republic with an elected president and bicameral legislature. Andres Manuel Lopez Obrador of the National Regeneration Movement won the presidential election on July 1 in generally free and fair multiparty elections and took office on December 1. Citizens also elected members of the Senate and the Chamber of Deputies, governors, state legislators, and mayors.

Civilian authorities generally maintained effective control over the security forces.

Human rights issues included reports of the involvement by police, military, and other state officials, sometimes in coordination with criminal organizations, in unlawful or arbitrary killings, forced disappearance, torture, and arbitrary detention by both government and illegal armed groups; harsh and life-threatening prison conditions in some prisons; impunity for violence against journalists and state and local censorship and criminal libel; and violence targeting lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons.

Impunity for human rights abuses remained a problem, with extremely low rates of prosecution for all forms of crimes. The government’s federal statistics agency (INEGI) estimated 94 percent of crimes were either unreported or not investigated.

Section 1. Respect for the Integrity of the Person, Including Freedom from: a. Arbitrary Deprivation of Life and Other Unlawful or Politically Motivated Killings

There were several reports the government or its agents committed arbitrary or unlawful killings, often with impunity. Organized criminal groups were implicated in numerous killings, acting with impunity and at times in league with corrupt federal, state, local, and security officials. The National Human Rights Commission (CNDH) reported 25 complaints of “deprivation of life” between January and November 30.

On January 7, more than 200 members of the military, Guerrero state police, and Federal Police arbitrarily arrested and executed three indigenous security force members in La Concepcion. The killings occurred in tandem with reports of the

MEXICO 2 arbitrary arrest of 38 persons, 25 illegal house searches, and the torture of at least eight persons. According to the human rights nongovernmental organization (NGO) Centro de Derechos Humanos de la Montana Tlachinollan, the security forces arrived to investigate a confrontation between armed persons and community police. Witnesses said state police executed two community police officers during the confrontation. Witnesses alleged two state police officers took a community police officer to a nearby building, where he was later found dead. Representatives of the UN Office of the High Commissioner for Human Rights (OHCHR) in Mexico City condemned the operation, stating there was evidence human rights violations occurred at the hands of security forces.

In September the CNDH concluded soldiers executed two men and planted rifles on their bodies during a 2017 shootout between authorities and fuel thieves in Palmarito, Puebla. The CNDH recommended the army pay reparations to the victims' families. Some of the killings were captured on video, including of a soldier appearing to execute a suspect lying on the ground.

There were no developments in the investigation into the 2015 Tanhuato, Michoacan, shooting in which federal police agents were accused of executing 22 persons after a gunfight and of tampering with evidence.

In May a federal judge ordered the Attorney General’s Office (PGR) to reopen the investigation into the 2014 killings of 22 suspected criminals in Tlatlaya, Mexico State, by members of the military, specifically calling for an investigation into the role of the chain of command. The judge ruled that the PGR’s investigation thus far had not been exhaustive, adequate, or effective. (The Government of Mexico has appealed the ruling.) According to multiple NGOs, the four former state attorney general investigative police officers convicted of torturing suspects in this case were released from custody.

Criminal organizations carried out human rights abuses and widespread killings throughout the country, sometimes in coordination with state agents. b. Disappearance

There were reports of forced disappearances--the secret abduction or imprisonment of a person by security forces--and of many disappearances related to organized criminal groups, sometimes with allegations of state collusion. In its data collection, the government often merged statistics on forcibly disappeared persons with missing persons not suspected of being victims of forced disappearance,

Country Reports on Human Rights Practices for 2018 United States Department of State • Bureau of Democracy, Human Rights, and Labor MEXICO 3 making it difficult to compile accurate statistics on the extent of the problem. The CNDH registered 38 cases of alleged “forced or involuntary” disappearances through November 30.

Investigations, prosecutions, and convictions for the crime of forced disappearance were rare. According to information provided by the Federal Judicial Council, from December 1, 2006, to December 31, 2017, only 14 sentences for forced disappearance were issued. At the federal level, as of August 2017, the deputy attorney general for human rights was investigating 943 cases of disappeared persons. Some states were making progress investigating this crime. At the state level, a Veracruz special prosecutor for disappearances detained 65 persons during the year for the crime of forced disappearance.

There were credible reports of police involvement in kidnappings for ransom, and federal officials or members of the national defense forces were sometimes accused of perpetrating this crime.

Nationwide, the CNDH reported the exhumation of the remains of at least 530 persons in 163 clandestine graves between January 1, 2017 and August 31, 2018. The scale and extent of the problem is indicated by the discovery, in the past eight years in Veracruz State, of 601 clandestine graves with the remains of 1,178 victims.

The federal government and several states failed to meet deadlines for implementing various provisions of the November 2017 General Law on Forced Disappearances, and efforts by the federal government were insufficient to address the problem. State-level search commissions should have been established by mid- April; as of August only seven of 32 states had done so. Only 20 states had met the requirement to create specialized prosecutors’ offices focused on forced disappearances. The federal government created a National System for the Search of Missing Persons as required by the law but had not established the required National Forensic Data Bank and Amber Alert System as of this reporting period.

As of April 30, according to the National Registry of Missing Persons, a total of 37,435 individuals were recorded as missing or disappeared, up 40 percent, compared with the total number at the end of 2014. The National Search Commission, created in March, shut down this registry in July as part of the process to create a new registry, which it planned to make public in early 2019. The new database would include more than 24,000 genetic profiles of the relatives

Country Reports on Human Rights Practices for 2018 United States Department of State • Bureau of Democracy, Human Rights, and Labor MEXICO 4 of the disappeared as well as information such as fingerprints, parents’ names, and dates of birth of the victims, according to government officials.

In February an estimated 31 former high-ranking Veracruz state security officials and members of the state police involved in disappearances and acts of torture in 2013 were ordered apprehended on charges of forced disappearance. Former state police chief Roberto Gonzalez Meza was among the 19 arrested in February. In June former state attorney general Luis Angel Bravo Contreras was arrested and placed in custody while awaiting trial on charges related to the forced disappearance of 13 individuals. An additional seven Veracruz former state police officers were detained in August for the crime of forced disappearance of two persons in 2013.

In May the OHCHR announced it had documented the disappearance of 23 individuals--including five minors--by Mexican security forces between February and May in Nuevo Laredo, Tamaulipas. The federal Specialized Prosecutor’s Office on Disappearances opened an investigation into the disappearances in June, and the navy temporarily suspended 30 personnel while they conducted an investigation.

On June 4, a three-judge panel of a federal appeals court in Tamaulipas ruled that authorities had failed to investigate indications of military and federal police involvement in the disappearance of 43 students from a teacher-training college in Ayotzinapa in Iguala, Guerrero, in 2014. The court faulted the PGR for not investigating evidence that suspects were tortured to coerce confessions while in PGR custody. During the year the PGR indicted 31 municipal police officers for kidnapping, involvement with organized crime, and aggravated homicide related to the case. Victims’ relatives and civil society continued to be highly critical of PGR’s handling of the investigation, noting there had been no convictions relating to the disappearances of the 43 students. The court ruled that PGR’s investigation had not been prompt, effective, independent, or impartial and ordered the government to create a special investigative commission composed of representatives of the victims, PGR, and CNDH. The government appealed the ruling, claiming it infringed upon the principle of separation of powers. An intermediate court upheld the appeal, and the case was scheduled to go to the Supreme Court for review. On December 2, one day after his inauguration, President Andres Manuel Lopez Obrador ordered the creation of a truth commission--headed by the deputy minister for human rights of the Ministry of Interior--to re-examine the disappearances.

Country Reports on Human Rights Practices for 2018 United States Department of State • Bureau of Democracy, Human Rights, and Labor MEXICO 5

In other developments related to the Ayotzinapa case, on March 15 the OHCHR released a report of gross violations of human rights and due process in the Ayotzinapa investigation, including arbitrary detention and torture. The OHCHR found “solid grounds” to conclude at least 34 individuals were tortured in the course of the investigation, most of them while in the custody of the PGR’s Sub- Prosecutor for Organized Crime. The report highlighted the possible extrajudicial killing of one suspect, Emannuel Alejandro Blas Patino, who was allegedly tortured to death by asphyxiation with a plastic bag and multiple blows to his body by officials from the Ministry of the Navy (SEMAR) on October 27, 2014.

On June 5, the Inter-American Commission on Human Rights Special Mechanism issued a follow-up report that found the government’s investigation into the Ayotzinapa case had been fragmented, with many lines of investigation proceeding slowly or prematurely dismissed. The report acknowledged some progress in the investigation, including the creation of a map of graves and crematorium ovens in the region, steps taken to investigate firearms possibly used on the night of the events, topographic survey work conducted using remote sensing technology, and following up with ground searches for possible burial sites. c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

The law prohibits torture and other cruel, inhuman, or degrading treatment or punishment, and confessions obtained through illicit means are not admissible as evidence in court. Despite these prohibitions, there were reports that security forces tortured suspects.

As of November 30, the CNDH registered 57 complaints of torture. Between January 1, 2017, and August 2018, the CNDH recorded 496 complaints of cruel, inhuman, or degrading treatment. The majority of these complaints were from Tamaulipas, Mexico City, Mexico State, and Veracruz; federal police and PGR officials were accused of being responsible in most torture cases. NGOs stated that in some cases the CNDH misclassified torture as inhuman or degrading treatment.

Less than 1 percent of federal torture investigations resulted in prosecution and conviction, according to government data. The PGR conducted 13,850 torture investigations between 2006 and 2016, and authorities reported 31 federal convictions for torture during that period. The federal Specialized Torture Investigation Unit, created in 2015 within the PGR, reported in February it had opened 8,335 investigations but had presented charges in only 17 cases.

Country Reports on Human Rights Practices for 2018 United States Department of State • Bureau of Democracy, Human Rights, and Labor MEXICO 6

According to the national human rights network “All Rights for All” (Red TDT), as of August only two states, Chihuahua and Colima, had updated their state torture law to comply with the federal law passed in 2017. Only eight states had assigned a specialized torture prosecutor, and many of them lacked the necessary resources to investigate cases. According to the NGO INSYDE, there were not enough doctors and psychologists who could determine if psychological torture had occurred, and authorities were still struggling to investigate torture accusations from incarcerated victims.

In March the OHCHR found “solid grounds” to conclude at least 34 individuals were tortured in the course of the investigation of the disappearance of 43 students in Iguala in 2014 (see section 1.b.).

In June the World Justice Project reported the ongoing transition to an oral- accusatory justice system from the previous written, inquisitorial system had reduced the frequency of torture.

In July 2017, INEGI published the National Survey of Detained Persons, which surveyed individuals held in all municipal, state, or federal prisons. Of detainees who had given a statement to a public prosecutor, 46 percent reported being pressured by the police or other authorities to give a different version of the events. Of detainees who had confessed, 41 percent said they declared their guilt due to pressure, threats, or physical assaults. Detainees reported physical violence (64 percent) and psychological threats (76 percent) during their arrest and reported that, while at the public prosecutor’s office, they were held incommunicado or in isolation (49 percent), threatened with false charges (41 percent), undressed (40 percent), tied up (29 percent), blindfolded (26 percent), and suffocated (25 percent). According to 20 percent, authorities made threats to their families, and 5 percent reported harm to their families.

On September 6, the CNDH called upon federal authorities to investigate the alleged illegal detention and torture of 17 persons between 2013 and 2017 by SEMAR marines. The CNDH stated that 17 federal investigators ignored or delayed acting on reports made by the victims. The CNDH detailed sexual assaults, beatings, electric shocks, and suffocation committed by marines against their captives before turning them over to federal law enforcement. The detentions and torture allegedly occurred in the states of Coahuila, Nuevo Leon, Sinaloa, Veracruz, and Zacatecas.

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There was one report that torture was used to repress political speech. The Oaxaca Consortium for Parliamentary Dialogue and Equity reported a series of escalating attacks, including torture against human rights defenders in Oaxaca in retaliation for their activities. For example, after Oaxaca human rights defenders Arturo Villalobos Ordonez and Patricia Mendez publicly denounced police repression and other abuses in Nochixtlan and other abuses, their minor daughter suffered threats and harassment starting in January and culminating in an incident May 7 in which two men entered her home, stomped on her head, submerged her in water, showed her pictures of mutilated corpses, and threatened that her parents would face the same fate if she did not reveal their whereabouts.

On April 30, the CNDH issued a formal report to the director of the National Migration Institute (INM), indicating that INM personnel committed “acts of torture” against a Salvadoran migrant in October 2017. According to the CNDH document, the victim accompanied another migrant to a migratory station in Mexicali, where an INM official and two guards repeatedly physically struck the migrant and threatened him for 15 to 20 minutes. The CNDH concluded the victim suffered a fractured rib and other injuries as well as psychological trauma.

In a November report, the NGO Centro Prodh documented 29 cases of sexual torture between 2006 and 2015 in 12 states (Baja California, Ciudad de Mexico, Coahuila, Estado de Mexico, Guerrero, Michoacan, Nuevo Leon, Quintana Roo, San Luis Potosi, Sonora, Tamaulipas, and Veracruz); 16 of the 29 cases were reported as rape. Twenty-seven women had reported their torture to a judge, but in 18 cases, no investigation was ordered. Members of the Ministry of National Defense (SEDENA), SEMAR, federal police, and state police of Tamaulipas, Veracruz, and Coahuila were allegedly involved.

In December 2017 the OHCHR Subcommittee on Prevention of Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment issued a report based on a 2016 visit that noted torture was a widespread practice in the country. The subcommittee noted that disparities in the classification of the crime of torture in the states continued to generate real or potential gaps that lead to impunity.

Prison and Detention Center Conditions

Conditions in prisons and detention centers were harsh and life threatening due to corruption; overcrowding; abuse; inmate violence; alcohol and drug addiction; inadequate health care, sanitation, and food; comingling of pretrial and convicted persons; and lack of security and control.

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Physical Conditions: According to a 2017 CNDH report, federal, state, and local detention centers suffered from “uncontrolled self-government in aspects such as security and access to basic services, violence among inmates, lack of medical attention, a lack of opportunities for social reintegration, a lack of differentiated attention for groups of special concern, abuse by prison staff, and a lack of effective grievance mechanisms.” The most overcrowded prisons were plagued by riots, revenge killings, and jailbreaks. Criminal gangs often held de facto control. Inmates staged mass escapes, battled each other, and engaged in shootouts using guns that police and guards smuggled into prisons.

Health and sanitary conditions were often poor, and most prisons did not offer psychiatric care. Some prisons were staffed with poorly trained, underpaid, and corrupt correctional officers, and authorities occasionally placed prisoners in solitary confinement indefinitely. Authorities held pretrial detainees together with convicted criminals. The CNDH noted that the lack of access to adequate health care, including specialized medical care for women, was a significant problem. Food quality and quantity, heating, ventilation, and lighting varied by facility, with internationally accredited prisons generally having the highest standards.

The CNDH found several reports of sexual abuse of inmates in the state of Mexico’s Netzahualcoyotl Bordo de Xochiaca Detention Center. Cases of sexual exploitation of inmates were also reported in Mexico City and the states of Chihuahua, Guerrero, Nayarit, Oaxaca, Puebla, Quintana Roo, Sinaloa, Sonora, Tamaulipas, and Veracruz.

In March the CNDH released its 2017 National Diagnostic of Penitentiary Supervision. The report singled out the states of Nayarit, Guerrero, and Tamaulipas for poor prison conditions. The report highlighted overcrowding, self- governance, and a lack of personnel, protection, hygienic conditions, and actions to prevent violent incidents. The report faulted prisons for failing to separate prisoners who have yet to be sentenced from convicts.

The CNDH found the worst conditions in municipal prisons. The CNDH determined that public security agents used excessive force in an October 2017 Cadereyta prison riot that left 18 persons dead and 93 injured. Self-governance at the prison led to the riot, which was exacerbated by the state public security and civil forces’ inadequate contingency planning. This was the fifth lethal riot at a Nuevo Leon prison since 2016.

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In December 2017 the UN Subcommittee on Prevention of Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment published a report based on a 2016 visit, concluding municipal prisons had deplorable conditions. The report found infrastructure, hygiene, and services were inadequate. There was little natural light and ventilation, cells were cold at night, and prisoners did not have access to blankets. The subcommittee encountered numerous prisoners, including minors, who had not received water or food for 24 hours. The subcommittee observed some centers lacked medical equipment and basic medication. Prisoners had to rely on family members to provide medication, thus low-income prisoners were sometimes left without medical care.

A 2016 INEGI survey of 211,000 inmates in the country’s 338 state and federal penitentiaries revealed that 87 percent of inmates reported bribing guards for items such as food, telephone calls, and blankets or mattresses. Another survey of 64,000 prisoners revealed that 36 percent reported paying bribes to other inmates, who often controlled parts of penitentiaries. Six of 10 LGBTI prisoners were victims of abuse such as sexual violence and discrimination at the hands of other prisoners or security officials, according to a 2015 Inter-American Commission on Human Rights (IACHR) report.

According to civil society groups, migrants in some migrant detention centers faced abuse when comingled with MS-13 gang members. In addition, they reported some migration officials discouraged persons from applying for asylum, claiming their applications were unlikely to be approved, and that some officials from the National Institute of Migration kidnapped asylum seekers for ransom.

Administration: Prisoners and detainees could file complaints regarding human rights violations. Authorities did not always conduct proper investigations into credible allegations of mistreatment.

Independent Monitoring: The government permitted independent monitoring of prison conditions by the International Committee of the Red Cross, the CNDH, and state human rights commissions.

Improvements: Federal and state facilities continued to seek or maintain international accreditation from the American Correctional Association. As of September the total number of state and federal accredited facilities was 92, an increase of 11 facilities from August 2017. Chihuahua and Guanajuato were the only states to have all their prisons accredited.

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The law prohibits arbitrary arrest and detention and provides for the right of any person to challenge the lawfulness of his or her arrest or detention in court, but the government sometimes failed to observe these requirements. Between January 1, 2017 and August 2018, the CNDH recorded 618 complaints of arbitrary detention.

Role of the Police and Security Apparatus

Federal, state, and municipal police have primary responsibility for law enforcement and the maintenance of order. The Federal Police are under the authority of the interior minister and the National Security Commission. State police are under the authority of the state governors. Municipal police are under the authority of local mayors. SEDENA and SEMAR also play an important role in domestic security, particularly in combatting organized criminal groups. The constitution grants the president the authority to use the armed forces for the protection of internal and national security, and the courts have upheld the legality of the armed forces’ role in undertaking these activities in support of civilian authorities. The INM, under the authority of the Interior Ministry, is responsible for enforcing migration laws and protecting migrants.

In December 2017 the president signed the Law on Internal Security to provide a more explicit legal framework for the role the military had been playing for many years in public security. The law authorized the president to deploy the military to assist states in policing at the request of civilian authorities. The law subordinated civilian law enforcement operations to military authority in some instances and allowed the president to extend deployments indefinitely in cases of “grave danger.” With some exceptions, the law required military institutions to transfer cases involving civilian victims, including in human rights cases, to civilian prosecutors to pursue in civilian courts. SEDENA, SEMAR, the Federal Police, and the PGR have security protocols for the transfer of detainees, chain of custody, and use of force. At least 23 legal challenges were presented to the Supreme Court of Justice seeking a review of the law’s constitutionality, including one by the CNDH. On November 15, the Supreme Court ruled the Law on Internal Security was unconstitutional.

As of August 2017 the PGR was investigating 138 cases involving SEDENA or SEMAR officials suspected of abuse of authority, torture, homicide, and arbitrary detention. By existing law, military tribunals have no jurisdiction over cases with civilian victims, which are the exclusive jurisdiction of civilian courts.

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Although civilian authorities generally maintained effective control over security forces and police, impunity, especially for human rights abuses, remained a serious problem.

By law, civilian courts have jurisdiction in cases involving allegations of human rights violations against civilians committed by members of the military. Military authorities, however, can and do investigate such cases in parallel with civilian authorities, and can charge military suspects with crimes under military law in military courts.

SEDENA’s General Directorate for Human Rights investigates military personnel for violations of human rights identified by the CNDH and is responsible for promoting a culture of respect for human rights within the institution. The directorate, however, has no power to prosecute allegations of rights violations or to take independent judicial action.

Arrest Procedures and Treatment of Detainees

The constitution allows any person to arrest another if the crime is committed in his or her presence. A warrant for arrest is not required if an official has direct evidence regarding a person’s involvement in a crime, such as having witnessed the commission of a crime. This arrest authority, however, is applicable only in cases involving serious crimes in which there is risk of flight. Bail is available for most crimes, except for those involving organized crime and a limited number of other offenses. In most cases the law requires that detainees appear before a judge for a custody hearing within 48 hours of arrest during which authorities must produce sufficient evidence to justify continued detention. This requirement was not followed in all cases, particularly in remote areas of the country. In cases involving organized crime, the law allows authorities to hold suspects up to 96 hours before they must seek judicial review.

The procedure known in Spanish as arraigo (a constitutionally permitted form of pretrial detention, employed during the investigative phase of a criminal case before probable cause is fully established) allows, with a judge’s approval, for certain suspects to be detained prior to filing formal charges.

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In August the CNDH concluded an investigation that revealed eight persons, including five minors, had suffered violations at the hands of Federal Police in Ciudad Victoria, Tamaulipas, in 2013. The CNDH sent a recommendation to the National Security Commission concerning the investigation. According to the investigation, federal police agents entered a home without a warrant and arrested three persons. One adult was reportedly tortured.

Human rights NGOs and victims alleged numerous incidents between January and July in which Coahuila state police forces abused detainees in custody in the border city of Piedras Negras and surrounding areas. The state prosecutor general’s office was investigating the accusations.

On May 14, the CNDH withdrew without action more than 90 percent of the 2,972 complaints filed against SEDENA from 2012 to May.

Arbitrary Arrest: Allegations of arbitrary detentions persisted throughout the year. The IACHR, the UN Working Group on Arbitrary Detention, and NGOs expressed concerns about arbitrary detention and the potential for arbitrary detention to lead to other human rights abuses.

In February, Yucatan state police detained three persons near Dzitas, on the grounds that their car had extremely dark tinted windows and the driver did not have a driver’s license. The victims alleged that later they were falsely charged with threatening the police officers and drug possession. The victims reported being blindfolded and tortured by electric shock to their hands and genitalia. One of the three was allegedly forcibly disappeared. Once he reappeared, the others withdrew their complaints.

Pretrial Detention: Lengthy pretrial detention was a problem. The new accusatory justice system allows for a variety of pretrial measures, including electronic monitoring, travel restrictions, and house arrest, that reduced the use of the prison system overall, including the use of pretrial detention. A 2018 World Prison Brief report showed that 39.4 percent of individuals detained were in pretrial detention, compared to 42.7 percent in 2005. The law provides time limits and conditions on pretrial detention, but federal authorities sometimes failed to comply with them,

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Detainee’s Ability to Challenge Lawfulness of Detention before a Court: Persons who are arrested or detained, whether on criminal or other grounds, may challenge their detention through a writ of habeas corpus. The defense may argue, among other things, that the accused did not receive proper due process, suffered a human rights abuse, or had his or her constitutional rights violated. By law individuals should be promptly released and compensated if their detention is found to be unlawful, but authorities did not always promptly release those unlawfully detained. In addition, under the criminal justice system, defendants apprehended during the commission of a crime may challenge the lawfulness of their detention during their court hearing. e. Denial of Fair Public Trial

Although the constitution and law provide for an independent judiciary, court decisions were susceptible to improper influence by both private and public entities, particularly at the state and local level, as well as by transnational criminal organizations. Authorities sometimes failed to respect court orders, and arrest warrants were sometimes ignored. Across the criminal justice system, many actors lacked the necessary training and resources to carry out their duties fairly and consistently in line with the principle of equal justice.

Trial Procedures

In 2016 all civilian and military courts officially transitioned from an inquisitorial legal system based primarily upon judicial review of written documents to an accusatory trial system reliant upon oral testimony presented in open court. In some states alternative justice centers employed mechanisms such as mediation, negotiation, and restorative justice to resolve minor offenses outside the court system.

Country Reports on Human Rights Practices for 2018 United States Department of State • Bureau of Democracy, Human Rights, and Labor MEXICO 14 stages of criminal proceedings. By law attorneys are required to meet professional qualifications to represent a defendant. Not all public defenders were qualified, however, and often the state public defender system was understaffed. Administration of public defender services was the responsibility of either the judicial or the executive branch, depending on the jurisdiction. According to the Center for Economic Research and Teaching, most criminal suspects did not receive representation until after their first custody hearing, thus making individuals vulnerable to coercion to sign false statements prior to appearing before a judge.

Defendants have the right to free assistance of an interpreter if needed, although interpretation and translation services into indigenous languages at all stages of the criminal process were not always available. Indigenous defendants who did not speak Spanish sometimes were unaware of the status of their cases and were convicted without fully understanding the documents they were instructed to sign.

The lack of federal rules of evidence caused confusion and led to disparate judicial rulings.

Political Prisoners and Detainees

There were no reports of political prisoners or detainees.

Civil Judicial Procedures and Remedies

Citizens have access to an independent judiciary in civil matters to seek civil remedies for human rights violations. For a plaintiff to secure damages against a defendant, authorities first must find the defendant guilty in a criminal case, a significant barrier in view of the relatively low number of criminal convictions. f. Arbitrary or Unlawful Interference with Privacy, Family, Home, or Correspondence

The law prohibits such practices and requires search warrants. There were some complaints of illegal searches or illegal destruction of private property.

Section 2. Respect for Civil Liberties, Including: a. Freedom of Expression, Including for the Press

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The law provides for freedom of expression, including for the press, and the government generally respected this right. Most newspapers, television, and radio stations were privately owned. The government had minimal presence in the ownership of news media but remained the main source of advertising revenue for many media organizations, which at times influenced coverage. Media monopolies, especially in small markets, could constrain freedom of expression.

Violence and Harassment: Journalists were murdered or subject to physical attacks, harassment, and intimidation (especially by state agents and transnational criminal organizations) due to their reporting. This limited media’s ability to investigate and report, since many of the reporters who were killed covered crime, corruption, and local politics. According to the NGO Article 19, as of December 5, nine journalists had been killed because of their reporting.

Perpetrators of violence against journalists acted with impunity. According to Article 19, as of August the impunity rate for crimes against journalists was 99.7 percent. In 2017 there were 507 attacks against journalists, according to Article 19. Since its creation in 2010, the Office of the Special Prosecutor for Crimes Against Journalists (FEADLE), a PGR unit, won only eight convictions, and none for murder, in the more than 2,000 cases it investigated. On August 25, FEADLE won its first conviction in the new justice system, obtaining a sentence against Tabasco state police officers for illegally detaining a journalist because of his reporting.

Government officials believed organized crime to be behind most of these attacks, but NGOs asserted there were instances when local government authorities participated in or condoned the acts. According to Article 19, in the last five years, 48 percent of physical attacks against journalists originated with public officials. Although 75 percent of those came from state or local officials, federal officials and members of the armed forces were also suspected of being behind attacks against journalists.

In April 2017 the government of Quintana Roo offered a public apology to journalist Pedro Canche, who was falsely accused by state authorities of sabotage and was detained for nine months in prison. In May the PGR detained a police officer, Tila Patricia Leon, and a former judge, Javier Ruiz, for undermining Canche’s freedom of expression through arbitrary detention in retaliation for his critical reporting about state government authorities.

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There were no developments in the March 2017 killing of Miroslava Breach, a prominent newspaper correspondent.

In March, two police officers, Luigi Heriberto Bonilla Zavaleta and Jose Francisco Garcia, were sentenced to 25 years in prison for the murder of Moises Sanchez, a newspaper owner and journalist in Veracruz. Sanchez was kidnapped in 2015 and found dead three weeks after his disappearance. The local mayor, accused of ordering the murder, remained a fugitive.

In 2005 journalist Lydia Cacho wrote a book exposing a pedophile ring in Cancun. She was arrested in December 2005 and driven 20 hours to Puebla, during which time police threatened her and forced a gun down her throat. On August 8, a federal court in Quintana Roo upheld the October 2017 decision that found Puebla state police officer Jose Montano Quiroz guilty of torture. In the 2017 sentence, the judge recognized Cacho was tortured psychologically and physically and that the torture inflicted was in retaliation for her reporting.

Between 2012 and June 2018, the National Mechanism to Protect Human Rights Defenders and Journalists received 301 requests for protection for journalists. According to Article 19, there had been 62 requests as of October.

On July 24, Playa Del Carmen-based journalist Ruben Pat became the third journalist killed while under protection of the mechanism. Pat had been arrested, threatened, and allegedly tortured by municipal police in Quintana Roo on June 25, according to the OHCHR. Pat was the second journalist killed from the Seminario Playa news outlet in one month. His colleague Jose Guadalupe Chan Dzib was killed on June 29.

A June joint report from IACHR Special Rapporteur for Freedom of Expression Edison Lanza and UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression David Kaye stated journalists in Mexico lived in a “catastrophic” situation given the number of journalists killed since 2010. The report claimed vast regions of the country were “zones of silence” where exercising freedom of expression was dangerous. Observers noted that journalists were often required to publish messages at the behest of organized criminal groups.

Censorship or Content Restrictions: Human rights groups reported some state and local governments censored the media.

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Journalists reported altering their coverage due to a lack of protection from the government, attacks against members of the media and newsrooms, and threats or retributions against their families, among other reasons. There were reports of journalists practicing self-censorship due to threats from criminal groups and government officials, especially in the states of Tamaulipas and Sinaloa.

According to Freedom House’s 2017 Freedom of the Press report, the federal government and some state governments used advertising expenditures to influence the editorial policies of media outlets. Article 19 reported in March the government had a strong financial impact and influence on the largest media companies.

Libel/Slander Laws: There are no federal criminal laws against defamation, libel, or slander, but there are state criminal laws in eight states. In Guanajuato, Nuevo Leon, Baja California Sur, Nayarit, Michoacan, and Yucatan, the crime of defamation is prosecuted, with penalties ranging from three days to five years in prison, and fines ranging from five to five hundred days of minimum salary for committing defamation or slander, both considered “crimes against honor.” Slander is punishable under the criminal laws of the states of Hidalgo, Guanajuato, Nuevo Leon, Baja California Sur, Sonora, Nayarit, Zacatecas, Colima, Michoacan, Campeche, and Yucatan, with sentences ranging from three months to six years in prison, and monetary fines. Five states have laws that restrict the publishing of political caricatures or “memes.” These laws were seldom applied.

In May the Supreme Court struck down a law in the state of Nayarit penalizing slander. The court ruled the law violated freedom of expression.

Nongovernmental Impact: Organized criminal groups exercised a grave and increasing influence over media outlets and reporters, threatening individuals who published critical views of crime groups. Concerns persisted about the use of physical violence by organized criminal groups in retaliation for information posted online, which exposed journalists, bloggers, and social media users to the same level of violence faced by traditional journalists.

Internet Freedom

The government did not restrict or disrupt access to the internet or block or filter online content. Freedom House’s 2017 Freedom on the Net report categorized the country’s internet as partly free, noting concerns about illegal surveillance practices in the country and violence against online reporters.

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NGOs alleged provisions in secondary laws threatened the privacy of internet users by forcing telecommunication companies to retain data for two years, providing real-time geolocation data to police, and allowing authorities to obtain metadata from private communications companies without a court order. While the Supreme Court upheld those mechanisms, it noted the need for authorities to obtain a judicial warrant to access users’ metadata.

There were no developments in the criminal investigation the government stated in 2017 that it had opened to determine whether prominent journalists, human rights defenders, and anticorruption activists were subjected to illegal surveillance via a sophisticated surveillance program, “Pegasus.” PGR officials acknowledged purchasing Pegasus but claimed to have used it only to monitor criminals. In May a Mexico City district judge ordered the victims’ evidence be accepted in the PGR’s ongoing investigation. According to a November report by the Citizen Lab at the University of Toronto, 24 individuals were targeted with Pegasus spyware.

According to the International Telecommunication Union, 64 percent of the population used the internet in 2017.

Academic Freedom and Cultural Events

There were no government restrictions on academic freedom or cultural events. b. Freedoms of Peaceful Assembly and Association

The law provides for the freedoms of peaceful assembly and association, and the government generally respected these rights. There were some reports of security forces using excessive force against demonstrators. Twelve states have laws that restrict public demonstrations. c. Freedom of Religion

See the Department of State’s International Religious Freedom Report at www.state.gov/religiousfreedomreport/. d. Freedom of Movement

The law provides for freedom of internal movement, foreign travel, emigration, and repatriation, and the government generally respected these rights.

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The government cooperated with the Office of the UN High Commissioner for Refugees (UNHCR) and other humanitarian organizations in providing protection and assistance to refugees, returning refugees, asylum seekers, stateless persons, or other persons of concern.

The government and press reports noted a marked increase in refugee and asylum applications during the year. According to UNHCR statistics, there were 9,900 asylum applications during the first half of the year, compared with a total of 14,596 applications in all of 2017.

At the Iztapalapa detention center near Mexico City, the Twenty-First Century detention center in Chiapas, and other detention facilities, men were separated from women and children, and there were special living quarters for LGBTI individuals. Migrants had access to medical, psychological, and dental services, and the Iztapalapa center had agreements with local hospitals to care for any urgent cases free of charge. Individuals from countries with consular representation also had access to consular services. Commission to Assist Refugees (COMAR) and CNDH representatives visited daily, and other established civil society groups were able to visit the detention facilities on specific days and hours. Victims of trafficking and other crimes were housed in specially designated shelters. Human rights pamphlets were available in many different languages. In addition approximately 35 centers cooperated with UNHCR and allowed it to display posters and provide other information on how to access asylum for those in need of international protection.

Abuse of Migrants, Refugees, and Stateless Persons: The press and NGOs reported victimization of migrants by criminal groups and in some cases by police, immigration officers, and customs officials. Government and civil society sources reported the Central American gang presence spread farther into the country and threatened migrants who had fled the same gangs in their home countries. An August 2017 report by the independent INM Citizens’ Council found incidents in which immigration agents had been known to threaten and abuse migrants to force them to accept voluntary deportation and discourage them from seeking asylum. The council team visited 17 detention centers across the country and reported threats, violence, and excessive force against undocumented migrants. The INM responded to these allegations by asserting it treated all migrants with “absolute respect.”

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There were media reports that criminal groups kidnapped undocumented migrants to extort money from migrants’ relatives or force them into committing criminal acts on their behalf.

A November 2017 Amnesty International report highlighted the dangers Central American LGBTI migrants faced in Mexico. Citing UNHCR data, the report stated two-thirds of LGBTI migrants from El Salvador, Guatemala, and Honduras who applied for refugee status reported having been victims of sexual violence in Mexico.

According to a July 2017 report from the NGO Washington Office on Latin America, of the 5,824 reported crimes against migrants that occurred in the states of Chiapas, Oaxaca, Tabasco, Sonora, Coahuila, and at the federal level, 99 percent of the crimes were unresolved.

In-country Movement: There were numerous instances of armed groups limiting the movements of migrants, including by kidnappings and homicides.

Internally Displaced Persons (IDPs)

The NGO Mexican Commission for the Defense and Promotion of Human Rights (CMDPDH) attributed the displacement of 10,947 people in 2018 to violence by government forces against civilians in the states of Chiapas, Oaxaca, and Sinaloa. Land conflicts, social and ethnic violence, local political disputes, religiously motivated violence, extractive industry operations, and natural disasters were other causes. The CMDPDH found 74 percent of displaced persons in 2017 came from the states of Chiapas, Guerrero, and Sinaloa. The government, in conjunction with international organizations, made efforts to promote the safe, voluntary return, resettlement, or local integration of IDPs.

During an October 2017 border dispute between two municipalities in the state of Chiapas, 5,323 Tzotziles indigenous individuals were displaced. Violence between the communities resulted in women, children, and the elderly abandoning their homes. By January, 3,858 had returned, and the rest remained in shelters.

Protection of Refugees

Access to Asylum: The law provides for granting asylum or refugee status and complementary protection, and the government has an established procedure for determining refugee status and providing protection to refugees. At the end of

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2017, the Commission to Assist Refugees (COMAR) had received 14,596 petitions, of which 2,400 were abandoned, 7,719 were pending, and 4,475 were resolved. The number of applicants withdrawing from the process dropped to 16 percent during the year, down from 36 percent in 2014. The refusal rate decreased from 61 percent to 37 percent over that same period. NGOs reported bribes sometimes influenced the adjudication of asylum petitions and requests for transit visas.

The government worked with UNHCR to improve access to asylum and the asylum procedure, reception conditions for vulnerable migrants and asylum seekers, and integration (access to school and work) for those approved for refugee and complementary protection status. In October, the government announced the “You Are at Home” (“Estas en tu casa”) program to address the flow of migrants in so-called caravans from Central America transiting the country to seek asylum in the United States. The program offered migrants the opportunity to stay legally in the country with access to health care, employment, and education for children. Press reports indicated that 546 migrants had registered for the program as of November 11.

Section 3. Freedom to Participate in the Political Process

The law provides citizens the ability to choose their government through free and fair periodic elections held by secret ballot and based on universal and equal suffrage.

Elections and Political Participation

Recent Elections: The July 1 presidential, legislative, gubernatorial, and other local elections were considered by international observers to have been generally free and fair with only minor reports of irregularities. Local commentators pointed to the electoral authorities’ quick and transparent publishing of results as increasing citizen trust in the electoral and democratic system as a whole.

During the electoral season (September 2017 to June 28), 48 candidates were killed. In Guerrero 14 candidates were killed, followed by five in Puebla. Of the victims, 12 were members of the Institutional Revolutionary Party, 10 belonged to the Party of the Democratic Revolution, seven to the National Regeneration Movement, six to the National Action Party, five to the Citizens’ Movement, two to the Ecologist Green Party of Mexico, one each to the Social Encounter Party and the Labor Party, and three of the victims did not have a party affiliation. As of July

Country Reports on Human Rights Practices for 2018 United States Department of State • Bureau of Democracy, Human Rights, and Labor MEXICO 22 the killings resulted in just one arrest, and none resulted in convictions. In comparison with the 2012 elections, there were 10 times more killings of candidates in 2018.

Participation of Women and Minorities: No laws limit participation of women or members of minorities in the political process, and they did participate. As of September women held 49 percent of 128 senate seats and 48 percent of 500 deputies’ seats. The law provides for the right of indigenous persons to elect representatives to local office according to “uses and customs” law (See “Indigenous Peoples”) rather than federal and state electoral law.

On September 8, the Chiapas Electoral and Citizen Participation Institute (IEPC) reported 36 women elected to political office in Chiapas resigned so that men could take their places. IEPC claimed the women were forced to give up their positions as part of a premeditated strategy to install men in office. The president of the National Electoral Institute, Lorenzo Cordova, stated the replacement of successful female candidates with men was “unacceptable in a democratic context” and that “it constitutes regression on the principle of gender parity and inclusion.”

Section 4. Corruption and Lack of Transparency in Government

The law provides criminal penalties for corruption by officials, but the government did not enforce the law effectively. There were numerous reports of government corruption during the year. Corruption at the most basic level involved paying bribes for routine services or in lieu of fines to administrative officials or security forces. More sophisticated and less apparent forms of corruption included funneling funds to elected officials and political parties by overpaying for goods and services.

Although by law elected officials enjoy immunity from prosecution while holding public office, state and federal legislatures have the authority to waive an official’s immunity. As of November, 17 of the 32 states followed this legal procedure to strip immunity.

By law all applicants for federal law enforcement jobs (and other sensitive positions) must pass an initial law enforcement vetting process and be recleared every two years. According to the Interior Ministry and the National Center of Certification and Accreditation, most active police officers at the national, state, and municipal levels underwent at least initial vetting. The press and NGOs reported that some police officers who failed vetting remained on duty.

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The CNDH reported that some police officers, particularly at the state and local level, were involved in kidnapping, extortion, and providing protection for, or acting directly on behalf of, organized crime and drug traffickers.

In July 2017 the National Anticorruption System entered into force, but pending state legislation and lagging federal and state appointments prevented the system from being fully operational. The law gives autonomy to federal administrative courts to investigate and sanction administrative acts of corruption, establishes harsher penalties for government officials convicted of corruption, provides the Superior Audit Office with real-time auditing authority, and establishes an oversight commission with civil society participation. A key feature of the system is the creation of an independent anticorruption prosecutor and court. The Senate had yet to appoint the special prosecutor at year’s end.

Corruption: Authorities opened federal and state corruption investigations against former Veracruz governor Flavino Rios. In addition, former Quintana Roo governor Roberto Borge was extradited from Panama and detained pending trial on money-laundering charges. In October former Veracruz governor Javier Duarte agreed to a plea deal on charges of money laundering in one of the highest-profile recent corruption cases. As of November nearly 20 former governors had been sentenced, faced corruption charges, or were under formal investigation.

Financial Disclosure: The law requires all federal and state-level appointed or elected officials to provide income and asset disclosure, statements of any potential conflicts of interests, and tax returns. The Ministry of Public Administration monitors disclosures with support from each agency. Regulations require disclosures at the beginning and end of employment, as well as annual updates. The law requires declarations be made publicly available unless an official petitions for a waiver to keep his or her file private. Criminal or administrative sanctions apply for abuses.

Section 5. Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Abuses of Human Rights

A variety of domestic and international human rights groups generally operated without government restriction, investigating and publishing their findings on human rights cases. Government officials were mostly cooperative and responsive to their views, and the president or cabinet officials met with human rights organizations such as the OHCHR, IACHR, and CNDH. Some NGOs alleged that

Country Reports on Human Rights Practices for 2018 United States Department of State • Bureau of Democracy, Human Rights, and Labor MEXICO 24 individuals who organized campaigns to discredit human rights defenders sometimes acted with tacit support from officials in government. Between 2012 and June 2018, the National Mechanism to Protect Human Rights Defenders and Journalists received 396 requests for protection of human rights defenders.

Government Human Rights Bodies: The CNDH is a semiautonomous federal agency created by the government and funded by the legislature to monitor and act on human rights violations and abuses. It may call on government authorities to impose administrative sanctions or pursue criminal charges against officials, but it is not authorized to impose penalties or legal sanctions. If the relevant authority accepts a CNDH recommendation, the CNDH is required to follow up with the authority to verify it is carrying out the recommendation. The CNDH sends a request to the authority asking for evidence of its compliance and includes this follow-up information in its annual report. When authorities fail to accept a recommendation, the CNDH makes that failure known publicly, and it may exercise its power to call government authorities who refuse to accept or enforce its recommendations before the Senate.

All states have their own human rights commission. The state commissions are funded by the state legislatures and are semiautonomous. The state commissions did not have uniform reporting requirements, making it difficult to compare state data and therefore to compile nationwide statistics. The CNDH may take on cases from state-level commissions if it receives a complaint that the state commission has not adequately investigated the case.

Section 6. Discrimination, Societal Abuses, and Trafficking in Persons

Women

Rape and Domestic Violence: Federal law criminalizes rape of men or women, including spousal rape, and conviction carries penalties of up to 20 years’ imprisonment. Spousal rape is criminalized in 24 states.

The federal penal code prohibits domestic violence and stipulates penalties for conviction of between six months’ and four years’ imprisonment. Of the states, 29 stipulate similar penalties, although in practice sentences were often more lenient. Federal law does not criminalize spousal abuse. State and municipal laws addressing domestic violence largely failed to meet the required federal standards and often were unenforced.

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Killing a woman because of the victim’s gender (femicide) is a federal offense punishable by 40 to 60 years in prison. It is also a criminal offense in all states. The PGR’s Special Prosecutor’s Office for Violence against Women and Trafficking in Persons is responsible for leading government programs to combat domestic violence and prosecuting federal human trafficking cases involving three or fewer suspects. The office had 30 prosecutors in total, of whom nine were exclusively dedicated to federal cases of violence against women.

In addition to shelters, there were women’s justice centers that provided services including legal services and protection; however, the number of cases far surpassed institutional capacity.

According to Interior Ministry statistics, in the first six months of the year prosecutors and attorneys general opened 387 investigations into 402 cases of femicide throughout the country. Statistics come from state-level reports that often conflate femicides with all killings of women. The states with the highest number of femicides in 2017 were Mexico, Veracruz, Nueva Leon, Chihuahua, Sinaloa, and Guerrero.

Sexual Harassment: Federal labor law prohibits sexual harassment and provides for fines from 250 to 5,000 times the minimum daily wage. Of the states, 16 criminalize sexual harassment, and all states have provisions for punishment when the perpetrator is in a position of power. According to the National Women’s Institute, the federal institution charged with directing national policy on equal opportunity for men and women, sexual harassment in the workplace was a significant problem.

On August 1, the Yucatan state congress approved a bill to criminalize the distribution of “revenge pornography” and “sextortion.” Individuals may be prosecuted if they publish or distribute intimate images, audio, videos, or texts without the consent of the other party. The sentence ranges from six months to four years in prison.

Coercion in Population Control: There were no confirmed reports of coerced abortion or involuntary sterilization. There were reports that public health doctors occasionally discouraged women from giving birth to HIV-infected babies.

Discrimination: The law provides women the same legal status and rights as men and “equal pay for equal work performed in equal jobs, hours of work, and conditions of efficiency.” Women tended to earn substantially less than men did

Country Reports on Human Rights Practices for 2018 United States Department of State • Bureau of Democracy, Human Rights, and Labor MEXICO 26 for the same work. Women were more likely to experience discrimination in wages, working hours, and benefits.

Children

Birth Registration: Children derived citizenship both by birth within the country’s territory and from their parents. Citizens generally registered the births of newborns with local authorities. Failure to register births could result in the denial of public services such as education or health care.

Child Abuse: There were numerous reports of child abuse. The National Program for the Integral Protection of Children and Adolescents, mandated by law, is responsible for coordinating the protection of children’s rights at all levels of government.

Early and Forced Marriage: The legal minimum marriage age is 18. Enforcement, however, was inconsistent across the states. Some civil codes permit girls to marry at 14 and boys at 16 with parental consent. With a judge’s consent, children may marry at younger ages.

According to UNICEF, Chiapas, Guerrero, and Oaxaca were the states with the highest rates of underage marriages.

Sexual Exploitation of Children: The law prohibits the commercial sexual exploitation of children, and authorities generally enforced the law. Nonetheless, NGOs reported sexual exploitation of minors, as well as child sex tourism in resort towns and northern border areas.

Statutory rape is a federal crime. If an adult is convicted of having sexual relations with a minor, the penalty is between three months and 30 years’ imprisonment depending on the age of the victim. Conviction for selling, distributing, or promoting pornography to a minor stipulates a prison term of six months to five years. For involving minors in acts of sexual exhibitionism or the production, facilitation, reproduction, distribution, sale, and purchase of child pornography, the law mandates seven to 12 years’ imprisonment and a fine.

Perpetrators convicted of promoting, publicizing, or facilitating sexual tourism involving minors face seven to 12 years’ imprisonment and a fine. Conviction for sexual exploitation of a minor carries an eight- to 15-year prison sentence and a fine.

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Institutionalized Children: Civil society groups expressed concerns about abuse of children with mental and physical disabilities in orphanages, migrant centers, and care facilities.

In April, Disability Rights International documented a case at the institution Hogares de la Caridad in Guadalajara, where a 17-year-old who suffered from autism and cerebral palsy was found taped in a blanket around the torso, allegedly to prevent self-harm.

International Child Abductions: The country is party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. See the Department of State’s Annual Report on International Parental Child Abduction at https://travel.state.gov/content/travel/en/International-Parental-Child- Abduction/for-providers/legal-reports-and-data.html.

Anti-Semitism

The 67,000-person Jewish community experienced low levels of anti-Semitism, but there were reports of some anti-Semitic expressions through social media. While an Anti-Defamation League report described an increase in anti-Semitic attitudes in the country from 24 percent of the population in 2014 to 35 percent of the population in 2017, Jewish community representatives reported low levels of anti-Semitic acts and good cooperation with the government and other religious and civil society organizations in addressing rare instances of such acts.

Trafficking in Persons

See the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip/rls/tiprpt/.

Persons with Disabilities

The law prohibits discrimination against persons with physical, sensory, intellectual, and mental disabilities. The government did not effectively enforce the law. The law requires the Ministry of Health to promote the creation of long- term institutions for persons with disabilities in distress, and the Ministry of Social Development must establish specialized institutions to care for, protect, and house poor, neglected, or marginalized persons with disabilities. NGOs reported authorities had not implemented programs for community integration. NGOs

Country Reports on Human Rights Practices for 2018 United States Department of State • Bureau of Democracy, Human Rights, and Labor MEXICO 28 reported no changes in the mental health system to create community services nor any efforts by authorities to have independent experts monitor human rights violations in psychiatric institutions. Public buildings and facilities often did not comply with the law requiring access for persons with disabilities. The education system provided special education for students with disabilities nationwide. Children with disabilities attended school at a lower rate than those without disabilities.

Abuses in mental health institutions and care facilities, including those for children, were a problem. Abuses of persons with disabilities included the use of physical and chemical restraints, physical and sexual abuse, trafficking, forced labor, disappearance, and the illegal adoption of institutionalized children. Institutionalized persons with disabilities often lacked adequate medical care and rehabilitation services, privacy, and clothing; they often ate, slept, and bathed in unhygienic conditions. They were vulnerable to abuse from staff members, other patients, or guests at facilities where there was inadequate supervision. Documentation supporting the person’s identity and origin was lacking. Access to justice was limited.

Voting centers for federal elections were generally accessible for persons with disabilities, and ballots were available with a braille overlay for federal elections in Mexico City, but these services were inconsistently available for local elections elsewhere in the country.

Indigenous People

The constitution provides all indigenous peoples the right to self-determination, autonomy, and education. Conflicts arose from interpretation of the self-governing “uses and customs” laws used by indigenous communities. Uses and customs laws apply traditional practices to resolve disputes, choose local officials, and collect taxes, with limited federal or state government involvement. Communities and NGOs representing indigenous groups reported that the government often failed to consult indigenous communities adequately when making decisions regarding development projects intended to exploit energy, minerals, timber, and other natural resources on indigenous lands. The CNDH maintained a formal human rights program to inform and assist members of indigenous communities.

The CNDH reported indigenous women were among the most vulnerable groups in society. They often experienced racism and discrimination and were often victims

Country Reports on Human Rights Practices for 2018 United States Department of State • Bureau of Democracy, Human Rights, and Labor MEXICO 29 of violence. Indigenous persons generally had limited access to health-care and education services.

In August, UN Special Rapporteur on Indigenous Rights Victoria Tauli published her report on Mexico, concluding that “current development policies, which are based on megaprojects (in mining, energy, tourism, real estate, and agriculture, among other areas) pose a major challenge to indigenous peoples’ enjoyment of human rights. Lack of self-determination and prior, free, informed, and culturally appropriate consultation are compounded by land conflicts, forced displacement, and the criminalization of and violence against indigenous peoples who defend their rights.”

On January 7, violent clashes involving gunmen, an indigenous community police force, and state police led to the death of 11 persons in Guerrero who had campaigned against a hydroelectric project in the region for more than a decade (see section 1.a.).

On February 12, three members of the Committee for the Defense of Indigenous Rights in Oaxaca were killed after participating in a meeting with government authorities, according to Oaxacan NGOs and press reports. On July 17, the organization’s regional coordinator, Abraham Hernandez Gonzalez, was kidnapped and killed by an armed group.

There were no developments in the April 2017 killing of Luis “Lucas” Gutierrez in the municipality of Madera, Chihuahua. He was an indigenous rights activist and a member of a civil society group called the Civil Resistance Group.

In 2017, 15 environmental activists were killed, compared with three in 2016, according to a Global Witness Report. A majority of the victims came from indigenous communities. Since 2016, six ecologists in the indigenous territory of Coloradas de la Virgen, Chihuahua were killed in fighting over logging. Mining was also a cause of violence.

Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity

The law prohibits discrimination against LGBTI individuals.

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A Mexico City municipal law provides increased penalties for hate crimes based on sexual orientation and gender identity. Civil society groups claimed police routinely subjected LGBTI persons to mistreatment while in custody.

Discrimination based on sexual orientation and gender identity was prevalent, despite a gradual increase in public tolerance of LGBTI individuals, according to public opinion surveys. There were reports the government did not always investigate and punish those complicit in abuses, especially outside Mexico City.

On May 17, the CNDH called for a halt of discrimination against LGBTI persons.

In November 2017 the NGO Transgender Europe documented 56 cases of reported killings of transgender individuals in the country. According to the OHCHR, in the first eight months of the year, there were 17 hate crime homicides in Veracruz, committed against nine transgender women and eight gay men.

On August 5, an 18-year-old man was beaten to death allegedly by a group of 10 taxi drivers who worked at a taxi stand outside a gay bar in San Luis Potosi. Local LGBTI human right defenders claimed the killing was a hate crime because the victim was attacked due to his sexual orientation; the president of the San Luis Potosi State Commission for Human Rights agreed. Advocates also argued negligence in investigating the case due to homophobia in police ranks. As of October no one had been arrested in connection with the killing.

Other Societal Violence or Discrimination

The Catholic Multimedia Center reported criminal groups targeted priests and other religious leaders in some parts of the country and subjected them to extortion, death threats, and intimidation. As of October, the center reported seven priests killed. There were two attacks with explosives in the diocese of Matamoros, Tamaulipas--one in the Cathedral of Matamoros and another in the church of Our Lady of Refuge. No victims were reported in either attack.

According to a 2017 INEGI survey, one in five citizens was a victim of discrimination in 2017. The reasons listed for discrimination included appearance, skin tone, indigenous background, gender, age, or disability. The survey found that in the last five years, nearly 20 million persons were denied medical services, government support, and financial services because of discrimination, According to the CNDH, only 10 percent reported this discrimination to an authority.

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Section 7. Worker Rights a. Freedom of Association and the Right to Collective Bargaining

The law provides for the right of workers to form and join unions, to bargain collectively, and to strike in both the public and private sectors; however, conflicting law, regulations, and practice restricted these rights.

The law requires a minimum of 20 workers to form a union. To receive government recognition, unions must file for registration with the appropriate conciliation and arbitration board (CAB) or the Ministry of Labor and Social Welfare. For the union to be able to function legally, its leadership must also register with the appropriate CAB or the ministry. CABs operated under a tripartite system with government, worker, and employer representatives. Outside observers raised concerns that the boards did not adequately provide for inclusive worker representation and often perpetuated a bias against independent unions, in part due to the prevalence of representatives from “protection” unions on the boards. Protection unions and “protection contracts”--collective bargaining agreements signed by employers and these unions to circumvent meaningful negotiations and preclude labor disputes--were common in all sectors.

By law a union may call for a strike or bargain collectively in accordance with its own bylaws. Before a strike may be considered legal, however, a union must file a “notice to strike” with the appropriate CAB, which may find that the strike is “nonexistent” or, in other words, it may not proceed legally. The law prohibits employers from intervening in union affairs or interfering with union activities, including through implicit or explicit reprisals against workers. The law allows for reinstatement of workers if the CAB finds the employer fired the worker unfairly and the worker requests reinstatement; however, the law also provides for broad exemptions for employers from such reinstatement, including employees of confidence or workers who have been in the job for less than a year.

The government, including the CABs, did not consistently protect worker rights. The government’s common failure to enforce labor and other laws left workers with little recourse for violations of freedom of association, poor working conditions, and other labor problems. The CABs’ frequent failure to impartially and transparently administer and oversee procedures related to union activity, such as union elections and strikes, undermined worker efforts to exercise freely their rights to freedom of association and collective bargaining.

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February 2017 labor justice revisions to the constitution replace the CABs with independent judicial bodies, which are intended to streamline the labor justice process, but require implementing legislation to reform federal labor law. Under the terms of the constitutional reform, CABs would continue to administer new and pending labor disputes until the judicial bodies are operational.

Penalties for violations of freedom of association and collective bargaining laws were rarely applied and were insufficient to deter violations. Administrative and judicial procedures were subject to lengthy delays and appeals.

Workers exercised their rights to freedom of association and collective bargaining with difficulty. The process for registration of unions was politicized, and according to union organizers, the government, including the CABs, frequently used the process to reward political allies or punish political opponents. For example, the government rejected registration applications for locals of independent unions, and for unions, based on technicalities.

In September the Senate ratified the International Labor Organization (ILO) Convention 98 on collective bargaining. By ratifying the convention, the government subjects itself to the convention’s oversight and reporting procedures. Ratification also contributes, according to the independent unions, to ensuring the institutions established as a result of the labor justice reform are, in law and practice, independent, transparent, objective, and impartial, with workers having recourse to the ILO’s oversight bodies to complain of any failure.

According to several NGOs and unions, many workers faced violence and intimidation around bargaining-rights elections perpetrated by protection union leaders and employers supporting them, as well as other workers, union leaders, and vigilantes hired by a company to enforce a preference for a particular union. Some employers attempted to influence bargaining-rights elections through the illegal hiring of pseudo employees immediately prior to the election to vote for the company-controlled union. CABs were widely alleged to administer these elections with a bias against new, independent unions, resulting in delays and other procedural obstacles that impacted the results and undermined workers’ right to organize.

Other intimidating and manipulative practices were common, including dismissal of workers for labor activism. For example, a garment factory in Morelos failed to halt workplace sexual harassment and sexual violence and instead fired the whistleblowers who reported the problem to management.

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b. Prohibition of Forced or Compulsory Labor

The law prohibits all forms of forced or compulsory labor, but the government did not effectively enforce the law. While penalties for conviction of forced labor violations range from five to 30 years’ imprisonment, very few cases reached the court system or were successfully prosecuted.

Forced labor persisted in the industrial and agricultural sectors, especially in the production of chili peppers and tomatoes, as well as in the informal sector. Women and children were subject to domestic servitude. Women, children, indigenous persons, and migrants (including men, women, and children) were the most vulnerable to forced labor. In July authorities rescued 50 agricultural workers on three commercial tomato farms in Coahuila. Authorities in Coahuila freed an additional 25 agricultural workers--including nine children--from a chili pepper and tomato farm in August. In both cases the forced labor victims reportedly lived in unsanitary conditions, worked excessive hours under the threat of dismissal, and received subminimum wage payments or no payment at all.

Day laborers and their children were the primary victims of forced and child labor in the agricultural sector. In 2016 INEGI reported 44 percent (2,437,150) of persons working in agriculture were day laborers. Of the day laborers, 33 percent received no financial compensation for their work. Only 3 percent of agricultural day laborers had a formal written contract, 4 percent had access to health services through their employment, and 7 percent received vacation days or Christmas bonuses--all benefits mandated by federal labor law.

Indigenous persons in isolated regions reported incidents of forced labor, in which cartel members forced them to perform illicit activities or face death. Minors were recruited or forced by cartels to traffic persons, drugs, or other goods across the border.

Also see the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip/rls/tiprpt/. c. Prohibition of Child Labor and Minimum Age for Employment

The constitution prohibits children younger than age 15 from working and allows those ages 15 to 17 to work no more than six daytime hours in nonhazardous conditions daily, and only with parental permission. The law requires children

Country Reports on Human Rights Practices for 2018 United States Department of State • Bureau of Democracy, Human Rights, and Labor MEXICO 34 younger than 18 to have a medical certificate to work. The minimum age for hazardous work, including all work in the agricultural sector, is 18. The law prohibits minors from working in a broad list of hazardous and unhealthy occupations.

The government was reasonably effective in enforcing child labor laws in large and medium-sized companies, especially in the factory (maquiladora) sector and other industries under federal jurisdiction. Enforcement was inadequate in many small companies and in agriculture and construction, and nearly absent in the informal sector, in which most child laborers worked.

At the federal level, the Ministry of Social Development, PGR, and National System for Integral Family Development share responsibility for inspections to enforce child labor laws and to intervene in cases in which employers violated such laws. The Ministry of Labor is responsible for carrying out child labor inspections. Penalties for violations range from 16,780 pesos ($840) to 335,850 pesos ($16,800) but were not sufficiently enforced to deter violations.

According to a 2017 INEGI survey, the number of employed children ages five to 17 was 3.2 million, or approximately 11 percent of children in the country. This represented a decrease from 12.4 percent of children in the 2015 INEGI survey. Of these children, 2.1 million, or 7.1 percent of the population ages five to 17, were under the minimum age of work or worked under conditions that violated federal labor laws, such as performing hazardous work. Child labor was most common in the agricultural sector; children worked in the harvest of beans, chili peppers, coffee, cucumbers, eggplants, melons, onions, tobacco, and tomatoes, as well as in the production of illicit crops such as opium poppies. Other sectors with significant child labor included services, retail sales, manufacturing, and construction. d. Discrimination with Respect to Employment and Occupation

The law prohibits discrimination with respect to employment or occupation on the basis of “race, nationality, age, religion, sex, political opinion, social status, handicap (or challenged capacity), economic status, health, pregnancy, language, sexual preference, or marital status.” The government did not effectively enforce the law or regulations. According to a 2017 INEGI survey, 12 percent of Mexican women had been illegally asked to take a pregnancy test as a prerequisite to being hired. Job announcements specifying desired gender, marital status, and parental status were common.

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INEGI reported in 2017 that 23 percent of working women experienced violence in the workplace within the past 12 months, and 6 percent experienced sexual violence.

Penalties for violations of the law included administrative remedies, such as reinstatement, payment of back wages, and fines (often calculated based on the employee’s wages), and were not generally considered sufficient to deter violations. Discrimination in employment or occupation occurred against women, indigenous groups, persons with disabilities, LGBTI individuals, and migrant workers. e. Acceptable Conditions of Work

The general minimum wage was below the official poverty line. Most formal- sector workers received between one and three times the minimum wage. The tripartite National Minimum Wage Commission, whose labor representatives largely represented protection unions and their interests, is responsible for establishing minimum salaries but continued to block increases that kept pace with inflation.

The law sets six eight-hour days and 48 hours per week as the legal workweek. Any work over eight hours in a day is considered overtime, for which a worker is to receive double pay. After accumulating nine hours of overtime in a week, a worker earns triple the hourly wage. The law prohibits compulsory overtime. The law provides for eight paid public holidays and one week of paid annual leave after completing one year of work. The law requires employers to observe occupational safety and health regulations, issued jointly by the Ministry of Labor and Social Welfare and the Institute for Social Security. Legally mandated joint management and labor committees set standards and are responsible for overseeing workplace standards in plants and offices. Individual employees or unions may complain directly to inspectors or safety and health officials. By law workers may remove themselves from situations that endanger health or safety without jeopardy to their employment.

The Ministry of Labor is responsible for enforcing labor laws and inspecting workplaces. Neither the number of labor inspections nor the penalties for violations of labor law were sufficient to secure compliance with labor law. For example, in June, seven workers disappeared at a mine in Chihuahua when a dam holding liquid waste collapsed. Through its DECLARALAB self-evaluation tool,

Country Reports on Human Rights Practices for 2018 United States Department of State • Bureau of Democracy, Human Rights, and Labor MEXICO 36 the ministry provided technical assistance to almost 4,000 registered workplaces to help them meet occupational safety and health regulations.

According to labor rights NGOs, employers in all sectors sometimes used the illegal “hours bank” approach--requiring long hours when the workload is heavy and cutting hours when it is light--to avoid compensating workers for overtime. This was a common practice in the maquiladora sector, in which employers forced workers to take leave at low moments in the production cycle and obliged them to work in peak seasons, including the Christmas holiday period, without the corresponding triple pay mandated by law for voluntary overtime on national holidays. Additionally, many companies evaded taxes and social security payments by employing workers informally or by submitting falsified payroll records to the Mexican Social Security Institute. INEGI estimated 57 percent of the workforce was engaged in the informal economy during the year.

Observers from grassroots labor rights groups, international NGOs, and multinational apparel brands reported that employers in export-oriented supply chains were increasingly using hiring methods that lessened job security. For example, manufacturers commonly hired workers on one- to three-month contracts, and then waited a period of days before rehiring them on another short-term contract, to avoid paying severance and to prevent workers from accruing seniority. This practice violates federal labor law and restricts worker’s rights to freedom of association and collective bargaining. Observers noted it also increased the likelihood of work-related illness and injury. Outsourcing practices made it difficult for workers to identify their legally registered employer, limiting their ability to seek redress of labor grievances.

The situation of agricultural workers remained particularly precarious, with similar patterns of exploitation throughout the sector. Labor recruiters enticed families to work during harvests with verbal promises of decent wages and a good standard of

Country Reports on Human Rights Practices for 2018 United States Department of State • Bureau of Democracy, Human Rights, and Labor MEXICO 37 living. Rather than pay them daily wages once a week, as mandated by law, day laborers had to meet certain harvest quotas to receive the promised wage. Wages may be illegally withheld until the end of the harvest to ensure the workers do not leave, and civil society organizations alleged workers were prohibited from leaving by threats of violence or by nonpayment of wages. Workers had to buy food and other items at the company store at high markups, at times leaving them with no money at the end of the harvest after settling debts. Civil society groups reported families living in inhuman conditions, with inadequate and cramped housing, no access to clean water or bathrooms, insufficient food, and without medical care. With no access to schools or childcare, many workers brought their children to work in the fields.

News reports indicated there were poor working conditions in some maquiladoras. These included low wages, contentious labor management, long work hours, unjustified dismissals, a lack of social security benefits, unsafe workplaces, and no freedom of association. Many women working in the industry reported suffering some form of abuse. Most maquiladoras hired employees through outsourcing with few social benefits.

INDEX, the association of more than 250 factories in Ciudad Juarez, signed an agreement in March to prevent and eradicate violence against women with the Chihuahua Institute of Women and the National Commission.

Country Reports on Human Rights Practices for 2018 United States Department of State • Bureau of Democracy, Human Rights, and Labor

TAB 3

MEXICO 2017 HUMAN RIGHTS REPORT

EXECUTIVE SUMMARY

Mexico, which has 32 states, is a multiparty federal republic with an elected president and bicameral legislature. In 2012 President Enrique Pena Nieto of the Institutional Revolutionary Party won election to a single six-year term in elections observers considered free and fair. Citizens elected members of the Senate in 2012 and members of the Chamber of Deputies in 2015. Observers considered the June 2016 gubernatorial elections free and fair.

Civilian authorities generally maintained effective control over the security forces.

The most significant human rights issues included involvement by police, military, and other state officials, sometimes in coordination with criminal organizations, in unlawful killings, disappearances, and torture; harsh and life-threatening prison conditions in some prisons; arbitrary arrests and detentions; intimidation and corruption of judges; violence against journalists by government and organized criminal groups; violence against migrants by government officers and organized criminal groups; corruption; lethal violence and sexual assault against institutionalized persons with disabilities; lethal violence against members of the indigenous population and against lesbian, gay, bisexual, transgender, and intersex persons; and lethal violence against priests by criminal organizations.

Impunity for human rights abuses remained a problem, with extremely low rates of prosecution for all forms of crimes.

Section 1. Respect for the Integrity of the Person, Including Freedom from: a. Arbitrary Deprivation of Life and Other Unlawful or Politically Motivated Killings

There were reports the government or its agents committed arbitrary or unlawful killings, often with impunity. Organized criminal groups also were implicated in numerous killings, acting with impunity and at times in league with corrupt federal, state, local, and security officials. The National Human Rights Commission (CNDH) reported 24 complaints of “deprivation of life” between January and December 15.

MEXICO 2

In May the Ministry of National Defense (SEDENA) arrested and immediately transferred to civilian authorities a military police officer accused of the May 3 unlawful killing of a man during a confrontation in Puebla between soldiers and a gang of fuel thieves. No trial date had been set at year’s end.

The civilian trial that started in 2016 continued for the commander of the 97th Army Infantry Battalion and three other military officers who were charged in 2016 for the illegal detention and extrajudicial killing in 2015 of seven suspected members of an organized criminal group in Calera, Zacatecas.

A federal investigation continued at year’s end in the 2015 Tanhuato, Michoacan, shooting in which federal police were accused of executing 22 persons after a gunfight and of tampering with evidence. An August 2016 CNDH recommendation stated excessive use of force resulted in the execution of at least 22 individuals. The CNDH also reported that two persons had been tortured, police gave false reports regarding the event, and the crime scene had been altered. Security Commissioner Renato Sales claimed the use of force by police at Tanhuato was justified and proportional to the threat they faced and denied the killings were arbitrary executions. The CNDH called for an investigation by the Attorney General’s Office, expanded human rights training for police, and monetary compensation for the families of the 22 victims. No federal police agents were charged.

Authorities made no additional arrests in connection with the 2015 killing of 10 individuals and illegal detentions and injury to a number of citizens in Apatzingan, Michoacan.

On August 1, a judge ordered federal authorities to investigate whether army commanders played a role in the 2014 killings of 22 suspected criminals in Tlatlaya, Mexico State. In his ruling the judge noted that the federal Attorney General’s Office had failed to investigate a purported military order issued before the incident in which soldiers were urged to “take down criminals under cover of darkness.” In January a civilian court convicted four Mexico State attorney general’s office investigators on charges of torture, also pertaining to the Tlatlaya case. In 2016 a civilian federal court acquitted seven military members of murder charges, citing insufficient evidence. In 2015 the Sixth Military Court convicted one soldier and acquitted six others on charges of military disobedience pertaining to the same incident. Nongovernmental organizations (NGOs) expressed concerns regarding the lack of convictions in the case and the perceived failure to investigate the chain of command.

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On October 17, the Federal Police developed a use of force protocol. The protocol instructs federal police to use force in a “rational, proportional manner, with full respect for human rights.”

Criminal organizations carried out human rights abuses and widespread killings throughout the country, sometimes in coordination with state agents.

As of November 20, according to media reports, families of disappeared persons and authorities had discovered more than 1,588 clandestine mass graves in 23 states. For example, in March, 252 human skulls were found in a mass grave in Colinas de Santa Fe, Veracruz. From January 2006 through September 2016, the CNDH reported that more than 850 mass graves were identified throughout the country. Civil society groups noted that there were few forensic anthropology efforts underway to identify remains. b. Disappearance

There were reports of forced disappearances--the secret abduction or imprisonment of a person--by security forces and of many forced disappearances related to organized criminal groups, sometimes with allegations of state collusion. In its data collection, the government often merged statistics on forcibly disappeared persons with missing persons not suspected of being victims of forced disappearance, making it difficult to compile accurate statistics on the extent of the problem.

Federal law prohibits forced disappearances, but laws relating to forced disappearances vary widely across the 32 states, and not all classify “forced disappearance” as distinct from kidnapping.

Investigation, prosecution, and sentencing for the crime of forced disappearance were rare. The CNDH registered 19 cases of alleged forced disappearances through December 15.

There were credible reports of police involvement in kidnappings for ransom, and federal officials or members of the national defense forces were sometimes accused of perpetrating this crime. The government’s statistics agency (INEGI) estimated that 94 percent of crimes were either unreported or not investigated and that underreporting of kidnapping may have been even higher.

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In January, five sailors were charged by civilian prosecutors for illegal detention of a man in Mexico State. No trial date had been set at year’s end. In July the Ministry of the Navy (SEMAR) arrested and transferred to civilian authorities seven sailors for their alleged involvement in a series of kidnappings.

On November 16, the president signed into law the General Law on Forced Disappearances after three years of congressional debate. The law establishes criminal penalties for persons convicted, stipulating 40 to 90 years’ imprisonment for those found guilty of the crime of forced disappearance, and provides for the creation of a National System for the Search of Missing Persons, a National Forensic Data Bank, an Amber Alert System, and a National Search Commission.

The CNDH registered 19 cases of alleged forced disappearances through December 15. In an April report on disappearances, the CNDH reported 32,236 registered cases of disappeared persons through September 2016. According to the CNDH, 83 percent of cases were concentrated in the following states: Tamaulipas, Mexico State, Sinaloa, Nuevo Leon, Chihuahua, Coahuila, Sonora, Guerrero, Puebla, and Michoacan.

As of April 30, according to the National Registry of Missing Persons, 31,053 individuals were recorded as missing or disappeared. Tamaulipas was the state with the most missing or disappeared persons at 5,657, followed by Mexico State at 3,754 and Jalisco with 2,754. Men represented 74 percent of those disappeared, according to the database.

As of August the deputy attorney general for human rights was investigating 943 cases of disappeared persons. The federal Specialized Prosecutor’s Office for the Search of Missing Persons had opened cases for 747 victims; the Unit for the Investigation of Crimes against Migrants had opened cases for 143 victims; the Iguala Case Investigation Office had opened cases for 43 victims; and the special prosecutor for violence against women and trafficking in persons had opened cases for 10 victims.

At the state level, in March, Jalisco state authorities announced the creation of the specialized attorney general’s office for disappeared persons. As of May 31, the Jalisco Amber Alert system for missing minors had been used 964 times (since its inception in 2013). As of May 31, a separate Jalisco Alba Alert system to report the disappearance of a woman or girl had been employed more than 1,200 times since its inception in April 2016.

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In June the state government of Chihuahua announced the creation of a specialized attorney general’s office for grave human rights violations, including enforced disappearances. According to a local NGO, the Center for Women’s Human Rights (CEDEHM), Chihuahua was one of the states with the highest numbers of enforced disappearances, with more than 1,870 victims as of May 2016. During the year the state also signed a memorandum of understanding with a group of independent forensics experts from Argentina to analyze human remains found in the municipalities of Cuauhtemoc, Carichi, and Cusihuiriachi and to gather DNA.

The Coahuila governor’s office and state attorney general’s office formed a joint working group early in the year to improve the state’s unit for disappearances, collaborating with the local NGO Fray Juan de Larios to build the first registry of disappeared persons in Coahuila. The governor met monthly with families of the disappeared. Coahuila state prosecutors continued to investigate forced disappearances between 2009 and 2012 by the Zetas transnational criminal organization. These disappearances, carried out in collusion with some state officials and municipal police, occurred in the border towns of Piedras Negras, Allende, and Nava. State prosecutors executed 18 arrest warrants in the Allende massacre, including 10 for former police officials. Separately, they issued 19 arrest warrants for officials from the Piedras Negras state prison accused of allowing a transnational criminal organization to use the prison as a base to kill and incinerate victims.

Local human rights NGOs criticized the state’s response, saying most of those arrested were set free by courts after the state erred by filing kidnapping charges against the accused rather than charges of forced disappearance. A coalition of Coahuila-based human rights NGOs, many of them backed by the Roman Catholic diocese of Saltillo, filed a communique with the International Criminal Court in the Hague stating that state-level government collusion with transnational criminal organizations had resulted in massive loss of civilian life between 2009 and 2012, during the administration of then governor Humberto Moreira. They further stated that between 2012 and 2016, during the administration of then governor Ruben Moreira (brother of Humberto), state security authorities committed crimes against humanity in their fight against the Zetas, including unjust detention and torture. In July the state government disputed these findings and produced evidence of its investigations into these matters.

In a study of forced disappearances in Nuevo Leon released in June, researchers from the Latin American Faculty of Social Science’s Observatory on Disappearance and Impunity, the University of Minnesota, and Oxford University

Country Reports on Human Rights Practices for 2017 United States Department of State Bureau of Democracy, Human Rights, and Labor MEXICO 6 found that the 548 documented forced disappearances in the state between 2005 and 2015 were almost equally divided between those ordered by state agents (47 percent) and those ordered by criminal organizations (46 percent). Of the state agents alleged to be behind these disappearances, 35 were federal or military officials, 30 were state-level officials, and 65 were municipal officials. The study relied primarily on interviews with incarcerated gang members and family members of disappeared persons.

In May the Veracruz state government established an online database of disappearances, documenting 2,500 victims, and began a campaign to gather samples for a DNA database to assist in identification.

In 2016 the Inter-American Commission on Human Rights (IACHR) launched the follow-up mechanism agreed to by the government, the IACHR, and the families of the 43 students who disappeared in Iguala, Guerrero, in 2014. The government provided funding for the mechanism to continue the work of the group of independent experts (GIEI) that supported the investigation of the disappearances and assisted the families of the victims during their 2015-16 term. At the end of the GIEI mandate in April 2016, the experts released a final report critical of the government’s handling of the case. The federal government reported it had complied with 923 of the experts’ 973 recommendations. In December the government extended the GIEI mandate for an additional year.

According to information provided by the Attorney General’s Office in August, authorities had indicted 168 individuals and arrested 128, including 73 police officers from the towns of Cocula and Iguala, and 55 alleged members of the Guerrero-based drug trafficking organization Guerreros Unidos connected to the Iguala case. Authorities held many of those arrested on charges related to organized crime rather than on charges related to the disappearance of the students, according to the GIEI. In 2016 authorities arrested the former police chief of Iguala, Felipe Flores, who had been in hiding since the 2014 disappearances. A 2016 CNDH report implicated federal and local police officers from nearby Huitzuco in the killings. Representatives from the Attorney General’s Office, Foreign Ministry, and Interior Ministry met regularly with the families of the victims to update them on progress being made in the case. Both federal and state authorities reported they continued to investigate the case, including the whereabouts of the missing students or their remains.

In April the Follow-Up Mechanism expressed its “concern about the slow pace in the search activities and in the effective clarification of the various lines of

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As of November 30, the CNDH registered 85 complaints of torture. NGOs stated that in some cases the CNDH misclassified torture as inhuman or degrading treatment.

Fewer than 1 percent of federal torture investigations resulted in prosecution and conviction, according to government data. The Attorney General’s Office conducted 13,850 torture investigations between 2006 and 2016, and authorities reported 31 federal convictions for torture during that period. Congress approved and the president signed the General Law to Prevent, Investigate, and Punish Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment that entered into force on June 26. Human rights groups and the OHCHR commended the law, which establishes an “absolute prohibition” on the use of torture “in any circumstance,” assigns command responsibility, sets a sentence of up to 20 years’ imprisonment for convicted government officials and of up to 12 years’ imprisonment for convicted nonofficials, stipulates measures to prevent obstruction of internal investigations, and envisions a national mechanism to prevent torture and a national registry maintained by the Office of the Attorney General.

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The law also eliminates the requirement that formal criminal charges be filed before a complaint of torture may be entered in the national registry, adds higher penalties for conviction of torturing “vulnerable” classes of victims (women and persons with disabilities), permits federal investigation of state cases of torture when an international body has ruled on the case or if the victim so requests, and eliminates requirements that previously prevented judges from ordering investigations into torture.

In 2015 the Attorney General’s Office created the Detainee Consultation System website to allow the public to track the status of detainees in the federal penitentiary system, including their physical location, in real time. The office collaborated with all 32 states on implementation of the system at the state and federal level, and the site was visited on average 476 times a day. The states that were farthest along in implementing the system were Campeche, Mexico City, Coahuila, Mexico State, Jalisco, Nuevo Leon, Michoacan, Puebla, Queretaro, and Tlaxcala.

On March 30, the Quintana Roo attorney general’s office apologized to Hector Casique, who was tortured and wrongly convicted of multiple counts of homicide in 2013 during a previous state administration. In September 2016 Casique was released from prison. On June 9, he was killed by unknown assailants.

On August 22, a state judge acquitted and ordered the release of Maria del Sol Vazquez Reyes after nearly five years of imprisonment for conviction of crimes that the court found she was forced to confess under torture by the former investigation agency of the Veracruz state police. The officers who tortured her had not been charged by year’s end.

In May in Chihuahua, prosecutor Miguel Angel Luna Lopez was suspended after a video from 2012 became public that showed him interrogating two suspects with bandaged faces. Luna was reinstated as a police agent while the investigation continued. Also in Chihuahua, in January a former municipal police officer, Erick Hernandez Mendoza, was formally charged with torturing a housekeeper who was suspected of stealing from her employer. Two other police officers who allegedly took part in her torture were not charged.

Prison and Detention Center Conditions

Conditions in prisons and detention centers could be harsh and life threatening due to corruption; overcrowding; abuse; inmate violence; alcohol and drug addiction;

Country Reports on Human Rights Practices for 2017 United States Department of State Bureau of Democracy, Human Rights, and Labor MEXICO 9 inadequate health care, sanitation, and food; comingling of pretrial and convicted persons; and lack of security and control.

Physical Conditions: According to a CNDH report, state detention centers suffered from “uncontrolled self-government in aspects such as security and access to basic services, violence among inmates, lack of medical attention, a lack of opportunities for social reintegration, a lack of differentiated attention for groups of special concern, abuse by prison staff, and a lack of effective grievance mechanisms.” Some of the most overcrowded prisons were plagued by riots, revenge killings, and jailbreaks. Criminal gangs often held de facto control inside prisons.

Health and sanitary conditions were often poor, and most prisons did not offer psychiatric care. Some prisons were staffed with poorly trained, underpaid, and corrupt correctional officers, and authorities occasionally placed prisoners in solitary confinement indefinitely. Authorities held pretrial detainees together with convicted criminals. The CNDH noted the lack of access to adequate health care was a significant problem. Food quality and quantity, heating, ventilation, and lighting varied by facility, with internationally accredited prisons generally having the highest standards.

A CNDH report in June noted many of the prisons, particularly state-run correctional facilities, were unsafe, overcrowded, and understaffed. It surveyed conditions at more than 190 state, local, and federal facilities and found inmates often controlled some areas of prisons or had contraband inside. The report cited insufficient staff, unsafe procedures, and poor medical care at many facilities. Inmates staged mass escapes, battled each other, and engaged in shootouts using guns that police and guards smuggled into prison. A report released in March by the National Security Commission stated that 150 federal and state prisons were overcrowded and exceeded capacity by 17,575 prisoners.

On July 31, INEGI released its first National Survey on Population Deprived of Freedom 2016, based on a survey of 211,000 inmates in the country’s 338 state and federal penitentiaries. The survey revealed that 87 percent of prison inmates reported bribing guards for items such as food, making telephone calls, or obtaining a blanket or mattress. Another survey of 64,000 prisoners revealed that 36 percent reported paying bribes to other inmates, who often controlled parts of penitentiaries. Fifty percent of prisoners said they paid bribes to be allowed to have appliances in their cells, and 26 percent said they paid bribes to be allowed to have electronic communications devices, including cell phones, which were banned in many prisons.

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The CNDH reported conditions for female prisoners were inferior to those for men, due to a lack of appropriate living facilities and specialized medical care. The CNDH found several reports of sexual abuse of inmates in the State of Mexico’s Nezahualcoyotl Bordo de Xochiaca Detention Center. Cases of sexual exploitation of inmates were also reported in Mexico City and the states of Chihuahua, Coahuila, Guerrero, Nayarit, Nuevo Leon, Oaxaca, Puebla, Quintana Roo, Sinaloa, Sonora, Tamaulipas, and Veracruz.

The CNDH reported 86 homicides and 26 suicides in state and district prisons in 2016. Fourteen states did not report information regarding homicides and suicides to the CNDH. The CNDH noted in its 2016 report on prisons that in general prisons were not prepared to prevent or address violent situations such as suicides, homicides, fights, injuries, riots, and jailbreaks.

The state government in Tamaulipas struggled to regain control of its prisons after decades of ceding authority to prison gangs, according to media and NGO reports. Criminal organizations constantly battled for control of prisons, and numerous riots claimed more than a dozen prisoners’ lives, including three foreign prisoners in the past year (two in Nuevo Laredo, one in Ciudad Victoria). On April 18, an inspection at the prison in Ciudad Victoria uncovered four handguns, two AK-47s, one hand grenade, and 108 knives. On June 6, a riot at the same facility claimed the lives of three state police officers and four inmates. On July 31, the official in charge of the prisons in Tamaulipas, Felipe Javier Tellez Ramirez, was killed in Ciudad Victoria reportedly in retaliation for challenging the criminal gangs in the state’s prison system.

Prisoner outbreaks or escape attempts also plagued Tamaulipas’ prisons. On March 22, 29 prisoners escaped through a tunnel from a prison in Ciudad Victoria, Tamaulipas. On June 19, eight inmates escaped from the youth detention center in Guemez. On August 10, nine inmates were killed and 11 injured in an inmate fight at a prison in Reynosa where a tunnel had previously been discovered. Guards fired live ammunition to control the situation, which occurred during family visiting hours.

In June, 28 inmates were killed by their rivals at a prison in Acapulco. Three prison guards were arrested for having allowed the attackers to exit their cells to kill their rivals.

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On October 9, a riot at Nuevo Leon’s Cadereyta state prison was initially contained but flared up again the next day as inmates set fires. Press reports indicated one prisoner died in the fires. After three prison guards were taken hostage, state police were sent into the prison to control the situation. Official sources reported that at least 16 inmates died during the riot, some because of police action to reclaim control of the prison. This was the fifth lethal riot at a Nuevo Leon prison since 2016.

Civil society groups reported abuses of migrants in some migrant detention centers. Human rights groups reported many times asylum seekers from the Northern Triangle of Central America held in detention and migrant transitory centers were subject to abuse when comingled with other migrants such as MS-13 gang members from the region. In addition migration officials reportedly discouraged persons potentially needing international assistance from applying for asylum, claiming their applications were unlikely to be approved. These conditions resulted in many potential asylum seekers and persons in need of international protection abandoning their claims (see also section 2.d.).

Administration: While prisoners and detainees could file complaints regarding human rights violations, access to justice was inconsistent, and authorities generally did not release the results of investigations to the public.

Independent Monitoring: The government permitted independent monitoring of prison conditions by the International Committee of the Red Cross, the CNDH, and state human rights commissions. Independent monitors were generally limited to making recommendations to authorities to improve conditions of confinement.

Improvements: State facilities continued to seek international accreditation from the American Correctional Association, which requires demonstrated compliance with a variety of international standards. As of August 20, an additional 12 correctional facilities achieved accreditation, raising the total number of state and federal accredited facilities to 70. d. Arbitrary Arrest or Detention

The law prohibits arbitrary arrest and detention and provides for the right of any person to challenge the lawfulness of his/her arrest or detention in court, but the government sometimes failed to observe these requirements.

Role of the Police and Security Apparatus

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The federal police, as well as state and municipal police, have primary responsibility for law enforcement and the maintenance of order. The federal police are under the authority of the interior secretary and the National Security Commission, state police are under the authority of the state governors, and municipal police are under the authority of local mayors. SEDENA and SEMAR also play a role in domestic security, particularly in combatting organized criminal groups. Article 89 of the constitution grants the president the authority to use the armed forces for the protection of internal and national security, and the courts have upheld the legality of the armed forces’ role in undertaking these activities in support of civilian authorities. The National Migration Institute (INM), under the authority of the Interior Ministry, is responsible for enforcing migration laws and protecting migrants.

On December 21, the president signed the Law on Internal Security, which provides a more explicit legal framework for the role the military had been playing for many years in public security. The law authorizes the president to deploy the military to the states at the request of civilian authorities to assist in policing. The law subordinates civilian law enforcement operations to military authority in some instances and allows the president to extend deployments indefinitely in cases of “grave danger.” Upon signing the law, President Pena Nieto publicly affirmed he would not seek to implement it until the Supreme Court had the opportunity the review any constitutional challenges to the new law. At years end, no challenges had been submitted to the Supreme Court. The law passed despite the objections of the CNDH, the Catholic archdiocese, some civil society organizations, the IACHR, and various UN bodies and officials, including the UN High Commissioner for Human Rights, who argued that it could further militarize citizen security and exacerbate human rights abuses. The government argued the law would in fact serve to limit the military’s role in law enforcement by establishing command structures and criteria for deployments. Military officials had long sought to strengthen the legal framework for the domestic operations they have been ordered by civilian authorities to undertake. Proponents of the law also argued that since many civilian police organizations were unable to cope with public security challenges unaided, the law merely clarified and strengthened the legal framework for what was a practical necessity. Many commentators on both sides of the argument regarding the law contended that the country still had not built civilian law enforcement institutions capable of ensuring citizen security.

The law requires military institutions to transfer all cases involving civilian victims, including human rights cases, to civilian prosecutors to pursue in civilian

Country Reports on Human Rights Practices for 2017 United States Department of State Bureau of Democracy, Human Rights, and Labor MEXICO 13 courts. There are exceptions, as when both the victim and perpetrator are members of the military, in which case the matter is dealt with by the military justice system. SEDENA, SEMAR, the federal police, and the Attorney General’s Office have security protocols for the transfer of detainees, chain of custody, and use of force. The protocols, designed to reduce the time arrestees remain in military custody, outline specific procedures for handling detainees.

As of August the Attorney General’s Office was investigating 138 cases involving SEDENA or SEMAR officials suspected of abuse of authority, torture, homicide, and arbitrary detention. Military tribunals have no jurisdiction over cases with civilian victims, which are the exclusive jurisdiction of civilian courts.

Although civilian authorities maintained effective control over security forces and police, impunity, especially for human rights abuses, remained a serious problem. The frequency of prosecution for human rights abuse was extremely low.

Military officials withheld evidence from civilian authorities in some cases. Parallel investigations by military and civilian officials of human rights violations complicated prosecutions due to loopholes in a 2014 law that granted civilian authorities jurisdiction to investigate violations committed by security forces. Of 505 criminal proceedings conducted between 2012 and 2016, the Attorney General’s Office won only 16 convictions, according to a November report by the Washington Office on Latin America citing official figures, which also indicated that human rights violations had increased in tandem with the militarization of internal security. The Ministry of Foreign Relations acknowledged the report, stated that the problems stemmed from the conflict with drug-trafficking organizations, as well as the proliferation of illegal weapons, and emphasized that the military’s role in internal security was only a temporary measure.

On November 16, women of the Atenco case testified before the Inter-American Court of Human Rights and called for the court to conduct an investigation into the case. The 2006 San Salvador Atenco confrontation between local vendors and state and federal police agents in Mexico State resulted in two individuals being killed and more than 47 women taken into custody, with many allegedly sexually tortured by police officials. In 2009 an appeals court reversed the sole conviction of a defendant in the case.

Country Reports on Human Rights Practices for 2017 United States Department of State Bureau of Democracy, Human Rights, and Labor MEXICO 14 directorate, however, has no power to prosecute allegations of rights violations or to take independent judicial action.

Arrest Procedures and Treatment of Detainees

The constitution allows any person to arrest another if the crime is committed in his or her presence. A warrant for arrest is not required if an official has direct evidence regarding a person’s involvement in a crime, such as having witnessed the commission of a crime. This arrest authority, however, is only applicable in cases involving serious crimes in which there is risk of flight. Bail is available for most crimes, except for those involving organized crime and a limited number of other offenses. In most cases the law provides for detainees to appear before a judge for a custody hearing within 48 hours of arrest during which authorities must produce sufficient evidence to justify continued detention, but this requirement was not followed in all cases, particularly in remote areas of the country. In cases involving organized crime, the law allows authorities to hold suspects for up to 96 hours before they must seek judicial review.

The procedure known in Spanish as “arraigo” (a constitutionally permitted form of detention, employed during the investigative phase of a criminal case before probable cause is fully established) allows, with a judge’s approval, for certain suspects to be detained for up to 80 days prior to the filing of formal charges. Under the new accusatory system, arraigo has largely been abandoned.

Some detainees complained of a lack of access to family members and to counsel after police held persons incommunicado for several days and made arrests arbitrarily without a warrant. Police occasionally failed to provide impoverished detainees access to counsel during arrest and investigation as provided for by law, although the right to public defense during trial was generally respected. Authorities held some detainees under house arrest.

Arbitrary Arrest: Allegations of arbitrary detentions persisted throughout the year. The IACHR, the UN Working Group on Arbitrary Detention, and NGOs expressed concerns regarding arbitrary detention and the potential for arbitrary detention to lead to other human rights abuses.

A July report by Amnesty International reported widespread use of arbitrary detention by security forces.

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Pretrial Detention: Lengthy pretrial detention was a problem, although NGOs such as the Institute for Economics and Peace credited the transition to the accusatory justice system (completed in 2016) with reducing its prevalence. A 2015 IACHR report showed that 42 percent of individuals detained were in pretrial detention. The law provides time limits on pretrial detention, but authorities sometimes failed to comply with them, since caseloads far exceeded the capacity of the federal judicial system. Violations of time limits on pretrial detention were also endemic in state judicial systems.

Detainee’s Ability to Challenge Lawfulness of Detention before a Court: Persons who are arrested or detained, whether on criminal or other grounds, may challenge their detention through a writ of habeas corpus. The defense may argue, among other things, that the accused did not receive proper due process, suffered a human rights abuse, or had his or her basic constitutional rights violated. By law individuals should be promptly released and compensated if their detention is found to be unlawful, but authorities did not always promptly release those unlawfully detained. In addition, under the criminal justice system, defendants apprehended during the commission of the crime may challenge the lawfulness of their detention during their court hearing. e. Denial of Fair Public Trial

Trial Procedures

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Under the accusatory system, all hearings and trials are conducted by a judge and follow the principles of public access and cross-examination. Defendants have the right to a presumption of innocence and to a fair and public trial without undue delay. Defendants have the right to attend the hearings and to challenge the evidence or testimony presented. Defendants may not be compelled to testify or confess guilt. The law also provides for the rights of appeal and of bail in many categories of crimes. The law provides defendants with the right to an attorney of their choice at all stages of criminal proceedings. By law attorneys are required to meet professional qualifications to represent a defendant. Not all public defenders were qualified, however, and often the state public defender system was understaffed and underfunded. Administration of public defender services was the responsibility of either the judicial or executive branch, depending on the jurisdiction. According to the Center for Economic Research and Economic Teaching, most criminal suspects did not receive representation until after their first custody hearing, thus making individuals vulnerable to coercion to sign false statements prior to appearing before a judge.

The lack of federal rules of evidence caused confusion and led to disparate judicial rulings.

Political Prisoners and Detainees

There were no reports of political prisoners or detainees.

Civil Judicial Procedures and Remedies

Citizens have access to an independent judiciary in civil matters to seek civil remedies for human rights violations. For a plaintiff to secure damages against a defendant, authorities first must find the defendant guilty in a criminal case, a significant barrier in view of the relatively low number of convictions for civil rights offenses. f. Arbitrary or Unlawful Interference with Privacy, Family, Home, or Correspondence

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The law prohibits such practices and requires search warrants. There were some complaints of illegal searches or illegal destruction of private property.

Section 2. Respect for Civil Liberties, Including: a. Freedom of Expression, Including for the Press

The law provides for freedom of expression, including for the press, and the government generally respected this right. Most newspapers, television, and radio stations had private ownership. The government had minimal presence in the ownership of news media but remained the main source of advertising revenue, which at times influenced coverage. Media monopolies, especially in small markets, could constrain freedom of expression.

Violence and Harassment: Journalists were subject to physical attacks, harassment, and intimidation (especially by state agents and transnational criminal organizations) due to their reporting. This created a chilling effect that limited media’s ability to investigate and report, since many of the reporters who were killed covered crime, corruption, and local politics. During the year more journalists were killed because of their reporting than in any previous year. The OHCHR recorded 15 killings of reporters, and Reporters Without Borders identified evidence that the killing of at least 11 reporters was directly tied to their work.

Perpetrators of violence against journalists acted with impunity, which fueled further attacks. According to Article 19, a press freedom NGO, the impunity rate for crimes against journalists was 99.7 percent. The 276 attacks against journalists in the first six months of the year represented a 23 percent increase from the same period in 2016. Since its creation in 2010, the Office of the Special Prosecutor for Crimes Against Journalists (FEADLE), a unit of the Attorney General’s Office, won only two convictions in more than 800 cases it pursued. During the year there was only one conviction for the murder of a journalist at the local level. In February a court in Oaxaca convicted and sentenced a former police officer to 30 years’ imprisonment for the 2016 murder of journalist Marcos Hernandez Bautista. The OHCHR office in Mexico publicly condemned the failure to prosecute crimes against journalists.

Government officials believed organized crime to be behind most of these attacks, but NGOs asserted there were instances when local government authorities

Country Reports on Human Rights Practices for 2017 United States Department of State Bureau of Democracy, Human Rights, and Labor MEXICO 18 participated in or condoned the acts. An April report by Article 19 noted 53 percent of cases of aggression against journalists in 2016 originated with public officials. Although 75 percent of those came from state or local officials, federal officials and members of the armed forces were also suspected of being behind attacks.

In April the government of Quintana Roo offered a public apology to journalist Pedro Canche, who was falsely accused by state authorities of sabotage and detained for nine months in prison.

According to Article 19, 11 journalists were killed between January 1 and October 15. For example, on March 23, Miroslava Breach, correspondent for the daily newspapers La Jornada and El Norte de Chihuahua, was shot eight times and killed as she was preparing to take her son to school in Chihuahua City. Many of her publications focused on political corruption, human rights abuses, attacks against indigenous communities, and organized crime. According to the Committee to Protect Journalists (CPJ), she was the only national correspondent to cover the troubled Sierra Tarahumara indigenous region. On December 25, federal police made an arrest in the case of an individual linked to a branch of the Sinaloa cartel who they stated was the mastermind of the crime. Breach’s family told La Jornada newspaper they did not believe the suspect in custody was behind the killing, which they attributed to local politicians who had previously threatened the reporter.

On May 15, Javier Valdez, founder of Riodoce newspaper in Sinaloa, winner of a 2011 CPJ prize for heroic journalism and outspoken defender of press freedom, was shot and killed near his office in Culiacan, Sinaloa.

During the first six months of the year, the National Mechanism to Protect Human Rights Defenders and Journalists received 214 requests for protection, an increase of 143 percent from 2016. Since its creation in 2012 through July, the mechanism accepted 589 requests for protection. On August 22, a journalist under the protection of the mechanism, Candido Rios, was shot and killed in the state of Veracruz. Following the wave of killings in early May, the president replaced the special prosecutor for crimes against freedom of expression at the Attorney General’s Office and held a televised meeting with state governors and attorneys general to call for action in cases of violence against journalists. NGOs welcomed the move but expressed concern regarding shortcomings, including the lack of an official protocol to handle journalist killings despite the appointment of the special prosecutor. NGOs maintained that the special prosecutor had not used his office’s

Country Reports on Human Rights Practices for 2017 United States Department of State Bureau of Democracy, Human Rights, and Labor MEXICO 19 authorities to take charge of cases in which state prosecutors had not produced results.

Censorship or Content Restrictions: Human rights groups reported state and local governments in some parts of the country worked to censor the media and threaten journalists. In June the New York Times newspaper reported 10 Mexican journalists and human rights defenders were targets of an attempt to infiltrate their smartphones through an Israeli spyware program called Pegasus that was sold only to governments, citing a forensic investigation by Citizen Lab at the University of Toronto. Officials at the Attorney General’s Office acknowledged purchasing Pegasus but claimed to have used it only to monitor criminals.

Journalists reported altering their coverage in response to a lack of protection from the government, attacks against members of the media and newsrooms, false charges of “publishing undesirable news,” and threats or retributions against their families, among other reasons. There were reports of journalists practicing self- censorship because of threats from criminal groups and of government officials seeking to influence or pressure the press, especially in the states of Tamaulipas and Sinaloa.

Libel/Slander Laws: There are no federal laws against defamation, libel, or slander, but local laws remain in eight states. Five states have laws that restrict the use of political caricatures or “memes.” These laws were seldom applied.

Nongovernmental Impact: Organized criminal groups exercised a grave and increasing influence over media outlets and reporters, threatening individuals who published critical views of crime groups. Concerns persisted regarding the use of physical violence by organized criminal groups in retaliation for information posted online, which exposed journalists, bloggers, and social media users to the same level of violence faced by traditional journalists.

Internet Freedom

The government did not restrict or disrupt access to the internet or block or filter online content. Freedom House’s 2016 Freedom on the Net report categorized the country’s internet as partly free, noting an increase in government requests to social media companies to remove content.

Some civil society organizations alleged that various state and federal agencies sought to monitor private online communications. NGOs alleged that provisions in

Country Reports on Human Rights Practices for 2017 United States Department of State Bureau of Democracy, Human Rights, and Labor MEXICO 20 secondary laws threatened the privacy of internet users by forcing telecommunication companies to retain data for two years, providing real-time geolocation data to police, and allowing authorities to obtain metadata from private communications companies without a court order. Furthermore, the law does not fully define the “appropriate authority” to carry out such actions. Despite civil society pressure to nullify the government’s data retention requirements and real- time geolocation provisions passed in 2014, the Supreme Court upheld those mechanisms. The court, however, noted the need for authorities to obtain a judicial warrant to access users’ metadata.

In June the government stated it was opening a criminal investigation to determine whether prominent journalists, human rights defenders, and anticorruption activists were subjected to illegal surveillance via sophisticated surveillance malware.

INEGI estimated 59 percent of citizens over age five had access to the internet.

Academic Freedom and Cultural Events

There were no government restrictions on academic freedom or cultural events. b. Freedoms of Peaceful Assembly and Association

See the Department of State’s International Religious Freedom Report at www.state.gov/religiousfreedomreport/. d. Freedom of Movement

The law provides for freedom of internal movement, foreign travel, emigration, and repatriation, and the government generally respected these rights.

The government cooperated with the Office of the UN High Commissioner for Refugees (UNHCR) and other humanitarian organizations in providing protection

Country Reports on Human Rights Practices for 2017 United States Department of State Bureau of Democracy, Human Rights, and Labor MEXICO 21 and assistance to refugees, returning refugees, asylum seekers, stateless persons, or other persons of concern.

The government and press reports noted a marked increase in refugee and asylum applications during the previous year. UNHCR projected the National Refugee Commission (COMAR) would receive 20,000 asylum claims by the end of the year, compared with 8,788 in 2016. COMAR projected lower numbers, noting that as of June 30, it had received 6,816 petitions.

At the Iztapalapa detention center near Mexico City, the Twenty-First Century detention center in Chiapas, and other detention facilities, men were kept separate from women and children, and there were special living quarters for lesbian, gay, bisexual, transgender, and intersex (LGBTI) individuals. Migrants had access to medical, psychological, and dental services, and the Iztapalapa center had agreements with local hospitals to care for any urgent cases free of charge. Individuals from countries with consular representation also had access to consular services. COMAR and CNDH representatives visited daily, and other established civil society groups were able to visit the detention facilities on specific days and hours. Victims of trafficking and other crimes were housed in specially designated shelters. Human rights pamphlets were available in many different languages. In addition approximately 35 centers cooperated with UNHCR and allowed it to put up posters and provide other information on how to access asylum for those in need of international protection.

Abuse of Migrants, Refugees, and Stateless Persons: The press and NGOs reported victimization of migrants by criminal groups and in some cases by police and immigration officers and customs officials. Government and civil society sources reported Central American gang presence spread farther into the country and threatened migrants who had fled the same gangs in their home countries. An August report by the independent INM Citizens’ Council found incidents in which immigration agents had been known to threaten and abuse migrants to force them to accept voluntary deportation and discourage them from seeking asylum. The council team visited 17 detention centers across the country and reported threats, violence, and excessive force against undocumented migrants. The INM responded to these allegations by asserting it treated all migrants with “absolute respect.”

There were media reports that criminal groups kidnapped undocumented migrants to extort money from migrants’ relatives or force them into committing criminal acts on their behalf.

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In March the federal government began operating the Crimes Investigation Unit for Migrants and the Foreign Support Mechanism of Search and Investigation. The International Organization for Migration collaborated with municipal governments to establish offices along the border with Guatemala to track and assist migrants.

In-country Movement: There were numerous instances of armed groups limiting the movements of migrants, including by kidnappings and homicides.

Internally Displaced Persons (IDPs)

The Internal Displacement Monitoring Center estimated that as of 2016, there were at least 311,000 IDPs who had fled their homes and communities in response to criminal, political, and religiously motivated violence as well as natural disasters. In 2016 the CNDH released a report stating 35,433 IDPs were displaced due to drug trafficking violence, interreligious conflicts, and land disputes. At approximately 20,000, Tamaulipas reportedly had the highest number of IDPs followed by 2,165 in Guerrero and 2,008 in Chihuahua. NGOs estimated hundreds of thousands of citizens, many fleeing areas of armed conflict among organized criminal groups, or between the government and organized criminal groups, became internally displaced. The government, in conjunction with international organizations, made efforts to promote the safe, voluntary return, resettlement, or local integration of IDPs.

Protection of Refugees

Access to Asylum: The law provides for the granting of asylum or refugee status and complementary protection, and the government has an established procedure for determining refugee status and providing protection to refugees. As of August COMAR had received 8,703 petitions, of which 1,007 had been accepted for review, 1,433 were marked as abandoned, 1,084 were not accepted as meeting the criteria, and 385 were accepted for protection. According to NGOs, only one-- third of applicants was approved and the remaining two-thirds classified as economic migrants not meeting the legal requirements for asylum; applicants abandoned some petitions. NGOs reported bribes sometimes influenced the adjudication of asylum petitions and requests for transit visas.

Country Reports on Human Rights Practices for 2017 United States Department of State Bureau of Democracy, Human Rights, and Labor MEXICO 23 and complementary protection status. UNHCR also doubled the capacity of COMAR by funding an additional 36 staff positions.

Section 3. Freedom to Participate in the Political Process

The law provides citizens the ability to choose their government through free and fair periodic elections held by secret ballot and based on universal and equal suffrage.

Elections and Political Participation

Recent Elections: Observers considered the June gubernatorial races in three states; local races in six states; and the 2016 gubernatorial, 2015 legislative, and 2012 presidential elections to be free and fair.

Participation of Women and Minorities: No laws limit participation of women or members of minorities in the political process, and they did participate. The law provides for the right of indigenous persons to elect representatives to local office according to “uses and customs” law rather than federal and state electoral law.

Section 4. Corruption and Lack of Transparency in Government

The law provides criminal penalties for conviction of official corruption, but the government did not enforce the law effectively. There were numerous reports of government corruption during the year. Corruption at the most basic level involved paying bribes for routine services or in lieu of fines to administrative officials or security forces. More sophisticated and less apparent forms of corruption included funneling funds to elected officials and political parties by overpaying for goods and services.

Although by law elected officials enjoy immunity from prosecution while holding public office, state and federal legislatures have the authority to waive an official’s immunity. As of August more than one-half of the 32 states followed this legal procedure to strip immunity, and almost all other states were taking similar steps.

By law all applicants for federal law enforcement jobs (and other sensitive positions) must pass an initial vetting process and be recleared every two years. According to the Interior Ministry and the National Center of Certification and Accreditation, most active police officers at the national, state, and municipal levels underwent at least initial vetting. The press and NGOs reported that some

Country Reports on Human Rights Practices for 2017 United States Department of State Bureau of Democracy, Human Rights, and Labor MEXICO 24 police officers who failed vetting remained on duty. The CNDH reported that some police officers, particularly at the state and local level, were involved in kidnapping, extortion, and providing protection for, or acting directly on behalf of, organized crime and drug traffickers.

On July 19, the National Anticorruption System, signed into law by the president in 2016, entered into force. The law gives autonomy to federal administrative courts to investigate and sanction administrative acts of corruption, establishes harsher penalties for government officials convicted of corruption, provides the Superior Audit Office (ASF) with real-time auditing authority, and establishes an oversight commission with civil society participation. Observers hailed the legislation as a major achievement in the fight against corruption but criticized a provision that allows public servants an option not to declare their assets. A key feature of the system is the creation of an independent anticorruption prosecutor and court. The Senate had yet to appoint the special prosecutor at year’s end.

Corruption: In July the Attorney General’s Office took custody of former governor of Veracruz Javier Duarte, who had gone into hiding in Guatemala and was facing corruption charges. The government was also seeking the extradition from Panama of former governor of Quintana Roo Roberto Borge and issued an arrest warrant for former governor of Chihuahua Cesar Duarte. The ASF filed criminal charges with the Attorney General’s Office against 14 state governments for misappropriating billions of dollars in federal funds. The ASF was also investigating several state governors, including former governors of Sonora (Guillermo Padres) and Nuevo Leon (Rodrigo Medina), both of whom faced criminal charges for corruption. The Attorney General’s Office also opened an investigation against Nayarit Governor Sandoval for illicit enrichment as a result of charges brought against him by a citizens group, which also included some opposing political parties.

The NGO Mexicans Against Corruption and Impunity and media outlet Animal Politico published a report accusing Attorney General Raul Cervantes of involvement in fraud, revealing that he had registered a Ferrari vehicle valued at more than $200,000 to an unoccupied house in an apparent effort to avoid taxes. Cervantes’ attorney attributed improper registration to administrative error. On October 16, Cervantes resigned, stating the reason for his resignation was to preserve the political independence of the new prosecutor’s office that was to replace the current Attorney General’s Office as part of a constitutional reform.

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Financial Disclosure: In 2016 the Congress passed a law requiring all federal and state-level appointed or elected officials to provide income and asset disclosure, statements of any potential conflicts of interests, and tax returns, but the law includes a provision that allows officials an option to withhold the information from the public. The Ministry of Public Administration monitors disclosures with support from each agency. Regulations require disclosures at the beginning and end of employment, as well as annual updates. The law requires declarations be made publicly available unless an official petitions for a waiver to keep his or her file private. Criminal or administrative sanctions apply for abuses. In June the Supreme Court declined a petition by opposition political parties to overturn the provision for a privacy waiver.

Section 5. Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Abuses of Human Rights

Government Human Rights Bodies: The CNDH is a semiautonomous federal agency created by the government and funded by the legislature to monitor and act on human rights violations and abuses. It may call on government authorities to impose administrative sanctions or pursue criminal charges against officials, but it is not authorized to impose penalties or legal sanctions. If the relevant authority accepts a CNDH recommendation, the CNDH is required to follow up with the authority to verify that it is carrying out the recommendation. The CNDH sends a request to the authority asking for evidence of its compliance and includes this follow-up information in its annual report. When authorities fail to accept a recommendation, the CNDH makes that failure known publicly and may exercise its power to call before the Senate government authorities who refuse to accept or enforce its recommendations.

Country Reports on Human Rights Practices for 2017 United States Department of State Bureau of Democracy, Human Rights, and Labor MEXICO 26 from state-level commissions if it receives a complaint that the commission has not adequately investigated.

Section 6. Discrimination, Societal Abuses, and Trafficking in Persons

Women

Rape and Domestic Violence: Federal law criminalizes rape of men or women, including spousal rape, and conviction carries penalties of up to 20 years’ imprisonment. Twenty-four states have laws criminalizing spousal rape.

The federal penal code prohibits domestic violence and stipulates penalties for conviction of between six months’ and four years’ imprisonment. Twenty-nine states stipulate similar penalties, although in practice sentences were often more lenient. Federal law does not criminalize spousal abuse. State and municipal laws addressing domestic violence largely failed to meet the required federal standards and often were unenforced.

According to the law, the crime of femicide is the murder of a woman committed because of the victim’s gender and is a federal offense punishable if convicted by 40 to 60 years in prison. It is also a criminal offense in all states. The Special Prosecutor’s Office for Violence against Women and Trafficking in Persons of the Attorney General’s Office is responsible for leading government programs to combat domestic violence and prosecuting federal human trafficking cases involving three or fewer suspects. The office had 12 federal prosecutors dedicated to federal cases of violence against women.

In addition to shelters, there were women’s justice centers that provided more services than traditional shelters, including legal services and protection; however, the number of cases far surpassed institutional capacity.

Sexual Harassment: Federal labor law prohibits sexual harassment and provides for fines from 250 to 5,000 times the minimum daily wage. Sixteen states criminalize sexual harassment, and all states have provisions for punishment when the perpetrator is in a position of power. According to the National Women’s Institute (INMUJERES), the federal institution charged with directing national policy on equal opportunity for men and women, sexual harassment in the workplace was a significant problem.

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Coercion in Population Control: There were few reports of coerced abortion, involuntary sterilization, or other coercive population control methods; however, forced, coerced, and involuntary sterilizations were reported, targeting mothers with HIV. Estimates on maternal mortality and contraceptive prevalence are available at: www.who.int/reproductivehealth/publications/monitoring/maternal- mortality-2015/en/.

Children

Birth Registration: Children derived citizenship both by birth within the country’s territory and from one’s parents. Citizens generally registered the births of newborns with local authorities. Failure to register births could result in the denial of public services such as education or health care.

Early and Forced Marriage: The legal minimum marriage age is 18. Enforcement, however, was inconsistent across the states, where some civil codes permit girls to marry at 14 and boys at 16 with parental consent. With a judge’s consent, children may marry at younger ages.

Statutory rape constitutes a crime in the federal criminal code. If an adult is convicted of having sexual relations with a minor ages 15 to 18, the penalty is between three months and four years in prison. Conviction of the crime of sexual relations with a minor under age 15 carries a sentence of eight to 30 years’ imprisonment. Laws against corruption of a minor and child pornography apply to

Country Reports on Human Rights Practices for 2017 United States Department of State Bureau of Democracy, Human Rights, and Labor MEXICO 28 victims under age 18. For conviction of the crimes of selling, distributing, or promoting pornography to a minor, the law stipulates a prison term of six months to five years and a fine of 300 to 500 times the daily minimum wage. For conviction of crimes involving minors in acts of sexual exhibitionism or the production, facilitation, reproduction, distribution, sale, and purchase of child pornography, the law mandates seven to 12 years’ imprisonment and a fine of 800 to 2,500 times the daily minimum wage.

Perpetrators convicted of promoting, publicizing, or facilitating sexual tourism involving minors face seven to 12 years’ imprisonment and a fine of 800 to 2,000 times the daily minimum wage. For those convicted of involvement in sexual tourism who commit sexual acts with minors, the law requires a 12- to 16-year prison sentence and a fine of 2,000 to 3,000 times the daily minimum wage. Conviction of sexual exploitation of a minor carries an eight- to 15-year prison sentence and a fine of 1,000 to 2,500 times the daily minimum wage.

Institutionalized Children: Civil society groups expressed concerns regarding abuses of children with mental and physical disabilities in orphanages, migrant centers, and care facilities.

International Child Abductions: The country is party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. See the Department of State’s Annual Report on International Parental Child Abduction at travel.state.gov/content/childabduction/en/legal/compliance.html.

Anti-Semitism

The 67,000-person Jewish community experienced low levels of anti-Semitism. While an Anti-Defamation League report described an increase in anti-Semitic attitudes in the country from 24 percent of the population in 2014 to 35 percent of the population in 2017, Jewish community representatives reported low levels of anti-Semitic acts and good interreligious cooperation both from the government and civil society organizations in addressing rare instances of anti-Semitic acts.

Trafficking in Persons

See the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip/rls/tiprpt/.

Persons with Disabilities

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The law prohibits discrimination against persons with physical, sensory, intellectual, and mental disabilities. The government did not effectively enforce the law. The law requires the Ministry of Health to promote the creation of long- term institutions for persons with disabilities in distress, and the Ministry of Social Development must establish specialized institutions to care for, protect, and house persons with disabilities in poverty, neglect, or marginalization. NGOs reported authorities had not implemented programs for community integration. NGOs reported no changes in the mental health system to create community services nor any efforts by authorities to have independent experts monitor human rights violations in psychiatric institutions.

Public buildings and facilities did not comply with the law requiring access for persons with disabilities. The education system provided special education for students with disabilities nationwide. Children with disabilities attended school at a lower rate than those without disabilities. NGOs reported employment discrimination.

Abuses in mental health institutions and care facilities, including those for children, were a problem. Abuses of persons with disabilities included lack of access to justice, the use of physical and chemical restraints, physical and sexual abuse, trafficking, forced labor, disappearances, and illegal adoption of institutionalized children. Institutionalized persons with disabilities often lacked adequate medical care and rehabilitation, privacy, and clothing and often ate, slept, and bathed in unhygienic conditions. They were vulnerable to abuse from staff members, other patients, or guests at facilities where there was inadequate supervision. Documentation supporting the person’s identity and origin was lacking, and there were instances of disappearances.

As of August 25, the NGO Disability Rights International (DRI) reported that most residents had been moved to other institutions from the privately run institution Casa Esperanza, where they were allegedly victims of pervasive sexual abuse by staff and, in some cases, human trafficking. Two of the victims died within the first six months after transfer to other facilities, and the third was sexually abused. DRI stated the victim was raped repeatedly during a period of seven months at the Fundacion PARLAS I.A.P. and that another woman was physically abused at an institution in another state to which she was transferred.

Voting centers for federal elections were generally accessible for persons with disabilities, and ballots were available with a braille overlay for federal elections.

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In Mexico City, voting centers for local elections were also reportedly accessible, including braille overlays, but these services were inconsistently available for local elections elsewhere in the country.

Indigenous People

The constitution provides all indigenous peoples the right to self-determination, autonomy, and education. Conflicts arose from interpretation of the self-governing “uses and customs” laws used by indigenous communities. Uses and customs laws apply traditional practices to resolve disputes, choose local officials, and collect taxes, with limited federal or state government involvement. Communities and NGOs representing indigenous groups reported the government often failed to consult indigenous communities adequately when making decisions regarding the development of projects intended to exploit the energy, minerals, timber, and other natural resources on indigenous lands. The CNDH maintained a formal human rights program to inform and assist members of indigenous communities.

The CNDH reported indigenous women were among the most vulnerable groups in society. They often experienced racism and discrimination and were often victims of violence. Indigenous persons generally had limited access to health-care and education services.

Thousands of persons from the four indigenous groups in the Sierra Tarahumara (the Raramuri, Pima, Guarojio, and Tepehuan) were displaced, and several indigenous leaders were killed or threatened, according to local journalists, NGOs, and state officials.

For example, on January 15, Isidro Baldenegro Lopez was killed in Chihuahua. Lopez was a community leader of the Raramuri indigenous people and an environmental activist who had won the Goldman Environmental Prize in 2005.

On June 26, Mario Luna, an indigenous leader of the Yaqui tribe in the state of Sonora, was attacked with his family by unknown assailants in an incident believed to be harassment in retaliation for his activism in opposition to an aqueduct threatening the tribe’s access to water. Luna began receiving formal protection from federal and state authorities after he was attacked.

Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity

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The law prohibits discrimination based on sexual orientation and against LGBTI individuals.

In Mexico City the law criminalizes hate crimes based on sexual orientation and gender identity. Civil society groups claimed police routinely subjected LGBTI persons to mistreatment while in custody.

Discrimination based on sexual orientation and gender identity was prevalent, despite a gradual increase in public tolerance of LGBTI individuals, according to public opinion surveys. There were reports that the government did not always investigate and punish those complicit in abuses, especially outside Mexico City.

On April 18, media reported LGBTI activist Juan Jose Roldan Avila was beaten to death on April 16 in Calpulalpan, Tlaxcala. His body showed signs of torture.

Other Societal Violence or Discrimination

The Catholic Multimedia Center reported criminal groups targeted priests and other religious leaders in some parts of the country and subjected them to extortion, death threats, and intimidation. As of August the center reported four priests killed, two foiled kidnappings, and two attacks against the Metropolitan Cathedral and the Mexican Bishops Office in Mexico City.

Section 7. Worker Rights a. Freedom of Association and the Right to Collective Bargaining

The law requires a minimum of 20 workers to form a union. To receive official recognition from the government, unions must file for registration with the appropriate conciliation and arbitration board (CAB) or the Ministry of Labor and Social Welfare. For the union to be able to perform its legally determined functions, its leadership must also register with the appropriate CAB or the ministry. CABs operated under a tripartite system with government, worker, and employer representatives. Outside observers raised concerns that the boards did not adequately provide for inclusive worker representation and often perpetuated a bias against independent unions, in part due to intrinsic conflicts of interest within

Country Reports on Human Rights Practices for 2017 United States Department of State Bureau of Democracy, Human Rights, and Labor MEXICO 32 the structure of the boards exacerbated by the prevalence of representatives from “protection” (unrepresentative, corporatist) unions.

Although the law authorizes the coexistence of several unions in one worksite, it limits collective bargaining to the union that has “ownership” of a collective bargaining agreement. When there is only one union present, it automatically has the exclusive right to bargain with the employer. Once a collective bargaining agreement is in place at a company, another union seeking to bargain with the employer must compete for bargaining rights through a recuento (bargaining-rights election) administered by the CAB. The union with the largest number of votes goes on to “win” the collective bargaining rights. It is not mandatory for a union to consult with workers or have worker support to sign a collective bargaining agreement with an employer. The law establishes that internal union leadership votes may be held via secret ballot, either directly or indirectly.

The government, including the CABs, did not consistently protect worker rights. The government’s common failure to enforce labor and other laws left workers with little recourse regarding violations of freedom of association, poor working conditions, and other labor problems. The CABs’ frequent failure to impartially and transparently administer and oversee procedures related to union activity, such as union elections and strikes, undermined worker efforts to exercise freely their rights to freedom of association and collective bargaining.

On February 24, labor justice revisions to the constitution were enacted into law. The constitutional reforms replace the CABs with independent judicial bodies, which are intended to streamline the labor justice process. Observers contended that additional changes to the labor law were necessary to provide for the following: workers are able to freely and independently elect union representatives, there is an expedited recount process, unions demonstrate union

Country Reports on Human Rights Practices for 2017 United States Department of State Bureau of Democracy, Human Rights, and Labor MEXICO 33 representativeness prior to filing a collective bargaining agreement, and workers to be covered by the agreement receive a copy prior to registration--thus eliminating unrepresentative unions and “protection” contracts.

By law penalties for violations of freedom of association and collective bargaining laws range from 16,160 pesos ($960) to 161,600 pesos ($9,640). Such penalties were rarely applied and were insufficient to deter violations. Administrative and/or judicial procedures were subject to lengthy delays and appeals.

Workers exercised their rights to freedom of association and collective bargaining with difficulty. The process for registration of unions was politicized, and according to union organizers, the government, including the CABs, frequently used the process to reward political allies or punish political opponents. For example, it rejected registration applications for locals of independent unions, and for unions, based on technicalities.

The country’s independent unions and their legal counsel, as well as global and North American trade unions, continued to encourage the government to ratify the International Labor Organization (ILO) Convention 98 on collective bargaining, which it delayed doing despite removal of the main obstacle to compliance in the 2012 labor law reform, the exclusion clause for dismissal. By ratifying the convention, the government would subject itself to the convention’s oversight and reporting procedures. Ratification would also contribute, according to the independent unions, to ensuring that the institutions that are established as a result of the labor justice reform are, in law and practice, independent, transparent, objective, and impartial, with workers having recourse to the ILO’s oversight bodies to complain of any failure.

Companies and protection unions (unrepresentative, corporatist bodies) took advantage of complex divisions and a lack of coordination between federal and state jurisdictions to manipulate the labor conciliation and arbitration processes. For example, a company might register a collective bargaining agreement at both the federal and the local level and later alternate the jurisdictions when individuals filed and appealed complaints to gain favorable outcomes. Additionally, union organizers from several sectors raised concerns regarding the overt and usually hostile involvement of the CABs when organizers attempted to create independent unions.

Protection unions and “protection contracts”--collective bargaining agreements signed by employers and these unions to circumvent meaningful negotiations and

Country Reports on Human Rights Practices for 2017 United States Department of State Bureau of Democracy, Human Rights, and Labor MEXICO 34 preclude labor disputes--was a problem in all sectors. The prevalence of protection contracts was due, in part, to the lack of a requirement for workers to demonstrate support for collective bargaining agreements before they took effect. Protection contracts often were developed before the company hired any workers and without direct input from or knowledge of the covered workers.

Independent unions, a few multinational corporations, and some labor lawyers and academics pressed for complementary legislation, including revisions to the labor code that would prohibit registration of collective bargaining agreements where the union could not demonstrate support by a majority of workers or where workers had not ratified the content of the agreements. Many observers noted working conditions of a majority of workers were under the control of these contracts and the unrepresentative unions that negotiated them, and that the protection unions and contracts often prevented workers from fully exercising their labor rights as defined by law. These same groups advocated for workers to receive hard copies of existing collective bargaining agreements when they are hired.

According to several NGOs and unions, many workers faced procedural obstacles, violence, and intimidation around bargaining-rights elections perpetrated by protection union leaders and employers supporting them, as well as other workers, union leaders, and vigilantes hired by a company to enforce a preference for a particular union. Some employers attempted to influence bargaining-rights elections through the illegal hiring of pseudo employees immediately prior to the election to vote for the company-controlled union.

Other intimidating and manipulative practices were common, including dismissal of workers for labor activism. For example, there were reports that a garment factory in Morelos failed to halt workplace sexual harassment and sexual violence and instead fired the whistleblowers that reported the problem to management.

Independent labor activists reported the requirement that the CABs approve strikes in advance gave boards power to show favoritism by determining which companies to protect from strikes. Few formal strikes occurred, but protests and informal work stoppages were common. b. Prohibition of Forced or Compulsory Labor

The law prohibits all forms of forced or compulsory labor, but the government did not effectively enforce the law. Penalties for conviction of forced labor violations

Country Reports on Human Rights Practices for 2017 United States Department of State Bureau of Democracy, Human Rights, and Labor MEXICO 35 range from five to 30 years’ imprisonment and observers generally considered them sufficient to deter violations.

Forced labor persisted in the agricultural and industrial sectors, as well as in the informal sector. Women and children were subject to domestic servitude. Women, children, indigenous persons, and migrants (including men, women, and children) were the most vulnerable to forced labor. In November authorities freed 81 workers from a situation of forced labor on a commercial farm in Coahuila. In June federal authorities filed charges against the owner of an onion and chili pepper farm in Chihuahua for forced labor and labor exploitation of 80 indigenous workers. The victims, who disappeared following the initial complaint to state authorities, lived in unhealthy conditions and allegedly earned one-quarter of the minimum wage.

Also see the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip/rls/tiprpt/. c. Prohibition of Child Labor and Minimum Age for Employment

The constitution prohibits children under age 15 from working and allows those ages 15 to 17 to work no more than six daytime hours in nonhazardous conditions daily, and only with parental permission. The law requires that children under age 18 must have a medical certificate in order to work. The minimum age for hazardous work is 18. The law prohibits minors from working in a broad list of hazardous and unhealthy occupations.

The government was reasonably effective in enforcing child labor laws in large and medium-sized companies, especially in the maquila sector and other industries under federal jurisdiction. Enforcement was inadequate in many small companies and in agriculture and construction and nearly absent in the informal sector, in which most child laborers worked.

At the federal level, the Ministry of Social Development, Attorney General’s Office, and National System for Integral Family Development share responsibility for inspections to enforce child labor laws and to intervene in cases in which employers violated such laws. The Ministry of Labor is responsible for carrying out child-labor inspections. Penalties for violations range from 16,780 pesos ($1,000) to 335,850 pesos ($20,000) but were not sufficiently enforced to deter violations.

Country Reports on Human Rights Practices for 2017 United States Department of State Bureau of Democracy, Human Rights, and Labor MEXICO 36

In December 2016 the CNDH alerted national authorities to 240 agricultural workers, including dozens of child laborers, working in inhuman conditions on a cucumber and chili pepper farm in San Luis Potosi after state authorities failed to respond to their complaints.

According to the 2015 INEGI survey, the most recent data available on child labor, the number of employed children ages five to 17 remained at 2.5 million, or approximately 8.4 percent of the 29 million children in the country. Of these children, 90 percent were engaged in work at ages or under conditions that violated federal labor laws. Of employed children 30 percent worked in the agricultural sector in the harvest of melons, onions, cucumbers, eggplants, chili peppers, green beans, sugarcane, tobacco, coffee, and tomatoes. Other sectors with significant child labor included services (25 percent), retail sales (23 percent), manufacturing (14 percent), and construction (7 percent). d. Discrimination with Respect to Employment and Occupation

The law prohibits discrimination with respect to employment or occupation regarding “race, nationality age, religion, sex, political opinion, social status, handicap (or challenged capacity), economic status, health, pregnancy, language, sexual preference, or marital status.”

The government did not effectively enforce these laws and regulations. Penalties for violations of the law included administrative remedies, such as reinstatement, payment of back wages, and fines (often calculated based on the employee’s wages), and were not generally considered sufficient to deter violations. Discrimination in employment or occupation occurred against women, indigenous groups, persons with disabilities, LGBTI individuals, and migrant workers. e. Acceptable Conditions of Work

On November 21, the single general minimum wage rose from 80.04 pesos per day ($4.76) to 88.36 pesos per day ($5.26), short of the official poverty line of 95.24 pesos per day ($5.67). Most formal-sector workers received between one and three times the minimum wage. The tripartite National Minimum Wage Commission, whose labor representatives largely represented protection unions and their interests, is responsible for establishing minimum salaries but continued to block increases that kept pace with inflation.

Country Reports on Human Rights Practices for 2017 United States Department of State Bureau of Democracy, Human Rights, and Labor MEXICO 37

The Ministry of Labor is responsible for enforcing labor laws and conducting inspections at workplaces. In 2015, the most recent year for which data were available, there were 946 inspectors nationwide. This was sufficient to enforce compliance, and the ministry carried out inspections of workplaces throughout the year, using a questionnaire and other means to identify victims of labor exploitation. Penalties for violations of wage, hours of work, or occupational safety and health laws range from 17,330 pesos ($1,030) to 335,940 pesos ($20,020) but generally were not sufficient to deter violations. Through its DECLARALAB self-evaluation tool, the ministry provided technical assistance to almost 4,000 registered workplaces to help them meet occupational safety and health regulations.

According to labor rights NGOs, employers in all sectors sometimes used the illegal “hours bank” approach--requiring long hours when the workload is heavy and cutting hours when it is light--to avoid compensating workers for overtime. This was a common practice in the maquila sector, in which employers forced workers to take leave at low moments in the production cycle and obliged them to work in peak seasons, including the Christmas holiday period, without the corresponding triple pay mandated by law for voluntary overtime on national holidays. Additionally, many companies evaded taxes and social security payments by employing workers informally or by submitting falsified payroll records to the Mexican Social Security Institute. In 2013, the latest year for which such data are available, INEGI estimated 59 percent of the workforce was engaged in the informal economy.

Country Reports on Human Rights Practices for 2017 United States Department of State Bureau of Democracy, Human Rights, and Labor MEXICO 38

Observers from grassroots labor rights groups, international NGOs, and multinational apparel brands reported that employers throughout export-oriented supply chains were increasingly using methods of hiring that deepened the precariousness of work for employees. The most common practice reported was that of manufacturers hiring workers on one- to three-month contracts, and then waiting for a period of days before rehiring them on another short-term contract, to avoid paying severance and prevent workers from accruing seniority, while maintaining the exact number of workers needed for fluctuating levels of production. This practice violates Federal Labor Law and significantly impacted workers’ social and economic rights, including elimination of social benefits and protections, restrictions on worker’s rights to freedom of association and collective bargaining, and minimal ability for workers, especially women, to manage their family responsibilities. Observers noted it also increased the likelihood of work- related illness and injury. Combined with outsourcing practices that made it difficult for workers to identify their legally registered employer, workers were also more likely to be denied access to justice.

Private recruitment agencies and individual recruiters violated the rights of temporary migrant workers recruited in the country to work abroad, primarily in the United States. Although the law requires these agencies to be registered, they often were unregistered. The Labor Ministry’s registry was outdated and limited in scope. Although a few large recruitment firms were registered, the registry included many defunct and nonexistent midsized firms, and few if any of the many small, independent recruiters. Although the government did not actively monitor or control the recruitment process, it reportedly was responsive in addressing complaints. There were also reports that registered agencies defrauded workers with impunity. Some temporary migrant workers were regularly charged illegal recruitment fees. According to a 2013 study conducted by the Migrant Worker Rights Center, 58 percent of 220 applicants interviewed had paid recruitment fees; one-half did not receive a job contract and took out loans to cover recruitment costs; and 10 percent paid fees for nonexistent jobs. The recruitment agents placed those who demanded their rights on blacklists and barred them from future employment opportunities.

News reports indicated there were poor working conditions in some maquiladoras. These included low wages, contentious labor management, long work hours, unjustified dismissals, the lack of social security benefits, unsafe workplaces, and the lack of freedom of association. Many women working in the industry reported suffering some form of abuse. Most maquilas hired employees through outsourcing with few social benefits.

Country Reports on Human Rights Practices for 2017 United States Department of State Bureau of Democracy, Human Rights, and Labor

TAB 4 Human Rights of Women Living with HIV in the Americas The Joint United Nations Programme on HIV/AIDS (UNAIDS) leads and inspires the world to achieve its shared vision of zero new HIV infections, zero discrimination and zero AIDS-related deaths. UNAIDS unites the efforts of 11 UN organizations—UNHCR, UNICEF, WFP, UNDP, UNFPA, UNODC, UN Women, ILO, UNESCO, WHO and the World Bank—and works closely with global and national partners to maximize results for the AIDS response.

The Inter-American Commission of Women (CIM) is the main hemispheric policy forum for the promotion of women’s rights and gender equality. Created in 1928 - in recognition of the importance of women’s social inclusion to democratic strengthening and human development in the Americas – CIM was the first inter-governmental organization established to promote women’s human rights and gender equality.

The Organization of American States (OAS) brings together the nations of the Western hemisphere to promote democracy, strengthen human rights, foster peace, security and cooperation and advance common interests. The origins of the Organization date back to 1890 when nations of the region formed the Pan American Union to forge closer hemispheric relations. This union later evolved into the OAS and in 1948, 21 nations signed its governing charter. Since then, the OAS has expanded to include the nations of the English- speaking Caribbean and Canada, and today all of the independent nations of North, Central and South America and the Caribbean make up its 35 member states.

Human Rights of Women Living with HIV in the Americas Author: Dinys Luciano Co-author: Martín Negrete Editor: Marijo Vázquez

UNAIDS Regional Support Office for Latin America and Comisión Interamericana de Mujeres (CIM) the Caribbean 1889 F Street NW Gonzalo Crance Street, # 166, Washington, DC, 20006 Ciudad Del Saber, Clayton. Estados Unidos Panama City, Panama Tel: 1-202-458-6084 Tel: 00507 301 4600 Fax: 1-202-458-6094 Webpage: www.onusida-latina.org E-mail: [email protected] Facebook Webpage: http://www.oas.org/cim https://www.facebook.com/ONUSIDALATINA Facebook: Twitter https://www.facebook.com/ComisionInteramericanaDeMujeres @OnusidaLatina Twitter: https://twitter.com/OnusidaLatina @CIMOEA https://twitter.com/CIMOEA

Design and layout: Celina Hernández

The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the CIM or the OAS concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries.

The opinions expressed are those of the authors and do not necessarily reflect the opinion of the OAS or the CIM. Human Rights of Women Living with HIV in the Américas

Table of Contents

Introduction 12 1. Methodological aspects 14 2. Public policies: Legal framework and programmatic responses 17 3. Status of the rights of women living with HIV: Progress and challenges 23 3.1 Right to life 23 3.2 Right to non-discrimination and equality before the law 27 3.3 Right to the highest attainable standard of health 33 3.4. Right to a life free of violence 37 3.5. Right to not be subjected to cruel, inhuman, or degrading treatment 40 3.6 Right to education 44 3.7 Right to work 45 3.8. Right to social protection and an adequate standard of living 48 3.9 Right to form a family 50 3.10 Right to information 55 3.11 Right to participation 58 4. Funding to further the rights of women living with HIV 61 5. Coordination of the HIV response and participation 66 6. Information and knowledge-management systems 68 7. Conclusions and recommendations 70

List of tables 1. Legal framework and programmatic responses to discrimination, sexual and reproductive health, and gender violence 19 2. Current use of and access to ART in stigma and discrimination studies in six Latin American countries (2008-2014) 25 3. Countries that reported including stigma and discrimination against persons with HIV in their national HIV plans and that have specific 27 programs (GARPR, 2011) 6

4. Experiences of discrimination in stigma and discrimination studies in eight Latin American countries (2008-2014) 28 5. Experiences of discrimination in dental and sexual and reproductive health services in stigma and discrimination studies in eight Latin American countries (2008-2014) 29 6. Legal framework for key populations in Latin America and the Caribbean according to 2011 and 2014 GARPR reports 32 7. Persons who report that they were forced to take an HIV test or were given the test without providing their consent or receiving counseling in stigma and discrimination studies in seven Latin American countries (2008-2014) 36 8. Experiences of various forms of psychological, physical, and sexual violence in stigma and discrimination studies in seven Latin American countries (2008-2014) 39 9. Cases of health professional coercion for sterilization in stigma and discrimination studies in seven Latin American countries (2008-2014) 42 10. Educational level of women and men interviewed in stigma and discrimination studies in five Latin American countries (2008-2014) 44 11. Discriminatory practices in the educational sphere in studies of stigma and discrimination in four Latin American countries (2008-2011) 45 12. Employment status of the participants in stigma and discrimination studies in six Latin American countries 46 13. Job loss and rejection and negative changes in employment due to HIV status in stigma and discrimination studies in six Latin American countries (2008-2011) 47 14. Food shortage rates among the population interviewed in stigma and discrimination studies in two Latin American countries 49 15. Barriers to housing access in stigma and discrimination studies in five Latin American countries 49 16. Situations related to reproductive rights and the right to form a family in stigma and discrimination studies in eight Latin American countries (2008-2014) 52 17. Coercion by a health professional in the past 12 months on abortion, birth, and feeding due to the mother’s HIV status 53 18. Medical coverage of pregnant HIV-positive women receiving ART to prevent mother-to-child transmission (2013) 54 19. Sources of HIV financing and percent international financing by country (2007-2013) 64 7

List of graphics 1. Percentage of women and men from 15 to 49 years of age who took an HIV test in the past 12 months (2007-2013) 36 2. Percentage of women from 15 to 24 years of age with comprehensive knowledge of HIV (2007-2011) 56 3. Percentage of young women who used a condom in their most recent act of sexual intercourse (2009-2013) 56 4. Percentage of men and women from 15 to 19 years of age who used a condom in their most recent act of sexual intercourse (2009-2013) 57 5. Percentage of women with multiple sexual partners who used a condom in their most recent act of sexual intercourse (2003-2013) 57 6. Percentage of transgender sex workers who used a condom in their most recent act of sexual intercourse (2009-2013 58 8

Acknowledgements

The preparation of this document was coordinated by Hilary Anderson of the Inter-American Commission of Women of the Organization of American States (CIM/OAS). The responses to the questionnaire sent by the following OAS member states are acknowledged and appreciated: Argentina, Belize, Chile, Colombia, Costa Rica, Dominica, El Salvador, Honduras, Guatemala, Mexico, Dominican Republic, Suriname, Trinidad and Tobago, and Uruguay. The More Peace Less AIDS Foundation also returned the completed questionnaire.

The materials contributed by the regional networks ICW Latin America Chapter, Movimiento Latinoamericano y del Caribe de Mujeres Positivas [Latin American and Caribbean Positive Women’s Movement] (MLCM+), the Network of Women Sex Workers from Latin America and the Caribbean (RedTraSex), Red de Jóvenes Positivos de Latinoamérica y el Caribe [Network of HIV-Positive Young People from Latin America and the Caribbean] (Red J+LAC), and the Latin America and Caribbean Network of Trans Persons (REDLACTRANS) in connection with the online course “Strengthening the human rights of women living with HIV in Latin America” are appreciated. These materials were used in the preparation of this report.

The comments made on the preliminary draft of this report by the following individuals are acknowledged and appreciated:

• Ana Cristina C. Santos Universida de Federal de Alagoas/Campus do Sertão. Núcleo de Estudos e Pesquisas sobre Diversidades e Educação no Sertão Alagoano (NUDES/UFAL) • Andrea Mariño RedTraSex (Central Office, Argentina) • Arely Cano ICW Latina (Regional Office) • Elena Reynaga RedTraSex (Central Office) • Eugenia López Balance – Mexico • Jimena Avalos Chapín Balance – Mexico • Sandra Patricia Arturo de Vries María Fortaleza Foundation – Colombia • Shirley Eng UNAIDS Latin America • Susana Chávez PROMSEX [Center for the Promotion and Defense of Sexual and Reproductive Rights] – Peru 9

Abbreviations and acronyms

3TC Iamivudine AIDS Acquired Immune Deficiency Syndrome ANICP+VIDA Asociación Nicaragüense de Personas Positivas Luchando por la Vida [Nicaragua Association of HIV-Positive Persons Fighting for Life] ART Antiretroviral therapy ARVs Antiretrovirals ATV/r Ritonavir-boosted atazanavir AWID Association for Women’s Rights in Development AZT Zidovudine CAPSIDA Centro de Atención Profesional para Personas con SIDA [Center for Professional Care of Persons with AIDS] CCM Country coordinating mechanism CEDAW Convention on the Elimination of All Forms of Discrimination against Women CENEP-CONICET Centro de Estudios de Población [Center for Population Studies]-Consejo Nacional de Investigaciones Científicas y Técnicas [National Scientific and Technical Research Council] CENSIDA Centro Nacional para la Prevención y Control del VIH-SIDA[National Center for the Prevention and Control of HIV/AIDS] CIM/OAS Inter-American Commission of Women/Organization of American States CNEGYSR Centro Nacional de Equidad de Género y Salud Reproductiva [National Center for Gender Equality and Reproductive Health] CONADEH Comisionado Nacional de Derechos Humanos [National Commission on Human Rights] CONASIDA Consejo Nacional para la Prevención y Control del VIH/SIDA [National Council for the Prevention and Control of HIV/AIDS] EFV Efavirenz ENADIS Encuesta Nacional sobre Discriminación en Mexico [National Survey on Discrimination in Mexico] FEIM Fundación para Estudio e Investigación de la Mujer [Foundation for the Study and Investigation of Women] FELC-C Fuerza Especial de Lucha Contra el Crimen [Special Crime-Fighting Forces] (a section of the Bolivian National Police) FTC Emtricitabine GAO Grupo de Autoayuda de Occidente [Self-Help Group of the West] 10

GARPR Global AIDS Response Progress Reporting GIPA Greater involvement of people living with HIV/AIDS HIV Human immunodeficiency virus IACHR Inter-American Commission on Human Rights ICW International Community of Women Living with HIV/AIDS IEC Information, education, and communication IESSDAH Instituto de Estudios en Salud, Sexualidad, y Desarrollo Humano [Institute for Health, Sexuality, and Human Development Studies] ILO International Labor Organization IOM International Organization for Migration LAC Latin America and the Caribbean LPV/r Lopinavir/ritonavir MEXFAM Fundación Mexicana para la Planeación Familiar [Mexican Foundation for Family Planning] MLCM Movimiento Latinoamericano y del Caribe de Mujeres Positivas [Latin American and Caribbean Positive Women’s Movement] MSM Men who have sex with men NASA National AIDS Spending Assessment NNRTI Non-nucleoside reverse transcriptase inhibitor NRTI Nucleoside reverse transcriptase inhibitor NVP Nevirapine OAS Organization of American States PAHO/WHO Pan American Health Organization/World Health Organization PENSIDA Plan Estratégico Nacional de Respuesta al VIH y Sida [National Strategic HIV/ AIDS Response Plan] PI Protease inhibitor PI/r Ritonavir-boosted protease inhibitor PLHIV Persons living with HIV PLWHA Persons living with HIV/AIDS PMTCT Prevention of mother-to-child transmission PPM Postpartum morbidity PROMSEX Center for the Promotion and Defense of Sexual and Reproductive Rights REDLACTRANS Latin America and Caribbean Network of Trans Persons RedTraSex Network of Women Sex Workers from Latin America and the Caribbean 11

STIs Sexually transmitted infections TDF Tenofovir UNAIDS Joint United Nations Programme on HIV/AIDS UNDP United Nations Development Programme UNFPA United Nations Population Fund UNGASS United Nations General Assembly Special Session UNICEF United Nations Children’s Fund UN Women United Nations Entity for Gender Equality and the Empowerment of Women WHO World Health Organization 12

Introduction

Most Latin American and Caribbean (LAC) countries recognize that human rights violations and gender inequalities are significant barriers to progress in the national responses to HIV, and that they inflict severe damage on individuals living with or affected by HIV while creating a social and political environment that restricts their life choices and development, as well as their access to services and resources. In many countries, the social and legal context is characterized by high levels of criminalization of specific groups of women, stigma, discrimination and violence, a lack of legal and social protection, and systematic violations of the human rights of women living with or affected by HIV. Discrimination in the justice, health, education, work, and social protection systems, limited access to information, and the scant social participation of women living with HIV tend to exacerbate the social exclusion faced by these women, which is in turn transferred to their children. Factors involved in inequality like socioeconomic status, ethnicity, gender identity, and residence in urban or rural areas, among others, interconnect and influence these violations in specific ways.

Although only limited information is available, certain human rights violations that have been documented in the region serve as a basis for identifying information gaps while progress is made in responding to the needs that have already been noted. Guaranteeing the exercise of the rights of women who live with or are affected by HIV requires an effective response to HIV across sectors from a human rights and gender equality perspective, supported by decision-makers at all levels, with an assigned budget and significant social participation. In order to achieve such a goal, it is imperative to identify and raise awareness of the specific human rights violations suffered by these women as well as the impact of the epidemic, the needs derived from such violations, and the best national and regional strategies for addressing them. 13

Pursuant to Resolution AG/RES. 2802 (XLIII-O/13) on the “Promotion and Protection of the Human Rights of People Vulnerable to, Living with or Affected by HIV/AIDS in the Americas,” which was adopted by the General Assembly of the Organization of American States (OAS) in June 2013, as well as to the collaboration agreement signed between the OAS and the Joint United Nations Programme on HIV/AIDS (UNAIDS) in January 2014, the CIM/OAS has prepared this report on the “Human Rights of Women Living with HIV in the Americas,” which will serve to inform discussions among OAS member states and their allies of the challenges that gender inequalities represent for the response to HIV, and of the actions that must be implemented at scale and that are necessary in order to create strategies that will enable HIV-positive women to exercise their rights to decent work, education, housing, healthcare, social protection, information, and social and political participation, and to live free from stigma, discrimination, and violence. This report complements the “Manual for Strengthening the Exercise of the Human Rights of Women Living with HIV in Latin America” published by the CIM/OAS and UNAIDS in 2014.1

1 Luciano D and Iacono M (2014). Manual para fortalecer el ejercicio de los derechos humanos de las mujeres que viven con VIH en América Latina [Manual for Strengthening the Exercise of the Human Rights of Women Living with HIV in Latin America]. UNAIDS and CIM/OAS. http://dvcn.aulaweb.org/manualparafortale- cer.pdf 14

1. Methodological aspects

1.1 Objectives

a. To analyze the available information on the human rights situation of women living with HIV, emphasizing the aspects associated with access to support resources and services, institutional practices and initiatives, cross-sector coordination, social participation, and the financing of issues related to gender equality and HIV.

b. To identify advances in and challenges to the protection and exercise of the human rights of all of the diverse women living with HIV.

c. To examine the implications of the available information for the development of regional and national strategies for the promotion, protection, and fulfillment of the rights of women living with HIV.

1.2 Sources of information

Several different sources of information were used in preparing this report:

• Questionnaires sent by the CIM/OAS in November 2014 to the National Machineries for the Advancement of Women in all countries of the region through the Permanent Missions of the OAS member states. The questionnaires were also sent by email to regional networks that work to promote the rights of HIV-positive women: ICW Latina, Red de Mujeres Positivas de América Latina y el Caribe [Network of Positive Women from Latin America and the Caribbean], Jóvenes Positivos de América Latina y el Caribe [Positive Young People from Latin America and the Caribbean], and the Network of Women Sex Workers from Latin America and the Caribbean. Completed questionnaires were received from: Argentina, Belize, Chile, Colombia, Costa Rica, Dominica, El Salvador, Honduras, Guatemala, Mexico, Dominican Republic, Suriname, Trinidad and Tobago, and Uruguay.

• UNAIDS global database (AIDSINFO), which includes data from the UNGASS country reports and the GARPR (Global AIDS Response Progress Reporting) reports.

• Studies on stigma and discrimination from 11 countries: Argentina (2011)2, Bolivia (2011)3, Colombia (undated)4, Ecuador (2010)5, El Salvador (2010)6, Guatemala (2011)7, Honduras (2014)8, Mexico (2008)9, Nicaragua (2013)10, Paraguay (2010)11; and Dominican Republic (2009)12.

2 Mónica Petracci and Martín Romeo (2011). Índice de estigma en personas que viven con VIH Argentina [People Living with HIV in Argentina Stigma Index]. Hués- ped Foundation, Red de Personas Viviendo con VIH/Sida de Mar del Plata [Mar de Plata Network of Persons Living with HIV/AIDS]. http://www.stigmaindex.org/sites/default/files/news-attachments/PLHIV%20Stigma%20Index%20Argentinaacbf.pdf 3 Bolivia Ministry of Health and Sports (2011). Estudio sobre Estigma y Discriminación en Personas que viven con VIH Bolivia [Study on Stigma and Discrimination against People Living with HIV in Bolivia] http://www.stigmaindex.org/bolivia-plurinational-state 4 Red Colombiana de Personas que Viven con el VIH [Colombian Network of Persons Living with HIV], IFARMA (undated). El Índice de Personas que Viven con VIH. Resultados del indice de estigma en personas que viven con VIH en Colombia [Index of Persons Living with HIV. Results of the persons living with HIV in Colombia stigma index]. https://www.fundacionnuestrosjovenes.org.ec/documentos/BibliotecaVIH/8.%20Voces%20positivas.%20Resultado%20del%20%C3%ADndice%20 de%20estigma%20en%20personas%20que%20viven%20con%20VIH%20en%20Colombia..pdf 5 Coalicion Ecuatoriana de Personas que Viven con VIH/SIDA [Ecuadorian Commission of Persons Living with HIV/AIDS] (2010). Resultados del estudio sobre Estigma y Discrimi- nación en Personas que Viven con VIH/sida en el Ecuador [Results of the study on stigma and discrimination against persons living with HIV/AIDS in Ecuador]. http://www. stigmaindex.org/sites/default/files/reports/INFORME_FINAL_INDICE_ESTIGMAPVVS_ECUADOR_10-2010.pdf 6 UNDP (2010). Estudio de Estigma y Discriminación en Personas con VIH [Study of Stigma and Discrimination against Persons with HIV]. San Salvador. http://www.stigmaindex.org/sites/ default/files/reports/El%20Salvador%20-%20Stigma%20Index%20Estudio_de_Estigma_y_Descriminacion_en_personas_con%20HIV%20-2010%20Spanish.pdf 7 Fernández, Victor (2011). Indice de Estigma y Discriminacion en Personas con VIH [Persons with HIV Stigma and Discrimination Index]. Fernando Iturbide Foun- dation. Guatemala. http://www.stigmaindex.org/sites/default/files/reports/Guatemala%20%20People%20Living%20with%20HIV%20Stigma%20Index%20 Report%20%20%20Spanish%20FINAL200512.pdf 8 Ciudad, Juan M (2014). Indice de Estigma en Personas que Viven con VIH en Honduras [Persons Living with HIV in Honduras Stigma Index]. Executive report. Llaves Foundation. http://www.stigmaindex.org/sites/default/files/reports/Honduras%20Informe%20Ejecutivo%20PDF.pdf 9 Red Mexicana de Personas que Viven Con VIH/SIDA [Mexican Network of Persons Living with HIV/AIDS] and MEXFAM [Mexican Foundation for Family Planning] (2008). Indice de Estigma en Personas que Viven con VIH en Mexico [Persons Living with HIV in Mexico Stigma Index]. http://www.stigmaindex.org/sites/default/ files/reports/Mexico%20People%20Living%20with%20HIV%20Stigma%20Index%20Report%202010-%20spanish.pdf 10 Maricela Larios Cruz (2013). Estudio Indice de Estigma y Discriminacion en Personas con VIH-Nicaragua [Persons Living with HIV Stigma and Discrimination Index Study – Nicaragua]. ANICP+VIDA [Nicaragua Association of HIV-Positive Persons Fighting for Life] and GAO [Self-Help Group of the West]. http://www.stigmaindex.org/nicaragua 11 Vencer Foundation (2010). Perspectiva comunitaria sobre estigma y discriminacion en personas que viven con VIH y sida en Paraguay [Community perspective on stigma and discrimination against persons living with HIV and AIDS in Paraguay]. http://www.stigmaindex.org/paraguay 12 Cáceres F (2009). República Dominicana: Estigma y discriminación en Personas que Viven con el VIH [Dominican Republic: Stigma and Discrimination against Persons Living with HIV]. Profamilia. http://www.stigmaindex.org/dominican-republic 16

A total of 7,822 individuals living with HIV were surveyed in the 11 studies conducted between 2008 and 2014. Of these, 55.1% were men, 40.3% were women, and 4.6% were transgender women. The total number of individuals surveyed by country was: Argentina (N=1,197), Bolivia (N= 420), Colombia (N=1,000), Ecuador (N=497), El Salvador (N=500), Guatemala (N=500), Honduras (N=720), Mexico (N=931), Nicaragua (N=801), Paraguay (N=256), and the Dominican Republic (N=1,000). Of the 55 studies available and accessible during the preparation of this report, 11 had been conducted in Latin America (20%), and 16% of the almost 50,000 people living with HIV who have been interviewed since 2008 live in the region13. Specific studies on stigma and discrimination interventions were also reviewed.14

• Literature review. Articles, technical reports, and position documents from the following two sources were reviewed:

- Scientific journal databases. Searches were performed in Pubmed, Scielo, and Redalyc using the descriptors “HIV and gender,” “HIV and women,” “sex workers,” “transgender women,” “young women,” and “HIV and women drug users”

- Web pages of the regional networks ICW Latina, Red de Mujeres Positivas de América Latina y el Caribe [Network of Positive Women from Latin America and the Caribbean], the Network of Women Sex Workers from Latin America and the Caribbean, Red de Mujeres Trans [Network of Transgender Women], Jóvenes Positivos LAC [Positive Young People from LAC], as well as of international agencies: UNAIDS, CIM/OAS, IACHR, UN Women, UNDP, PAHO/WHO, UNFPA, UNICEF, IOM, and ILO.

For this report, special emphasis was placed on the collection of information on women in all of their diversity, and to that end data was gathered from secondary sources and the countries were requested to include, whenever possible, disaggregated or specific data in the questionnaires on various groups within the female population, namely, young people, adults, the elderly, women of African descent and indigenous women, transgender women, sex workers, women with disabilities, migrants, residents of urban or rural areas, lesbians and/or bisexuals, drug users, women deprived of liberty, and other country-relevant categories. The sources used show that for most of these populations, there is only limited information available, and for others, there is none at all.

13 The People Living with HIV Stigma Index. http://www.stigmaindex.org/ (Accessed on July 17, 2015) 14 ZUCCHI, Eliana Miura; PAIVA, Vera Silvia Facciolla; FRANCA JUNIOR, Ivan. Intervenções para reduzir o estigma da Aids no Brasil: uma revisão crítica [Interventions to reduce the stigma of AIDS in Brazil: a critical review]. Trends in Psychology, Ribeirão Preto, v. 21, no. 3, December 2013. http://pepsic.bvsalud.org/scielo.php?pi- d=S1413-389X2013000300017&script=sci_arttext 17

2. Public policies: Legal framework and programmatic responses

According to the 2011 GARPR reports, the regulatory frameworks in 20 Latin American and Caribbean countries include national strategies on gender equality: Argentina, Belize, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Ecuador, El Salvador, Guatemala, Guyana, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Uruguay, and Venezuela. These countries affirmed in their reports that the “women’s” sector, as well as equality and gender empowerment, are included in the national HIV strategies, while the other countries, except for El Salvador and Honduras, confirmed that women and girls were included in their strategies.15 . It should be noted that not all of the aforementioned countries explicitly spell out actions specifically focused on the various categories of women in their national plans.16 Although most countries in the region do have HIV-related laws, strategic plans and programs, regulations, and protocols, the approaches and scopes thereof are varied. Furthermore, although a significant number of countries have laws in place to protect and promote the rights of women overall, very few have made progress towards recognizing the specific rights of women living with HIV.

15 UNAIDS. AIDSINFO. Reportes GARP 2011. http://www.aidsinfoonline.org/devinfo/libraries/aspx/dataview.aspx 16 T. Kendall & E. López-Uribe (2010) Improving the HIV response for women in Latin America: Barriers to integrated advocacy for sexual and reproductive rights and health. Global Health Governance 4 (1) www.ghgj.org 18

Some national strategic plans on HIV have progressively incorporated references to gender equality as a guiding principle as well as certain interventions focused on preventing perinatal transmission and transmission in female sex workers and transgender women. In Mexico, Article 4 of the Law for the Prevention and Comprehensive Care of HIV/AIDS of the Federal District specifies that “The authorities will follow a human rights and gender perspective approach in designing, executing, monitoring, and evaluating the prevention and care actions referred to herein”. 17

In some cases, the act of placing the spotlight on perinatal transmission and on women sex workers propagates the idea that women are vectors of the disease rather than whole persons with specific vulnerabilities and needs in dealing with HIV.

Currently, there is very little documentation of the differential impact of gender equality policies on women in all of their diversity. For example, with regard to the movement of persons, other than Belize, Nicaragua, and Paraguay, the countries of the region have no restrictions on entry, stay, or residence for people living with HIV, despite the lack of available information on the impact of the legal status of migrant women on their living conditions in the origin, transit, and destination countries, which can lead, for example, to their increased vulnerability to HIV. 18 Of the 20 countries included in the 2011 GARPR reports, six reported that they had laws to protect sex workers: Argentina, Bolivia, Colombia, Ecuador, Guatemala, and Uruguay. Furthermore, in some countries HIV testing is mandatory for sex workers, but not free or confidential, meaning that a positive result could land them in jail.19

17 Legislative Assembly of the Federal District, VI Legislature. Law for the Prevention and Comprehensive Care of HIV/AIDS of the Federal District. Mexico. http://www. aldf.gob.mx/archivo-12b28d9460f66f93a0268e3ed29bbe9d.pdf 18 Avert. HIV and AIDS in Latin America. http://www.avert.org/hiv-aids-latin-america.htm#sthash.svd2DSj9.dpuf 19 UN News Centre. Trabajadoras sexuales promueven campaña sobre el VIH/Sida en América Latina [Sex workers promote HIV/AIDS campaign in Latin America]. August 22, 2014 http://www.un.org/spanish/News/story.asp?NewsID=30272#.VSE-RFwfxJ0 19

Table 1: Legal framework and programmatic responses to discrimination, sexual and reproductive health, and gender violence Programmatic response (plans, programs, Legal framework (policies, laws, resolutions) projects, protocols) Sexual and Protection of Countries reproductive women/women’s Anti- Domestic/ Gender HIV health/ HIV health (sexual discrimination gender violence equality sexual and reproductive education health) Argentina Yes Yes Yes Yes Yes ND Yes Belize Yes ND ND Yes Yes ND ND Chile Yes Yes Yes Yes Yes ND Yes Colombia Yes Yes 20 Yes Yes Yes Yes Yes Costa Rica Yes Yes Yes Yes 22 Yes 21 Yes

Dominica Yes Yes 23 ND Yes 24 Yes Yes ND El Salvador Yes Yes ND Yes Yes ND ND Guatemala Yes ND Yes Yes Yes ND Yes Honduras Yes ND ND Yes Yes Yes Yes Mexico Yes Yes 25 Yes Yes Yes Yes Yes Dominican Republic Yes ND ND Yes Yes Yes ND Suriname Yes ND ND ND Yes ND Yes Trinidad and Tobago Yes Yes ND Yes Yes Yes ND Uruguay Yes Yes Yes Yes Yes Yes Yes Source: Country questionnaires sent to the CIM/OAS. ND=no data

Some countries, like Argentina, Brazil, and Uruguay, and Mexico’s Federal District, have also passed gender identity laws. In Colombia, the Constitution includes the principles of respect and recognition, specifically in Judgment C-481/98 on the right to sexual identity/sex-based discrimination, which establishes that sexual preference and the adoption of a given sexual identity are core parts of

20 Senate of the Republic. Law 1482 of 2011. Colombia. http://wsp.presidencia.gov.co/Normativa/Leyes/Documents/ley148230112011.pdf 21 General Law on HIV/AIDS of the Republic of Costa Rica. Law No. 7771 published in the official gazette La Gaceta on May 20, 1998. http://www.hsph.harvard.edu/ population/aids/costarica.aids.98.pdf 22 National Policy for Gender Equality and Equity (PIEG) 2007-2017 and the Action Plan thereof for the 2008-2012 period. 23 In the country’s constitution. 24 Protection against Domestic Violence Act No. 22 of 2001 passed in Dominica in December of 2001. 25 National Council to Prevent Discrimination. Federal Law to Prevent and Eliminate Discrimination. March 20, 2014 Amendment. Mexico. http://www.conapred.org. mx/userfiles/files/LFPED_web_ACCSS.pdf 20

the fundamental right to the free development of personality. The Court has affirmed that sexual orientation is an issue that falls within the sphere of individuals’ personal autonomy, allowing individuals to take on their desired life projects without outside pressure, as long as by doing so they do not violate the law or the rights of others26.

The 14 countries that completed the CIM/OAS questionnaire reported that, within their respective legal frameworks, they have specific laws in place for the control of HIV and other STIs, 27 as well as other related laws on, for example, sexual and reproductive health,28,29 , domestic violence, or violence against women/gender violence30 and, to a lesser degree, laws against all forms of discrimination. There are also other complementary laws on access to healthcare, social protection, work, education, and information, among others. Specifically, Uruguay’s regulatory and legal framework decriminalizes abortion (Law 18,987) and includes aspects like gender equality, sexual orientation, and gender identity in the majority of the laws specified in the questionnaire. In that same country, the General Law on Education (Law no. 18,437) sets forth the core crosscutting priorities of the national education system, such as education on human rights, education for health, and sexual education, while at the same time imposing criminal sanctions (up to 18 months imprisonment) for actions that incite hate, violence, and contempt (Law no. 17,677). In Mexico, the National Youth Program 2014-2018 includes “Promoting timely and quality care in health centers for young people living with HIV/AIDS” among its lines of action. 31

They did not report particular laws or policies that specifically address women living with HIV, since this population is considered to be included within the categories of “residents,” “persons,” “persons living with HIV,” “women,” “vulnerable groups,” and other similar groups that are included in the various instruments referenced. It is thus assumed that the overall legal framework in general applies to women with HIV in particular. Currently, only Brazil has a public policy instrument specifically focused on women living with HIV, called the “Plan to Address the Feminization of AIDS and other STIs.” 33

26 Colombia. Judgment C-481/98 on RIGHT TO SEXUAL IDENTITY/SEX-BASED DISCRIMINATION. 27 Belize and Trinidad and Tobago have specific policies and programs for responding to HIV in the workplace. 28 Argentina has a National Sexual Education Law and Colombia has a National Policy on Sexuality, Sexual Rights, and Reproductive Rights 2014-2024. 29 Uruguay is the only country that has reported having a law on elective abortion (Law 18,987) and one of the few that has reported an Assisted Reproduction Law. 30 Guatemala and El Salvador report that they have specific laws against violence against women or gender-based violence. Guatemala has Decree 7-99, Law to Com- prehensively Advance and Dignify Women, and Decree 22-2008, Law against Femicide and Other Forms of Violence against Women. El Salvador reports that it has the Special Comprehensive Law for a Violence-Free Life for Women. Mexico has two policy instruments that include HIV interventions associated with gender-based violence: i) Official Mexican Regulation NOM-046-SSA2-2005, which considers them health care in situations of sexual violence; and ii) the General Law to Prevent, Punish, and Eradicate Human Trafficking-related Crimes and to Protect and Assist the Victims of such Crimes. 31 Mexican Youth Institute. National Youth Program 2014-2018. Mexico. http://www.imjuventud.gob.mx/imgs/uploads/ProJuventud_2014.pdf 32 Universal Declaration of Human Rights; American Declaration of Human Rights; CEDAW; Convention on the Rights of the Child; International Covenant on Econo- mic, Social, and Cultural Rights; International Covenant on Civil and Political Rights and its Optional Protocol, among others. 33 Ministry of Health. Department of Health Surveillance. National STI and AIDS Program: Integrated Plan to Address the Feminization of the Epidemic of AIDS and other STIs, Brasilia, March 2007. Cited by FEIM (Fundación para Estudio e Investigación de la Mujer, Foundation for the Study and Investigation of Women). http:// www.feim.org.ar/pdf/doscaras2010.pdf 21

According to the principle of non-discrimination, all human beings are born free and equal in dignity and rights. However, in practice, and particularly in the case of women living with HIV, this does not occur, since the fact that this principle may be recognized in national laws does not necessarily guarantee that it will be fully enforced. In Mexico, Chapter II of the Federal Law to Prevent and Eliminate Discrimination states that “All discriminatory practices that aim to hamper or void the recognition or exercise of rights and true equality of opportunity are prohibited. For the purposes of the foregoing, the following are considered discriminatory behaviors: VI. Denying or restricting information on reproductive rights or preventing the free determination of the number of children and their spacing.”34 For this reason, women living with HIV have been advocating for the enforcement of the international doctrine on human rights to be reviewed and for the language thereof to be revised in order to specifically include the rights of these women.

In the 2011 GARPR reports, 28 Latin American and Caribbean countries stated that they had educational programs in place on the rights of persons living with HIV and key populations: Antigua and Barbuda, Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominica, Ecuador, El Salvador, Grenada, Guatemala, Guyana, Haiti, Jamaica, Mexico, Nicaragua, Panama, Peru, Dominican Republic, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname, Trinidad and Tobago, and Uruguay. 35 It is unknown whether these programs specifically address issues related to the rights of women living with HIV.

In terms of programs, the 14 countries that responded the CIM/OAS questionnaire stated that they had national HIV programs that take into account the four lynchpins of universal access: a) prevention, b) treatment, c) care, and d) support, in compliance with the commitments undertaken by the countries in the UNGASS principles and the Millennium Development Goals. However, just as with the legal frameworks, there were no programs that specifically target women living with HIV, since these women are usually included under the category of “persons living with HIV” and are therefore considered to be subjects of the rights, guarantees, interventions, and services recognized for all persons with HIV.

With regard to the content, focus, and scope of the national HIV plans and programs, the Dominican Republic indicates that the cross-cutting gender focus of these instruments and of the country’s policies aims to “identify HIV-related gender inequalities, placing emphasis on the

34 National Council to Prevent Discrimination. Federal Law to Prevent and Eliminate Discrimination. March 20, 2014 Amendment. Mexico. http://www.conapred.org. mx/userfiles/files/LFPED_web_ACCSS.pdf 35 UNAIDS. AIDSINFO. B.III.11.a Has programmes to educate concerning rights of PLHIV and key populations. http://www.aidsinfoonline.org/devinfo/libraries/aspx/ dataview.aspx 22

historic inequalities between men and women and the need for special measures to compensate for these disadvantages and guarantee women’s participation in formulating HIV response plans and programs” (Law 135-11). Guatemala’s National HIV/AIDS Strategic Plan includes differentiated strategies that take gender inequalities and gender identity into account: “Development of women’s skills and women’s empowerment to recognize and defend their sexual and reproductive rights,” “Emphasis on modifying the gender-based approach and masculinities that increase vulnerability to acquiring STIs, HIV, and AIDS,” “Differentiation of the interventions in IEC that target gender identities, gender equity, and social disparities in access to prevention services,” “Differentiated treatment for victims of sexual violence based on gender or gender identity.”

Barriers to the full exercise of the rights of women living with HIV

The countries that completed the questionnaire sent by the CIM/OAS and provided information on the barriers to the full exercise of the human rights of women living with HIV tend to agree that the main obstacles are the stigma and discrimination associated with HIV status, gender-based violence, the lack of empowerment of women living with HIV, their inadequate knowledge of their human rights, and their limited access to employment, and that these obstacles are closely associated with the disparities caused by gender inequalities themselves. Violence and difficulties in getting and keeping a job and being promoted at work are associated with gender-based discrimination, and when the condition of living with HIV is added to these pre-existing inequalities, the disparities can be exacerbated. Gender and HIV status thus intersect and increase vulnerability, and are compounded by other social determinants like ethnicity, age, social class, educational level, etc. Few countries identified “poverty” as a significant, structural, and cross-cutting factor in vulnerability (in this case only Trinidad and Tobago did so), even though national and regional statistics clearly demonstrate that women have access to considerably fewer resources, since on average they earn less than men and it is more difficult for them to enter the formal labor market. 23

3. Status of the rights of women living with HIV: progress and challenge

3.1 Right to life

The States guarantee this right to the extent that they respond to the needs of all of the diverse women living with HIV, eliminate discrimination, and create an atmosphere favorable to the exercise of rights. This right also entails access to the services and resources necessary for prolonging an active, healthy life, as well as respect for the dignity and integrity of the bodies of women living with HIV.

• Access to treatment: Significant progress has been made in Latin America and the Caribbean in access to antiretroviral therapy (ART). It was estimated that in the year 2013, around 71% of individuals with HIV knew their HIV status, 56% of patients who fulfilled the criteria for treatment were receiving antiretroviral therapy, and in 77% of the individuals in treatment, the viral load had become undetectable. Furthermore, 35% of new diagnoses had a first CD4 count of <200 cells/mm336 , and around 71% of patients undergoing ART received a first-line treatment

36 Advanced HIV (disease) infection case reporting is defined as the identification of persons with advanced HIV (only including those in clinical stages 3 or 4, or with a CD4 count of <350 cells/mm3). AIDS case reporting is defined as the identification and registration of patients when they are first found to be in clinical stage 4 or to have a CD4 count of <200 cells/mm3. Source: Vigilancia de la infección por el VIH basada en la notificación de casos: recomendaciones para mejorar y fortalecer los sistemas de vigilancia del VIH [Case-reporting-based HIV surveilllance: recommendations for improving and strengthening HIV surveillance systems]. Washington, D.C.: PAHO, 2012. 24

regimen,37 24%, a second-line regimen, and 5%, a third-line regimen. This indicates that around 29% of patients had already experienced treatment failure.38 Despite this progress, several countries have identified the challenges in providing treatment to a larger number of persons with HIV than currently have access thereto.39

Furthermore, the failure to provide treatment and follow-up care is a frequent problem in some countries. In Peru (2009) the national rate of vertical transmission was calculated in a cohort of children born exposed to HIV in 2007 as a point estimate of 9.1%, although it was noted that approximately 50% of the babies born exposed that year did not continue with follow-up monitoring and their serological status could not be determined. In Lima and Callao, on average more than 35% of pregnant HIV-positive women and newborns are not monitored. 40

The studies of stigma and discrimination against persons living with HIV reveal differences in access to ARVs, with lower percentages found for transgender women in Honduras (72.7%) and the three populations analyzed in Ecuador: men (65.7%), women (63.2%), and transgender women (60.7%). 41

37 According to WHO recommendations, first-line treatment should consist of 1 NNRTI + 2 NRTIs, one of which should be zidovudine (AZT) or tenofovir (TDF). The different countries should introduce measures to reduce (and eventually eliminate) the use of stavudine in first-line regimens due to the recognized toxicity thereof. Second-line treatment should consist of a ritonavir-boosted protease inhibitor (PI/r) + 2 NRTIs, one of which should be zidovudine (AZT) or tenofovir (TDF), depending on what was administered in the first-line regimen. Ritonavir-boosted atazanavir (ATV/r) and lopinavir/ritonavir (LPV/r) are the preferred PIs. While the current options have made advancements possible with ART, there has been a considerable cost in terms of side effects. PLHIV and health service providers both call for phasing in less toxic antiretrovirals while maintaining simplified fixed-dose combinations. According to the evidence available, the initial ART should contain an NNRTI (NVP or EFV) combined with two NRTIs, one of which must be 3TC or FTC and the other AZT or TDF. The countries are advised to choose a second-line regimen for patients for whom first-line ART has failed. Source: WHO, Antiretroviral therapy for HIV infection in adults and adolescents. Recommendations for a public health approach. 2010 revision. Geneva 2010. http://apps.who.int/iris/bitstream/10665/44379/1/9789241599764_eng.pdf 38 PAHO/WHO (2014). Antiretroviral Treatment in the Spotlight: A Public Health Analysis in Latin America and the Caribbean. Washington, DC. http://www.paho.org/ hq/index.php?option=com_docman&task=doc_view&gid=23710&Itemid 39 Avert. HIV and AIDS in Latin America. http://www.avert.org/hiv-aids-latin-america.htm#sthash.svd2DSj9.dpuf 40 Red Peruana de Mujeres Viviendo con VIH [Peruvian Network of Women Living with HIV] (2014). Determinantes Psicosociales en la Transmisión Vertical del VIH. Diagnóstico Comunitario Red Peruana de Mujeres Viviendo con VIH [Psychosocial Determinants in the Vertical Transmission of HIV. Peruvian Network of Women Living with HIV Community Diagnostic]. Lima. http://dvcn.aulaweb.org/determinantes_psicosociales_transmision_vertical_VIH.pdf 41 Legend applicable to all data tables from the studies on stigma and discrimination: M=Men, W=Women, T=Transgender women 25

Table 2: Current use of and access to ART in stigma and discrimination studies in six Latin American countries (2008-2014) Bolivia Mexico Honduras El Salvador Ecuador Dominican Use of and 2011 2008 2014 2010 2010 Republic access to (N= 420) (N= 931) (N= 720) (N=500) (N=497) 2009 (N=1000) ART % % % % % % H M H M T H M T H M T H M T H M T Currently 55,3 43,5 83,9 90,1 85,7 89,9 93,3 90,9 88,4 87,5 82,8 74,8 77,9 60,7 71,2 67,6 ND taking ARVs Has access to ND ND 97,9 98,4 98,6 88 90,7 72,7 96,6 97 100 65,7 63,2 60,7 90,5 88,4 ND ARVs

Source: Studies of stigma and discrimination against persons living with HIV

• Killings of transgender persons: Gender-identity-associated discrimination also endangers the lives and safety of transgender persons, as they are victims of violence and physical and sexual hate crimes. Around 80% of the killings of transgender persons reported globally occurred in Latin America. 42 The perpetrators of these crimes are not usually brought to justice. The impunity that allows violations of the rights of activists and other transgender women to occur is not only caused by the overall climate of impunity that exists in several Latin American countries, but rather, to a large extent results from transphobia.43

• Killings of sex workers: In the past few years, RedTraSex member organizations have registered the murders of female sex workers. For example, in Honduras 16 killings were noted; in El Salvador, 27; in Bolivia, 9; and in Chile, 16.44 The cases compiled and the information provided by national organizations of sex workers in 13 countries of the region suggest that sex workers as such are murdered for the following reasons: i) they have refused to work or to continue working for a pimp; ii) they have refused to pay “fees” to mafias, gangs, or law enforcement forces in order to be able to work; iii) they have made official complaints against certain powerful sectors seeking to benefit from their sex work; iv) simply because they are sex workers who suffer stigma and discrimination; and v) because they work in completely unsafe areas known as “zonas liberadas”

42 UNAIDS, Gap Report 2014, http://www.unaids.org/sites/default/files/media_asset/08_Transgenderpeople.pdf, http://cerodiscriminacion.onusida-latina.org/ personas-trans/las-violaciones-a-los-derechos-humanos-de-las-personas-trans-aumentan-su-vulnerabilidad-al-vih.html 43 REDLACTRANS (2012). Impunity and violence against transgender women human rights defenders in Latin America. http://www.aidsalliance.org/assets/000/000/405/90623-Impunity-and-violence-against-transgender-women-human-rights-defenders-in-Latin-America_original.pdf?1405586435 44 Human rights situation of female sex workers in 15 countries of the Americas. http://www.redtrasex.org/Human-rights-situation-of-female.html Available in Spanish at: http://www.redtrasex.org/Situacion-de-derechos-humanos-de.html 26

or “no man’s lands,” which are areas without a police presence. The level of impunity of these crimes is high because rarely does the justice system identify the perpetrators and many of the investigations are left unfinished.45

Access to condoms for adolescents and young people: Condoms have been proven to effectively prevent HIV transmission in men and women if used correctly in every act of intercourse, and the female condom is the only method for preventing HIV and other STIs that is controlled by the woman. However, legal, cultural, and social barriers restrict access to male and female condoms, particularly in the adolescent and youth populations, and above all, for women. The legal age for purchasing male condoms varies by country, with policies that allow open access at any age in Brazil, Costa Rica, Ecuador, El Salvador, and Guatemala; at 10 years of age in Honduras, Mexico, Nicaragua, and Paraguay; at 12 years in Bolivia and Colombia; at 13 years in Uruguay; and at 14 years in Argentina, Chile, and Venezuela. In the legal frameworks of most of these countries, the legal age for purchasing condoms is generally the same as the age of sexual consent or older, except for in Argentina, where the age of sexual consent is 13 years and contraception may be purchased without parent or guardian permission from 14 years of age. In Chile, the legal age for purchasing condoms is 14 years and the age of sexual consent for homosexual relationships is 18 years.46

HIV and armed conflict: There is very little documentation on the effects of the high levels of social violence and armed conflict on women’s vulnerability to HIV. A study conducted in Colombia from 2002 to 2008 found that the HIV epidemic tended to spread in regions where heterosexual contact was the predominant mode of HIV transmission and where the armed conflict was more intense. Equally, this study emphasized that it should be kept in mind that extreme rates of underdiagnosis could be hiding behind the data on departments that seem to have high rates of armed violence and a low incidence of HIV and AIDS.47

Furthermore, in disaster situations, people living with HIV may be affected by interruptions in the supply of ARVs, which could cause them to develop resistance to the medications. Food scarcity

45 RedTraSex (2015). Violación de los derechos humanos a las mujeres trabajadoras sexuales en catorce países de las Américas [Human rights situation of female sex workers in 15 countries of the Americas]” available at http://www.redtrasex.org/IMG/pdf/cidh_resumenejecutivo_disenado.pdf 46 UNFPA (2015). Análisis de la legislación y políticas que afectan el acceso de las y los jóvenes a la salud sexual y reproductiva en América Latina y el Caribe. Versión preliminar [Analysis of the legislation and policies that affect youth access to sexual and reproductive health in Latin America and the Caribbean. Preliminary version]. 47 NEVARDO MALAGÓN J. Influencia del conflicto armado en el aumento de la incidencia de VIH/sida en Colombia, durante el periodo 2002-2008 [Influence of the armed conflict on the incidence of HIV/AIDS in Colombia in the 2002-2008 period]. http://med.javeriana.edu.co/publi/vniversitas/serial/v52n1/INFLUENCIA%20 DEL%20CONFLICTO%20ARMADO.pdf 27

in emergency situations also has grave implications for some individuals living with HIV, since malnutrition can accelerate the progress of the infection 48

3.2 Right to non-discrimination and equality before the law

The guarantee of this right entails the prevention of discriminatory acts, the protection of persons living with HIV, and their integration into public policies on development. HIV-related stigma and discrimination persist as major obstacles to furthering an effective HIV response in the region, and they have a bearing on multiple facets of life for persons living with HIV.49

In the 2011 GARPR reports, 29 Latin American and Caribbean countries reported that stigma and discrimination were addressed in their national HIV plans, and 12 stated that they had programs in place to target them. 50It is not known whether these plans and programs specifically address the gender aspects of stigma and discrimination.

Table 3: Countries that reported they have included stigma and discrimination against persons with HIV in their national HIV plans and that have specific programs (GARPR, 2011) Stigma and discrimination included in national HIV Have programs on stigma and discrimination against plan persons with HIV Antigua and Barbuda, Barbados, Belize, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominica, Argentina, Belice, Brasil, Colombia, Ecuador, El Salvador Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Guyana, Mexico, Nicaragua, Perú y Surinam. Guatemala, Guyana, Haiti, Jamaica, Mexico, Nicaragua, Argentina, Belize, Brazil, Colombia, Ecuador, El Salvador, Panama, Paraguay, Peru, Saint Kitts and Nevis, Saint Vincent Guatemala, Guyana, Mexico, Nicaragua, Peru, and Suriname. and the Grenadines, Suriname, Trinidad and Tobago, Uru- guay, and the Bolivarian Republic of Venezuela.

Source: UNAIDS. AIDSINFO

48 International Federation of Red Cross and Red Crescent Societies. Natural disasters: the complex links with HIV. http://www.ifrc.org/PageFiles/99874/2008/ WDR2008-English-6.pdf 49 UNAIDS. Global report: UNAIDS report on the global AIDS epidemic 2013. Geneva. http://www.unaids.org/sites/default/files/media_asset/UNAIDS_Global_Re- port_2013_en_1.pdf 50 UNAIDS. AIDSINFO. A.I.2.2 Reduction of stigma and discrimination included in plan. http://www.aidsinfoonline.org/devinfo/libraries/ aspx/dataview.aspx 50 UNAIDS. AIDSINFO. A.I.2.2 Reduction of stigma and discrimination included in plan. http://www.aidsinfoonline.org/devinfo/libraries/aspx/dataview.aspx 28

The existence of programs or actions to reduce stigma and discrimination does not automatically transform institutional and social practices. Studies on stigma and discrimination in Latin America reveal high levels of social exclusion, with differences among men, women, and transgender women. The percentage of individuals who state that they have been excluded from social activities ranges from 31.4% of transgender women in Mexico to 6% of women in Ecuador and Honduras. The percentage of women who state that they have experienced some kind of discrimination reaches 40.7% in El Salvador, 17.1% in the Dominican Republic, 55% in Paraguay, and 4% in Guatemala.

The percentage of women who state that they have been excluded from family activities ranges from 20.3% (Nicaragua) to 3% (Guatemala), and the percentage of transgender women, from 28.5% (Paraguay) to 11.1% (Nicaragua). The percentage of women who report that they have been excluded from religious activities was 3.5% in Mexico, 5.8% in Honduras, 3.7% in the Dominican Republic, and 5.5% in Paraguay.

Between 65.7% of women in the Dominican Republic and 20.4% in Guatemala reported that they have been the subject of gossip, while 100% of transgender women in Paraguay and 77.8% in Nicaragua did so. The percentage of women who reported experiencing discrimination from other persons with HIV was 14.3% in Nicaragua, 6.7% in Mexico, 6.5% in the Dominican Republic, and 9.5% in Paraguay. For transgender women, the percentages were 29.6% in Nicaragua, 20.7% in Mexico, 39.3% in Ecuador, and 14.2% in Paraguay.

Table 4: Experiences of discrimination in stigma and discrimination studies in eight Latin American countries (2008-2014)

Nicaragua Mexico Honduras Guatemala El Salvador Ecuador Dominican Paraguay 2013 2008 2014 2011 2010 2010 Republic 2010 Forms of (N= 801) (N= 931) (N= 720) (N=500) (N=500) (N=497) 2009 (N=256) discrimination (N=1000) % % % % % % % % M W T M W T M W T M W T M W T M W T M W T M W T Exclusion from social ND 15,1 14,5 22,2 11,3 12,5 31,4 8,4 6,7 ND ND ND ND ND ND 11,1 6,1 ND 7,6 7,3 ND 12,1 12,6 14,2 activities ND Some form of ND ND ND ND ND ND ND ND ND 4,1 4,3 ND 23,2 40,7 34,5 ND ND ND 12,8 17,1 ND 55,3 55 100 discrimination Exclusion from family 14,9 20,3 11,1 8,6 8,7 21,4 4,1 5,4 ND 4,2 3,1 ND ND ND ND ND ND ND 9,7 13,1 ND 15,4 16,6 28,5 activities Exclusion from religious ND ND ND 2,1 3,5 9,3 5,4 5,8 ND ND ND ND ND ND ND 3,3 2,9 ND 2,3 3,7 ND 3,2 5,5 ND or worship activities Subject of gossip 43,1 46,7 77,8 62,8 53,8 94,3 ND ND ND 18,2 20,4 21,5 37,4 31 ND ND ND 58,6 65,7 ND 55,2 55,5 100 Discrimination by other 11 14,3 29,6 14,4 6,7 20,7 ND ND ND ND ND ND ND ND ND ND ND 39,3 7,4 6,5 ND 8,1 9,5 14,2 persons with HIV

Source: Studies of stigma and discrimination against persons living with HIV 29

Discriminatory practices have also been noted in dental and sexual and reproductive health services. In stigma and discrimination studies in five countries in Latin America, the percentage of individuals who stated that they had been denied a health service over the past 12 months due to their HIV status, including dental care, ranges from 8.8% in Mexico to 13.8% in Paraguay for men and from 10.2% in Mexico to 20% in Paraguay for women; for transgender women, the percentages were 37.9% in Mexico and 39.3% in Ecuador, the two countries with information available on this group. The percentage of women who reported that they had been denied family planning services in the past 12 months due to their HIV status was 4.2% in Mexico, 3.3% in Guatemala, 6% in Ecuador, and 2.7% in the Dominican Republic. In the 12 months prior to the study, 3.8% in Mexico, 1.3% in Guatemala, and 1.8% in the Dominican Republic had been refused sexual and reproductive health services because of their HIV status.

Table 5: Experiences of discrimination in dental and sexual and reproductive health services in stigma and discrimination studies in eight Latin American countries (2008-2014)

Dominican Mexico Guatemala Ecuador Republic Paraguay 2008 2011 2010 2009 2010 Discriminatory practices (N= 931) (N=500) (N=497) (N=1000) (N=256) % % % % % H M T H M T H M T H M T H M T In the past 12 months was refused some health 8,8 10,2 37,9 5,6 7,5 ND 12 12,7 39,3 6,8 10 ND 13,8 20,6 ND service, including dental care, due to HIV status In the past 12 months was refused family planning 1 4,2 0,7 2,1 3,3 ND 4,9 6 39,3 2,1 2,7 ND ND ND ND services due to HIV status In the past 12 months was refused sexual and 0,4 3,8 1,4 2,1 1,3 ND ND ND ND 1,2 1,8 ND ND ND ND reproductive health services due to HIV status

Source: Studies of stigma and discrimination against persons living with HIV

Other sources have documented the discrimination in health services against women living with HIV. The Estudio técnico-jurídico de las violaciones a los derechos reproductivos de mujeres con VIH en cuatro países de Mesoamérica [Technical-legal study of violations of the reproductive rights of women with HIV in four countries of Mesoamerica] found that 41% of the women interviewed in Mexico, 35% in Nicaragua, 54% in Honduras, and 46% in El Salvador reported having noted a discriminatory attitude on the part of the healthcare staff. The following situations illustrate these attitudes: the staff are reproachful or “rub in” the fact that the women have the disease; the women are blamed for getting pregnant or for transmitting the virus vertically before they even knew they had it; their identity is tied up with the disease (i.e. being “AIDS”); and they are fired without justification, among others. 30

Likewise, the interviewees reported that they are sometimes refused medical/surgical procedures (e.g., they were not given gynecological check-ups; a spine surgery was not performed; staff did not want to attend a delivery). They further reported other practices through which medical personnel exclude women because of their HIV status, such as forcing them to be seen last or speaking to them from the office door. The most extreme expression of discrimination is the involuntary sterilization of women living with HIV, which was reported in the four countries studied51

Likewise, in Peru, a study revealed the unequal treatment given by health professionals to persons living with HIV, with approximately 5% of the interviewees indicating that they had been refused some type of family planning or reproductive health service and more than 25% reporting that they had never been offered any such services. More than a quarter of the participants stated that they had been treated differently from the other patients.52 Similar situations were reported in 2013 by a significant portion of the 386 women with HIV from the 18 Latin American countries in which ICW Latina has a presence who participated in the Monitoring of Sexual and Reproductive Health Services for Women with HIV, which found that in terms of treatment and average office wait times, 34% of these women were seen in less than one hour and 27% in less than two hours, while 38% had to wait more than two hours. The latter group reports discrimination because they have to wait much longer to be seen than other women requesting sexual and reproductive health services do.53

In the case of sex workers, stigma plays an important role in health services use patterns. In a 2013 study conducted by RedTraSex with the participation of 1,006 female sex workers, the interviewees reported that they have to see doctors far from where they live in order to prevent being found out as sex workers in their neighborhoods or homes, or use health services far from where they work so that the providers will not know what type of work they do. The purpose of these service- seeking strategies is to avoid potential situations in which they would be discriminated against by people close to them and/or by healthcare providers. Thirty-three percent reported that they did not want to go to the hospital or use health services because they did not want to have to give explanations about their work; one-third reported having experienced discrimination and violence at the hospital, including hostility on the part of the administrative staff, or that they had to change hospitals or services; and 13% stated that they had been directly refused services. Sometimes, it is

51 Avalos Capín J. (2013). Estudio técnico-jurídico de las violaciones a los derechos reproductivos de mujeres con VIH en cuatro países de Mesoamérica [Technical-legal study of violations of the reproductive rights of women with HIV in four countries of Mesoamerica]. Balance Promoción para el Desarrollo y Juventud A.C. [Balance Promotion for Development and Youth, Non-Profit Organization], Mexico. http://dvcn.aulaweb.org/mod/data/drx.php?ID=223 52 IESSDAH (2012). “... and I realized that AIDS is not a synonym for death.” Diagnostico del acceso a servicios y programas de prevencion de salud sexual y reproductiva por parte de las personas viviendo con VIH [Evaluation of access to services and sexual and reproductive health prevention programs for persons living with HIV]. 53 ICW Latina (2013). Resultados de aplicación de herramienta de monitoreo de Servicios de Salud Sexual y Reproductiva en Mujeres con VIH – 2013 [Results of applying the sexual and reproductive health services for women with HIV monitoring tool – 2013] http://dvcn.aulaweb.org/mod/data/drx.php?ID=222 31

not strictly speaking the health professionals who discriminate or obstruct access, but rather the context of persecution and the stigma of sex work that do so. 54

The organizations of female sex workers in the countries included in the study reported that most female sex workers never file complaints when their rights are not respected. The main reason why is fear, followed by a lack of trust in the process, discrimination by those who register the complaint, and threats and a lack of knowledge about the legal process. Among other reasons cited was the fear that their families would find out about their “double lives.” This makes it clear that, for female sex workers, the act of keeping their economic activity a secret constitutes a vulnerability factor that also perpetuates the impunity of the crimes committed against them. Women who have taken legal action describe it as “a bitter experience,” in which they experienced “mistreatment and abuse by the police,” stating that it was “very hard, since the doors close on us when they find out that we are sex workers.” Furthermore, women who have been defendants in these proceedings report other types of violations of their rights. Examples of specific cases include the complaints received in countries like Bolivia and Colombia: “The police hit me and put me in a jail with fellow prisoners and crazies who stole everything from me even my shoes and one of them raped me and the police turned a blind eye […] after the guy raped me I got an STD and the police didn’t do anything” (Nancy, sex worker in Colombia). In Bolivia, in October 2014, a police operation in underground brothels and bars ended up detaining 20 sex workers in FELC-C cells for the alleged crime of endangering public health. “The girls were verbally assaulted by law enforcement officers and others were physically assaulted: when it was time to be transferred many of us were asked to present our health credentials, but the documents were not shown to the health authorities, which caused lots of problems for the sex workers because however much we insisted that we had the health credentials, they accused us just the same.”

In the case of transgender women, many countries do not issue identity documents that accurately reflect gender identity as opposed to biological sex. This situation can hamper access to employment, to medical care, to the possibility of traveling outside the country, and to participation in the various spheres in which citizenship is exercised. Transgender persons also encounter discrimination from their families, communities or ethnic groups, police officers, and organized crime.55 Other barriers to medical treatment that they face include being mistreated and discriminated against by professionals and staff members at healthcare facilities; the lack of customized, comprehensive care; and professionals’ limited technical capacities for treating individuals while taking into account

54 RedTraSex (2015). Five reasons why sex work must be regulated. Argentina. http://www.redtrasex.org/Five-Reasons-Why-Sex-Work-Must-Be.html 55 REDLACTRANS (2014). Report on the economic, social and cultural rights of the transgender population of Latin America and the Caribbean. http://www.redlactrans.org.ar/site/wp-content/uploads/2015/03/Report%20on%20DESC%20trans.pdf 32

their sexual diversity. A study on the sexual, reproductive, and mental healthcare needs, barriers, and demands in the transgender, lesbian, and gay population in Peru found that the vast majority of the interviewees call for fair and respectful treatment and for their particular needs to be addressed, and that they prefer to be seen in healthcare facilities where they are guaranteed to be treated well, warmly, and without discrimination rather than in facilities that may be fully outfitted in terms of equipment, infrastructure, and medications but cannot guarantee good treatment and non- discrimination.56

In Brazil, there are few interventions designed to reduce the stigma associated with HIV, and they are carried out at the community level through HIV-prevention projects. 57

According to the 2011 and 2014 GARPR reports, in Latin America and the Caribbean, 14 countries prohibit sex work, 20 have laws that protect young people, and four have laws that protect injection drug users.

Table 6: : Legal framework for key populations in Latin America and the Caribbean according to 2011 and 2014 GARPR reports 4 countries that report 18 countries that report they have 20 countries that report they 14 countries where sex work is they have laws that protect laws that protect persons deprived have laws that protect young illegal (GARPR 2014) injection drug users (GARPR of liberty (GARPR 2011) people (GARPR 2011) 2011) The Bahamas, Bolivia, Brazil, Antigua and Barbuda, Argentina, Antigua and Barbuda, The Colombia, Costa Rica, Cuba, Bolivia, Brazil, Chile, Colombia, Costa Bahamas, Barbados, Dominica, Dominica, Ecuador, El Salvador, Rica, Cuba, Dominica, Ecuador, Grenada, Guyana, Haiti, Jamaica, Colombia, Ecuador, Guatemala, Guatemala, Honduras, Mexico, El Salvador, Grenada, Guatemala, Saint Kitts and Nevis, Saint Lucia, and Uruguay Nicaragua, Dominican Republic, Jamaica, Nicaragua, Peru, Dominican Saint Vincent and the Grenadines, Venezuela, Panama, and Uruguay. Republic, Venezuela, Saint Lucia, and Suriname, and Trinidad and Tobago. Uruguay There are significant information gaps on certain populations that to some extent result from the stigma and social exclusion that render these populations invisible in first- and second- generation epidemiological surveillance studies. For example, most Latin American countries have an indigenous population, and the absence of studies showing the factors, including gender

56 Velarde Ramirez, Chaska T (2011). La igualdad en lista de espera: necesidades, barreras y demandas en salud sexual, reproductiva y mental en poblacion trans, lesbiana y gay [Equality on the waiting list: Sexual, reproductive, and mental health needs, barriers, and demands in the transgender, lesbian, and gay population]. Centro de Promocion y Defensa de los Derechos Sexuales y Reproductivos [Center for the Promotion and Defense of Sexual and Reproductive Rights] (PROMSEX). http://promsex.org/images/docs/Publicaciones/LaigualdadenlistadeesperaNecesidades.pdf 57 ZUCCHI, Eliana Miura; PAIVA, Vera Silvia Facciolla; FRANCA JUNIOR, Ivan (2013). 33

factors, that impact the dynamics of the HIV epidemic in those communities and the conditions of indigenous women living with HIV, accurately reflects the social marginalization in which they live their lives and the limited progress that has been made towards addressing ethnicity-related issues.58 Equally worrisome is the lack of information on HIV in female drug users, women deprived of liberty, migrant women, and women with disabilities, among other groups.

3.3 Right to the highest attainable standard of health

Access to sufficient, quality healthcare and to living conditions that ensure physical and mental well- being are key aspects for guaranteeing the right to health.

Health insurance and coverage: Women living with HIV have to face significant barriers in order to reach a satisfactory state of physical and mental health, including limited access to health insurance. A study conducted in Argentina found that 70% of HIV-positive women had no health coverage beyond the government system. Only 23% had publicly funded health insurance through their own employment or through their spouse or a family member (known as obras sociales), and a small percentage belonged to an emergency service or had private coverage.59A study on adherence to treatment in Colombian women with HIV found that the principle barriers thereto are structural, created by the current healthcare system based on the insurance market. Women find that their rights to timely and continuous treatment, to confidentiality, to non-discrimination, and to comprehensive care with a gender-based approach, are violated, and this affects their adherence to the treatment60. In some countries, the high prices of medications for preventing and treating associated opportunistic infections constitute one of the challenges in HIV care and treatment.61

The RedTraSex regional study (2014) found that the public health system offered by the State, which in many countries is totally or partially free of charge, covers almost eight of every 10 individuals surveyed. Ten percent have publicly funded health insurance (obra social), social security, or union-

58 Volkow, P. et al. La vulnerabilidad femenina frente al VIH en América Latina [Women’s vulnerability to HIV/AIDS in Latin America]. Actualizaciones en SIDA [AIDS Updates]. Buenos Aires, November 2012. Volume 20, number 78:111-119. http://www.huesped.org.ar/wp-content/uploads/2014/11/ASEI-78-111-119.pdf 59 Binstock G, Manzelli H, Hiller R, Bruno M (2012). Caracterizacion de las mujeres recientemente diagnosticadas con VIH en Argentina [Characterization of women recently diagnosed with HIV in Argentina]. Red Argentina de Mujeres viviendo con VIH/sida [Argentine Network of Women Living with HIV/AIDS], Red Bonaerense de Personas viviendo con VIH/sida [Buenos Aires Network of Persons Living with HIV/AIDS], CENEP-CONICET, Gino Germani Institute (University of Buenos Aires), UNAIDS. http://publicaciones.ops.org.ar/publicaciones/publicaciones%20virtuales/MujeresVIHPV/pdf/informeFinalMujeresVIH.pdf 60 Arrivillaga-Quintero M. Análisis de las barreras para la adherencia terapéutica en mujeres colombianas con VIH/sida: cuestión de derechos de salud [Analysis of the barriers to adherence to treatment in Colombian women with HIV/AIDS: a question of health rights]. Salud pública Méx [Mexican Public Health] vol. 52 no. 4 Cuernavaca Jul./Aug. 2010. http://www.scielosp.org/scielo.php?pid=S0036-36342010000400011&script=sci_arttext 61 UNAIDS, PAHO/WHO, and UNICEF (2009). Challenges Posed by the HIV Epidemic in Latin America and the Caribbean 2009. http://new.paho.org/hq/dmdocu- ments/2010/CHALLENGES-hiv-epidemic-INGLES-2010.pdf 34

based insurance; eight percent pay out of pocket to see their personal physicians, and three percent use pre-paid private medical plans. In some cases, women prefer to pay for services and/or go to private clinics in order to ensure that they are treated well, in keeping with the patient-as-consumer paradigm; in others, they are forced to pay for private care in order to avoid situations of hostility and stigma. Furthermore, the reasons why sex workers undergo health tests are influenced by whether or not such tests are mandatory; 32% of sex workers state that they have had a health consultation in the past year “because they had to undergo tests for their health card or due to another legal regulation” and a similar percentage states that they did so “because at work they were forced to take a test.” These percentages are much higher in countries with regulations that mandate testing.

The healthcare systems in Latin America and the Caribbean suffer from systemic problems that limit the coverage of services for the general population as well for specific groups such as, for example, women living with HIV. PAHO/WHO (2014) has suggested that this lack of adequate coverage and universal access has a considerable social cost, with catastrophic effects on the most vulnerable population groups62; this is especially notable in persons living with HIV. When access to comprehensive services is not guaranteed, women living with HIV incur higher costs and lose a significant portion of their incomes while their key rights, such as the right to the highest attainable state of health, to life, or to work, among others, are violated. At the same time, this situation creates a vicious cycle that links HIV infection with poverty among HIV-positive women. It should be noted that 30% of the region’s population does not have access to healthcare due to financial reasons and 21% cannot even seek treatment due to geographical barriers. 63

With regard to access to healthcare services and treatment, the ICW Latina study Resultados de aplicación de la herramienta de monitoreo de servicios de salud sexual y reproductiva en mujeres con VIH [Results of applying the monitoring tool on sexual and reproductive health services for women with HIV] (2013) revealed that there are countries in which women living with HIV have to pay to access treatment. Barriers to access were identified, and were associated with the distance to health facilities, the wait times of more than two hours to be seen, and the discrimination the women face in the services. Ninety-three percent of the interviewees stated that they had access to antiretrovirals. Their most common issues were with the time they have to put in to their care and how they are treated by the healthcare professionals when they are seen. Moreover, the service is

62 PAHO/WHO. Strategy for Universal Health Coverage. 154th Session of the Executive Committee. CE154/12, May 12, 2014. Washington, D.C. http://iris.paho.org/ xmlui/bitstream/handle/123456789/4186/CE154-12-e.pdf?sequence=1&isAllowed=y 63 PAHO/WHO. Strategy for Universal Health Coverage. 154th Session of the Executive Committee. CE154/12, May 12, 2014. Washington, D.C. http://iris.paho.org/ xmlui/bitstream/handle/123456789/4186/CE154-12-e.pdf?sequence=1&isAllowed=y 35

limited to the prescription of medication and does not include any exploration of possible adverse reactions or other associated pathologies64

In addition, although mental health problems in women living with HIV are a significant issue that affects their overall well-being and that can make it difficult for them to comply with specific medical and pharmacological treatments, they are hardly addressed. 65

Access to HIV testing: In order to expand access to treatment, it is necessary to facilitate access to HIV testing and to counseling. In 17 countries, the percentage of women between 15 and 49 years of age who had taken an HIV test in the 12 months prior to the survey ranges from 2% in Bolivia to 47% in Chile. For men in the same age group, the range was from 2% in Bolivia to 51% in Ecuador. In six of the 17 countries, five or more percentage points more women than men took the test: Peru (38.9% vs. 5.3%), Chile (47% vs. 22.4%), Brazil (17.6% vs. 10.7%), Haiti (20.6% vs. 13.4%), and Cuba (19.8% vs. 13.7%). Substantially increasing the demand for HIV testing in key vulnerable populations of the region is essential, and this increase must be accompanied by steady improvements in quality in, for example, the organization of services, the strength and comprehensiveness of surveillance systems, and the adequacy of infrastructure and the available human, material, and financial resources. 66Barriers to HIV testing access lead to a build-up of late diagnoses.

In stigma and discrimination studies in seven countries, the percentage of individuals who reported that they had been tested without having given their consent ranges from 5.3% (Guatemala) to 13.4% (El Salvador) for women and from 2.9% (Mexico) to 14.2% (Paraguay) for transgender persons. Between 19.7% (El Salvador) and 37.5% (Mexico) of women stated that they had not received counseling, as did between 21.4% (Mexico) and 37.9% (El Salvador) of transgender persons.

64 ICW Latina (2013). Resultados de aplicación de herramienta de monitoreo de Servicios de Salud Sexual y Reproductiva en Mujeres con VIH – 2013. http://dvcn. aulaweb.org/mod/data/drx.php?ID=222 65 Obiols, M. Julieta; Stolkiner, Alicia I.Importancia de la inclusión de la salud mental en la atención integral de mujeres que viven con vih/Sida. Ciencia, Docencia y Tecnologia, vol. XXIII, núm. 45, noviembre, 2012, pp. 61-80 Universidad Nacional de Entre Rios, Concepcion del Uruguay, Argentina. http://www.redalyc.org/ articulo.oa?id=14525317003 66 UNAIDS. Treatment 2015. http://www.unaids.org/sites/default/files/sub_landing/files/JC2484_treatment-2015_es.pdfONUSIDA. 36

Graph 1: Percentage of women and men aged 15-49 that have had an HIV test in the last 12 months (2007-2013) 60

51.12 50 47.04

38.94 40 35.55

22.21 22.37 20.5 20 18.6 19.12 20.6 19.8 16.71 17.6 15.3 13.7 12.8 13.413 Women 10.7 11.1 11.3 10 8.9 8.3 8.75 Men 5.35 6.06 4 5.3 2.17 1.9 2.9 0

Chile (2011) Brasil (2012)Haiti (2013) Cuba (2013) Ecuador (2011) Panama Uruguay(2011) (2009) Peru (2009,2011)Argentina (2007) Costa Rica (2011) Guatemala Nicaragua(2011) (2009) HondurasEl (2013) Salvador (2011) Bolivia (2011, 2013) Colombia (2013, 2009) Dominican Republic (2013) Fuente: UNAIDS, Treatment 2015 RedTraSex has indicated that the existence of testing without consent, forced testing, and the failure to keep test results confidential is reported by sex workers in almost all countries. A high percentage of the women surveyed were forced to take a test because they were sex workers: 37.3% of the total sample and 60.1% (a very high percentage) of those in the Andean region. We can thus see how a right is arbitrarily transformed into an obligation. In terms of pre- and post-testing care: seven of every 10

Table 7: Persons who report that they were forced to take an HIV test or were given the test without providing their consent or receiving counseling in stigma and discrimination studies in seven Latin American countries (2008-2014) Dominican Mexico Honduras Guatemala El Salvador Ecuador Republic Paraguay 2008 2014 2011 2010 2010 2009 2010 HIV testing (N= 931) (N= 720) (N=500) (N=500) (N=497) (N=1000) (N=256) % % % % % % % M W T M W T M W T M W T M W T M W T M W T My decision I was forced to take 2,9 4,5 2,9 2,3 3,8 2,3 3 3,4 6 3,7 to take the the test ND ND ND ND ND ND ND ND ND ND test was: The test was performed 8,8 10,9 2,9 ND ND ND 5 5,3 17,8 13,4 3,4 13,5 12,9 ND 6,2 8,6 ND 7,3 10 14,2 without my consent I did not receive counseling 41,3 37,5 21,4 25,3 23,8 0 23,1 22,5 22 19,7 37,9 30,2 34,3 ND 23,9 30 ND ND ND ND Source: Studies of stigma and discrimination against persons living with HIV 37

female sex workers surveyed who had at some point taken an HIV test received some type of orientation or counseling before the test. Somewhat over a quarter of them never received this type of pre-test guidance, while approximately a third of the women surveyed who took an HIV test did not receive any guidance or counseling whatsoever when they were given the results (whether negative or positive).67

UNAIDS and the WHO (2012) have suggested that national policies and practices should be reviewed to eliminate all non-voluntary tests, and that testing should not be compulsory or mandatory for anyone, not even for members of groups at higher risk of HIV infection and of other vulnerable populations, such as pregnant women, people who inject drugs and their sexual partners, men who have sex with men, sex workers, prisoners, migrants, refugees and internally displaced persons, and transgender people. The five key components of testing and counseling programs are: consent, confidentiality, counseling, correct test results, and connection/linkage to prevention, care, and treatment.68

Some comprehensive healthcare initiatives have been developed in LAC for women living with HIV, for example, Mexico City’s Condesa Clinic, which offers treatment to highly vulnerable women, including: detection and treatment of HIV, human papilloma virus, and other STIs, support for the detection of breast cancer through Inmujeres D.F. [Women’s Institute of the Federal District] and uterine cervical cancer, emergency contraception, legal termination of pregnancy, and pregnancy monitoring and management. The clinic has an inter-agency panel on affirmative actions for women with HIV that facilitates the implementation of a care model incorporating referrals and counter- referrals. This model promotes access to programs for self-employment, housing, domestic violence assistance, and rural populations, among others. In addition, there is a food assistance program for all women at the clinic. 69

3.4. Right to a life free from violence

Measures targeted at the following are required in order to guarantee this right in the context of HIV: preventing and responding to the many forms of violence against women, ensuring access to justice, creating a policy environment to protect the rights of women with HIV in all their diversity and eliminate institutional violence, including violence exercised or tolerated by the State. In Latin

67 REDLACTRANS (2014). Report on the economic, social and cultural rights of the transgender population of Latin America and the Caribbean. http://www.redlactrans.org.ar/site/wp-content/uploads/2015/03/Report%20on%20DESC%20trans.pdf 68 WHO. Statement on HIV testing and counseling: WHO, UNAIDS re-affirm opposition to mandatory HIV testing. November 28, 2012. http://www.who.int/hiv/ events/2012/world_aids_day/hiv_testing_counselling/en/ 69 Clínica Especializada Condesa [Condesa Specialized Clinic]. Mexico. http://condesadf.mx/mujeres.htm 38

America and the Caribbean, all 32 countries have laws that punish sexual and physical violence, and of those, only seven countries (Antigua and Barbuda, Barbados, Brazil, Honduras, Jamaica, Nicaragua, and Peru) explicitly include women with HIV in their polices and/or plans on violence against women. 70

Several studies have been conducted in the region on violence against women living with HIV71, 72,73 transgender people, and sex workers74 These studies reveal the systemic, persistent nature of violence in all its forms and in the multiple spheres of these women’s lives.

At the same time, the studies on stigma and discrimination against people living with HIV make it possible to compare the different forms of violence in population subgroups in the countries where the data was disaggregated by sex and gender identity. Transgender persons experienced higher levels of aggression and/or verbal threats than did women in all seven countries except for El Salvador (6.9% of transgender persons vs. 17.4% of women), with the percentages for transgender people ranging from 57% in Paraguay to 72.1% in Mexico, and for women, from 9.9% in Guatemala to 32% in Nicaragua and Ecuador.

The percentage of women who reported having experienced threats or physical harassment ranged from 9.5% in Paraguay to 22% in Nicaragua, and of transgender women, from 3.4% in El Salvador to 42.8% in Paraguay. The percentage of women who reported physical assault ranged from 4.3% in El Salvador to 23.1% in Nicaragua, and of transgender women, from 3.4% in El Salvador to 42.8% in Paraguay.

The percentage of women who stated that their partner had manipulated or put psychological pressure on them ranged from 9.2% (Guatemala) to 19% in Nicaragua and Paraguay, while the percentage of transgender women ranged from 11% in Mexico to 18% in Nicaragua.

70 UNDP and UN Women (2013). The Commitment of the States: Plans and Policies to Eradicate Violence against Women in Latin America and the Caribbean. Panama. http://www.tt.undp.org/content/dam/trinidad_tobago/docs/DemocraticGovernance/Publications/Gender%20Violence%20Plans%20&Policies_LAC.pdf 71 Red Guatemalteca Mujeres Positivas en Acción [Guatemelan Network of Positive Women in Action] (2007). VIH/sida y violencia contra las mujeres [HIV/AIDS and violence against women]. http://www.actionaidguatemala.org/textos/VIH-SIDA.pdf. Referenced in: Modelo de Políticas y Programas Integrados de VIH y Violencia contra las mujeres en Guatemala [Integrated policy and program model for addressing HIV and violence against women in Guatemala]. CIM/OAS, 2012. Washington, D.C. 72 Study of the Movimiento Latinoamericano de Mujeres Positivas [Latin-American Positive Women’s Movement] (2012). Nuestras historias, nuestras palabras: Situación de las mujeres que viven con VIH en 14 países de América Latina [Our Stories, our words: The situation of women living with HIV in 14 Latin American countries].” 73 Bianco, Mabel and Mariño, Andrea (2010). Dos caras de la misma realidad: Violencia hacia las mujeres y VIH/sida en Argentina, Brasil, Chile y Uruguay [Two sides of the same coin: Violence against women and HIV/AIDS in Argentina, Brazil, Chile, and Uruguay]. FEIM [Foundation for the Study and Investigation of Women]. Argentina. 74 Ross Quiroga, Violeta (2013). Huellas de la violencia y el sida en la corporeidad e identidad de las mujeres viviendo con VIH, las trabajadoras sexuales y las mujeres trans de tres ciudades de Bolivia [Footprints of violence and AIDS in the bodily nature and identity of women living with HIV, sex workers, and transgender women in three cities in Bolivia]. RedBol [Network of Persons Living with HIV in Bolivia]. Bolivia. http://www.onusida-latina.org/images/2013/04-abril/138328495-Estu- dio-Violencia-en-Tres-Poblaciones-de-Mujeres-en-Bolivia.pdf 39

The percentage of women who stated that they had been rejected sexually on account of their HIV status was 6.7% in Guatemala, 9.5% in Paraguay, 11% in Nicaragua, Ecuador, and the Dominican Republic, and 15% in Mexico; among transgender women, the percentages were 11.1% in Nicaragua, 14.2% in Paraguay, 20.7% in Mexico, and 39.3% in Ecuador.

Table 8: Experiences of various forms of psychological, physical, and sexual violence in stigma and discrimination studies in seven Latin American countries (2008-2014)

Nicaragua Mexico Guatemala El Salvador Ecuador Dominican Paraguay 2013 2008 2011 2010 2010 Repblic 2010 Variables (N= 801) (N= 931) (N=500) (N=500) (N=497) 2009 (N=1000) (N=256) % % % % % % %

M W T M W T M W T M W T M W T M W T M W T Verbal abuse/threats 26,5 31,8 66,7 28,4 26,9 72,1 10 9,9 ND 7,3 17,4 6,9 26,5 30,5 ND 24,3 28,8 ND 25,2 25,3 57,1 Physical harassment/ 17 22 37 15,2 10,9 51,4 ND ND ND 4,2 7,5 3,4 17,1 17,5 ND 12,1 15,1 ND 11,3 9,5 42,8 threats Physical assault 15,8 23,1 25,9 13,6 16 38,6 2,3 4,3 ND 2,3 4,6 3,4 ND ND ND 9,1 11,8 ND 7,3 8,7 42,8 Psychological pressure/ manipulation by spouse or sexual 11,3 19,6 18,5 9,2 11,9 11,4 6,5 9,2 ND ND ND ND 13,3 13 ND 8 11,6 ND 18,6 19 14,2 partner in which HIV status is used against you Sexual rejection on 17 15,9 11,1 21,5 15,4 20,7 8,1 6,7 ND ND ND ND 12 11,1 39,3 15,6 11,2 ND 19,5 9,5 14,2 account of HIV status

Source: Studies on stigma and discrimination against persons living with HIV

The RedTraSex regional study (2014) found that 18% of the individuals surveyed stated that they had gone to the doctor or to health services in the past year because they had had been victims of blows or violence. Twenty-seven percent of sex workers in Central America and the Caribbean–10% more than in the region overall–stated that they had done so for the same reason, which motivated RedTraSex to draw up the Guía de Buenas Prácticas para el Personal del Sistema de Salud [Guide to Good Practices for Healthcare Personnel](RedTraSex, 2015).75 The lack of legislation regulating sex work in some countries creates a framework within which, backed by unconstitutional administrative regulations, law enforcement officers pursue, arbitrarily arrest, extort, and threaten sex workers, and even break into and close off their homes.

The International HIV/AIDS Alliance and the WHO have noted that since sex work is illegal and/ or stigmatized in many countries, sex workers are often marginalized, which puts them at greater 40

risk of suffering violence: they may work alone, in unfamiliar areas without police protection; they may be unable to develop supportive networks that could help them avoid dangerous clients or settings; and they may seek out the protection of gangs or other groups operating outside the law, leading to further risk of exploitation and abuse. Likewise, sex workers may come up against barriers, such as a lack of awareness of their rights or limitations in recognizing the various forms of violence exercised against them, that decrease their likelihood of reporting violence, which in turn limits their ability to prevent future acts of violence. 76

It should be stressed that women fearing violence are less able to protect themselves from HIV infection since they have less power to negotiate safe sex or refuse unwanted sex, they do not get tested for HIV, and they fail to seek treatment after infection.77 In the Dominican Republic, the study Nuevas evidencias del vinculo entre violencia contra la mujer y VIH [New evidence of the linkages between violence against women and HIV] (2011) found that the experience of violence at an early age is directly associated with risky behaviors, including substance use to cope with abuse, mental illnesses due to abuse, riskier social networks, and an increased probability of engaging in unprotected sex. Furthermore, women with less education have less information on HIV-prevention methods and also feel less empowered to refuse sex, in comparison with their more educated peers.78

3.5. Right to not be subjected to cruel, inhuman, or degrading treatment

The guarantees for the exercise of this right include the criminalization of acts of torture as well as the investigation, prevention, and punishment thereof. In Latin America and the Caribbean, many key populations face barriers to accessing information, prevention, and treatment resources, are refused services, and suffer hostility and other forms of discrimination in various spheres of their lives.

Coercive or forced sterilization: This has been one of the violations of women’s rights that has most generated interest in and mobilized the region. Forced sterilization entails the violation of a number of internationally protected rights, including the right to physical and mental integrity

75 RedTraSex (2015). “Ponte en nuestros zapatos” Guía de Buenas Prácticas para el Personal del Sistema de Salud [“Put yourself in our shoes” Guide to Good Practices for Healthcare Personnel] http://www.redtrasex.org/IMG/pdf/guia_de_buenas_practicas.pdf 76 UN Women. Sex workers. http://www.endvawnow.org/en/articles/687-trabajadoras-sexuales.html 77 Kata Fustos (2011). Gender-based violence increases risk of HIV/AIDS for women in Sub-Saharan Africa. Population Reference Bureau. http://www.prb.org/ Publications/Articles/2011/gender-based-violence-hiv.aspx 78 UNAIDS and UNFPA. Nuevas evidencias del vinculo entre violencia contra la mujer y VIH Informe Final [New evidence of the linkages between violence against women and HIV Final Report], October 2011. http://countryoffice.unfpa.org/filemanager/files/dominicanrepublic/nuevas_evidencias_mujer_y_vih.pdf 41

and the right to live free from cruel, inhuman, or degrading treatment: Article 5 of the American Convention on Human Rights, Article 7 of the International Covenant on Civil and Political Rights, Article 16 (1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 6 of the Inter-American Convention to Prevent and Punish Torture. The Estudio técnico-jurídico de las violaciones a los derechos reproductivos de mujeres con VIH en cuatro países de Mesoamérica [Technical-legal study of violations of the reproductive rights of women with HIV in four countries of Mesoamerica] found that of a total of 337 women interviewed, 20 in Mexico, seven in Nicaragua, six in Honduras, and 10 in El Salvador reported having been pressured or forced to be sterilized; these cases range from insistence and intimidation to forced sterilization.79 In 2015, a judgment was handed down in a case brought in El Salvador for constitutional relief against the forced sterilization of women living with HIV on the grounds that their rights had been violated. 80

Among the individuals interviewed in stigma and discrimination studies in seven Latin American countries, the percentage of women who reported having felt coerced by a health professional on some occasion to undergo sterilization was 26.1% in Colombia, 50% in Mexico, 20.6% in Guatemala, 14.4% in El Salvador, 11.1% in Ecuador, and 19.8% in the Dominican Republic. These percentages are higher for women than for men in all countries except Ecuador, where 13.6% of men, two percentage points more than the 11.1% of women, had this experience.

79 Avalos Capín J (2013). Estudio técnico-jurídico de las violaciones a los derechos reproductivos de mujeres con VIH en cuatro países de Mesoamérica. Balance Promo- ción para el Desarrollo y Juventud A.C. Mexico. http://dvcn.aulaweb.org/mod/data/drx.php?ID=223 80 AIDSMAP. http://www.aidsmap.com/org/7983/page/1868839/ 42

Table 9: Cases of health professional coercion for sterilization in stigma and discrimination studies in seven Latin American countries (2008-2014) Mexico Honduras Guatemala El Salvador Ecuador Dominican Colombia 2008 2014 2011 2010 2010 Republic (N=1000) (N= 931) (N= 720) (N=500) (N=500) (N=497) 2009 (N=1000) % % % % % % % M W T M W T M W T M W T M W T M W T M W T

On some occasion you felt coerced by a 3,3 26,1 1,6 24,4 50 8,6 1,9 17,6 ND 11,8 20,6 ND 2 14,4 ND 13,6 11,1 ND 2,5 19,8 ND health professional to undergo sterilization

Source: Studies on stigma and discrimination against persons living with HIV

Criminalization of HIV transmission: In the 2014 GARPR reports, The Bahamas, Bolivia, Colombia, Honduras, Nicaragua, Saint Lucia, Panama, and the Dominican Republic reported that they had laws criminalizing the transmission of HIV.81 This situation contravenes international regulations that establish that neither criminal nor health legislation should include specific crimes against the deliberate and intentional transmission of HIV, since the epidemic is spread through transmission in the case of undiagnosed infection and not by persons who know they are HIV-positive; furthermore, in many countries, criminalization puts women at risk of imprisonment and of losing custody of their children, among other dangers. A prime example of this took place in Bolivia, where a 25-year-old female sex worker and mother of two children who worked in Sucre and Potosí was sentenced to house arrest for having continued to work after being diagnosed HIV-positive, despite the fact that she used condoms. The Departmental Health Services reported her and, through the Chuquisaca Department Court of Justice, under the authority of Judge Ximena Mendizábal, imposed a precautionary measure against her, in the consideration that she was a danger to public health. The judge decided that she was guilty of a crime against public health, that she had to undergo medical treatment, and that she had to appear at the Office of the Prosecutor General every two weeks in order to sign the record book. In the ruling, the judge also ordered that she be put under house arrest with a police escort. This situation clearly violates the right to confidentiality of the woman diagnosed with HIV and, furthermore, is a clear example of discrimination.82

Violation of confidentiality: Several international instruments establish that the unauthorized public or private disclosure of an individual’s HIV diagnosis is a violation of their rights. Although progress has

81 UNAIDS. AIDSINFO. 2014 GARPR reports. http://www.aidsinfoonline.org/devinfo/libraries/aspx/dataview.aspx 82 Network of Women Sex Workers from Latin America and the Caribbean. Information sent by email on July 14, 2015. 43

been made on this right in some countries, the laws of other countries have prohibited adolescents from privately accessing public services, thereby depriving them of their right to confidentiality.83 In Chile, although the law on HIV stipulates confidentiality, almost half of the women interviewed in the study Violaciones de los derechos de las mujeres VIH positivas en establecimientos de salud chilenos [Violations of the rights of HIV-positive women in Chilean health facilities] reported that this right had been violated in the healthcare context. These violations included cases in which “HIV-positive” was written in giant letters, and often highlighted or in red ink, on the covers of their medical charts, as well as cases in which the health providers’ name tags identified them as HIV-care professionals and the hospital signs identified the department in question as an HIV-treatment ward.84 EThe Estudio técnico-jurídico de las violaciones a los derechos reproductivos de mujeres con VIH en Mesoamérica [Technical-legal study of violations of the reproductive rights of women with HIV in four countries of Mesoamerica] found that in Mexico, one-third of the women interviewed felt that the confidentiality of their diagnosis had not been respected, as did one-third of the women interviewed in Nicaragua. In Honduras, 26% of women, and in El Salvador, 36% of women felt that the confidentiality of their diagnosis was not respected.85

Threats to physical integrity and violence: In the REDLACTRANS study “Impunity and violence against transgender women human rights defenders in Latin America,” around 80% of the transgender activists interviewed reported having been subjected to violence or threats to their physical integrity, allegedly from State actors. One factor impeding progress in the criminal investigation and prosecution of cases is the fact that the violence that transgender women experience on a daily basis inhibits them from filing complaints about abuses perpetrated against them, thereby creating a culture of silence.86

For sex workers, the lack of clear regulations on sex work encourages a breach of legitimacy in which State institutions are able to institute repressive practices, and at the same time results in a lack of control over the conditions in which sex work is performed. The fact that it is impossible to give a statement or report an incident to the justice system as a sex worker–given that sex work is not formally recognized as an occupation–is also detrimental to the existence of reliable, complete, and official records on situations of violence and cruel treatment. According to a study conducted in Costa Rica, almost 30% of sex workers reported that the police demand bribes or payments and that the police also commit sexual

83 Ester Valenzuela Rivera, Lidia Casas Becerra. Derechos sexuales y reproductivos: confidencialidad y vih/sida en adolescentes chilenos [Sexual and reproductive rights: confidentiality and HIV/AIDS in Chilean adolescents]. Acta Bioethica [Bioethics Report], vol. XIII, no. 2, 2007, pp. 207-215, University of Chile. http://www. redalyc.org/articulo.oa?id=55413208 84 Centro por los Derechos Reproductivos. DIGNIDAD NEGADA: VIOLACIONES DE LOS DERECHOS DE LAS MUJERES VIH-POSITI- VAS EN ESTABLECIMIENTOS DE SALUD CHILENOS. http://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/DignidadNegada_0.pdf 84 Center for Reproductive Rights. Dignity Denied: Violations of the rights of HIV-positive women in Chilean health facilities. http://www.reproductiverights.org/ sites/crr.civicactions.net/files/documents/chilereport_single_FIN.pdf 85 Avalos Capín J, Balance Promoción para el Desarrollo y Juventud A.C. [Balance Promotion for Development and Youth, Non-Profit Organization], 2013. 86 REDLACTRANS (2012). The night is another country. Impunity and violence against transgender women human rights defenders in Latin America. http:// www.aidsalliance.org/assets/000/000/405/90623-Impunity-and-violence-against-transgender-women-human-rights-defenders-in-Latin-America_original. pdf?1405586435 44

violence against them in exchange for not arresting them for not having a work permit or health card. In the Dominican Republic, 95% of sex workers reported that violence had been inflicted upon them by law enforcement officers or agents of justice. Of these, 95% indicated that this violence was verbal or psychological, while 60% reported physical violence and 35%, sexual violence. 87

3.6 Right to education

Guaranteeing the exercise of this right entails eliminating economic, cultural, geographical, and social barriers to education, including the barriers associated with HIV status. HIV is also a consequence of inadequate education in women, since a lack of information about transmission and about their sexual rights limits their ability to protect themselves from the virus. Stigma and discrimination studies in five countries show that a significant portion of the interviewees, around 13% of both women and men in the Dominican Republic, had not attended school. A higher percentage of women than men was illiterate, 23.9% vs. 15.2% in Honduras, 12% vs. 3% in Mexico, and 4% vs. 0.8% in Paraguay. The percentage of women who had finished primary school ranged from 35.4% in Ecuador to 51.4% in the Dominican Republic. For men, the figures ranged from 15.4% in Paraguay to 58% in Honduras and the Dominican Republic.

Table 10: Educational level of women and men interviewed in stigma and discrimination studies in five Latin American countries (2008-2014)

Dominican Honduras Paraguay Republic (2014) Ecuador (2011) Mexico (2008) (2010) Educational level (2009) % % % % %

M W M W M W M W M W None 13 12,4 15,2 23,9 SD SD 3 12 0,8 4 Primary school 58,8 51,4 58 50 15,5 35,4 17 41 15,4 44,4 Secondary school 23,5 29,2 24,6 23,9 55,6 50,9 27 31 52,8 35 University 4,7 6,7 2,2 2,2 26,9 10,7 31 7 31 16,7 Source: Studies on stigma and discrimination against persons living with HIV

87 RedTraSex (2015). Violación de los derechos humanos a las mujeres trabajadoras sexuales en catorce países de las Américas [Violation of the human rights of female sex workers in fourteen countries of the Americas]. 45

The studies on stigma and discrimination in four countries also explored exclusionary practices in the educational sphere and found that in Guatemala, in the previous 12 months, 9% of the men interviewed and 12% of the women reported that they had been rejected or expelled from, or prevented from attending, some educational institution due to their HIV status. Also in Guatemala, 14.6% of men and 19% of women indicated that in the past 12 months their children had been rejected or expelled from, or prevented from attending, some institution.

Table 11: Discriminatory practices in the educational sphere in studies of stigma and discrimination in four Latin American countries (2008-2011)

Mexico Guatemala 2011 Ecuador Dominican 2008 (N=500) 2010 Republic Practices (N= 931) (N=497) 2009 (N=1000) % % % % M W T M W T M W T M W T In the past 12 months you have been rejected or expelled from, or prevented from attending, some educational institution due to your 0,4 1,6 0,7 9,2 12,2 ND 0,7 0,6 ND 3,1 2,4 ND HIV status. In the past 12 months, your children have been rejected or expelled from, or prevented from attending, some educational institution due 0,6 1,9 0 14,6 19 ND 2,9 2,3 ND 1,6 2,2 ND to your HIV status. Source: Studies on stigma and discrimination against persons living with HIV

It should be emphasized that in the RedTraSex study (2014), most of the women sex workers interviewed had completed or attended some primary school, almost 20% did not finish primary school, and 8% had never attended school at all, while 18% managed to complete secondary school and almost one of every 10 interviewees had started higher-level studies, while one of every ten is still a student.88 Furthermore, most transgender people in Latin America have not completed their basic education, which goes against the guarantee of universal primary education.89

3.7 Right to work

Guaranteeing this right entails eliminating barriers to access associated with HIV status, job security, social security, and fair pay. The studies of stigma and discrimination conducted in six countries of the region reveal high levels of unemployment. At the time of the survey, 58.2% of women with

88 RedTraSex (2013). Study on stigma and discrimination against women sex workers in access to health services in Latin America and the Caribbean. http://www. redtrasex.org/Study-on-Stigma-and-Discrimination.html 89 REDLACTRANS (2014). Report on the economic, social and cultural rights of the transgender population of Latin America and the Caribbean. http://www.redlactrans.org.ar/site/wp-content/uploads/2015/03/Report%20on%20DESC%20trans.pdf 46

HIV in the Dominican Republic, 35.7% in Guatemala, 67.1% in Honduras, 46.1% in Ecuador, 45.8% in Mexico, and 45% in Paraguay were unemployed. For men with HIV, the unemployment rates were as follows: 27.6% in the Dominican Republic, 16.1% in Guatemala, 52.7% in Honduras, 29.4% in Ecuador, 21.7% in Mexico, and 15% in Paraguay. The percentage of women with HIV who were unemployed was double or more than the percentage of men in four of the countries analyzed: the Dominican Republic, Guatemala, Mexico, and Paraguay.

Table 12: Employment status of the participants in stigma and discrimination studies in six Latin American countries

Dominican Honduras Paraguay Republic Guatemala (2014) Ecuador (2011) Mexico (2008) (2010) Employment status (2009) % % % % % %

M W M W M W M W M W M W Full time 23,3 12,4 44,7 21,4 22,5 11,9 27,3 17,9 31,3 18,3 31 12 Unemployed 27,6 58,2 16,1 35,7 52,7 67,1 29,4 46,1 21,7 45,8 15 45 Other 49,1 29,4 39,2 42,9 24,8 21 43,3 36 47 35,9 54 43

Source: Studies on stigma and discrimination against persons living with HIV

The stigma and discrimination studies also document the experiences of job loss and rejection and discrimination in the occupational sphere. The percentage of women interviewed who reported that they had lost their jobs at least once in the 12 months prior to the survey was 24.5% in Colombia, 26.5% in Mexico, 18.7% in Guatemala, 19.3% in Ecuador, 17.3% in the Dominican Republic, and 9.5% in Paraguay; for transgender women, the percentages were 68% in Colombia and 21.3% in Mexico.

The percentage of women who reported having been rejected from a job in the past 12 months due to their HIV status was 6.6% in Mexico, 1.1% in Guatemala, 6.2% in Ecuador, and 10% in the Dominican Republic; for transgender women, the percentages were 3.9% in Mexico and 39.3% in Ecuador. Likewise, the percentage of women who indicated that in the past 12 months the characteristics or nature of their job had been changed, or that they had been refused promotion due to their HIV status, was 15.7% in Mexico, 16.7% in Ecuador, and 12.3% in the Dominican Republic. 47

Table 13: Job loss and rejection and negative changes in employment due to HIV status in stigma and discrimination studies in six Latin American countries (2008-2011)

Mexico Guatemala Ecuador Dominican Paraguay Experiences of Colombia Republic (N=1000) 2008 2011 2010 2009 2010 discrimination in the (N= 931) (N=500) (N=497) (N=256) % % % % (N=1000) % employment sphere % M W T M W T M W T M W T M W T M W T

Job loss at least once in the 19,6 24,5 68 19,8 26,5 21,3 16,2 18,7 ND 10,8 19,3 ND 17,1 17,3 ND 14,6 9,5 0 past 12 months

Job rejection due to HIV status at least once in the past 12 ND ND ND 5,4 6,6 3,9 2,4 1,1 ND 12,8 6,2 39,3 9,5 10 ND ND ND ND months In the past 12 months, the nature/characteristics of your job have changed or you have ND ND ND 10,3 15,7 6,3 ND ND ND 7,7 16,7 ND 13,4 12,3 ND ND ND ND been denied a promotion due to your HIV status. Source: Studies on stigma and discrimination against persons living with HIV

Violations of the right to work of persons living with HIV have been documented in several meetings on HIV and human rights. Specifically, in El Salvador, the Office of the Ombudsman recognized that dismissal on the grounds of HIV status is a common practice that also reflects the weakness of existing legal frameworks and enforcement mechanisms.90 The study Nuestras historias, nuestras palabras [Our stories, our words], of the Movimiento Latinoamericano de Mujeres Positivas [Latin American Positive Women’s Movement] (2012), found that all 57 of the women interviewed reported post-diagnosis changes in their financial situation associated with treatment and care expenses, and that the cost of transportation relative to their schedules, routines, and temporary interruption in their jobs was a deciding factor in whether or not they would continue treatment. Added to these costs were the expenses for purchasing medicine to treat opportunistic infections and high- quality food. Women who had financial support from their families and inner circles did not report changes in their financial situations. Many of the women with HIV who were interviewed had been forced to leave their jobs or were fired. Most of the interviewees left their jobs or were fired and did not seek another job because they feared rejection, stigmatization, or discrimination.91 In the study

90 HIV and the Law, UNDP and Office of the Ombudsman. Report on the El Salvador National Dialogue on HIV and the Law. 91 Movimiento Latinoamericano de Mujeres Positivas [Latin American Positive Women’s Movement] (2012). Nuestras historias, nuestras palabras: Situación de las mujeres que viven con VIH en 14 países de América Latina [Our stories, our words: the situation of women living with HIV in 14 Latin American countries]. http://www.onusida-latina.org/images/2012/junio/INVESTIGACION.20MLCM.2B.202011.pdf 48

Caracterización de las mujeres recientemente diagnosticadas con VIH en Argentina [Characterization of women recently diagnosed with HIV in Argentina], less than half of the women were working at the time of the survey (46%), although most of them reported that they were participating in the labor market through unstable jobs without social benefits or coverage (70%).92

3.8 Right to social protection and an adequate standard of living

The social protection of women with HIV in all of their diversity is a fundamental mechanism for fulfilling their economic and social rights. In particular, social protection should ensure a sufficient level of welfare to sustain living standards that are considered basic for a person’s development, while also facilitating access to social services and promoting decent work.93 It is necessary to take into account employment policies and sectoral policies on education, health, and housing, since they are essential components for understanding challenges to social protection access and the “welfare gaps” between different population groups. It is also imperative to consider a society’s capacity for generating income through the labor market to sustain its members as well as the governments’ capacities for providing sustenance and protection to those who lack or have insufficient income, which is the case for many women living with HIV. A significant number of women with HIV fall into the category of dependents, since although they are in the productive age bracket, they do not participate in the labor market, or they do so in a precarious manner and with low incomes. Given the high levels of social exclusion they experience, women living with HIV do not necessarily benefit from the initiatives aimed at increasing social protection coverage, namely: retirement benefits, pensions, and other income transfers to older adults, monetary transfers to families with children, access to health insurance and services, and finally, worker protection (insurance against illness and unemployment, together with labor rights policies like severance pay, overtime, leave periods, etc.).

The studies on stigma and discrimination only partially reveal the lack of social protection experienced by persons living with HIV, and especially by women. The percentage of interviewees who experienced food shortages for one to two days, three to four days, or five or more days, was around 35% for men and 46% for women in the Dominican Republic, and 12.3% for men and 21.6% for women in Honduras.

92 Binstock G, Manzelli H, Hiller R, Bruno M (2012). Caracterizacion de las mujeres recientemente diagnosticadas con VIH en Argentina [Characterization of women recently diagnosed with HIV in Argentina]. Red Argentina de Mujeres viviendo con VIH/sida [Argentine Network of Women Living with HIV/AIDS], Red Bonaerense de Personas viviendo con VIH/sida [Buenos Aires Network of Persons Living with HIV/AIDS], CENEP-CONICET, Gino Germani Institute (University of Buenos Aires), UNAIDS. http://publicaciones.ops.org.ar/publicaciones/publicaciones%20virtuales/MujeresVIHPV/pdf/informeFinalMujeresVIH.pdf 93 Cecchini S, Filgueira F, and Roble C (2014). Social protection systems in Latin America and the Caribbean: A comparative view. ECLAC. 49

Table 14: Food shortage rates among the population interviewed in stigma and discrimination studies in two Latin American countries

Dominican Honduras Republic (2014) Food shortage (2009) % % M W M W None 64,6 53,9 87,7 78,4 1 to 2 days 9,1 10,8 6,9 11,3 3 to 4 days 12,8 15,3 4,7 6 5 or more days 13,6 20 0,7 4,3

Source: Studies on stigma and discrimination against persons living with HIV

The stigma and discrimination studies also show the barriers to accessing a permanent place of residence and the inability to rent housing. The percentage of women who stated that they had been forced to change their place of residence or had been unable to rent housing in the past 12 months was 17% in Mexico, 12.9% in Guatemala, 10.5% in Ecuador, 22.5% in the Dominican Republic, and 27.7% in Paraguay. Among transgender women, the percentages were 19.3% in Mexico and 42.8% in Paraguay. The percentages of men and women were similar in Mexico, Guatemala, and Ecuador.

Table 15: Barriers to housing access in stigma and discrimination studies in five Latin American countries Guatemala Dominican Mexico 2008 2011 (N=500) Ecuador 2010 Republic 2009 Paraguay 2010 (N= 931) % % (N=497) % (N=1000) % (N=256) % M W T M W T M W T M W T M W T In the past 12 months how often have you been forced to change your place of 18,4 17 19,3 13,8 12,9 SD 10,5 10,5 SD 18,5 22,5 SD 17,8 27,7 42,8 residence or been unable to rent a place to stay?

Source: Studies on stigma and discrimination against persons living with HIV 50

Slightly more than half of the individuals interviewed in the Caracterización de las mujeres recién diagnosticadas con VIH en Argentina [Characterization of women recently diagnosed with HIV in Argentina] study live in overcrowded homes: 22% in critically overcrowded homes (that is to say, three or more persons per room) and an additional 30% in moderately overcrowded homes (that is to say, an average of 2 to 3 persons per room).94 In Guatemala, 33.7% of men and 42.5% of women living with HIV do not have their own homes.95 In the transgender population, the principal obstacle to gaining access to housing, land, or credit is that it is impossible for them to prove financial solvency, since as a rule they are not formally employed.96 According to the National Survey on Discrimination in Mexico (ENADIS 2010), three of every ten individuals in Mexico are unwilling to let persons with HIV live in their homes.97

3.9 Right to form a family

In order for this right to be guaranteed, there must be legal frameworks in place, in addition to the services and protection measures necessary for the comprehensive development of women living with HIV and their children. With the progress that has been made in access to treatment, more HIV-positive women are deciding to get pregnant and have children; however, many of them do not receive information about their reproductive options. Some health service providers do not believe that people with HIV can or should have children. Pregnant HIV-positive women should receive all standard prenatal care services, including screening and treatment for STIs as well as nutritional counseling and monitoring. Prenatal care should also include the appropriate ART for the situation. 98, 99, 100, 101, 102, 103

94 Binstock G, Manzelli H, Hiller R, Bruno M (2012) Caracterizacion de las mujeres recientemente diagnosticadas con VIH en Argentina [Characterization of women recently diagnosed with HIV in Argentina]. Ibid 95 Stigma and Discrimination Index. Guatemala. 96 REDLACTRANS (2014). 97 National Council to Prevent Discrimination (2011). National survey on discrimination in Mexico (ENADIS). Enadis 2010. Overall results. Mexico. http://www. conapred.org.mx/userfiles/files/Enadis-2010-RG-Accss-002.pdf 98 Mexico National Commission on Human Rights (2012). Mujeres, embarazo y VIH [Women, pregnancy, and HIV]. http://www.cndh.org.mx/sites/all/fuentes/documentos/cartillas/11%20cartilla%20mujeres%20embarazo%20VIH.pdf 99 FEIM [Foundation for the Study and Investigation of Women]. DECISIONES REPRODUCTIVAS Y EMBARAZO EN LAS MUJERES QUE VIVEN CON VIH/SIDA. Recomenda- ciones para el equipo de salud [REPRODUCTIVE DECISIONS AND PREGNANCY IN WOMEN LIVING WITH HIV/AIDS. Recommendations for the healthcare team]. http:// www.feim.org.ar/pdf/publicaciones/Opciones_Reproductivas_Recomendaciones.pdf 100 Huésped Foundation (2006). Sexualidad, embarazo y VIH/SIDA [Sexuality, pregnancy, and HIV/AIDS]. http://www.huesped.org.ar/wp-content/uploads/2014/11/ Sexualidad-Embarazo-y-SIDA.pdf 101 Global Network of People Living with HIV/AIDS (2009). Advancing the Sexual and Reproductive Health and Human Rights of People Living with HIV. http://www. unfpa.org/sites/default/files/resource-pdf/guidance_package.pdf 102 IPAS (2012). Reproductive choice for women living with HIV. http://www.ipas.org/~/media/Files/Ipas%20Publications/HIVPREABOS12.ashx 103 Center for Reproductive Rights and Vivo Positivo [I live positive] in Chile (2011). Dignity denied: Violations of the rights of HIV-positive women in Chilean health facilities. http://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/chilereport_single_FIN.pdf 51

Furthermore, the fact of having HIV does not constitute a limitation for raising and caring for one’s children, since people may not be deprived of these rights because they have HIV. HIV-positive mothers have the right to legal custody of their children. Likewise, they have the right to appoint their desired guardian if they are unable to take responsibility, as well as to have due institutional protection to that end.

The stigma and discrimination studies show that a significant percentage of women living with HIV are mothers: 90% of the women interviewed in the Dominican Republic, 87% in Colombia and Paraguay, 85% in Mexico, 84% in Guatemala, and 67% in Ecuador. In other words, between seven and nine of every ten women interviewed are mothers. The percentage of HIV-positive men who have children is 24.6% in Colombia, 17.7% in Mexico, 51% in Guatemala, 59.7% in Ecuador, 68.7% in the Dominican Republic, and 45.4% in Paraguay, which is between two and seven of every ten men interviewed. The percentage of HIV-positive women who have children with HIV is 28.7% in Colombia, 7.2% in Guatemala, 10.5% in Ecuador, and 58% in the Dominican Republic while for men, the percentages are 10.4% in Colombia, 6.8% in Guatemala, 13.2% in Ecuador, and 56.7% in the Dominican Republic.

The percentage of women living with HIV who report having received counseling on their reproductive choices varies from 14.2% in Mexico to 54.9% in Honduras, and the percentage of men ranges from 15.3% in Mexico to 50.3% in Ecuador.

The percentage of women living with HIV who report having been advised on some occasion by a health professional to not have children was 42.2% in Colombia, 30.7% in Honduras, 35.6% in Guatemala, 33.2% in El Salvador, 32.6% in Ecuador, and 29.6% in the Dominican Republic. Except for in Ecuador, the percentage of women who reported this was higher than the percentage of men who did so, and in Colombia, Honduras, El Salvador, and the Dominican Republic, it was two to three times higher.

Of the women interviewed, 8% in Colombia, 36.5% in Mexico, 25.5% in El Salvador, 6.6% in Ecuador, and 21% in the Dominican Republic stated that they had been forced to use certain contraceptives as a condition for receiving antiretroviral therapy.

The percentage of women who reported having received information on healthy pregnancy and maternity as part of the prevention of mother-to-child transmission (PMTCT) program was 88.3% in Colombia, 93% in Mexico, and 39.6% in Paraguay. 52

Table 16: Situations related to reproductive rights and the right to form a family in stigma and discrimination studies in eight Latin American countries (2008-2014)

Dominican Colombia Mexico Honduras Guatemala 2011 El Salvador 2010 Ecuador Republic Paraguay (N=1000) 2008 2014 (N=500) (N=500) 2010 2009 2010 % (N= 931) (N= 720) % % (N=497) (N=1000) (N=256) % % % % % M W T M W T M W T M W T M W T M W T M W T M W T Have children 24,6 86,7 3,1 17,7 85,3 3,6 ND ND ND 51 84 ND ND ND ND 59,7 67 ND 68,7 90 ND 45,4 87,3 ND % of children who are 10,4 28,7 ND ND ND ND ND ND ND 6,8 7,2 ND ND ND ND 13,2 10,5 ND 56,7 58 ND ND ND ND HIV+ % that received counseling on 30,7 59,4 6,3 15,3 14,2 0 45,1 64,9 42,9 ND ND ND 47 54,3 41,7 50,3 45,1 100 46,1 59 ND ND ND ND reproductive options On some occasion was advised by a health 14,7 42,2 ND ND ND ND 15,1 30,7 16,7 33,3 35,6 ND 18,9 33,2 28,6 32,4 32,6 39,3 16,7 29,6 ND ND ND ND professional to not have children Access to antiretroviral therapy is conditional ND 8 ND 9.4 36.5 2.9 ND ND ND ND ND ND 27.8 25.5 36.8 10.4 6.6 21.3 21.2 2,1 ND ND ND ND upon use of certain contraceptives Was given information on healthy pregnancy ND 88,3 ND ND 93 ND ND ND ND ND ND ND ND ND ND ND ND ND ND ND ND ND 39,6 ND and maternity as part of a PMTCT program

Source: Studies on stigma and discrimination against persons living with HIV

In the stigma and discrimination studies that were analyzed, the percentage of women who reported having been pressured by a health professional to have an abortion ranged from 1% to 3% in Colombia, Bolivia, Nicaragua, Mexico, and Honduras to 59% in Guatemala.

Less than 10% of women in Bolivia and Mexico, between 11% and 20% in Colombia, Nicaragua, and Paraguay, and 42% in Guatemala reported having been forced to choose a specific method of giving birth.

Less than 15% in Colombia, Bolivia, Nicaragua, Mexico, and Paraguay, and 18.4% in Honduras and 40.4% in Guatemala, had been pressured on how to feed their babies. 53

Table 17: Coercion by a health professional in the past 12 months on abortion, birth, and feeding due to the mother’s HIV status

Paraguay Colombia Nicaragua Bolivia 2011 Mexico 2008 Honduras 2014 Guatemala 2010 (N=1000) 2013 (N= (N= 420) (N= 931) (N= 720) 2011 (N=500) (N=256) In the past 12 months % 801) has been forced by a % health professional on M W T M W T M W T M W T M W T M W T M W T any of the following Abortion ND 2 ND ND 3 ND ND 2,2 ND ND 1 ND ND 1,2 ND ND 59,1 ND ND 0 ND practices due to HIV status Method of delivery ND 14 ND ND 8 ND ND 16,5 ND ND 6,1 ND ND 18,6 ND ND 42,1 ND ND 11,1 ND Method of feeding ND 14 ND ND 10 ND ND 8,3 ND ND 7,1 ND ND 18,4 ND ND 40,4 ND ND 9,6 ND baby

Source: Studies on stigma and discrimination against persons living with HIV

Complete avoidance of breastfeeding is efficacious in preventing mother-to-child transmission of HIV, but this intervention has significant associated morbidity (e.g., diarrheal morbidity if formula is prepared without clean water). If breastfeeding is initiated, two interventions are efficacious in preventing transmission: i) exclusive breastfeeding during the first few months of life; and ii) extended antiretroviral prophylaxis to the infant (nevirapine alone or nevarapine with zidovudine).104 However, the countries do not offer counseling on the baby feeding options that would enable women with HIV to choose the most suitable method for their circumstances in accordance with PAHO/WHO recommendations105

On the other hand, elective cesarean section is an efficacious intervention for the prevention of mother- to-child transmission among HIV-1-infected women not taking ARVs or taking only zidovudine. The risk of postpartum morbidity (PPM) with elective cesarean section is higher than the risk associated with vaginal delivery but lower than with non-elective cesarean section. More advanced maternal HIV-1 disease stage and concomitant medical conditions (e.g., diabetes) are independent risk factors for PPM. More evidence is required in order to clarify the risk of mother-to-child transmission according to mode of delivery among HIV-1-infected women with low viral loads (low either because the woman’s HIV-1 disease is not advanced, or because her HIV-1 disease is well-controlled with ARVs).106

104 Horvath T, Madi BC, Iuppa IM, Kennedy GE, Rutherford G, Read JS. Interventions for preventing late postnatal mother-to-child transmission of HIV (Review) Cochrane Database of Systematic Reviews, 2009, Issue 1. Art. No.: CD006734. DOI: 10.1002/14651858.CD006734.pub2. http://apps.who.int/rhl/reviews/CD006734.pdf 105 T. Kendall & E. López-Uribe (2010) Improving the HIV response for women in Latin America: Barriers to integrated advocacy for sexual and reproductive health and rights. Global Health Governance 4 (1) http://blogs.shu.edu/ghg/2010/12/20/476/ 106 Read JS, Newell ML. Efficacy and safety of cesarean delivery for prevention of mother-to-child transmission of HIV-1. Cochrane Database of Systematic Reviews 2007, Issue 4, Art. No.: CD005479. DOI: 10.1002/14651858.CD005479. http://apps.who.int/rhl/reviews/CD005479.pdf 54

LThe medical coverage of pregnant women living with HIV varies significantly in 15 countries in Latin America and the Caribbean, ranging from less than 30% of women covered in Guatemala (22%) and Venezuela (28%); between 30% and 50% in El Salvador and Honduras (47%), The Bahamas (45%), and Paraguay (48%); between 51% and 80% in Bolivia (66%), Belize (63%), Jamaica (60%), Mexico (75%), Peru (70%), and Trinidad and Tobago (80%); to more than 80% in Ecuador (95%), Haiti (93%), and Panama (93%).

Table 18: : Medical coverage of pregnant HIV-positive women receiving ART to prevent mother- to-child transmission (2013) Countries Estimated percentage (%) The Bahamas 45 Belize 63 Bolivia 66 Ecuador 95 El Salvador 47 Guatemala 22 Haiti 93 Honduras 47 Jamaica 60 Mexico 75 Panama 93 Paraguay 48 Peru 70 Trinidad and Tobago 80 Venezuela 28

Source: UNAIDS Spectrum Estimates

It should be noted that HIV transmission rates during pregnancy, birth, or breastfeeding range from 15% to 45% in the absence of any interventions, and can be reduced to levels below 5% with effective interventions.107 Moreover, the region’s policies on adoption by HIV-positive individuals are very restrictive, particularly in Honduras, where the law expressly prohibits it. Likewise, policies that give HIV-positive individuals access to assisted reproduction services and counseling for the

107 WHO. Mother-to-child transmission of HIV. http://www.who.int/hiv/topics/mtct/en/108 T. Kendall & E. López-Uribe (2010) 55

prevention of transmission in serodiscordant couples or from the mother to her child are not included in national legislations.108

3.10 Right to information

The guarantees of access to information, health services and resources, education, and work, economic empowerment, and the mechanisms of social participation are key factors in HIV prevention.

Access to comprehensive sex education for adolescents and young people: Seventeen Latin American countries have comprehensive sex education laws, plans, or programs managed by various agencies. The majority of these (8) are run by the educational system or by the education, health, and/or other sectors.109 Among the persistent obstacles to effectively preventing HIV in adolescents and young people are the failure to distribute condoms in schools, insufficient access to sexual and reproductive health services and the failure to integrate them with HIV services and to adapt them to the needs of young people, and the high rates of sexual violence committed against girls, teenagers, and young women. Furthermore, the ability of some young people to access essential services is restricted due to the lack of confidentiality and to violations of their right to privacy. Inadequate access to comprehensive sex education negatively impacts efforts to protect girls, adolescents, and young women from HIV and other STIs.

Access to information in health services: : In the Estudio técnico-jurídico de las violaciones a los derechos reproductivos de mujeres con VIH en cuatro países de Mesoamérica [Technical-legal study of violations of the reproductive rights of women with HIV in four countries of Mesoamerica], 56% of participants reported having received information on preventing mother-to-child transmission, 43% on safe pregnancy with minimal risks for the mother, her partner, and their baby, 36% on pregnancy while reducing the risk of partner transmission, and 21% on safe conception: treatments like prevention, prophylaxis prior to exposure, insemination, and antiretrovirals.110

Knowledge of HIV, forms of transmission, and condom use in young and adult women: In 10 Latin American countries, an average of 40% of women 15 to 24 years of age had knowledge of HIV and how to prevent it, with extremes of 14.8% of these women in Panama and 89% in Argentina. In six of the 10 countries analyzed, fewer than 40% of women possessed such knowledge.

108 T. Kendall & E. López-Uribe (2010) Improving the HIV response for women in Latin America: Barriers to integrated advocacy for sexual and reproductive health and rights. Global Health Governance 4 (1) http://blogs.shu.edu/ghg/2010/12/20/476/ 109 UNFPA, 2015. 110 Avalos Capín J, Balance Promoción para el Desarrollo y Juventud A.C. [Balance Promotion for Development and Youth, Non-Profit Organization], 2013 56

Graph 2: Percentage of women 15-24 years of age with comprehensive knowledge of HIV (2007-2011)

Panama (2011) 14.8 Mexico (2007) 18 Costa Rica (2011) 21.1 Guatemala (2011) 21.8 Bolivia (2013) 22.4 Colombia (2011) 24.1 Ecuador (2007) 27 El Salvador (2011) 27.3 Honduras (2013) 33.1 Average 18 countries 33.3 Peru (2011,2009) 33.57 Haiti (2013) 34.6 Dominican Republic (2013) 40.8 Brasil (2013) 49.6 Uruguay (2011) 52 Chile (2012) 57 Cuba (2013) 59.9 Nicaragua (2007) 81 Argentina (2007) 89 Fuente: UNAIDS, Treatment 2015 Examining the information contributed by young women in 14 countries reveals that in only four of them (El Salvador, Chile, Brazil, and Uruguay) did 50% or more women in both subgroups (15- 19 years old and 20-24 years old) report having used a condom in their most recent act of sexual intercourse. In Haiti, 56.7% of women aged 14 to 20 years old reported having used a condom in their most recent act of sexual intercourse.

Graph 3: Percentage of young women that used a condom during their last sexual relation (2009-2013)

90 85.7 Women 15-19 82.7 80 79.1 Women 20-24 71.4 73.7 70 66.7 65.8 60 56.8 56.7 50 48 44 44.6 44.5 42.9 38.9 41.9 37.1 40 37.2 30.1 31.4 34 30 21.3 20 19.9 19.7 13 12.2 10 8.1 5 0

Chile (2011) Peru (2009)Brasil (2013) Haiti (2013) Panama (2011) Paraguay (2009)Uruguay (2009) Colombia (2013) El SalvadorGuatemala (2009) Nicaragua(2009) (2009) Costa Rica (2011) Honduras (2013)

Dominican Republic (2013) 57

Comparing the percentages across all countries of men and women from 15 to 19 years of age who used a condom in their most recent act of sexual intercourse, we see that in eight of the 10 countries analyzed, more men than women (by differences of more than 20 percentage points) did so.

Graph 4: Percentage of men and women from 15 to 19 years of age that used a condom during their last sexual relation (2009-2013)

Uruguay (2009) 71.4 77.8 Chile (2011) 66.67 73.53 65.8 82.6 Brasil (2013) 48 69.01 Costa Rica (2011) 41.9 58 Haiti (2013) 38.9 72.6 Honduras (2013) 37.1 71.6

Dominican Republic (2013) 19.9 46.8

Panama (2011,2009) 19.7 73.4 Women Guatemala (2009,2011) 13 78.8 Men

Condom use in the most recent sexual encounter is also low among women with multiple sexual partners, at an average of 33% in 19 countries, or one of every three, with the rates in Bolivia, Ecuador, El Salvador, and Peru coming in below this average.

Graph5: Percentage of women with multiple sexual partners that used a condom during their last sexual relation (2003-2013)

Paraguay (2009) 5.1 Bolivia (2003) 8 Panama (2011) 12.2 Ecuador (2011) 16.28 Nicaragua (2009) 18.6 El Salvador (2011) 21 Guantemala (2011) 24.6 Peru (2009) 32.2 Honduras (2013) 33.1 Average 19 countries 33.7% Colombia (2013) 33.7 Dominican Republic (2013) 34.9 Costa Rica (2011) 39.76 Cuba (2013) 40 Haiti (2013) 43.2 Argentina (2007) 44 Chile (2011) 51.52 Brasil (2013) 53.1 Mexico (2013) 57 Uruguay (2009) 65 58

Graph 6: Percentage of Transgender Sex Workers that used a condom during their last sexual relation (2009-2013)

Costa Rica (2013) 62.5

Peru (203) 72.6

Chile (2009) 73

Mexico (2013) 85.4

Paraguay (2013) 86

Average 11 countries 88.8

Panama (2013) 88.8

Bolivia (2013) 88.9

Colombia (2013) 93.6

Ecuador (2013) 97.4

Argentina (2009) 99

Uruguay (2013) 99

In 11 countries, an average of 86% of transgender sex workers had used a condom in their most recent act of sexual intercourse, with only Mexico and Peru having rates below this average.

3.11 Right to participation

In order to guarantee this right for all of the diverse women living with HIV, it is necessary to further their capacities to freely assemble without facing discrimination, to participate in decision-making mechanisms with regard to HIV, gender equality, and development, and to participate in all social and political bodies, while providing resources to ensure that they are adequately involved therein.

The study Participation of women and transgenders in Global Fund Processes in Latin America and the Caribbean (2010) found that 13 of 15 country coordinating mechanisms (CCMs) include an HIV- positive woman among their members, but only in one of these mechanisms does she specifically represent women living with HIV; in the other 12 CCMs, the women represent the broader sector of all persons living with HIV, not just HIV-positive women. This has made it more difficult for women with HIV to position their specific needs, since the issues prioritized by the broader group tend to focus on access to ART. The effective participation of women and transgender persons in the 59

CCMs is also affected by issues of legitimacy and accountability, since election processes are not necessarily democratic and the sectors they represent may be limited to an organization rather than a broad population group. 111

In the RedTraSex study (2014), 40% of the women surveyed stated that they participated in some organization or network of sex workers. The women sex workers surveyed in the Southern Cone are those who most participate in organizations of sex workers (47%). The countries with the highest percentages of surveyed individuals who participate in some organization or network of sex workers are Paraguay (73%), the Dominican Republic (66%), and Panama (65%), and those with the lowest percentages are Uruguay (8%) and Colombia (12%).

Barriers to participation for young Latin American and Caribbean women living with HIV include their limited knowledge of their rights, their burden of unpaid domestic labor, the high levels of stigma and discrimination against young women in general and HIV-positive women in particular, the lack of opportunities for them to develop leadership abilities, social norms and laws that restrict their autonomy in the public and private spheres, the limited opportunities for addressing the varied situations faced by young HIV-positive women in all of their diversity, the violence to which they are subjected in their communities, families, and various public spaces, and the prevailing perceptions in the development of public policies and programs that tend to see young women as objects of intervention rather than protagonists of change.112

UNAIDS (2012) has identified some challenges to the participation of civil society organizations and networks in the HIV context that similarly affect organizations of women living with HIV:

• Token representation in processes: representatives do not have the power to negotiate or speak in a meaningful way;

• Cherry picking: certain civil society representatives are invited to participate because they are easy to work with while more controversial ones, who may raise challenging viewpoints, are excluded;

• Inauthentic representation: civil society representatives do not have sufficient legitimacy to represent a specific or general community group or nongovernmental organization;

111 AIDS for AIDS (2010). Participation of women and transgenders in Global Fund Processes in Latin America and the Caribbean. http://www.icaso.org/media/ files/9600-ParticipationOfWomenandtransgendersinGFrocessesEN.pdf 112 Development Connections (2015). Barreras a la participación social de las mujeres jóvenes que viven con VIH en América Latina [Barriers to social participation for young women living with HIV in Latin America]. http://dvcn.aulaweb.org/Infografia.Barreras.a.la.participacion.jovenes.positivas.Marzo2015.4.pdf 60

• Inauthentic processes of consultation: where civil society input is not carried into decision- making processes;

• Inadequate support and resources, in particular a lack of funds: civil society representatives cannot participate in processes authentically because they lack human or financial resources, information, or preparation time;

• Limited capacity in terms of skill sets: civil society representatives do not have the ability to access information and actively participate on a long-term basis in, for example, meetings and consultations.113

113 UNAIDS (2012). UNAIDS guidance for partnerships with civil society, including people living with HIV and key populations. Geneva. http://www.unaids.org/sites/default/files/en/media/unaids/contentassets/documents/unaidspublication/2012/JC2236_guidance_partnership_civilsociety_en.pdf 61

4. Funding to further the rights of women living with HIV

Making progress on the respect, protection, and fulfillment of the human rights of all of the diverse women living with HIV depends on several factors, including political commitment, leadership, changes in public policy processes and contents, and the financial resources to implement priorities and address the current gaps in the HIV response associated with these rights.

Financing, gender and human rights, and participation: From the beginning of the HIV epidemic, the funding of gender mainstreaming in the HIV response and of women’s organizations has been an issue of particular concern. In 2006, AWID [Association for Women’s Rights in Development] conducted a global survey that was answered by almost 1,000 women’s rights organizations worldwide and that brought to light the difficulties that prevent those organizations from receiving adequate funding. The 512 respondents that declared they work on HIV-related issues reported that it is very challenging for them to obtain sufficient resources to further the work they do in these areas as related to women’s rights. Furthermore, the sense of scarcity is even more evident when it comes to specifically rights-based approaches. This same survey reported that education and information dissemination are among the easiest activities to finance, along with the distribution of condoms, whereas in terms of gender-based violence, changing high-risk practices and advocating for legislative and policy changes are considered activities for which it is difficult to get funding. 114

114 AWID [Association for Women’s Rights in Development]. Funding to fight HIV/AIDS 2008. http://www.awid.org/sites/default/files/atoms/files/funding_to_fi- ght_hiv-aids_through_the_promotion_of_womens_rights_a_case_study_from_south_africa.pdf 62

The ICW Latina analysis (2015) found that:

• In most countries, the most significant spending category was Care and Treatment (40% or more), especially Outpatient Care and Antiretroviral Therapy.

• Until 2012, no National AIDS Spending Assessment (NASA) included analyses disaggregated by sex/gender or age (apart from the child population), which meant that in most cases the population of people living with HIV/AIDS was categorized as “adults or young people 15 years of age or older living with HIV.”

• In most countries, the Enabling Environment spending category is targeted at human rights actions or programs but does not specify the prioritized populations or rights. Only Peru and Bolivia establish programs targeted at women or gender-based violence.

• No specific programs or activities on sexual and reproductive health or violence were identified for women living with HIV. It is not clear which women are targeted with the Violence Prevention program in Bolivia.115

Resources, support, and commitment are essential in order to make it possible for people living with HIV, including women in all of their diversity, to meaningfully participate. Successful implementation of the GIPA principle requires leadership and strategic planning within organizations, as well as the individual and collective empowerment of members in order to ensure sustainable and sustained participation. 116 POf particular importance for women living with HIV is addressing the cultural, social, geographical, economic, and institutional barriers to participation, including discriminatory policies and procedures, and ensuring the availability of financial, technical, and human resources that facilitate participation and help strengthen their skills and organizations. Even though most projects in Latin America and the Caribbean include activities for working with women living with HIV, women sex workers, and transgender women, the organizations of these groups of women rarely receive grant funding as sub-recipients and in most cases, resources are allocated for carrying out specific activities. Recently some progress has been made in terms of funding for regional networks, since the Global Fund has approved ICW Latina’s concept note and the grant is expected to be signed shortly117. Likewise, RedTraSex is carrying out a multi-country project (2012-2015) with Global Fund support in the amount of US$11,175,184.118

115 Salazar, Ximena (2015). Brechas de financiamiento [Funding gaps]. ICW Latina. Working Document No. 1. 116 International HIV/AIDS Alliance and the Global Network of People Living with HIV (2010). Greater involvement of people living with HIV (GIPA). Good Practice Guide. http://www.aidsalliance.org/assets/000/000/411/464-Good-practice-guide-Greater-involvement-of-people-living-with-HIV-(GIPA)_original. pdf?1405586730 117 http://lacfondomundial.org/noti/notas-conceptuales-de-icw-latina-y-redlactrans-recomendadas-por-el-prt/ 118 http://portfolio.theglobalfund.org/en/Country/Index/QMOU 63

A significant obstacle to receiving direct access to funds as sub-recipients is the weak organizational capacity for administering and implementing grants.119

Funding and spending on HIV: challenges and opportunities for investment in gender equality and human rights: On average, 75% of Latin American and Caribbean countries’ budgets for HIV care and treatment is allocated to the purchase of antiretrovirals, although it must be noted that in 2012, 14 of 31 countries and territories (45%) reported at least one stock-out (shortage of ART drugs).120 For every US$100 of international financing spent on HIV in 2011, US$73 was invested in care and treatment. According to information gathered in 17 countries, in Latin America 70% of spending was allocated to care and treatment, 18% to prevention, 6% to program management and administration, 2% to the development of an enabling environment, 2% to social protection and social services, 1% to research, and 1% to incentives for human resources.121

Financing sources: The international percentage of the combined domestic and international public financing varied significantly among countries. In 13 countries of the region, international financing was 25% or less than the total combined domestic and international financing, in three countries it was between 25% and 50%, in six it was between 51% and 75%, and in three it was between 75% and 100%. It bears noting that of every US$100 received in 2011, less than one dollar was spent on prevention programs for key populations.122

International funding as a proportion of total HIV spending

51-75% Nicaragua Belice 25-50% Saint Vincent and Grenadines Guatemala Honduras Paraguay Jamaica 25% Colombia Dominica Suriname Brasil Costa Rica Bolivia 76%- 100% Panama Grenada Haitíí El Salvador Perú Saint Lucia Ecuador Mexico Anttigua and Barbuda Chile Uruguay Cuba República Bolivariana de Venezuela

119 AIDS for AIDS (2010). Participation of women and transgenders in Global Fund Processes in Latin America and the Caribbean. http://www.icaso.org/media/ files/9600-ParticipationOfWomenandtransgendersinGFrocessesEN.pdf 120 PAHO/WHO. Latin America and the Caribbean advance toward universal access to HIV treatment. Washington, D.C., November 27, 2013. http://www.paho.org/hq/ index.php?option=com_content&view=article&id=9185%3A2013-latin-america-caribbean-advance-toward-universal-access-hiv-treatment&catid=740%3A- news-press-releases&Itemid=1926&lang=en 121 Aran C. Financiamiento y gasto de VIH en América Latina [Financing and spending on HIV in Latin America]. UNAIDS. March 2013. 122 Aran C Financiamiento y gasto de VIH en América Latina [Financing and spending on HIV in Latin America]. UNAIDS. March 2013. 64

Table 19: Sources of HIV financing and percent international financing by country (2007-2013)

International Public domestic and Amount % of combined domestic, Private Country Year international (US$) public, and international Haiti 2011 210.000.000 100% 210.000.000 SD Brazil 2012 9.258.557 13% 690.000.000 SD Panama 2010 1.527.635 9% 17.229.700 7.045.659 Nicaragua 2010 14.061.971 59% 23.744.276 1.150.592 El Salvador 2013 13.764.792 23% 60.359.928 1.945.855 Belize 2012 1.886.377 69% 2.718722 118.050 Saint Vincent and the 2012 821.178 57% 1.436.605 30.000 Grenadines Ecuador 2010 2.975.540 11% 27.246.408 1.395.467 Guatemala 2012 20.625.980 43% 47.851.392 5.373.612 Paraguay 2013 2.966.599 21% 13.808.342 1.133.010 Chile 2012 227.585 2% 140.000.000 75.541.065 Cuba 2013 5.927.082 8% 69.734.376 SD Dominica 2012 160.000 48% 336.411 SD Honduras 2013 17.236.972 52% 33.021.402 3.692.374 Jamaica 2010 10.771.906 74% 14.620.864 45.977 Dominican Republic 2012 20.711.558 69% 29.974.062 10.755.726 Costa Rica 2012 1.701.913 8% 20.104.852 2.141.826 Saint Lucia 2007 605.638 78% 772.018 SD Bolivia 2012 4.869.735 50% 9.656.461 2.112.301 Colombia 2013 306.020 <1% 84.249.168 34.547.857 Grenada 2013 39.398 20% 194.829 SD Peru 2013 4.505.007 6% 74.861.272 SD Mexico 2011 12.168.390 24% 500.000.000 39.330.686 Antigua and Barbuda 2013 1.069.122 79% 1.355.305 3.718 Suriname 2011 2.343.104 51% 4.592.708 81.800 Uruguay 2007 683.242 9% 7.534.411 6.543.398 Venezuela 2013 817.796 1% 72.603.704 SD Source: UNAIDS and AIDSINFO

Awarding of grants to organizations of key populations: The Report on access to Global Fund resources by HIV/AIDS key populations in Latin America and the Caribbean (2009) analyzed data related to fifteen Global Fund grants in Bolivia, Colombia, Ecuador, El Salvador, Haiti, Paraguay, Peru, and the English- 65

speaking Caribbean. Across all the grants analyzed, over US$170 million was awarded to the sub- recipients and only 4.6% of the total has reached key population organizations in the form of sub-recipient grants. Organizations of people living with HIV received the most funds, at just over 50%, and MSM groups received 27.6%. Women living with HIV and sex workers received 16.3% and 6.1%, respectively, and organizations of transgender people were not sub-recipients of funds in any of the 15 grants.123 The report identified four areas that affect key population access to Global Fund resources: i) lack of capacity among key population organizations, ii) access to and understanding Global Fund-related information, iii) scarce participation of key populations in related decision-making spaces such as the CCM, and iv) lack of relevant and up-to-date epidemiological data particularly among transgender people and women sex workers.

The review of current proposals conducted by ICW, in the context of the grant it was awarded by the Global Fund in 2015, showed that more than 60% are targeted at the State for national grants and that the populations that most benefit from these grants are men who have sex with men, female sex workers, and transgender individuals. Actions specifically targeted at women living with HIV center on antiretrovirals and preventing mother-to-child transmission. In the current grants, only the Dominican Republic and Colombia include specific actions for women living with HIV. Among its regional grants, the Global Fund has awarded ICW Latina US$4,333,000 to work with women living with HIV on human rights and gender-based violence issues in 11 countries of the Latin American and Caribbean region.

It must be stressed that even in a favorable context, financial resources, the level to which women’s priorities are integrated, and the modes of participation that subsume the identity of women living with HIV and limit the construction of an agenda for joint mobilization are significant challenges that must be taken into account. This must be kept in mind, because even when formal progress is made in terms of levels of participation, changes to public policy, and institutional leadership, often little is known about the changes this progress brings about in the daily lives of women living with HIV. Likewise, it is unknown whether this progress can be maintained over time.

123 International HIV/AIDS Alliance (2009). Report on access to Global Fund resources by HIV/AIDS key populations in Latin America and the Caribbean. http://www. portalsida.org/repos/Report_on_Key_Populations_access_to_resources_ENG.pdf 66

5. Coordination of the HIV response and participation

Inter-sectoral and inter-institutional coordination mechanisms: The 14 countries that completed the questionnaires sent by the CIM/OAS indicated that they did have some type of inter-sectoral agency in charge of coordinating actions in order to further the national response to HIV and AIDS, with representatives of all vulnerable populations and sectors, including organizations of women in general and women with HIV, in particular in the countries where such grassroots organizations exist124 Although these formal coordinating agencies provide for the participation of multiple sectors and of the most vulnerable populations125, in practice this participation is not always effective. Uruguay did not report, Trinidad and Tobago reported that it does not have any coordinating agency, and only Honduras reported that it had a Platform on HIV and Human Rights for addressing the situation of human rights violations of persons with HIV and of the key populations, supported by UNAIDS and made up of civil society organizations, including the Red de Mujeres Positivas [Network of Positive Women], CONADEH [National Commission on Human Rights], and the Office of the Special Prosecutor for Human Rights. Belize reported that it has a National Commission on AIDS in charge of managing HIV policy and implementing the Strategic HIV Response Plan.

124 El Salvador reported that although it has forums for coordination, the country’s strategies do not include nor incorporate actions for specifically targeted at women with HIV. 125 Article 22 of Law 135-11 on HIV and AIDS of the Dominican Republic establishes that the National Council on the Prevention of HIV and AIDS must include a representative of the non-profit association of women as well as of the Ministry of Women. 67

Participation of women with and affected by HIV in decision-making processes and mechanisms: According to the questionnaires received by the CIM/OAS from the 14 countries, the participation of grassroots organizations made up of women with HIV in monitoring the CEDAW, the Belém do Pará Convention, and/or inter-institutional mechanisms on gender equality and the rights of women, varies by country. In Chile, in connection with participation and rights, the Ministry of Health called for the formation of an Advisory Council on Gender and Health to address gender inequalities in health through State/civil society joint collaboration. Organizations of women living with HIV, of transgender persons, on sexual diversity, and of women in general all participate in this Advisory Council. Colombia’s Ministry of Health and Social Protection recognizes that organizations of women living with HIV have not been participating in the forums for inter-sectoral cooperation, and consequently will adopt measures to guarantee the right of these organizations to participate in the future. Uruguay and Trinidad and Tobago did not report on this point. In Honduras, participation is limited to self-help groups and the national association of persons living with HIV; Belize reports that there is participation in planning and evaluation processes but not in the implementation and monitoring of actions. In Mexico, the Inmujeres [National Women’s Institute] forms part of the CONASIDA, which has engendered several committees that aim to join forces to slow the HIV/ AIDS epidemic and to follow up on actions focused on coordinating HIV/AIDS care and treatment and women’s sexual and reproductive health services. Also in Mexico, the working group of the CONASIDA Prevention Committee “Women’s Bureau” was created in 2009 on the initiative of the organization of HIV-positive women Red de Mexicanas en Acción Positiva [Network of Mexican Women in Positive Action], which chaired the Council that year. This bureau is formed by Inmujeres, CENSIDA, CNEGYSR, UNFPA, UNAIDS, the National Commission on Human Rights, Mexicanas en Acción Positiva [Mexican Women in Positive Action], ICW Mexico, Balance Promoción para el Desarrollo y Juventud A.C. [Balance Promotion for Development and Youth, Non-Profit Organization], Movimiento Mexicano de Ciudadanía Positiva [Mexican Positive Citizens Movement], Salud Integral para la Mujer [Comprehensive Health for Women], CAPSIDA, Fundar Centro de Análisis e Investigación [Fundar Center for Analysis and Research], Mujer Libertad [Women Freedom], Tamaulipas Diversidad y Vihda Trans [Tamaulipas Diversity and Trans “Lhiving”], Centro de Investigaciones Sociales de Comitán [Comitan Social Research Center], Centro Ser [Being Center], Grupo Multidisciplinario en VIH de Veracruz [Veracruz Multidisciplinary HIV Group], the Rainbow Foundation, and El Clóset de Sor Juana [Sister Juana’s Closet]. The Bureau has promoted the political agenda on HIV and AIDS matters with regard to women from the gender and human rights approach in order to ensure a comprehensive response for women. This response has been presented in several different political forums and was a component of the National HIV Plan 2013-2018. 68

6. Information and knowledge- management systems

According to the information gleaned from the 14 countries that completed the CIM/OAS questionnaire, only Chile and the Dominican Republic have performed studies on the human rights of women living with HIV. In 2005, Chile conducted the study VIH/SIDA en mujeres, construcción de una estrategia de prevención [HIV/AIDS in women, building a prevention strategy]. The Dominican Republic, although it does not report specific studies on the human rights of women with HIV, does cite studies like Vínculos entre la violencia y VIH/SIDA entre las mujeres de República Dominicana [Links between violence and HIV/AIDS among women in the Domincian Republic] (UNAIDS, 2011), Igualdad de género y VIH en Dominican Republic [Gender equality and HIV in the Dominican Republic] (UNAIDS) and Estigma y discriminación en personas que viven con VIH [Stigma and discrimination in people living with HIV] (Profamilia [Dominican Association for Family Well-Being], 2008). On the other hand, El Salvador reported that it did not have these types of studies and acknowledges the importance of conducting them in order to raise awareness of the connection between HIV and violence against women.

In terms of strategic information on HIV, all countries except for Argentina and the Dominican Republic have reported that they disaggregate their data by sex and age, and Chile, El Salvador, and Guatemala additionally have data that has been disaggregated by gender identity and sexual orientation. In Mexico, CENSIDA has information disaggregated by sex.126

126 Censida. Mexico. www.censida.gob.mx 69

Furthermore, Honduras and Belize report that they disaggregate their data. However, the data disaggregated by sex is not available to the public in all countries, nor is all the data disaggregated in line with UNAIDS and WHO recommendations.

With regard to studies on the rights of women living with HIV, only Honduras reports the study Derechos reproductivos de las mujeres positivas [Reproductive rights of HIV-positive women], coordinated by Balance, which concludes that the right to reproductive health as set forth in international case law is not being respected127, which concludes that the right to reproductive health as set forth in international case law is not being respected.128Uruguay does not report any studies of this type and Belize and Trinidad and Tobago state that they have not conducted studies in this field.

127 Main results: Sixty-three percent of women reported that they had not been consulted as to whether they wanted to take the test before it was performed on them (63). Forty-one percent did not receive pre-test counseling (41) and 36% did not receive post-test counseling (36). Seventy-one percent did not sign a certificate of informed consent. Thirty-three percent indicated that they had not been provided with sufficient information on their antiretroviral treatment. Twenty percent of the women who were interviewed (20) indicated that they had not been given information on how to protect themselves in sexual relations. Twenty-two percent stated that they had not received sufficient information on the use of condoms while 56% indicated that they had not received sufficient information on the use of the female condom. Forty percent of the women interviewed (40) stated that they had not been provided with methods of contraception. Fifty-three percent of the women (53) did not feel that they had received comprehensive care. Eleven percent of the women interviewed indicated that they had been pressured to accept contraception. Avalos Capín J. (2013). Estudio técnico-jurídico de las violaciones a los derechos reproductivos de mujeres con VIH en cuatro países de Mesoamérica [Technical-legal study of violations of the reproductive rights of women with HIV in four countries of Mesoamerica]. Balance Promoción para el Desarrollo y Juventud A.C. [Balance Promotion for Development and Youth, Non-Profit Organization], Mexico. 128 The study results have been included in the HIV response gender assessment tool, in PENSIDA IV, and in the concept note for the Global Fund. 70

7. Conclusions and recommendations

Conclusions

• Some progress has been made on including key issues for women living with HIV in some national HIV strategic plans as well as in sector programs and other public policy instruments. However, there is scarce documentation to show that the results of this progress are formally used in important indicators like education, work, health, and access to social protection for women living with HIV, among others. In the current context of the increasing instability of social policies in some countries and problems with public investment in especially vulnerable population groups, such as women living with HIV, it is imperative to promote policies with allocated funding that will address their multiple needs from a comprehensive point of view.

• Women living with HIV face challenges to the exercise of their human rights that range from the lack of access to treatment in some countries and violence in the various spheres of their lives, including killings, to access to information and protection resources and high levels of discrimination in services, the family, and the community, among others. 71

• In particular, the right to health is significantly restricted by factors like coverage and insurance plans, access to the voluntary HIV test, the lack of confidentiality, stigma and discrimination in services, and the prevailing approaches that confine the health and development of women living with HIV to the use of medication and the prevention of HIV transmission to their babies and sexual partners. Greater efforts are required in order to further the integration of HIV services with services that address sexual and reproductive health and violence against women, including aspects like guaranteed access to contraceptives, elective abortion, fertility treatment, and the prevention of institutional, family, and partner violence, among others. Likewise, only limited progress has been made on the guarantees for safe sex-change treatments in transgender persons.

• Women living with HIV experience a high degree of violence, and the issues specific to them, such as partner violence, insults, threats, and harassment in the public sphere, as well as violence exercised by State officials (healthcare providers, police officers, educational workers), employers, etc., coincide with the high prevalence of physical, sexual, emotional, and property-related violence against women in general in Latin America and the Caribbean. Cruel, inhuman, and degrading treatment is manifested in these forms of violence and social exclusion, which notably include the criminalization of HIV transmission, forced or coercive sterilization, and threats to the physical integrity of all of the diverse women living with HIV. Transgender women and female sex workers face extremely high levels of violence.

• The exercise of the right to education is tightly tied to health, work, social protection, a life of dignity, and social participation, among other factors. The low level of access that the majority of all of the diverse women living with HIV have to formal education, and the discriminatory practices in the educational sphere, reflect the magnitude of the challenges that must be addressed in order to fully promote their rights.

• The low employment rate among women living with HIV, and the instability of the jobs that they can get and keep over time, reveal the ways in which the aspects of inequality interact, perpetuating a vicious circle of social exclusion. In turn, this situation is linked with their limited social protection coverage and restricted access to food and housing, thus generating a poor quality of life.

• The legal, social, cultural, and institutional barriers that restrict the rights of women living with HIV to form a family, to be mothers, and/or to fulfill their roles in bringing up and caring for their children, limit their right to decide about motherhood while simultaneously making their children vulnerable. 72

• Adolescents’ and young peoples’ limited access to comprehensive sex education; the low level of knowledge about HIV, how it is transmitted, and condom use; and the lack of strategies for providing condoms to teenage and young women, as well as the lack of information specifically targeted at women living with HIV in services and other spaces, all endanger the progress made on HIV and increase women’s vulnerability to the virus.

• The lack of meaningful participation by women living with HIV in decision-making processes–not just for HIV-related policies and budgetary allocations, but for all human development policies– calls into question the capacity of these policies to respond to their needs and to produce sustainable changes in the structural factors that lead to violations of their rights. The lack of funding for defending these rights is one of the most significant challenges to the protection, fulfillment, and promotion thereof.

. Recommendations

In view of the truth of the situation revealed by the information available in Latin America and the Caribbean, we recommend:

• Crafting a regional agenda led by women’s groups and by diverse women living with or affected by HIV on their human rights that will make it possible to establish inter-institutional actions with key sectors like justice, education, employment, health, social protection, security, among others, with an eye to addressing the existing discrepancies in the exercise of rights.

• Mobilizing domestic and international resources for the implementation of this regional agenda, carrying out actions at scale that will produce authentic, measurable changes in the fulfillment of rights, while also ensuring the sustainability of the interventions through the meaningful participation of women living with HIV.

• Continually strengthening the capacities of women living with HIV to advocate for their rights and access justice locally, nationally, and regionally, by reinforcing the strategic alliances between regional networks, local organizations, and the sectors with links to the HIV response at the domestic and international levels. 73

• Generating information that makes it possible to sustain evidence-based actions and that informs the funding of the interventions aimed at protecting and fulfilling the rights of women living with HIV. This includes conducting studies on issues about which there is very little information, improving the comparability and frequency of studies on stigma and discrimination, specifically including gender-based violence and discrimination and population surveys that include sets of questions on HIV, and improving information systems by using the principles of gender analysis in epidemiological surveillance and second-generation surveillance studies. Data must be disaggregated by sex, age, gender identity, sexual orientation, and ethnicity. Human Rights of Women Living with HIV in the Americas

TAB 5 Flores-Palacios & Torres-Salas, Cogent Psychology (2017), 4: 1387952 https://doi.org/10.1080/23311908.2017.1387952

HEALTH PSYCHOLOGY | RESEARCH ARTICLE Improving health and coping of gay men who live with HIV: A case study of the “Healthy Relationships” program in Mexico

1 2 Received: 27 January 2017 Fátima Flores-Palacios and Nayelli Torres-Salas * Accepted: 27 August 2017 First Published: 09 October 2017 Abstract: The object of the study was to analyze the participants response to the

*Corresponding author: Nayelli Torres- issues addressed in the “Healthy Relationships” program applied to a population of Salas, Independant Researcher, Calle HIV-infected gay men in Mexico. This program referred to the obstacles of active 5 num. 536 por 54 y 66, Residencial Pensiones 4ta etapa, C.P. 97217 Merida, coping, mainly (1) revelation of diagnosis to family, friends, and sexual partner and Yucatan, Mexico E-mail: [email protected] (2) practice of safe sex. Moreover, the goal of the intervention was to gain understanding of the specific needs of participants within the Mexican context in regard to Reviewing editor: Cornelia Duregger, Neuroconsult, the program’s content, with the ultimate goal of enabling the development of health Austria services that address the specific needs of HIV-infected gay men in Mexico. The find- Additional information is available at ings of the study showed that participants considered themselves to be subject to a the end of the article double stigma, due to their sexual orientation and emotional state. The study concludes with proposed strategies to develop appropriate health services, such as (a) offer support to patient; (b) recognize their need for emotional companionship; (c) promote safe sex; and, (d) take into account the different degrees of social vulnerability among patients, in an effort to help them deal better with their illness.

Subjects: Social Sciences; Behavioral Sciences; Health and Social Care

Keywords: gay men; HIV; intervention; stigma; discrimination; revealing diagnoses; safe sex

1. Introduction In 2014, it was estimated that some 180,000 adults were living with HIV in Mexico, with a higher prevalence of men being infected compared to women (ratio 3:1) (National Centre for the Prevention

ABOUT THE AUTHORS PUBLIC INTEREST STATEMENT Dr Fatima Flores-Palacios is researcher and Gay men living with HIV in Mexico are subjected professor at the National Autonomous University to a double stigmatization due to their illness and of Mexico. She is member of the National their sexual orientation. This research overviewed Researchers System, the Mexican Society of the impact of a public health program that Psychology, and the Mexican Academy of Science. promoted coping abilities and safe sex practices Fatima is interested in the interconnection among HIV patients in an urban setting. During the between social and psychological factors that implementation of the program, we were able to determine vulnerability. Therefore, she has identify that patients dealt with feelings of shame developed research on social representation, and guilt, which as a result made it hard for them gender, and health. Her research focuses on to sustain healthy relationships with family and providing community-based psychological friends. The research proposed strategies that intervention for vulnerable populations. promoted emotional support, recognized their Nayelli Torres-Salas has a MA in Gender and need for companionship, and promoted safe sex Development from the Institute of Development practices. Overall, this research suggests that it Studies. She currently works as project manager is important to consider the mental health and for social integration projects of refugees in social experiences of people living with HIV when Mexico. developing public healthcare interventions.

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and Control of AIDS, 2015, p. 30). Of these men, it was reported that at least 70% had been transmitted with the illness through the epidemiological concept known as “men that have sex with men” (MSM). This category includes gay, transgendered, or bisexual men and those who have sex with men but do not consider themselves homosexuals. Because of this high prevalence, there is an urgent need to construct strategies for primary prevention that will help decrease the number of infections due to sexual transmission through MSM practice. At the same time, however, the health sector must work to develop group and context-specific forms of medical care, designed to respond to the specific needs of this group.

One particularly severe problem that HIV-infected people in Mexico must confront has to do with the stigma and discrimination that are associated with this illness. The sociopolitical situation has changed in comparison with two decades ago, when conservative groups actually supported the violation of the human rights of HIV patients. This improvement is thanks to responses by civil societies and governments that have fostered the construction of institutional mechanisms devised to eradicate discrimination and guarantee universal access to treatment (Diez, 2011; Vela Barba, 2015). Nevertheless, in their daily lives, HIV patients are still victims of stigma and discrimination and still encounter vestiges of inequality. This might force them to either conceal their diagnoses to avoid being discredited in public (Goffman, 1970) or, through revelation of their HIV status, become victims of discriminatory practices in the home, workplace, or community. Other investigations (e.g., Herek & Glunt, 1988; Yi, Sandfort, & Shidlo, 2010) have demonstrated the (double) stigmatization and discrimination that HIV patients encounter. These authors have moreover described the effects that this can have: internalized homophobia (negative attitudes toward one’s own homosexuality and a negative self-image as a gay man) and disengagement coping strategies that orients patients away from their problem (their HIV status). This (among other effects) has often been shown to lead to practicing unsafe sex, and impedes them from revealing their HIV status, which in turn can lead to a situation of isolation and a lack of social support.

Stigma and discrimination are complementary processes. The first phenomenon means a sign or mark. It is often associated with negative attitudes toward people who live with HIV. In the particular case of Mexico’s sociocultural milieu (similar representations have been described in other countries; see: Herek & Glunt, 1988), it appears that a widely shared public opinion relates this illness to death, generates fears of contagion, and links it to moral deviations (Flores-Palacios & De Alba, 2006; Flores-Palacios & Leyva-Flores, 2003). In fact, when a man contracts this infection he is usually relegated to groups that are considered “at risk,” which in the public imagination includes sex workers, addicts who inject drugs, and men who have sex with other men; that is, groups that have been marginalized throughout our history (Aggleton, Parker, & Maluwa, 2003).

Discrimination, in contrast, occurs when such stigmas are acted upon. Generally speaking, it is manifested in rejection, shunning (avoidance), isolation, labeling, unequal treatment, and other forms of violence. Therefore, while stigma is more related to an overall evaluation, discrimination would be its correspondent behavior. Some authors prefer to apply the term discrimination as a function of the severity of the act involved and in relation to international agreements or laws, such as cases of violations of privacy, the obligatory application of HIV tests, firings due to a person’s medical condition, restrictions on mobility, or the absence of a legal framework that prohibits discrimination (Morrison, 2006).

In Mexico, HIV-infected gay men face two interrelated stigmas: one that is associated with their illness and a prior one that refers to their sexual orientation (Parker & Aggleton, 2002). Homosexuality is far from accepted in a social context where the reigning hegemonic masculinities prescribe heterosexuality and sex for the purpose of procreation. Together with the multiplicity of elements involved in constructing the normative male body and its projection in the social space (Prieur, 2008), homophobia emerges as a imposed burden on the moral status of people with HIV, who are forced to live amidst discrimination and rejection at home, at school, at work, and in the community at large, while their illness runs its course (Castro et al., 1998). For these reasons, many gay men opt to

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keep their sex life in the shadows, and since sexual activity is clandestine the implementation of preventive measures has proven to be particularly difficult (Nuñez, 2007).

In addition to this, the internalization of these negative attitudes—internalized homophobia—has been shown to lead to disengagement strategies of coping. Active coping (as opposed to disengagement coping) has been defined as “the process of using psychological and behavioral strategies to reduce the potential harm from stressful events” (Folkman, Lazarus, Dunkel-Schetter, DeLongis & Gruen, 1986, quoted in Yi et al., 2010, p. 205). The stressful event in this case is the HIV status and reducing the harm through active coping could be understood as revealing one’s HIV status, seeking social support and medical treatment, and practicing safe sex. In contrast, disengagement coping has been defined as strategies which are oriented away from the problem (HIV infection) (Yi et al., 2010). It has been shown to be related to risky sexual behavior and unwillingness to clarify HIV status which leads to non-diagnosis or a late diagnosis and lack of treatment or later onset of treatment. Moreover, not revealing ones HIV status has been shown to lead to isolation and a lack of a social support system (Yi et al., 2010).

To make matters worse, sex education is still largely restricted in educational spaces due to the conservative forces that operate in Mexico’s sociocultural matrix (Amuchastegui, 2010). This fact reinforces heterosexuality’s hegemonic position and reinforces homophobia and internalized homophobia. Moreover, the lack of sex education and open discussion about HIV can inhibit the personalization of risk by promoting the idea that HIV can only be contracted by “others” who belong to socially marginalized groups. This decreases the use of preventive measures and the possibilities of early detection (Flores-Palacios & De Alba, 2006; Flores-Palacios & Leyva-Flores, 2003).

The internalization of this stigma—in addition to the effect described above—can affect patients’ mental health by causing anxiety, depression and desperation, at the same time as it damages their social relationships because the patient fears infecting others or suffering social rejection if his condition comes to light (Lee, Kochman, & Sikkema, 2002).

Summarizing the processes mentioned above, (double) stigmatization, internalized homophobia, disengagement coping strategies and the risks associated with it can lead HIV-infected gay men to a situation of social vulnerability. This concept refers to the conjuncture of a set of elements in a sociocultural context that increases the risk that patients will suffer some kind of social problem (Stern, 2004). Social problems that have been observed in the case of HIV-infected gay men in Mexico are—among others—: the absence of social support networks, lack of access to the country’s social security system (which offers low-cost health care), scarce opportunities for employment and higher education, and limited access to information, to mention just a few (Flores-Palacios & De Alba, 2006; Flores-Palacios & Leyva-Flores, 2003).

1.1. The “Healthy Relationships” intervention program “Healthy Relationships” is an intervention designed for use within small groups of people who are living with HIV-AIDS. It was developed by the Medical Center at the University of Southeastern Texas and has been implemented in several centers for disease control and prevention in both the USA and Canada. This program is a product of a research project directed by Seth Kalichman in Atlanta in 1998 (see: Kalichman et al., 2001). The main objective was to reduce participation in high-risk sexual practices by people who are living with HIV.

The primary goal of the “Healthy Relationships” intervention is to develop the cognitive abilities and coping strategies that will make it easier for patients to reveal their diagnoses to family, friends, and sexual partners. Subsequently, patients become more receptive to the adoption of practices involving safe, protected sex. Developing these capacities has been integrated into a sequential process in which the first step is to help the person become aware of the real situation he is confronting. The next objective is to identify the “triggers” that can lead patients to admit their medical condition and begin practicing protected sex, or the “barriers” that may dissuade them from doing

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so. The next stage focuses on problem-solving, which is followed by a process of decision-making. The final phase consists of taking concrete actions.

During this intervention, patients carry out three principal activities. First, a technique called “scales of risk” asks participants to indicate—on a lesser-to-greater scale—the degree of risk that revealing their condition to family, friends, and then sexual partners, would generate. After that, they assess the degree of risk involved in a variety of sexual practices.

In the second activity, subjects watch a series of scenes from films that have been selected according to the characteristics of the population and cultural context in which the intervention takes place. Here, the idea is to encourage participants to practice the cognitive abilities and coping strategies, as the excerpts present situations in which the characters portrayed must decide whether to reveal their diagnoses to family, friends, and sexual partners, and then negotiate safe sex practices. The use of these extracts stimulates group discussion while leading patients to identify themselves with the characters on the screen and thus re-signify the stressful events related to their illness. Also, it gives them the opportunity to practice these abilities through role-play, while the facilitators model the use of such abilities.

Later, they participate in an educational activity focused on the correct use of the condom, where the amount of information on safe sex practices and risks that members display is evaluated, as is their dexterity in the use of the condom itself.

Mexico health authorities decided to undertake the “Healthy Relationships” program and implement it to a Mexican population because they were interested in adding sociocognitive components to the health services that HIV patients received. During implementation of the program, the patients expressed how the sociocultural context of Mexico was limiting their capacity to have active coping strategies. It was, therefore, decided that there would be adaptations of the “Healthy relationships” program as it had originally been designed in the USA. These adaptations became the focal point of our study. We assessed context-specific (i.e., Mexican) experiences with (double) stigma and discrimination and its effect on the way that patients cope with their HIV status and the incompatibilities between their needs and the services provided by the Mexican healthcare system. The original American version does not contemplate contextual factors in the intervention procedure because it is based on Bandura’s Social Cognitive Theory (1989), which considers coping strategies to develop on an individual, cognitive level, without regarding the specific context in which these coping strategies develop.

In the Mexican intervention, which is the focus of this study, we opted for a more contextually oriented theoretical approach focusing on the specific significations of the participants and their “lived experiences” (see: Jodelet, 2001). In line with the theory of social representations, the assumption is made that confronting the reality of the HIV infection happens not just on an individual cognitive level, but depends on the local meanings and simbols related to HIV; the construction of which takes place on the interface of an ecologically situated social process and individual cognitive and emotional mechanism (Wagner, Hayes, & Flores, 2011). In other words, the way in which people come to understand and deal with HIV infection is determined by the contextually dependent system of values, beliefs, and practice (Moscovici, 1973). This system of values is a conglomerate of social representations that not only exist in the minds of the individuals, but also between individuals, in their collective talk and action (Wagner et al., 1999).

In the process of adapting this intervention to the Mexican population, it was decided to add an activity in which participants were encouraged to express themselves about living with HIV. This turned out to be a key factor in establishing a degree of group cohesion. Also, it allowed the men to talk about the difficulties involved in the process of confronting this infection, with the result that they identified aspects that were not contemplated in the original intervention but were of great significance.

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It is important to point out that when applied in other cultural contexts this intervention has led participants to significantly reduce unprotected sexual practices and increase condom use (Kalichman et al., 2001). Moreover, reports show that patients evaluated the advantages and disadvantages of revealing their HIV diagnoses to family, friends, and sexual partners, and began to practice what they learned about safe sexual practices (Kalichman et al., 2001).

2. Method

2.1. The intervention In the second semester of 2007, a team of Mexican specialists received training at the Dallas Department of Health Care Sciences STD/HIV Behavioral Intervention Training Center based on a recommendation from the National Centre for the Control and Prevention of AIDS (CENSIDA) and with financial support from Mexico’s National Science and Technology Council (CONACyT, for its name in Spanish) and the National Autonomous University of Mexico (UNAM, for its name in Spanish).

In the first trimester of 2008, the project was presented to health service authorities in Mexico and the directors of CAPASITS (Ambulatory Centers for Prevention and Attention for AIDS and Sexually Transmitted Infections), where the objectives and methodology of the program were explained. Following the presentation and after certain adjustments were made to the program—in accordance with the characteristics and suggestions of the target population—users of CAPASITS’ services were informed of the intervention and invited to participate.

It should be noted that an analysis of the profile of the population was made to assure that all materials used in the sessions were suitable and to select appropriate scenes from different films. To be able to participate in the program, HIV patients could not have been diagnosed with a mental illness or be in the terminal phase of their illness.

The original plan was to hold five, one-hour sessions; however, due to complications such as the distance that patients had to travel from their homes to the health center where research was conducted, the lack of economic resources to pay for transportation, and health problems indirectly related to HIV/AIDS, it was decided to perform the entire intervention on one day in one five-hour session.

Despite these adjustments, the three central areas stipulated in the intervention’s Handbook (National Network of Prevention Training Centers, 2004) were respected: (1) revealing their condition to family, friends and (2) sexual partners, and (3) constructing safer sexual relations. Once these areas were covered, it became necessary to extend the session and discuss some emotional aspects of the experience (4).

The number of people in the groups varied from eight to twelve. The research team introduced themselves to the participant group, and the objectives and structure of the session were explained. Then each participant introduced himself, and the rules of confidentiality and respect were explained. Sessions were conducted by two trained moderators, and an observer (a member of the research team) was present to take notes.

2.2. The study

2.2.1. Participants Eight HIV-positive homosexual men participated in the program intervention. There was no selection process; they voluntarily registered to the program through an open invitation made by the Secretary of Health. All men were from urban areas and were visiting a primary care clinic specialized in HIV/AIDS. Most participants were single and they aged from 21 to 55. All had jobs, but none were registered in Mexico’s Social Security system. Occupations varied: teachers, merchants, employees, etc. In terms of education, most had finished high school or university. All were receiving antiretroviral treatment. Time from diagnosis ranged from 1 to 18 years. Two of the eight

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participants in the intervention also participated in a semi-structured interview. In both cases, a member of their social network also took part in the interview because the participant considered the member to play an important role in their ability to cope with the HIV diagnoses. It, therefore, seemed relevant to involve them.

2.3. Procedure The study was conducted through a qualitative process which included the use of participatory observation, focus groups, and individual interviews as techniques for data collection. An observer (member of the research team) took notes during the program; in particular, significant verbal comments and other significant events were recorded. The notes were transcribed. In addition, two semi-structured interviews were held with two participants and members of their family. The interviewees’ participation was voluntary through an open invitation, and there was no selection process. That is why only two interviews were conducted. With the participants’ consent, the interviews were recorded. The interviews were transcribed, as well as the transcriptions of the observer’s notes. Both served as data for the study. Categories of discussion in the interviews were: (1) receiving the diagnosis, obstacles and facilitating factors to revelation, (2) initiating medical treatment, (3) the influence of stigma and discrimination, and how they cope with this, and (4) their current emotional situation, and how they live and cope with their HIV status in their daily life.

2.4. Technical analysis Data was analyzed using the NVivo® computer program. This computer program enables the analysis of extensive qualitative data by making the manual ordering, classification and preparation of the data unnecessary. Through the identification and codification of themes, the establishment of relationships among them and the creation of concepts, the program assists in the description of phenomenon and by making adjustments in the development of theories (Trejo, 2009). This analysis was complemented with notes obtained from the observation and conventional interpretation of the meaning of narratives of each participant.

3. Results Four main categories were found in the expressions of participants, all linked to the principal axes of the intervention: (1) revealing diagnoses to friends and family; (2) revealing one’s condition to sexual partners; (3) safe sex; and, (4) other situations that cause stress, including factors that patients felt were relevant to their daily lives, but are not included in the intervention.

3.1. Revealing diagnoses to family and friends All the participants in the study expressed that there was a significant range of time between knowing about the diagnosis and sharing it with a member of their social network. It was observed that patients found it less stressful to admit their status to networks of close friends than to family members. If revelation was done within the family, the first to find out was usually a sibling, who might then become the patients’ main source of support and help him to face up to the reality of the illness. In contrast, revealing their status to other family members often generated more anxiety and stress, especially the father figure, who mainly perceived as the most threatening person in the revelation process.

Reasons that participants mention for avoiding or delaying the revelation of a HIV diagnosis were the fear of the discrimination that HIV patients often experience (first quote), and the anxiety caused by confessing one’s sexual orientation to family members (second quote). This is especially difficult in a sociocultural milieu where hegemonic models of masculinity promote heterosexuality, and as a result, revelations of homosexuality cause family members great anxiety:

I think that, if he hasn’t felt discrimination from other people, it’s because they don’t know, and the people who do know, people in the family and at CAPASITS, well they’re folks who love and support us. But outside of them, other people … no way, because people out there who find out that someone is ill, well … many of them might give support, but many others tend to reject [you]. (A, mother of patient D)

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[…] we all cried a lot, it was a real shock for us, first finding out that he was gay. I don’t know, it was really traumatic for us, because we said “hey we’ve got two kids and we’re going to have grandchildren, we have two daughters and we’re going to have grandkids” … so it was a real blow, then we learned of this (the HIV diagnosis), imagine, in a family like this, so established, so macho, it was a real shock, a very strong blow. (A, mother of patient D)

The information gathered thus shows that this revelation is usually made to a person with whom the patient has ties of trust and intimacy. It was found moreover that informing members of the extended family is normally avoided, though this produces a situation in which some relatives are aware of the diagnosis, while others are not. Generally speaking, the process of revealing one’s diagnosis is gradual and selective, but two members of this group had been living with HIV for five years and had not informed anyone about it.

3.2. Revealing diagnoses to sexual partners Participants identified both facilitating elements and obstacles to reveal their diagnoses to sexual partners. Of the elements facilitating revelation, some were of a situational nature, like the place (or milieu) where they met a potential partner. They moreover said it was important that they were in control of their emotional state; that they were “calm” and “cool.” They said that a key factor in achieving this emotional control was to avoid substances like alcohol and drugs. Nonetheless, from the participants’ point of view, most of the elements that make it easier to reveal their condition to sexual partners were more closely related to the type of relationship established with the other person. This means that the duration of their relationship and the bonds of trust that exist make them feel more secure about discussing their condition. This is related to their expectation of receiving support and a positive attitude from the partner, not rejection or violence.

With regard to obstacles to revealing one’s condition to sexual partners, subjects mentioned several elements or factors of a more personal nature. One of these was a lack of determination, characterized by ambivalence or fear of the consequences of admitting their infection. These barriers lead men to conceal their serological status when they were not sure how a partner might react. Alcohol consumption and drug use are two other factors that delay revelation, because in such altered states of consciousness men may think that it is not an appropriate time to speak about such a sensitive, personal issue. Finally, they alluded to a person’s emotional state before the act of revelation, because speaking while anxious, depressed, or angry can adversely affect how the news is communicated.

Men in relationships that are in the formative stage may be hesitant to reveal their condition for fear of causing a breakup. One participant mentioned the fear of his partner’s reaction as another obstacle to revelation. This reaction was expected to consist of fear of also being stigmatized, being infected, having to care for someone who is going to be more and more dependent upon them and a fear of committing to an ill person:

One of these days I’m going to have to tell him, and well, if I lose him or if he doesn’t want to stay with me, it’s his decision, right? It won’t hurt me one way or the other. Okay, I might be a bit sad because I’m not going to be with him anymore, but, hmmm, the world isn’t going to come to an end because of that. I’d understand him completely, I mean, I’d put myself in his shoes, think back a bit, [and ask myself] if I had a partner with HIV and, well, you know, if I loved him, I think I’d support him, but if I didn’t really love him, then I’d leave him; there’s no point being with a person and suffering with him if you don’t really love him. (J, patient)

Some participants identified “living a double life” as another barrier. In the sociocultural context of Mexico, this alludes to men who present themselves publicly as heterosexuals, who may be married and even have children, but who at the same time have clandestine or secret sexual relations with other men. This situation does not necessarily mean that they identify themselves as bisexual. Indeed, in this milieu where the hegemonic masculinity promotes heterosexuality and certain forms of male behavior manifested, for example, in tone of voice, posture, physical appearance, apparel,

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recreational activities, forms of seduction, and the role adopted during sexual acts, men can have relations with other men without considering themselves homosexuals. Instead, they use popular categories like “macho” or “normal” (Nuñez, 2007). Thus, men who live such “double lives” may resist revealing their condition for fear that their sexual practices or hidden lifestyle might come to light and that such knowledge could ruin the relationship.

3.3. Safe sex The aforementioned scales of risk allowed participants to identify several safe sex practices and acts that entailed no risk of infection, and to differentiate them from other, high-risk activities, such as anal intercourse without a condom. However, during the group discussion, researchers found that participants had a reasonable amount of information on the proper use of condoms, felt secure that they were able to use them correctly and, in fact, had integrated their use into their sexual practices.

Considering the sufficient level of safe sex knowledge, it is important to point out that prevention entails assessing not only the rational components of the decision-making process, but also the affective components involved that can lead people to choose not to use condoms. That is, sexual education should not be about obsessive prescriptions or controlling sexuality, it should be about reaching an ethical posture that must be promoted in the interests of both own health and that of others, and should focus on other factors that patients indicate as influencing their decision to use or not to use a condom (e.g., alcohol and drug use).

As another example, couples in stable, long-term relationships marked by trust and intimacy may prefer not to use condoms despite the risk of infection, or partners may reject the condom because they feel it is a barrier in both sensorial and affective terms.

Some men said they participated in emerging practices like “barebacking,” which involve several forms of risk, including drug use, multiple sexual partners, and sexual acts without a condom. Participants mentioned a lack of self-respect and not valuing life as reasons for engaging in unsafe sex practices despite their knowledge of safe sex:

If you don’t value your own life, if you don’t love yourself or have self-esteem, then what’s the use of taking treatment? What for?... all this information, what good is CAPASITS, right? What good is the attention you get? Because the medicine can’t do it alone, you know, and the information isn’t just going to fall into your hands and [even if it did] you wouldn’t understand it; so if you’re not motivated, if you don’t have love and self-esteem, it’s not going to help you decide, and say this will help me [or] this won’t. So I think it’s more about love of yourself. (D, patient)

Another problem that came to the fore was the influence that the HIV diagnosis has on the (enjoyment of) their sex life, especially because of issues like the fear of infecting a sexual partner and the anxiety brought on by the fear of contagion, which results in excessive precautions and adopting meticulous measures to prevent contagion. Though condom use was a common practice in the lives of these subjects, the fear of infecting someone else prevented them from enjoying sex as they had before. In addition, the need to conceal their condition can result in emotional detachment in the couple or prevent them from developing greater intimacy. As these factors clearly show, it is important to understand that the sex life of men who learn of their HIV condition can be truncated by the fear of infecting others, the effects of the social repercussions of the stigma associated with HIV, and the consequences that revealing this condition can generate.

Emotional support has been found to be very important in helping patients and couples adapt to the long-term effects of HIV infections, to maintain their sex life, to introduce techniques for safe sex, and to prevent them from being channeled toward compulsive sexual behaviors that put them at risk:

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I see it like this, whether I was with him or not I’d have to take the same precautions, because you never know what the person you’re going to have sexual relations with is like; I mean, I need to take the same precautions. For example, a friend might say, “hey, aren’t you stressed out? he’s, he’s so meticulous, so …” “no, because that’s how it’s got to be for everybody”, I just have my precautions, a few more now, and that’s it, nothing really changes, nothing changes, we’re just aware that he’s sick. (M, partner of patient D)

Lastly, because some participants said that having to use a condom in each sexual encounter, among other necessary precautions, bothers them severely, it is important to reflect on how messages on prevention and condom use are presented. For example, instead of portraying the use of condoms as a simple mechanical procedure, the act of putting it on can be eroticized if couples are willing to re-signify its use and integrate it as an additional sensual experience, and not just a means of sexual control. Of course, it is also important that they learn other safe sex techniques that can give pleasure without restricting sexual activity exclusively to the genital area.

3.4. Other situations that generate stress Finally, at the end of the session, subjects spoke of specific concerns that were not foreseen in the original “Healthy Relationships” program. Some of their doubts revolved around their sexual practices, such as distinguishing between violent and non-violent acts, and between what is normal and what is abnormal. These kinds of issues must be discussed because they illustrate the persistence of the stigma associated with a person’s sexual orientation and show how non-hegemonic sexual practices are still considered abnormal, not to be discussed, and pushed into the clandestine territory.

Moreover, participants expressed being worried about a lack of economic resources available to help them deal with their illness, especially in regard to shortage of well-remunerated jobs.

Another common concern among subjects was the stability of their affective relationships, especially the absence of someone with whom they could establish bonds of intimacy and closeness, and who may be counted on as a companion as their condition evolves.

4. Discussion This study was conducted in the context of a process designed to adapt the “Healthy Relationships” intervention to a Mexican population, specifically in the framework of a pilot study with a group of gay men from urban backgrounds who were receiving treatment at a specialized HIV-AIDS clinic.

Simultaneously with the application of the intervention, in which the activities employed group discussions that deal specifically with topics like revealing diagnoses to family, friends and partners, and safe sex, an attempt was made to analyze the discourse of participants in order to understand their perspective on these themes and their relation to their health.

The objective was to gain insight into the experiences that HIV patients in this specific context have with the issues addressed in the program. Through this, we hoped to develop an understanding of the factors influencing the (active and disengaging) coping abilities of HIV patients in Mexico and other topics that are important to patients in this context, specifically regarding with their ability to deal with their illness. Overall, the findings of this study promote tailoring the program and the standard practices of healthcare services to the needs of this population.

4.1. (Double) Stigma, discrimination, and revelation The study allowed us to demonstrate—as a first obstacle to coping—the persistence of the stigma related to HIV. Many men expressed their fear of being stigmatized not only because of their HIV status, but also because of their sexual orientation. The double stigma that HIV patients experience and that has been described in other parts of the world and as early as in the 1980s (Herek & Glunt, 1988) has been reaffirmed in this study for the current Mexican context.

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Considering the facilitating elements and obstacles to revelation mentioned by participants, preventive measures alone do not lead men to reveal their status; they only provide tools to help him do so once he feels that he is capable and that it is the right time and/or necessary to do so.

The current study affirms that in the Mexican urban context the stigmatization that patients experience manifests itself within the revelation strategies, a finding that has been reported in earlier studies as well (Flores-Palacios & De Alba, 2006; Flores-Palacios & Leyva-Flores, 2003; Goffman, 1970). That is, revelation to family member, friends, and sexual partners, which are considered active coping strategies because they can lead to the construction of networks of social support, is influenced by the degree of (double) stigmatization and discrimination that patients expect when they reveal their HIV status.

The urgency of these issues is shown by this study’s finding that often a significant amount of time elapses between the diagnosis and the patients’ revelation, and that moreover some participants had not revealed to anyone in five years. This has implications such as not receiving medical treatment and impeding the process of constructing networks of social support.

4.2. Family dynamics “chosen family” and support systems Particularly interesting was the finding that in the Mexican situation, revelation was least often done to the father, most often to a sibling, and often to only part of the family. This indicates that in the Mexican context the influence of the selective revelation on the family dynamics is an issue to be taken into account. This issue becomes especially important considering the lack of social services in Mexico and many patients’ lack of economic resources, a concern that was specifically mentioned by our participants.

The participant mentioned that the lack of economic resources was an obstacle for their ability to cope with their illness now and in the future. The concerns voiced by participants focused not only on the present, such as their inability to meet the expenses involved in obtaining treatment for their illness, and being able to count on stable, valuable sources of emotional support to help them confront their reality, but also on the future: they wonder if they will have the economic and personal resources required to endure the disease as the course of the infection advances and opportunistic infections inevitably begin to appear.

Considering the lack of social services and economic resources in Mexico, the family plays a fundamental role in patients’ lives as a source of economic and emotional support. Therefore, we consider this to be an issue that should be taken into account in accessing the social vulnerability of patients and the specific support that they need.

Adding to the current study’s finding that HIV patients often reveal their condition to their family members gradually, or only to some family members and the effect this might have on family dynamics, healthcare services could help by accompanying patients through the process of revelation and encouraging greater involvement from family members who are willing to become part of the sick person’s social support network.

Even though health services should be open to family members and family dynamics, this study has also shown that friends and companions—what in other contexts has been called the “chosen family”1—may often provide patients with a basis of support. Due to their crucial role, those individuals should be welcomed by health authorities as part of social support networks, instead of being pushed aside on ideological grounds because they are not “family,” as often occurs in Mexico’s family-oriented culture.

Another important point to ponder is the role of the patient’s partner during visits to the health sector, not only because of the fundamental role that he plays in caring for the patient and maintaining his emotional stability, but also because of the disruptive effects that a diagnosis of HIV can

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have on the partner’s sex life. The partner must accompany the patient as he deals with the anxiety and worries caused by the fear of contagion and help him regain a full, healthy sex life. Including the condom as a safe sex practice to protect both of them is a vitally important step, whether the companion is there for the long-term or not.

It appeared moreover that after receiving a diagnosis of HIV patients often feel alone and abandoned, and experience extreme emotional upset (e.g., anxiety, depression) brought on by the difficulty of revealing the condition to others, and consequently by having to face up to the illness without emotional and instrumental support. Shontz (1975) has reported these emotional consequences and the relevance of a network of support for several cases of chronic illnesses, including AIDS. Emotional upset and the lack of support can increase the risk of affective or behavioral disorders, so it is essential that patients stay in touch with their support networks after informing them of their condition. When this fails, other sources of support, like non-governmental organizations and support groups can also accompany these men through the process of accepting their diagnoses, especially in cases where a person denies his illness or shows no desire to reach out to the health sector to obtain treatment for it.

4.3. Revealing to sexual partners and safe sex practices On the topic of informing sexual partners, the act of admitting their condition tends to occur in the context of long-term relationships where bonds of intimacy and trust have developed. It is there that men expect to find reactions of a supportive nature. In contrast, casual, short-lived relationships where patients feel insecure about the strength of affective bonds do not lend themselves to revelations. Moreover, the use of alcohol and drugs, the situation in which the sexual encounter takes place, and the emotional (in)stability (anxiety, depression) of the patient were mentioned as important influences on the decision to reveal.

Thus, it appears that the optimal time to make a decision about sharing the diagnosis comes when a man has come to terms with his diagnosis, does not suffer an anxious and depressed episode, is in an intimate relationship and not under the influence of alcohol and drugs.

Considering that patients find it difficult to reveal to casual sexual partners, prevention efforts should focus on convincing patients in such casual situations to practice safe sex in order to prevent both reinfections and contagion. Of course, this task is much easier when a man has accepted his diagnosis, has achieved emotional stability, and is aware of the effects of alcohol and drugs in this situation. Only then can he really promise to take care of himself and adopt an ethical posture of not harming others.

As for the question of prolonged condom use, gay men must devise strategies to eroticize its use and explore other safe sex practices that can complement their sexual activity.

Therefore, we must also continue to work with society in general to fight homophobia and improve the precarious situation of sex education in Mexico. Among our participants, some seemed to have internalized homophobia. Patients indicated that this lack of self-respect and appreciation of life can lead to unsafe sex practice or compulsive sexual behaviors. Moreover, patients expressed finding it difficult to differentiate between normal/non-violent and abnormal/violent sexual behavior. This is likely due to the lack of open discussion of (homosexual) sexual behavior and the tendency to label them as abnormal and perverse.

Generally, it was found that awareness served as a basic requisite for achieving safe sex practices. In the first place, awareness and acceptance of the situation the patients were in, and secondly, awareness of the factors that influence their decision-making in sexual encounters (i.e., the decision to have safe sex or not).

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5. Conclusion In conclusion, double stigmatization, internalized homophobia, alcohol and drug use, and psychological problems such as depression and anxiety were found to be obstacles to coping (revealing one’s HIV status to family, friend, and sexual partner and practicing safe sex). These findings confirm finding in earlier studies in other parts of the world (Herek & Glunt, 1988; Yi et al., 2010).

In addition, specific obstacles to coping in the Mexican context that came to the fore in this study include: (1) a lack of economic resources, (2) a lack of access to social services, (3) the strength of the heterosexual hegemony and the unwillingness to reveal status to the father and the practice of a double life that were associated with this hegemony, (4) the dependency on family for financial and emotional support on the one hand, and the gradual revelation to family members—and its potential influences on family dynamics—on the other hand, and (5) the importance of being able to count on the emotional, affective and/or economic support of a family, be it a biological or a chosen family.

It is important to emphasize strongly that several of the additional concerns voiced by participants must be addressed, primarily those of an economic nature and especially in the advanced stages of the disease. Thus, health services must identify the degree of social vulnerability of patients and come to understand how their social position limits their ability to come to grips with the disease and then develop new kinds of psychosocial interventions that patients need to help them cope with their medical condition.

These context-specific findings illustrate that the implementation of the “Healthy Relationships” program in the Mexican context must be accompanied by an understanding of participants’ social contexts and other dimensions of their experience, most importantly the influence of emotional and psychological distress and the influence of their specific individual and psychological histories that influence the way in which they approach the intervention and their illness.

This type of intervention aims to gain insight into the social representations that determine patient's signification of their situation in a specific context. Moreover, it aims to enable a process of re-signification in which destructive social representaions are changed into systems of representation that convert themselves in the social capital which allows for new, more constructive behaviours toward their HIV illness.

Despite what was gained through the study’s collective focus, it also implied a limitation in that we found that patients found it difficult to talk openly about their sexual orientation and HIV status during the intervention (as in their daily life). Often out of fear of being stigmatized and because it confronts them with their mortality

However, the collective character of the intervention also had another positive effect in introduc- ing participants to other patient they could identify with and giving them the sensation that they are not facing the illness alone.

The integrated vision of this intervention will allow us to construct more effective strategies that will help patients take better care of themselves and others, and deal with another public health problem, the one related to adherence to treatment in cases of chronic diseases.

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Ethical approval Castro, R., Orozco, E., Eroza, E., Manca, M., Hernández, J., & All procedures performed in studies involving human Aggleton, P. (1998). AIDS-related illness trajectories in participants were in accordance with the ethical standards Mexico: Findings from a qualitative study in two of the institutional and/or national research committee marginalized communities. AIDS Care, 10(5), 583–598. and with the 1964 Helsinki declaration and its later https://doi.org/10.1080/09540129848442 amendments or comparable ethical standards. Diez, J. (2011). La trayectoria política del movimiento Lésbico- Gay en México. Estudios Sociológicos, 29(86), 687–712. Informed consent Flores-Palacios, F., & De Alba, M. (2006). El sida y los jóvenes: Informed consent was obtained from all individual Un estudio de representaciones sociales. Salud Mental, participants included in the study. 29(3), 51–59. Flores-Palacios, F., & Leyva-Flores, R. (2003). Representación Acknowledgements social del SIDA en estudiantes de la Ciudad de México. We would like to thank all the participants that took part in Salud Pública de México, 45(5), S624–S631. this research for their time and confidence. For their support https://doi.org/10.1590/S0036-36342003001100007 in training, we would like to thank the Dallas Department Goffman, E. (1970). Estigma. La identidad deteriorada. Buenos of Health Care Sciences STD/HIV Behavioral Intervention Aires: Amorrortu. Training Center. We would also like to thank the National Herek, G. M., & Glunt, E. K. (1988). An epidemic of stigma: Center for the Prevention and Control of HIV/AIDS (CENSIDA) Public reactions to AIDS. American Psychologist, 43(11), 886–891. https://doi.org/10.1037/0003-066X.43.11.886 Funding Jodelet, D. (2001). Experienica y representaciones sociales. In E. This work was supported by the Mexican National Council Romero (Ed.), Representaciones Sociales, Atisbos, Cavilaciones of Science and Technology (CONACYT) [grant number del devenir de la Cultura (pp. 85–116). Mexico: BUAP. U49926-H2007-2010]; National Autonomous University of Kalichman, S., Rompa, D., Cage, M., DiFonzo, K., Simpson, D., Mexico (UNAM). Austin, J., … Graham, J. (2001). Effectiveness of an intervention to reduce HIV transmission Risks in HIV- Competing Interests positive people. American Journal of Preventive Medicine, The authors declare no competing interest. 21(2), 84–92. https://doi.org/10.1016/ S0749-3797(01)00324-5 Author details Lee, R., Kochman, A., & Sikkema, K. (2002). Internalized stigma Fátima Flores-Palacios1 among people living with HIV-AIDS. AIDS and Behavior, E-mail: [email protected] 6(4), 309–319. https://doi.org/10.1023/A:1021144511957 Nayelli Torres-Salas2 Morrison, K. (2006). Breaking the cycle: Stigma, discrimination, internal stigma, and HIV E-mail: [email protected] . Washington: USAID. Moscovici, S. (1973). Foreword. In C. Herzlich (Ed.), Health and 1 Peninsular Center for Humanities and Social Sciences, illness: A social psychological analysis (pp. ix–xiv). London: Nacional Autonomous University of Mexico. Ex Sanatorio Rendón Peniche, Calle 43 s/n entre 44 y 46, col. Industrial, Academic Press. C.P. 97150, Mérida, Yucatan, México. National Network of Prevention Training Centers. (2004). Relaciones Saludables: Una intervención de grupos 2 Independant Researcher, Calle 5 num. 536 por 54 y 66, Residencial Pensiones 4ta etapa, C.P. 97217 Merida, Yucatan, reducidos con personas con VIH/SIDA. Manual de Mexico. Implementación. Dallas, TX: The University of Texas Southwestern Medical Center at Dallas. Citation information Nuñez, G. (2007). Masculinidad e intimidad: Identidad, Cite this article as: Improving health and coping of gay sexualidad y sida. Mexico: UNAM & Programa Universitario men who live with HIV: A case study of the “Healthy de Estudios de Género. Relationships” program in Mexico, Fátima Flores-Palacios & Parker, R., & Aggleton, P. (2002). HIV-AIDS-related stigma and Nayelli Torres-Salas, Cogent Psychology (2017), 4: 1387952. discrimination: A conceptual framework and an agenda for action. Retrieved from http://www.popcouncil.org/pdfs/ Note horizons/sdcncptlfrmwrk.pdf 1. The concept of chosen family refers to a situation in Prieur, A. (2008). La casa de la Mema. Travestis, locas y machos. which intimate, affective, and emotional relationships Mexico: UNAM & Programa Universitario de Estudios de are formed with non-family member which come to Género. replace relationships in the nuclear (biological) family. Secretaria de Salud. Centro Nacional para la Prevención y Often because the latter are problematic and do not Control del SIDA. (2015). Informe nacional de avances en offer sufficient emotional affective and/or economical la respuesta al VIH y el SIDA 2015. Retrieved from http:// support. The replacement of nuclear (biological) family www.censida.salud.gob.mx/descargas/ungass/GARPR_ by a chosen family occurs most often in marginalized, Mx2015.pdf socially vulnerable group such as homosexuals, prosti- Shontz, F. (1975). The psychological aspects of physical illness tutes, and homeless children. and disability. New York, NY: Macmillan. Stern, C. (2004). Vulnerabilidad social y embarazo adolescente References en México. Retrieved from http://www. Aggleton, P., Parker, R., & Maluwa, M. (2003). Stigma, papelesdepoblacion.com/derechossexyreprod/ discrimination and HIV/AIDS in Latin America and the vulnerabilidadsocialyembarazoadolescenteméxico.pdf Caribbean. Retrieved from http://idbdocs.iadb.org/wsdocs/ Trejo, E. (2009). Soporte Informático para la investigación getdocument.aspx?docnum=1446272 cualitativa: Caso de los programas AtlasTi. y NVivo. Amuchastegui, A. (2010). The hybrid construction of sexuality Población y Desarrollo, 4(4), 87–109. and its impact on sexual education. Sexuality, Society and Vela Barba, E. (2015). Same-sex unions in mexico: Between Learning., 1(3), 259–277. text and doctrine. In M. Sáez (Ed.), Comparative insights Bandura, A. (1989). Human agency in social cognitive theory. on marriage and cohabitation (Vol. 42, pp. 49–83). American Psychologist, 44, 1175–1184. Dordrecht: Springer. https://doi. https://doi.org/10.1037/0003-066X.44.9.1175 org/10.1007/978-94-017-9774-0

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Wagner, W., Duveen, G., Farr, R., Jovchelovitch, S., Lorenzi- representaciones sociales. Barcelona: Anhropos. Cioldi, F., Marková, I., & Rose, D. (1999). Theory and Yi, H., Sandfort, T. G. M., & Shidlo, A. (2010). Effects of method of social representations. Asian Journal of Social disengagement coping with HIV risk on unprotected sex Psychology, 2, 95–125. among HIV-negative gay men in New York City. Health https://doi.org/10.1111/ajsp.1999.2.issue-1 Psychology, 29(2), 205–214. Wagner, W., Hayes, N., & Flores, F. (Eds.). (2011). El discurso de https://doi.org/10.1037/a0017786 lo cotidiano y el sentido común: La teoría de las

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ACCORD - Austrian Centre for Country of Origin & Asylum Research and Documentation Mexico: Sexual orientation and gender identity (SOGI) COI Compilation May 2017

This report serves the specific purpose of collating legally relevant information on conditions in countries of origin pertinent to the assessment of claims for asylum. It is not intended to be a general report on human rights conditions. The report is prepared within a specified time frame on the basis of publicly available documents as well as information provided by experts. All sources are cited and fully referenced.

This report is not, and does not purport to be, either exhaustive with regard to conditions in the country surveyed, or conclusive as to the merits of any particular claim to refugee status or asylum. Every effort has been made to compile information from reliable sources; users should refer to the full text of documents cited and assess the credibility, relevance and timeliness of source material with reference to the specific research concerns arising from individual applications.

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TABLE OF CONTENTS

1 Relevant legislative framework ...... 3 1.1 Marriage, other forms of legal recognition of long-term relationships, adopting or fostering children ...... 3 1.1.1 Marriage ...... 3 1.1.2 Adoption ...... 8 1.1.3 Pensions, social insurance, etc...... 10 1.2 Legal recognition of gender identity (e.g issuance of identity documents) ...... 11 1.3 Anti-discrimination provisions ...... 12 1.4 Anti-hate speech provisions ...... 15 1.5 Laws not explicitly relating to individuals of diverse SOGI being used in a discriminatory manner ...... 17 2 Treatment of individuals of diverse SOGI by state actors ...... 20 3 Treatment of individuals of diverse SOGI by non-state actors ...... 23 3.1 General attitudes ...... 23 3.2 Discrimination: labour, health, work...... 26 3.3 Killings, attacks ...... 31 4 Situation of human rights defenders advocating rights of individuals of diverse SOGI .... 36 5 Ability and willingness of the state to provide protection to individuals of diverse SOGI and to human rights defenders ...... 38 Sources ...... 41

1 Relevant legislative framework The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), the world federation of national and local organisations advocating equal rights for lesbian, gay, bisexual, trans and intersex (LGBTI) people, states in its June 2016 State Sponsored Homophobia report that same-sex sexual acts in Mexico are legal and that the age of consent for same and different sex sexual acts is equal. In addition, ILGA mentions that in Mexico there exists a prohibition of discrimination in employment based on sexual orientation and a constitutional prohibition of discrimination based on sexual orientation. ILGA further reports that in the State of Coahuila (since 2005) and in the Federal District (since 2009) hate crimes based on sexual orientation are considered an aggravating circumstance and that the incitement to hatred based on sexual orientation is prohibited. (ILGA, June 2016, pp. 35, 38, 43, 45, 47, 49)

1.1 Marriage, other forms of legal recognition of long-term relationships, adopting or fostering children

1.1.1 Marriage A New York Times (NYT) article published in June 2015 gives the following overview of developments concerning same-sex marriages in Mexico:

“In 2009, Mexico City, a federal district and large liberal island in this socially conservative country, legalized gay marriage - a first in Latin America. There have been 5,297 same-sex weddings here since then, some of them couples coming to the city from other states. Of the nation’s 31 states, only one, Coahuila, near the Texas border, has legalized gay marriage. A second state, Quintana Roo, where Cancun is, has allowed gay unions since 2012, when advocates pointed out that its civil code on marriage did not stipulate that couples be one man and one woman. In most of the rest of the country, marriage is legally defined as a union between a man and a woman - laws that may remain on the books despite the court’s decisions.

The Supreme Court upheld Mexico City’s law in 2010, adding that other states had to recognize marriages performed there. Advocates of gay marriage saw that as an opportunity to use the court’s rulings to assert that marriage laws in other states were discriminatory. The court - taking into account international decisions and antidiscrimination treaties that Mexico has signed - has steadily agreed, granting injunctions in individual cases permitting gay couples to marry in states where the laws forbid it.

A major turning point occurred this month when the court expanded on its rulings to issue a decree that any state law restricting marriage to heterosexuals is discriminatory. ‘As the purpose of matrimony is not procreation, there is no justified reason that the matrimonial union be heterosexual, nor that it be stated as between only a man and only a woman,’ the ruling said. ‘Such a statement turns out to be discriminatory in its mere expression.’

The ruling does not automatically strike down the state marriage laws. But it allows gay couples who are denied marriage rights in their states to seek injunctions from district judges, who are now obligated to grant them.

‘Without a doubt, gay marriage is legal everywhere,’ said Estefanía Vela Barba, an associate law professor at CIDE, a university in Mexico City. ‘If a same-sex couple comes along and the code says marriage is between a man and a woman and for the purposes of reproduction, the court says, ‘Ignore it, marriage is for two people.’ […]

Bureaucratic hurdles, and sometimes hostility, remain. Civil registry authorities abiding by state laws can still block couples hoping to marry. It is up to the couples to appeal to the courts, a process that can cost $1,000 or more and take months. […]

José Luis Caballero, a constitutional scholar who directs the law school at the Iberoamerican University in Mexico City, said that even though judges must now rule in favor of gay couples, full equality has yet to be reached. ‘What has to happen is that the state laws have to be reformed so that couples have the same rights and they don’t have to spend time and money,’ he said. ‘A couple with resources can get married. A couple without resources can’t.’” (NYT, 14 June 2015)

In an August 2015 query response about the situation and treatment of sexual minorities, particularly in Mexico City, Cancún, Guadalajara and Acapulco, the Immigration and Refugee Board of Canada (IRB) similarly mentions bureaucratic hurdles:

“The Supreme Court of Justice (Suprema Corte de Justicia de la Nación, SCJN) ruled on 3 June 2015 that [translation] ‘there is no constitutional reason to not recognize same-sex marriages’ (ibid. 4 June 2015). […] However, according to Alejandro Madrazo, a lawyer and investigator with Mexico City’s Center for Research and Teaching Economics (Centro de Investigacion y Docencia Economicas, CIDE), same-sex couples will continue facing challenges regarding marriage as civil registries [translation] ‘will continue rejecting applications for same-sex marriages and these couples will have to file an amparo with the associated costs and bureaucracy this process implies’ (qtd. in BBC 24 June 2015).“ (IRB, 18 August 2015)

The abovementioned ruling of the Suprema Corte de Justicia de la Nación (SCJN, Supreme Court of Justice), which declares there being no constitutional reason not to recognize same-sex marriages can be accessed via the following link:  SCJN - Suprema Corte de Justicia de la Nación: Tesis: 1a./J. 46/2015 (10a.), 3 June 2015a (published on 19 June 2015) http://sjf.scjn.gob.mx/SJFSem/Paginas/DetalleGeneralV2.aspx?ID=2009406&Clase=Detalle TesisBL

In April 2017 the gay American journalist Rex Wockner in his blog1 provides the following explanation concerning legislation on same-sex marriages:

“The key thing to remember is that the 2015 ruling by the federal Supreme Court’s First Chamber created jurisprudence binding on all courts that any ban on same-sex marriage is unconstitutional. That’s why state legislatures are legalizing same-sex marriage now, why

1 See ILGA, State Sponsored Homophobia, June 2016, p. 50.

some state and city governments have stopped enforcing bans, and why federal politicians, including Mexico’s president, have been looking to support same-sex marriage by changing federal laws and the federal Constitution. Because all bans eventually will be struck down anyway.

The jurisprudence says: ‘Marriage. The law of any federative entity that, on the one hand, considers that the end of it [marriage] is procreation and/or that defines it [marriage] as that which is celebrated between a man and a woman, is unconstitutional.’ (‘Matrimonio. La ley de cualquier entidad federativa que, por un lado, considere que la finalidad de aquél es la procreación y/o que lo defina como el que se celebra entre un hombre y una mujer, es inconstitucional.’)” (Wockner, 4 April 2017)

The abovementioned ruling of the Suprema Corte de Justicia de la Nación (SCJN, Supreme Court of Justice), according to which restricting marriage to heterosexuals is unconstitutional, can be accessed via the following link:  SCJN - Suprema Corte de Justicia de la Nación: Tesis: 1a./J. 43/2015 (10a.), 3 June 2015b (published on 19 June 2015)

http://sjf.scjn.gob.mx/SJFSem/Paginas/DetalleGeneralV2.aspx?Epoca=&Apendice=&Expresion=&Dominio=Tesis%20Viernes%2019%20de%20Junio%20de%2

02015%20%20%20%20%20.%20Todo&TA_TJ=1&Orden=3&Clase=DetalleSemanarioBL&Tablero=&NumTE=11&Epp=20&Desde=-100&Hasta=-

100&Index=0&SemanaId=201525&ID=2009407&Hit=9&IDs=2009418,2009417,2009416,2009415,2009414,2009413,2009409,2009408,2009407,2009406,

2009405&Epoca=-100&Anio=-100&Mes=-100&SemanaId=201525&Instancia=-100&TATJ=1

There is varying information concerning the number of states in Mexico where same-sex marriages are possible:

Rex Wockner elaborates in his April 2017 article as follows:

“As was the case in the U.S., Mexico’s legalization of same-sex marriage is proceeding state by state but unlike in the U.S., there is no possibility for a single ruling from the highest court that will overturn same-sex marriage bans nationwide. Even the Supreme Court of Justice of the Nation (SCJN) will have to go state by state.

Mexico has 31 states plus the federal entity Mexico City. Marriage equality has arrived in Mexico City and in 10 states -- via three different routes: Legislative legalization, a Supreme Court ruling, and state administrative decisions to stop enforcing their ban. Those states are:

 Campeche (legislative)

 Chihuahua (administrative)

 Coahuila (legislative)

 Colima (legislative)

 Guerrero (administrative; may not be statewide)

 Jalisco (SCJN ruling)

 Michoacán (legislative)

 Morelos (legislative)

 Nayarit (legislative)

 Quintana Roo (administrative)

 + Mexico City (legislative)

There are also cities that have stopped enforcing their state’s ban, including Santiago de Querétaro, capital of Querétaro state, and San Pedro Cholula in Puebla state.

Same-sex marriage also became possible everywhere else in Mexico following a June 3, 2015, ruling by the SCJN’s First Chamber, but only if a couple is able to jump through some hoops. The ruling declared that any law that defines marriage as ‘between a man and a woman’ is unconstitutional (and therefore is ultimately doomed) - and the declaration of unconstitutionality means that when any same-sex couple (or group of couples) goes to a federal judge and asks for an injunction (amparo) against the local civil registry allowing them to marry, the judge must grant it. The process works and couples use it, but it requires at least a month of time and up to $1,000 U.S. to pay a lawyer for help. […]

The states of Chiapas and Puebla also recently altered their marriage laws -- again not specifically having to do with marriage being between a man and a woman -- and made the same mistake or decision that Jalisco did. They mentioned in the revised law that marriage is man-woman. Lawsuits were quickly filed with the Supreme Court and are pending.” (Wockner, 4 April 2017)

Verne, an online publication of the Spanish newspaper El País that features popular topics trending on the internet, reports in a January 2017 article that only in eleven of the 32 Mexican states same-sex couples have the right to marry and do not need to seek injunctions. The list of 11 states matches the one given by Wockner, with one exception: instead of the State of Guerrero, Sonora is listed. (Verne, 13 January 2017)

An August 2016 article of the Economist newspaper notes the following:

“Three of Mexico’s 32 states (Michoacán, Colima and Morelos) have recently passed laws permitting gay marriage, joining Mexico City, Campeche, Coahuila and Nayarit in a liberal group of seven. Four more allow gay marriage but have not passed laws sanctioning it.

In the 21 states that still forbid it, couples can now defy local laws by going to court; under the supreme court’s ruling, judges are obliged to give them permission to marry.” (The Economist, 18 August 2016)

In its annual report published in January 2017 Human Rights Watch (HRW) states that since the legalisation of same-sex marriage in Mexico City in 2010 nine further states have legalised it. (HRW, 12 January 2017)

Amnesty International (AI) in its Report 2016/17, which covers the year 2016, mentions two constitutional reforms proposed by President Peña Nieto in May 2016:

“Rights of lesbian, gay, bisexual, transgender and intersex people

In May, President Peña Nieto presented two draft bills to Congress to reform the Constitution and the Federal Civil Code. The proposed constitutional reform to expressly guarantee the right to marry without discrimination was rejected by Congress in November.

The second proposed reform to the Civil Code would prohibit discrimination on grounds of sexual orientation and gender identity in allowing couples to marry and people to adopt children; the reform also included the right of transgender people to have their gender identity recognized by Mexico. The bill had yet to be discussed in Congress.

In September, Supreme Court jurisprudence upholding same-sex couples’ rights to marry and adopt children without being discriminated against on the basis of sexual orientation and gender identity became binding on all judges in the country.“ (AI, 22 February 2017)

In an interview with the online newspaper Actuall, which advocates the values of life, family and liberty, Fernando Guzmán Pérez Peláez of the movement Mexican National Front for the Family explains similarly that the abovementioned second proposed reform to the Civil Code, which would allow same-sex couples to adopt children, has not been discussed yet. (Actuall, 17 November 2016)

In its 2017 annual report, HRW also mentions a bill to legalize same-sex marriage proposed by the Mexican president in May 2016 which was rejected in November of the same year. (HRW, 12 January 2017)

A joint report by The Cornell Law School LGBT Clinic, which advocates the legal rights of LGBT people and provides free legal help to low-income LGBT individuals and the Transgender Law Center, an Oakland-based organisation that advances the rights of transgender and gender nonconforming people, published in May 2016 gives an overview of the development of the legal situation specifically in Mexico City:

“In 2006, Mexico City’s legislature approved the ‘Ley de Sociedades de Convivencia’ (Law Regarding Cohabitation Partnerships) which allowed civil unions between same-sex couples. On December 21, 2009, the Legislative Assembly approved legislation allowing same-sex marriage in Mexico City. The bill changed the definition of marriage in the city’s Civil Code from ‘a free union between a man and a woman’ to ‘a free union between two people.’ The law also allows same-sex couples to adopt children, apply jointly for bank loans, inherit from one another, and be included in spousal insurance policies. In August 2010, the Mexican Supreme Court held that same-sex marriages registered in Mexico City must be recognized in all of Mexico.“ (Cornell Law School LGBT Clinic, Transgender Law Center, May 2016, p. 11)

In February 2017, the news agency Associated Press (AP) reports that the government of Mexico City presented the city’s first constitution which ensures gay rights and comes into effect in 2018 (AP, 5 February 2017).

Paragraph H section 1 of article 11 of the new constitution of Mexico City protects the rights of LGBT persons in order for them to lead a life free of violence and discrimination. Paragraph H section 2 determines that families formed by LGBTI-couples who live in a civil marriage, concubinage or another civil union are accorded the same rights as families formed by heterosexual couples, regardless of whether the LGBTI-couples have children or not. Section 3 stipulates that the authorities shall put in place public policies and undertake the necessary steps in order to eradicate exclusionary or discriminatory behaviour or attitude based on sexual orientation, sexual preference, gender identity, gender expression or sexual characteristics: “Artículo 11 Ciudad incluyente […]

H. Derechos de las personas LGBTTTI

1. Esta Constitución reconoce y protege los derechos de las personas lesbianas, gays, bisexuales, transgénero, travesti, transexuales e intersexuales, para tener una vida libre de violencia y discriminación.

2. Se reconoce en igualdad de derechos a las familias formadas por parejas de personas LGBTTTI, con o sin hijas e hijos, que estén bajo la figura de matrimonio civil, concubinato o alguna otra unión civil.

3. Las autoridades establecerán políticas públicas y adoptarán las medidas necesarias para la atención y erradicación de conductas y actitudes de exclusión o discriminación por orientación sexual, preferencia sexual, identidad de género, expresión de género o características sexuales.” (Constitución Política de la Ciudad de México, 5 February 2017)

The new constitution of Mexico City can be accessed via the following link:  Constitución Política de la Ciudad de México, 5 February 2017 http://www.cdmx.gob.mx/storage/app/uploads/public/589/746/ef5/589746ef5f8cc44747 5176.pdf

1.1.2 Adoption A 2014 report of several NGOs and alliances on human rights violations against LGBT people in Mexico states that “[i]n 2010, Mexico City again amended its Civil Code to allow same-sex marriage and adoption of children by same-sex couples” (Letra S, Sida, Cultura y Vida Cotidiana, A.C. et al., June 2014, p. 4)

The US-based non-governmental organization Freedom House in its January 2016 annual report on political rights and civil liberties in 2015 mentions that in August 2015, the Supreme Court “extended protections to include adoption of minors by same-sex couples”. (Freedom House, 27 January 2016)

The journalist Rex Wockner states:

“On the eve of the Mexico City march [in September 2016], the Supreme Court issued jurisprudence binding on all courts securing adoption rights for same-sex couples nationwide. It says: ‘ADOPTION. The best interest of the minor is based on the suitability of the adopters, within which are irrelevant the type of family into which [the minor] will be integrated, as well as the sexual orientation or civil status of [the adopters].’ (‘Adopción. El interés superior del menor de edad se basa en la idoneidad de los adoptantes, dentro de la cual son irrelevantes el tipo de familia al que aquél será integrado, así como la orientación sexual o el estado civil de éstos.’)” (Wockner, 4 April 2017)

The mentioned ruling of the Supreme Court can be accessed via the following link:  SCJN - Suprema Corte de Justicia de la Nación: Tesis: P./J. 8/2016 (10a.), 23 June 2016 (published on 23 September 2016)

http://ius.scjn.gob.mx/SJFSem/Paginas/DetalleGeneralV2.aspx?Epoca=&Apendice=&Expresion=&Dominio=Tesis%20Viernes%2023%20de%20Septiembre%20de%202016%20%20%20

%20%20.%20Todo&TA_TJ=1&Orden=3&Clase=DetalleSemanarioBL&Tablero=&NumTE=21&Epp=20&Desde=-100&Hasta=-

100&Index=0&SemanaId=201639&ID=2012587&Hit=20&IDs=2012613,2012612,2012611,2012610,2012609,2012608,2012607,2012605,2012604,2012603,2012602,2012601,20125

94,2012593,2012592,2012591,2012590,2012589,2012588,2012587&Epoca=-100&Anio=-100&Mes=-100&SemanaId=201639&Instancia=-100&TATJ=1

In an article published in January 2017 Letra S, Sida, Cultura y Vida Cotidiana, A.C (in the following Letra S), a Mexican non-profit organisation that promotes human rights for sexual minorities and raises awareness about HIV/AIDS and sexual health, reports that Mexico’s Supreme Court issued a ruling on the right of same-sex couples to family life. This ruling is said to have been issued after having analysed similar decisions of international courts regarding the recognition of the rights of same-sex couples and having considered the ruling of the European Court of Justice which concluded that ‘homosexual and heterosexual couples are similarly capable of having a family life’. The Mexican Supreme Court specifies further that the family life of a same-sex couple is not limited to living as a couple but can also extend to include procreation and the raising of children. Letra S points out that prior to this conclusion the Supreme Court had already issued five specific rulings between 2012 and 2015 in favour of same-sex couples from different parts of the Republic wanting to start a family either by means of adoption or assisted reproductive technology. Letra S explains that based on that ruling the wishes of same-sex couples to form families with children can’t be restricted by any authority. This also includes civil registries, which must issue documentation to such an adopted minor without any objection:

“Tras analizar las resoluciones de otras cortes a nivel internacional en materia de reconocimiento de derechos a las parejas del mismo sexo y observar que organismos como el Tribunal Europeo de Derechos Humanos han concluido que existe una ‘similitud entre las parejas homosexuales y heterosexuales en cuanto a su capacidad de desarrollar una vida familiar’, la Primera Sala de la Suprema Corte de Justicia de la Nación emitió la tesis jurisprudencial 08/2017 titulada ‘derecho a la vida familiar de las parejas del mismo sexo’. […]

Publicada el pasado 27 de enero y con vigencia a partir de este lunes, el documento señala que a partir de las consideraciones del Tribunal Europeo sobre ‘la similitud entre las parejas homosexuales y heterosexuales en cuanto a su capacidad de desarrollar una vida familiar’, la Corte ‘entiende que la vida familiar entre personas del mismo sexo no se limita

únicamente a la vida en pareja, sino que puede extenderse a la procreación y a la crianza de niños y niñas según la decisión de los padres’. […]

Para llegar a dicha conclusión, el órgano judicial recordó que ha emitido cinco sentencias a favor de parejas del mismo sexo, de diferentes partes de la República Mexicana, que deseaban conformar una familia, ya sea mediante la adopción de un menor o el acceso a tratamientos de reproducción asistida, entre los años 2012 y 2015.

De esta manera, aquellas parejas del mismo sexo que deseen conformar una familia con hijos o hijas no podrán verse limitadas de esa posibilidad ante ninguna instancia, incluidos los registros civiles, que deben de otorgarles la papelería de dicho menor sin interponer alguna objeción o argumentar su imposibilidad para hacerlo.” (Letra S, Sida, Cultura y Vida Cotidiana, A.C, 30 January 2017)

The mentioned Supreme Court ruling of 18 January 2017 states that the family life of same-sex couples is not limited to the life as a couple, but can extend to procreation and raising of children. That means that there are same-sex couples who form families with children born or adopted by one of them, or couples who use scientific means to procreate:

“A partir de las consideraciones del Tribunal Europeo de Derechos Humanos sobre la similitud entre las parejas homosexuales y heterosexuales en cuanto a su capacidad de desarrollar una vida familiar, la Primera Sala de esta Suprema Corte de Justicia de la Nación entiende que la vida familiar entre personas del mismo sexo no se limita únicamente a la vida en pareja, sino que puede extenderse a la procreación y a la crianza de niños y niñas según la decisión de los padres. Así, existen parejas del mismo sexo que hacen vida familiar con niños y niñas procreados o adoptados por alguno de ellos, o parejas que utilizan los medios derivados de los avances científicos para procrear.” (SCJN, 18 January 2017)

1.1.3 Pensions, social insurance, etc. A 2013 Mexico/ Mexico City – SOGI legislation Country Report written by students of the International Human Rights program at the University of Toronto Faculty of Law refers to social benefits for LGBT people:

“Federal Law of Social Security, 2012: Describes ‘beneficiaries’ in gender-neutral terms making it possible for same-sex spouses or partners to claim the same social benefits recognitions as those of married or common law opposite-sex couples.

Article 5A (XII) - Beneficiaries: the spouse of the insured or pensioner and in their absence, the civil partner, as well as the ascendants and descendants of the insured or pensioner which are identified in the Law.” (International Human Rights program at the University of Toronto Faculty of Law, March 2013, p. 7)

The above-cited text of article 5A (XII) has not been changed since. The Federal Law of Social Security as amended on 12 November 2015 can be accessed via the following link:  Ley del seguro social, 21 December 1995, with amendments up to 12 November 2015 http://www.ordenjuridico.gob.mx/Documentos/Federal/pdf/wo9056.pdf

A Policy Research Working Paper published by the World Bank Group in March 2017 provides the following information:

“The case of Mexico is particularly interesting. First, Mexico has a comprehensive constitutional framework that covers economic and social rights. Also, its Federal Law to Prevent and Eliminate Discrimination prohibits discrimination in obtaining those services for religious minorities, ethnic minorities, and LGBTI persons. In addition, Mexican laws on social security, health, housing, water, electricity, and financial services all contain an article that prohibits discrimination in the provision of the respective services.” (World Bank Group, 3 March 2017, p. 25)

The June 2014 report by the NGO Letra S on human rights violations against LGBT people in Mexico notes:

“Although the Mexican Social Security Institute (IMSS) issued a press release on 17 February 2014 stating that it would extend social security benefits to same-sex married couples, in practice, same-sex married couples continue to experience difficulties in registering their spouses for social security benefits. The same difficulties are encountered with respect to spousal benefits under programs administered by the Institute for Social Security and Services for State Workers (ISSSTE). The problems appear to stem from lack of appropriate training for IMSS and ISSSTE employees. An additional problem is that the IMSS law, as written, continues to describe eligibility for benefits using language applicable only to opposite-sex couples (i.e., ‘the wife of the insured man’ or the ‘husband of the insured woman’), thus appearing to exclude benefits for same-sex couples.” (Letra S, Sida, Cultura y Vida Cotidiana, A.C. et al., June 2014, pp. 2-3)

The British daily newspaper The Guardian in a December 2016 article recounts the experience of a woman who was in a same-sex marriage and after the death of her spouse was confronted with obstacles to processing her wife’s pension. First she was told by officials that no marriage licence existed, although the couple had officially married in September 2016. When she finally received a copy “due to extraordinary circumstances”, the officials claimed that she needed to have been married for at least a year in order to receive the pension. Unlike in the case of heterosexuals, the time the woman and her wife lived together did not count, according to officials. The article mentions “a string of cases” like the one described and goes on to say that these cases “suggest that rights for gay people are still treated as exceptions to be granted at the discretion of local officials”. (The Guardian, 19 December 2016)

1.2 Legal recognition of gender identity (e.g issuance of identity documents) The May 2016 report of the Cornell Law School LGBT Clinic and the Transgender Law Center mentions the following concerning Mexico City:

“Mexico City has created some avenues for transgender people to conform their identity documents to their gender identity. In 2004, Mexico City amended its Civil Code to permit an individual to change the name and gender marker on their birth certificate. Specifically, the Mexico City Civil Code was amended to allow modification of a person’s birth certificate ‘upon request to change a name or any other essential data affecting a person’s civil status, filiations, nationality, sex and identity.’ In 2014, Mexico City also passed a law that permits

transgender individuals to legally change their gender without a court order. […] Only Mexico City has an antidiscrimination law that explicitly protects against gender identity discrimination. Other protections that exist exclusively in Mexico City include name changes, legal recognition of gender changes, and specialized healthcare for transgender people.” (Cornell Law School LGBT Clinic, Transgender Law Center, May 2016, p. 12)

In its March 2017 human rights report covering the year 2016, the US Department of State (USDOS) mentions that “[t]ransgender persons may change their gender marker on identity documents only in Mexico City”. (USDOS, 3 March 2017, section 6)

A December 2016 report written by several NGOs and alliances deals with discrimination due to gender identity and sex characteristics in Mexico and provides the following information:

“In Mexico, one can only change the name and sex in the identity documents in Mexico City, thanks to the reforms that were introduced to article 135bis of the Civil Code of Mexico City. These reforms were approved by the local congress in November 2014 and entered into force on February 5, 2015 when it was published in the Boletín Oficial.

These legal reforms introduced is a significant step forward from the previous law. Currently, adults (persons over 18 years old) who want to modify their name and sex marker are not required to undergo medical interventions or to have a medical certificate or to have filed prior legal motions. Under the current law, it is a simple administrative proceeding, for which only applicants need to present a certified copy of the birth certificate, an official identity document and proof of residence.

However, it is important to highlight that this law only applies to people who reside in Mexico City, which excludes the majority of trans Mexican people who live in other states of the country. It also excludes people who, due to a variety of reasons, cannot provide proof of residence. For example, trans people who come to Mexico City from other parts of the country and who can only have access to working in the informal sector, such as sex work, live in precarious conditions in Mexico City.

Another problem arises in the case of people who currently reside in Mexico City, but who come from other states, since in many cases the local authorities that issued the original birth certificate refuse to authorize that the Civil Registry of the City of Mexico issues a new birth certificate with the new name and sex marker.“ (Hombres XX et al., December 2016, p. 2)

1.3 Anti-discrimination provisions The June 2014 NGO report on human rights violations against LGBT people in Mexico explains:

“In 2011, Mexico amended its Constitution to prohibit discrimination on the basis of ‘sexual preference.’ Several years earlier, in 2003, Mexico passed the Federal Law to Prevent and Eliminate Discrimination. This law, which remains in force, prohibits public and private sector discrimination based on various characteristics including ‘sexual preference,’ and it explicitly characterizes homophobia as a form of discrimination. The law established a National Council for the Prevention of Discrimination (CONAPRED) as a department within

the Mexican Secretariat of the Interior, and assigned CONAPRED various responsibilities related to combatting discrimination.” (Letra S, Sida, Cultura y Vida Cotidiana, A.C. et al., June 2014, pp. 3-4)

Article 1 of the 1917 Political Constitution of the United Mexican States (Constitución Política de los Estados Unidos Mexicanos, with amendments up to 24 February 2017) prohibits any form of discrimination based on sexual orientation:

“Artículo 1o. […]

Queda prohibida toda discriminación motivada por origen étnico o nacional, el género, la edad, las discapacidades, la condición social, las condiciones de salud, la religión, las opiniones, las preferencias sexuales, el estado civil o cualquier otra que atente contra la dignidad humana y tenga por objeto anular o menoscabar los derechos y libertades de las personas.“ (Constitución Política De Los Estados Unidos Mexicanos, 5 February 1917)

Article 1 section III of the Federal Law to Prevent and Eliminate Discrimination (Ley Federal para Prevenir y Eliminar la Discriminación, enacted in 2003, with amendments up to 1 December 2016) protects against discrimination based on sexual orientation. The same section lists homophobia as a form of discrimination: “Discrimination: For the purpose of this law, discrimination will be considered as being any intentional or non-intentional distinction, exclusion, restriction or preferential treatment (by any act or failure to act), which is neither objective, rational or proportional and aims to or results in the obstruction, limitation, prevention, undermining or nullification of the recognition, enjoyment or exercise of human rights and liberties, when it is based on one or several of the following motives: ethnic or national origin, colour of skin, culture, sex, gender, age, disabilities, social or economic background, health, legal status, religion, physical appearance, genetic characteristics, immigration status, pregnancy, language, opinions, sexual preferences, political identity or affiliation, marital status, family situation, family responsibilities, use of language, criminal record or any other motive. Homophobia, misogyny, any expression of xenophobia, racial segregation, antisemitism, racial discrimination and other related forms of intolerance are also regarded as discriminatory”. (Ley Federal para Prevenir y Eliminar la Discriminación, 11 June 2003, Article 1 section III, unofficial translation):

“Discriminación: Para los efectos de esta ley se entenderá por discriminación toda distinción, exclusión, restricción o preferencia que, por acción u omisión, con intención o sin ella, no sea objetiva, racional ni proporcional y tenga por objeto o resultado obstaculizar, restringir, impedir, menoscabar o anular el reconocimiento, goce o ejercicio de los derechos humanos y libertades, cuando se base en uno o más de los siguientes motivos: el origen étnico o nacional, el color de piel, la cultura, el sexo, el género, la edad, las discapacidades, la condición social, económica, de salud o jurídica, la religión, la apariencia física, las características genéticas, la situación migratoria, el embarazo, la lengua, las opiniones, las preferencias sexuales, la identidad o filiación política, el estado civil, la situación familiar, las responsabilidades familiares, el idioma, los antecedentes penales o cualquier otro motivo;

También se entenderá como discriminación la homofobia, misoginia, cualquier manifestación de xenofobia, segregación racial, antisemitismo, así como la discriminación racial y otras formas conexas de intolerancia;” (Ley Federal para Prevenir y Eliminar la Discriminación, 11 June 2003, Article 1 section III)

Besides, Article 9 considers, among others, the following acts as a form of discrimination as defined in Article 1 section III of the same law: “The act or promotion of physical, sexual, psychological, property-related or economic violence on the basis of age, gender, disability, physical appearance, way of dressing, speaking or gesturing, publicly acknowledging one’s sexual preference or any other motive for discrimination” (Ley Federal para Prevenir y Eliminar la Discriminación, 11 June 2003, Article 9, unofficial translation):

“Con base en lo establecido en el artículo primero constitucional y el artículo 1, párrafo segundo, fracción III de esta Ley se consideran como discriminación, entre otras: […]

XXVIII. Realizar o promover violencia física, sexual, o psicológica, patrimonial o económica por la edad, género, discapacidad, apariencia física, forma de vestir, hablar, gesticular o por asumir públicamente su preferencia sexual, o por cualquier otro motivo de discriminación; […]“ (Ley Federal para Prevenir y Eliminar la Discriminación, 11 June 2003, Article 9)

The United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, analyses in a May 2016 report to the Human Rights Council (HRC) the progress made by Mexico following his mission there in 2013. He refers to a government reply according to which the Federal Act for the Prevention and Elimination of Discrimination has been reformed in 2014 to include “homophobia and violence against individuals based on their sexual orientation” and that “[f]ifteen federal entities had adopted constitutional provisions prohibiting discrimination on these grounds”. (HRC, 6 May 2016, p. 19)

The May 2016 report of the Cornell Law School LGBT Clinic and the Transgender Law Center however specifies that there are “no federal laws that explicitly protect transgender individuals from discrimination on the basis of their gender identity (i.e., their transgender status) as opposed to sexual orientation”. (Cornell Law School LGBT Clinic, Transgender Law Center, May 2016, p. 10)

The 2013 Mexico/ Mexico City – SOGI legislation Country Report written by students of the International Human Rights program at the University of Toronto Faculty of Law mentions that “in 2012, the Federal government eliminated a ban on blood donations of gay and bisexual men” (International Human Rights program at the University of Toronto Faculty of Law, March 2013, p. 1).

The June 2014 NGO report on human rights violations against LGBT people in Mexico gives the following overview of the legal situation in Mexico City:

“Within Mexico, Mexico City (Federal District) has taken the lead in enacting laws and taking measures to protect the rights of the LGBTI population. Mexico City has enacted general antidiscrimination legislation which goes beyond the federal law by prohibiting

public and private sector discrimination on the basis of gender identity, as well as on the basis of sexual orientation. This law created an agency, the Council for the Prevention and Elimination of Discrimination in Mexico City (COPRED), which has the authority to take and resolve complaints of public and private sector discrimination that occur within the Federal District. The Criminal Code of the Federal District includes a hate crimes provision, under which crimes committed on the basis of the victim’s sexual orientation or gender identity are considered hate crimes. […] In 2011, the government of the Federal District opened the Community Center on Sexual Diversity which has provided health and legal services to the LGBTI community. In 2012, the Federal District Attorney General issued a directive that provides instructions on effectively processing cases of crimes committed on the basis of the victim’s sexual orientation and gender identity.“ (Letra S, Sida, Cultura y Vida Cotidiana, A.C. et al., June 2014, p. 4)

In its human rights report covering the year 2016, the USDOS writes that “[t]he law prohibits discrimination based on sexual orientation, but only in Mexico City does it prohibit discrimination based on gender identity.” The USDOS report states furthermore that “[i]n Mexico City the law criminalizes hate crimes based on sexual orientation and gender identity.” (USDOS, 3 March 2017, section 6)

1.4 Anti-hate speech provisions The World Bank Group provides the following information in its Policy Research Working Paper published in March 2017:

“Mexico criminalizes hate speech but does not provide for autonomous hate crime legislation at the federal level. Article 138(VIII) of the Penal Code of Mexico City, however, considers ‘hate’ an aggravating circumstance that augments the punishment of the ‘base crimes’ of homicide and bodily harm or injuries. Interestingly, this code provides that ‘hate’ includes the religious and ethnic origin of the victim, but it also expressly mentions sexual orientation and gender identity as characteristics that constitute a bias when committing the crimes of homicide or bodily harm or injuries.” (World Bank Group, 3 March 2017, p. 27)

In a short overview of, among others, hate crime legislation in different countries, the same report indicates, however, that in Mexico there is no such legislation. The report, in contradiction to the above cited explanation, states that the federal law neither criminalises hate speech nor hate crimes. The report in this context mentions article 149 Ter of the Federal Criminal Code of Mexico which refers to discrimination. (World Bank Group, 3 March 2017, p. 48)

The Federal Criminal Code of Mexico as amended on 7 April 2017 can be accessed via the following link:  Código Penal Federal, 14 August 1931, with amendments up to 7 April 2017 http://www.diputados.gob.mx/LeyesBiblio/pdf/9_070417.pdf

An English translation of the above mentioned Article 149 Ter can be found in the following book:

 Naamat, Talia/Osin, Nina/Porat, Dina (eds.): Legislating for Equality. A Multinational Collection of Non-Discrimination Norms. Volume II: Americas, 2013 (excerpts available on Google Books) https://books.google.at/books?id=zqxuKBcmRDUC&pg=PA301&lpg=PA301&dq=Mexico+federal+cr iminal+code+article+149+ter&source=bl&ots=Dhb63iMGTD&sig=- Fq4yt5dkAdmQia1eiXzyj_nj3M&hl=de&sa=X&ved=0ahUKEwimlujy7trSAhVD2SwKHY44DccQ6AEIKD AC#v=onepage&q=Mexico%20federal%20criminal%20code%20article%20149%20ter&f=false

Defensor, the monthly human rights journal of the Human Rights Commission of the Federal District, dedicates its February 2017 issue to the subject “hate speech, power and human rights”. In an overview of laws against hate speech on the national and international level the journal points out that article 1 of the Political Constitution of the United Mexican States prohibits any form of discrimination on grounds of ethnic or national origin, gender, age, disabilities, social status, standard of health, religion, opinions, sexual preferences, marital status or any other form of discrimination that constitutes an attack on human dignity and is intended to nullify or undermine the rights and freedoms of individuals. The journal further mentions that according to article 9 (XV) of the Federal Law to Prevent and Eliminate Discrimination the promotion of hate and violence by messages and images in the media and according to article 9(XXVII) the incitement of hatred, violence, rejection, mockery, insult, persecution or exclusion are considered forms of discrimination. Concerning the local level the journal refers to the Criminal Code of the Federal District. (Human Rights Commission of the Federal District, February 2017, p. 32)

The March 2013 Mexico/ Mexico City – SOGI legislation Country Report written by students of the International Human Rights program at the University of Toronto Faculty of Law notes:

“On March 6, 2013 the Supreme Court of Justice determined that homophobic expressions such as ‘maricones’ or ‘puñal’ are discriminatory, constitute hate speech, and are not protected by freedom of expression laws. The Supreme Court determined that homophobic expressions constitute discriminatory statements even if they are expressed jokingly, since they can be used to encourage, promote, and justify intolerance against gays (Amparo directo en revision 2806/2012, March 6, 2013, Suprema Corte de Justicia de la Nación).“ (International Human Rights program at the University of Toronto Faculty of Law, March 2013, p. 1)

A March 2013 article by the UK-based LGBT news site Pink News contains similar information:

“The top court in Mexico has ruled that two words, both anti-gay slurs which are commonly used in the country, are hate speech, and therefore should not be protected as freedom of speech under the constitution. The ruling by the Supreme Court could mean that those offended by the use of the words could sue for moral damages.

Magistrates voted 3-2 on Wednesday evening, supporting a claim by a journalist from Puebla, who sued a reporter from a different publication who had referred to him as a ‘punal’, and other people at his newspaper as ‘maricones’. Both of the words in question roughly translate into the word ‘faggot’ in English, reports the Associated Press.

The ruling by the majority of the magistrates meant that both words were deemed discriminatory and offensive. Their ruling said: ‘Even though they are deeply rooted expressions in Mexican society, the fact is that the practices of the majority of society can’t validate the violations of basic right.’” (Pink News, 8 March 2013)

The mentioned ruling of the Supreme Court of 6 March 2013 can be accessed via the following link:  SCJN - Suprema Corte de Justicia de la Nación: Amparo directo en revisión 2806/2012, 6 March 2013 http://www.miguelcarbonell.com/artman/uploads/1/Sentencia_amparo_en_revisi__n_28 06-2012.pdf

1.5 Laws not explicitly relating to individuals of diverse SOGI being used in a discriminatory manner The May 2016 report of the Cornell Law School LGBT Clinic and the Transgender Law Center provides the following information on morality laws in Mexico:

“Some Mexican communities have explicitly targeted transgender women by enacting morality laws that criminalize ‘cross-dressing.’ In 2002, the city of Tecate, Mexico amended its Police and Good Governance Code to prohibit ‘men dressed as women in public spaces.’ This revision ‘was coded in terms of infractions against morality.’ Upon passing the law, the mayor of Tecate stated that Town Hall officials and the majority of the population supported it. A coalition across the political spectrum spoke out in favor of the morality law.

Supporters stated that Tecate’s prohibition of gender nonconformity was needed to protect against social disturbance; they regarded ‘cross-dressing’ as a threat to order, morality, harmony, mutual respect, and children. They implied transgender women were pedophiles. In explaining his support for the law, counsel advisor José Luis Rojo claimed that transgender women disrupt the public peace and ‘take advantage of children.’ A senior councilman, Cozme Casares, added that he and others supported the measure because they believed it would prevent the spread of AIDS and sex work.

Local transgender women reported a dramatic increase in police harassment following the law’s passage. A woman named Gabriela reported that a police officer had ‘pulled [her] out of the doorway of a pool hall by her hair.’ Transgender women were frequently accused of being involved in sex work, even when they were simply running errands like going to buy milk. Transgender women stopped by the police frequently faced extortion; ‘[t]he police used… the threat of arrest… to secure money or sexual favors from [transgender women].’ The passage of morality laws like those in Tecate criminalizes transgender women and sanctions police harassment and private discrimination. The passage and retention of these laws reflect continued societal hostility towards transgender people.” (Cornell Law School LGBT Clinic; Transgender Law Center, May 2016, pp. 12-13)

The abovementioned provisions of the city of Tecate, which prohibit men dressed as women in public spaces, can be found in article 34 of the 2002 Police and Good Governance Code of

Tecate, Baja California (Bando de Policía y Gobierno para el Municipio de Tecate, Baja California, 25 October 2002). However, in the current 2010 Police and Good Governance Code of Tecate with amendments up to 24 April 2015 no such paragraph exists (Bando de Policía y Gobierno para el Municipio de Tecate, Baja California, 20 August 2010, with amendments up to 24 April 2015).

The Inter-American Commission on Human Rights (IACHR), an autonomous organ of the Organization of American States that promotes and protects human rights in the American hemisphere describes in a November 2015 report on violence against LGBT persons in the Americas the following situation providing information concerning, among other states, Mexico:

“The UN Committee against Torture has stated, speaking in regard to LGBT persons, that the rules on public morals can grant the police and judges discretionary power which, combined with prejudices and discriminatory attitudes, can lead to abuses against them. Some of these provisions are explicit in national criminal legislation, but they can also be found in local and/or provincial laws, and in police regulations. These laws are criticized for, among other things, their vague language. Vague definitions of outlawed conduct open the door to arbitrary application and enforcement with respect to persons who are seen as defying socially established gender norms, particularly trans persons. There is evidence that law enforcement authorities have repeatedly used such laws to harass and persecute LGBT persons, especially trans sex workers.” (IACHR, 12 November 2015, p. 65)

“Same-sex couples showing public displays of affection are also a frequent target of police abuse and arbitrary detention by state agents – often with excessive use of force or verbal abuse– because of what is considered ‘immoral behavior’ in public spaces.” (IACHR, 12 November 2015, pp. 79-80)

According to footnote 229 of the report, one such vague provision in provincial law can be found in the Penal Code of the State of Jalisco which criminalises among others “acts against public morals, for example “obscene exhibitions”. (IACHR, 12 November 2015, p. 65, footnote 229)

The cited Criminal Code of Jalisco State which in article 135 mentions obscene exhibitions as an act against public morals can be accessed via the following link:  Código Penal para el Estado libre y soberano de Jalisco, 2 August 1982, with amendments up to 1 December 2015 http://www.ordenjuridico.gob.mx/Documentos/Estatal/Jalisco/wo77048.doc

Frontera, a Mexican tabloid newspaper, reports in a November 2016 article in its online version that in Ensenada, Baja California, a group of transgender persons peacefully demonstrated against the killings of transsexuals in Baja California. Furthermore, they claimed to be constantly abused by the municipal police. The president of the council for the protection of the right to sexual diversity stated that they constantly receive complaints of abuse of trans women who are sex workers. Police detain them and extort their money while making recourse to the Police

and Good Governance Code which contains an article that prohibits a person from being disguised or dressed up in public:

“Ensenada, Baja California: Un grupo de personas transgénero realizaron una marcha pacífica para manifestar su inconformidad ante las muertes de personas transexuales en el Estado y reclamaron que constantemente sufren abusos por parte de la policía municipal. […]

La Presidenta del Consejo para la Protección de los Derechos de la Diversidad Sexual (Cpdds), Lizeth Dueñas Pérez comentó que constantemente reciben quejas de abusos a chicas trans que son sexservidoras y que están registradas y cuentan con tarjeta del sector salud.

‘Van los policías, las detienen y les quiten su dinero escudándose en el bando de policía y buen gobierno porque hay un artículo que dice que no se puede circular en la vía pública disfrazado, pero los policías no entienden que ellas son chicas trans y las agarran como sie estuvieran disfrazadas’, explicó.” (Frontera, 10 November 2016)

2 Treatment of individuals of diverse SOGI by state actors In its query response about the situation and treatment of sexual minorities, particularly in Mexico City, Cancún, Guadalajara, and Acapulco of August 2015, the Immigration and Refugee Board of Canada (IRB) writes:

“A report on crimes against transgendered women sent to the Research Directorate by a representative at the Support Centre for Transgender Identities (Centro de Apoyo a las Identidades Trans, CAIT), an NGO that advocates for the rights of transgendered women in Mexico (CAIT n.d.), indicates that transgendered women are discriminated against by the police and judicial authorities (ibid. Feb. 2013). The representative from Colectivo León Gay, A.C. indicated that LGBT persons are [translation] ‘frequently’ harassed and arbitrarily detained due to their physical appearance, the way they dress, or for expressing affection in public (Colectivo León Gay, A.C. 10 July 2015). The representative also indicated that they are barred from assembling in public because they are seen as ‘engaging in prostitution or giving a ’bad example’ or ’bad image’ to society’ (ibid.).

According to the Colectivo León Gay, A.C. representative, officials from the Public Ministry often mistreat LGBT persons and refuse to open investigation for crimes against them (ibid.). In correspondence with the Research Directorate, a representative from Queer Investigations (Investigaciones Queer, A.C.), a civil society organization that advocates for the rights of LGBT persons in Mexico (Investigaciones Queer, A.C. n.d.), indicated that despite the training provided to judicial authorities on sexual diversity, [translation] ‘there is still a lot of intimidation and threats against the LGBT population due to what they perceive as ‘faults against morals,’ which are used to extort members of the LGBT community’ (ibid. 10 July 2015).” (IRB, 18 August 2015)

The IACHR in the above-cited November 2015 report on violence against LGBT persons in the Americas describes the situation in Mexico in the following terms providing some concrete examples:

“In January 2013, two police officers were arrested in connection with the kidnapping, torture and execution of a young gay couple. The incident apparently originated with a quarrel between two young men, aged 17 and 22, in Mexico City. After they were both expelled from a nightclub, a police patrol car and other cars arrived and police agents violently pushed them into a white vehicle that was escorting the patrol car. The bodies of the two men were found the following day with numerous signs of beatings in various parts of the body (some of which were so brutal they left bones uncovered), their hands and feet strongly tied with wire, their ears amputated, and with three gunshot wounds in the head of each man. Surveillance cameras showed that the vehicles that were used to apprehend the men outside the nightclub drove to the vicinity of the place in which the bodies were found.

The IACHR has noted that for the majority of cases of violence against LGBT persons recorded in the Registry of Violence covering the time period of January 2013 to March 2014, there is little or no data as to the perpetrators of the violence, particularly in the cases of killings. Notwithstanding this, during that fifteen-month period, the IACHR

received information of alleged executions by state agents of a 15-year-old boy in Patu, Brazil, a 40-year-old trans woman in Mexico city, and the aforementioned two gay men aged 17 and 22 in Mexico City.” (IACHR, 12 November 2015, p. 82)

“In Mexico City, a young man was allegedly arrested by federal police officers while he was walking on the street late at night. When he asked why he was being arrested, the officers answered ‘because you are gay’ and then asked him to perform oral sex on them.” (IACHR, 12 November 2015, p. 92)

“Police abuse is also reported to take place in or around places where LGBT persons socialize or its surroundings. For instance, a violent police raid is reported to have taken place at an LGBT beauty pageant in Monterrey, Mexico, in February 2013. Agents of the federal police force —under the command of an official of the Federal Public Ministry— stormed the night club where the contest was taking place, ordered everyone out, and arrested at least 70 people who were present at the event, who were fined, without criminal charges. According to the information presented to the Commission, police agents insulted them using homophobic and transphobic slurs: ‘faggots, we are taking you because dressing up as women is immoral.’” (IACHR, 12 November 2015, p. 93)

The May 2016 report of the Cornell Law School LGBT Clinic and the Transgender Law Center notes the following concerning police violence against transgender women, referring in some instances to sources dating back to 2011 and 2012:

“Transgender women in Mexico face brutal violence not only from private citizens, but also from state officials. Police officers and the military subject transgender women to arrest, extortion, and physical abuse. Many transgender women have been victims of police violence or know someone who has been a victim. According to Victor Clark, professor at San Diego State University and the director of the Binational Center for Human Rights in Tijuana, Mexico, the police and military are the ‘primary predators’ targeting transgender women. Mexican police target transgender women and arbitrarily arrest them for pretextual reasons such as ‘disturbing the peace’ because they were wearing female clothing; for being perceived to be sex workers even if they were not; for failing to carry a valid health card; for allegedly carrying drugs; or for being said to be gay.

For example, in March 2014, police officers in Chihuahua, Mexico arrested five transgender women for not carrying a health card, even though this is not a crime. At the police station, male police officers forced the transgender women to undress in front of them. The police then illegally forced the women to take HIV tests. The police held the transgender women in jail for 36 hours and demanded 200 pesos from each woman for release. For decades the Mexican police forces have been implicated in cases of arbitrary detention, torture, and other human rights violations that are often unpunished. Police officers often extort transgender women for sex or money in return for not arresting them or for releasing them from jail. Many transgender women have to pay almost daily bribes to avoid being arrested.” (Cornell Law School LGBT Clinic, Transgender Law Center, May 2016, p. 18)

In its March 2017 human rights report covering the year 2016, the USDOS mentions that according to civil society groups, “police routinely subjected LGBTI persons to mistreatment while in custody.” (USDOS, 3 March 2017, section 6)

3 Treatment of individuals of diverse SOGI by non-state actors 3.1 General attitudes The Department of Foreign Affairs and Trade of the Australian Government provides the travel advisory that “conservative attitudes prevail in parts of the country” and that “public displays of affection between members of the same sex may not be considered socially acceptable in some areas”. (Australian Government – Department of Foreign Affairs and Trade, 22 February 2017)

In its March 2017 human rights report covering the year 2016, the USDOS notes the following concerning discrimination of LGBT persons in Mexico:

“Discrimination based on sexual orientation and gender identity was prevalent, despite a gradual increase in public tolerance of LGBTI individuals according to public opinion surveys. In March, Rubi Suarez Araujo became the first transgender municipal councilor, in Guanajuato. […]

In October the press reported three killings of transgender individuals in the space of 13 days. NGOs stated transgender individuals faced discrimination and were marginalized even within the lesbian and gay community.” (USDOS, 3 March 2017, section 6)

The British daily newspaper The Guardian in its December 2016 article describes the situation in the following terms:

“Surveys show the country split on same-sex marriage – a poll in the newspaper El Universal showed 49% opposed and 43% in favour – although there is still strong opposition to gay couples adopting children.

Opponents appear emboldened, however. A movement known as the National Front for the Family emerged earlier this year after President Enrique Peña Nieto introduced an initiative to legalise marriage equality nationwide, allow all couples to adopt children and to include positive portrayals of the LGBT community in educational materials. The movement against marriage equality – which appears well funded and appears to have the support of politicians across the political spectrum – has since convened more than 100 marches nationwide under the slogan ‘Don’t mess with my kids’. It has also started collecting signatures for a citizen initiative which would reform the constitution to define marriage as heterosexual. […]

Observers say the president’s initiative was the pretext for a series of pro-Catholic organisations – sponsored by big-money backers – to mobilise. ‘These groups came together to take advantage of a weakened president,’ said a former member of a militant Catholic organisation, who asked that her name be withheld for fear of reprisal. […]

The campaign was supported by both evangelical Christians and the Catholic church, which regularly lobbies for policy changes on ‘social’ issues – such as abortion bans – while staying silent on other issues such as drug war violence, which has claimed nearly 200,000 lives. ‘Attacks against the family are much more serious than violence, more serious than

narcotics trafficking and more serious than corruption,’ said Father Hugo Valdemar, archdiocese of Mexico City spokesman.

The president’s plan on marriage equality eventually stalled in congress, where members of Peña Nieto’s own party argued that setting federal policy on same-sex marriages would interfere with states’ ability to set civil registry rules. Other arguments were more extreme: Edith Martínez, who represents Encuentro Social, a party founded by evangelical Christians, said marriage equality would lead to people marrying ‘dolphins or laptops’.” (The Guardian, 19 December 2016)

The Council on Hemispheric Affairs (COHA), a Washington, DC. think tank that focuses on developments in Latin America, describes societal attitudes towards the LGBT Community in Mexico in a report of October 2016:

“In Mexico, the Frente de Liberación Homosexual (FLH) was founded in 1971 as the first LGBT rights organization in the country, and many would soon follow. Less than a decade later, ‘the [LGBT] community was first made visible during Mexico’s first Pride Parade that took place in Mexico City in 1979.’ That is not to say that the LGBT community was suddenly accepted into Mexican society. Similar to many other countries, whatever acceptance occurred in the 1970s quickly fell into the background with the global outbreak of the HIV/AIDS epidemic that forced many societies to regress into habits of ‘discrimination, violence, and persecution of openly queer individuals.’ While many of these tendencies began to subside in the 1990s when transnational nongovernmental organizations (NGOs) began to lobby for LGBT rights, members of the LGBT community never saw true equality when it came to social or institutional acceptance.

Institutional acceptance - although still inadequate - first began to materialize in Mexico City when, in 2006, the city’s mayor signed into law a bill authorizing civil unions for same- sex couples. Far from indicative of a change in the national conversation, the bill was ‘severely criticized by the Catholic Church and conservative civil groups in the country’ as it was believed that recognition of civil unions would be the first step towards full recognition of gay marriage. That is exactly what happened, and in December 2009, Mexico City institutionalized marriage between same-sex couples, the first legislation doing so in Latin America. […]

Unsurprisingly, the same opposition forces that challenged the 2006 measure quickly raised questions regarding the legality of same-sex marriage, sending a case to the Supreme Court of Mexico on the grounds ‘that allowing same-sex marriages violates the guarantee of familial integrity,’ reflective of rhetoric commonly used by religious groups. Regardless, the Court reaffirmed the constitutionality of the law in an 8-2 vote, citing regulation of marriage to be a state function.

Nevertheless, the transformations experienced in Mexico City did not translate into broad policy shifts across the country. […] For his part, former President Felipe Calderón did little to change the national conversation surrounding the status of LGBT rights and individuals in the country given his staunch opposition to legislation allowing same-sex marriage. After

all, it was his attorney general that brought Mexico City’s bill before the Supreme Court, hoping it would be repealed. […]

Most recently, in May 2016, President Enrique Peña Nieto declared his intention to submit legislation that would reform the Constitution of Mexico to assure marriage equality throughout the nation. Many Conservatives see this as a direct rebuke of the several states who have reformed their Constitutions to explicitly deny marriage equality in light of growing social trends. The same Catholic and conservative factions that have opposed homosexuality and same-sex marriage throughout Mexico’s storied history have recently mobilized against Nieto. Rather than opposing marriage equality qua marriage equality, the rhetoric of their movement has once again focused on the sanctity of family. On September 14, 2016, the National Front for the Family staged rallies and marches in 122 cities across Mexico, with one of their central concerns being the possibility of same-sex couples adopting children. […] This was followed by a similar march in Mexico City on September 25 by the same coalition. Once again, they characterized it as being in support of family values and the institution of marriage, rather than as anti-LGBT.” (COHA, 14 October 2016, pp. 3-5)

ILGA in its May 2016 Global Attitudes Survey on LGBTI People, for which data was collected in December 2015/January 2016, reports that in Mexico 8 % strongly agreed with the proposal that being LGBTI should be a crime, while 52% strongly disagreed. 12% strongly agreed whereas 29% strongly disagreed that same-sex desire is a Western world phenomenon. 81% had no concerns if they have an LGBT neighbour, while 8% replied they would be very uncomfortable. (ILGA, 17 May 2016, pp. 6, 8, 11)

The Cornell Law School LGBT Clinic and the Transgender Law Center mention the difficulty of gathering data about the LGBT community in their May 2016 report:

“Gathering data about the Mexican LGBT community is hampered by the fact that many individuals are reluctant to reveal their sexual orientation or gender identity because they fear harassment, violence, assault, and other negative societal consequences that may follow from such a disclosure.“ (Cornell Law School LGBT Clinic, Transgender Law Center, May 2016, p. 9)

In the aforementioned query response about the situation and treatment of sexual minorities, particularly in Mexico City, Cancún, Guadalajara, and Acapulco of August 2015, the Immigration and Refugee Board of Canada (IRB) writes:

“The representative from the Colectivo León Gay, A.C. indicated that some parts of Mexico City, Guadalajara, Puerto Vallarta, and Monterrey ‘can be considered as safe for LGBT persons, however, in the rest of the country it would be difficult to publicly show yourself as an LGBT person’ (10 July 2015).” (IRB, 18 August 2015)

In December 2015 the IACHR published a report on the human rights situation in Mexico which contains the following information on societal attitudes towards LGBT persons:

“The Commission notes that there have been some improvements in Mexico City in terms of discrimination against LGBTI persons, but as stated by one civil society representative, ‘Mexico City is not Mexico,’ in reference to the deep-rooted stereotypes and prejudices that persist in many parts of the country. […]

In its observations to the draft of this report, the State stated that the Pew Research Center ranked Mexico, in June 2013, among the countries with a broad acceptance of homosexuality, recognizing that 61% of the people surveyed opined that homosexuality should be accepted by society.” (IACHR, 31 December 2015, pp. 122-123)

The December 2016 report written by several NGOs and alliances on discrimination based on gender identity and sex characteristics in Mexico mentions the following concerning intersex people:

“Mexico is a country with extreme inequalities, a high rate of extreme poverty and a defficient health system. Unlike what happens in the Global North, many persons with intersex bodies have not been subjected to surgery and have preserved their bodily integrity. But body variations are met with social cruelty, disgust and mockery. Many intersex persons can be subjected to discrimination and violence when their intersex status becomes known in their context.” (Hombres XX et al. December 2016, pp. 6-7)

3.2 Discrimination: labour, health, work The Mexican news agency Desastre, which in a November 2016 article focuses on topics related to sexual diversity provides information about a study carried out by Fundación Arcoíris, a Mexican organisation that advocates the rights of LGBT people. For the study, 613 persons between 21 and 69 years in seven central federal entities of Mexico were questioned. According to the answers obtained, more than 60 percent of transgender women have been victims of violence because of their gender identity. In the area of security and justice, 62% of trans women, 51% of trans men, 35% of men, 23% of women and more than 28% of the intersex persons were victims of physical aggression due to their gender identity or sexual orientation. The perpetrators were identified as unknown (32%), police (14%), relatives (11%) and friends and partners (12%). The majority of those who asked the authorities for help (88 cases) pointed out that the latter did not act. In 33 cases the authorities blamed the LGBT persons for the incidents:

„Más del 60% de las mujeres transgénero en la zona centro del país ha sido víctima de violencia basada en su identidad de género, esto de acuerdo con un informe que tuvo como objetivo identificar los principales desafíos existentes en la atención a la población LGBTI y su acceso a la educación, trabajo, seguridad social, salud y justicia.

El estudio, que recibió el nombre de Atención a personas LGBTI en México. La condición en algunos estados del centro del país, fue elaborado por la Fundación Arcoíris, una asociación civil que lucha por los derechos de las personas LGBTI, a partir de las respuestas otorgadas por 613 encuestados de 21 a 69 años y provenientes del Estado de México, Guanajuato, Hidalgo, Michoacán, Querétaro, Tlaxcala y Zacatecas. […]

En el rubro de seguridad y justicia, se presentó que el 62% de las mujeres trans, el 51% de hombres trans, el 35% de hombres y el 23% de mujeres han sido víctimas de agresiones físicas por su identidad de género u orientación sexual. En el caso de las personas intersexuales, la violencia se ha presentado en el 28.57% de los participantes. Los agresores fueron identificados como desconocidos (32%), policías (14%), familiares (11%), y amigos y pareja (12%). La mayoría de quienes acudieron a las autoridades (88 casos) para denunciar estos hechos señalaron que las autoridades resultaron inoperantes. En 33 casos las autoridades culparon a las personas LGBT de los hechos ocurridos.” (Desastre, 9 November 2016)

Between 15 and 20% of the respondents claimed to have been detained for the simple fact of being LGBT, the Mexican news agency Desastre continues to report. They stated that they were subjected to different forms of aggression while in detention, for example incommunicado detention and insults. Furthermore, they were not informed about the reasons for their detention. Most of the trans and intersex respondents agreed that there are no adequate health services for them. 55% of the homosexual men stated that the staff are only rarely trained to care for LGBT people. More than 50% of the respondents that expressed their sexual orientation while attending health services were discriminated against and faced pejorative remarks. 21% of the respondents stated that they have been forced to undergo treatment related to their sexual orientation and gender identity at one point:

“Por otro lado, entre el 15% y 20% de los encuestados afirmaron haber sido detenidos por el simple hecho de ser LGBTI. Revelaron que durante su detención fueron objetos de diferentes formas de agresión, como la incomunicación y los insultos; además, no les informaron el motivo de su detención.

Al cuestionar a los participantes sobre si creen que los servicios de salud son adecuados para las personas LGBTI, se encontró que la mayoría de las personas trans e intersex concordaron en que no existen servicios adecuados para ellos. A la vez que 55% de los hombres homosexuales dijo que pocas veces el personal está capacitado para atender a las personas LGBTI.

Se identificó que más del 50% de las personas que expresaron su orientación sexual en los servicios de salud fueron discriminadas y recibieron comentarios peyorativos. Finalmente, 21% declaró que alguna vez se han visto obligados a someterse a tratamientos relacionados con su orientación sexual e identidad de género.” (Desastre, 9 November 2016)

The same article states that concerning education, seven out of ten respondents answered that they have not received education on the human rights of LGBTI persons. The participants of the study agreed that primary school, secondary school and high school were the educational levels where they suffered the most discrimination. The most common forms of aggressions in the field of education were the exclusion from academic activities (46.15%), mockery (45.93%) and beatings (44.68%). Of those respondents who stated having concealed their sexual orientation at work almost 29.55% were gay, 28.41% were lesbian, and a similar share was bisexual. Two out of ten respondents answered that they are treated badly or very badly at

27 work. In addition, it was revealed that for 39% of the surveyed trans women and 37% of the surveyed homosexual men a HIV testing was a job requirement. Of those respondents who answered that they were constantly harassed at work (no absolute numbers available), 51.72% were gay, 20.69% bisexual and 13.79% lesbians. Confronted with the problem of constant harassment LGBT persons choose to hide their sexual orientation, change or leave jobs:

“En materia de educación, siete de cada diez encuestados declararon que no han recibido educación sobre derechos humanos de las personas LGBTI. Los participantes concordaron que la primaria, secundaria y preparatoria fueron los niveles educativos donde padecieron mayor discriminación. Las agresiones más comunes expresadas en el espacio educativo fueron la exclusión de las actividades académicas, con 46.15%; la burla, con 45.93%; y los golpes, con 44.68%.

En el ámbito de seguridad social y derecho al trabajo, se encontró que el casi el 30% de las personas homosexuales, lesbianas y bisexuales han ocultado su orientación sexual en el trabajo. Dos de cada 10 señalaron que el trato en el trabajo es malo o muy malo. Además, se reveló que algunas mujeres trans (39%) y hombres homosexuales (37%) reportaron que les fueron solicitadas pruebas de VIH como requisito laboral.

De las personas que dijeron vivir constantemente situaciones de acoso y hostigamiento en su trabajo, 51.72% eran homosexuales, 20.69% bisexuales, 13.79% lesbianas; ante esta situación las personas LGBTI optan por ocultar su orientación sexual e identidad de género, cambiar de empleo o ausentarse de su trabajo.” (Desastre, 9 November 2016)

In November 2016 Página 24, a Mexican daily newspaper, also reports on the study carried out by Fundación Arcoíris. The article mentions that 49% of the interviewed LGBT persons who have an insurance with the Mexican Social Security Institute (IMSS) worry that they might not be able to insure their partners:

„Con la presencia de Sara Ortiz, titular del colectivo Hij@s de la Luna; Raquel Ortiz, representante de la Secretaría de Gobernación de Zacatecas; la diputada loca María Elena Ortega; María de la Paz Barrón, representante del grupo Eclipse Lésbico de Zacatecas y Ximena Batista, coordinadora de la Fundación Arcoíris, presentaron los resultados del diagnóstico sobre la atención a personas LGBTI en México.

María de la Paz Barrón, representante del grupo Eclipse Lésbico de Zacatecas, dio a conocer que hay muchos aspectos que hacen que en Zacatecas se viva un ‘racismo’, una falta de equidad para las personas LGBTI.

Explicó que 49 por ciento de la población LGBTI que está afiliada al Instituto Mexicano del Seguro Social (IMSS), sin embargo es inquietante que no puedan asegurar a sus parejas.“ (Página 24, 20 November 2016)

The study of Fundación Arcoíris can be accessed via the following link:  Fundación Arcoíris por el respect a la diversidad sexual: Atención a personas LGBTI. La condición en algunos estados del centro del país, October 2016 https://issuu.com/fundacionarcoiris/docs/atenci__n_a_personas_lgbti_en_m__xi

An August 2016 article by the news agency Reuters on transgender women in Mexico describes the case of a transgender activist who was discriminated against while studying. According to the activist, “[t]he school asked me to leave because I was going to influence the children and encourage them to be homosexual or transgender”. Cymene Howe, professor of anthropology at Rice University in Houston, Texas, mentions that “[m]ost transgender women find their appearance prevents them from working in regular jobs”. For that reason, many end up as sex workers. (Reuters, 22 August 2016)

The December 2016 report written by several NGOs and alliances on discrimination due to gender identity and sex characteristics in Mexico contains the following information:

“Since they do not have identification documents that reflect their gender identity, the majority of Mexican trans people are excluded from exercising their economic and social rights. They don’t have access to formal employment, to rent a home or to register to study. They are pushed to live in hiding and have less elements to defend themselves from pervasive machismo, cisnormativity, transphobia and social discrimination.” (Hombres XX et al. December 2016, p. 3)

“Intersex persons are born with sexual characteristics (like genitals, gonades and chromosomic patterns) that do not correspond to the typical binary notions on male or female bodies. […] Through the work done by Brújula Intersexual we have witnessed how the intersex community in Mexico faces problems that are similar to those faced by intersex persons across the world but with some specificities.

The medical care protocol for persons with intersex variations includes mutilizing and ‘normalizing’ practices such as genital surgeries, psychological treatments and others that medically unnecessary, all performed on intersex persons who are under age and without their informed consent. […] The lack of trained and sensitized specialists who can treat intersex persons efficiently and respecting their dignity is noticeable. […] Intersex persons face serious difficulties to access their own medical histories or records. Procedures to access those records can be lengthy and they are not always successful.” (Hombres XX et al. December 2016, pp. 5-7)

Concerning employment discrimination, especially of transgender women, the May 2016 report by the Cornell Law School LGBT Clinic and the Transgender Law Center writes the following:

“Mexico’s federal antidiscrimination laws do not prohibit discrimination on the basis of gender identity. The lack of protection leaves transgender women especially vulnerable to employment discrimination. As a consequence, few legal employment opportunities exist for transgender women. Approximately one out of three gay people in Mexico report that they must remain ‘in the closet’ to avoid being fired from their jobs. But for many transgender women - who largely lack access to gender-confirming health care due to high costs, and are generally denied the ability to change the name and/or gender on ID documents to match their gender presentation - it may be difficult or impossible to hide their transgender status, despite the economic penalty that brings. A fortunate few can

work as hairstylists or perhaps open a salon if they have enough money or family support. But many transgender women face such socioeconomic marginalization that they must turn to sex work to survive.” (Cornell Law School LGBT Clinic, Transgender Law Center, May 2016, p. 23)

In its March 2017 human rights report covering the year 2016, the USDOS states:

“The Executive Committee for Victims Assistance, an independent federal agency, completed a survey 425 lesbian, gay, bisexual or transgender persons. Seven of 10 respondents reported discrimination in schools; half reported employment discrimination or harassment; and six of 10 reported having known an LGBT person murdered in the past three years. […]

The National Council to Prevent Discrimination has both national and local level branches. […] The national level council received complaints of discriminatory acts in areas of employment, access to commercial establishments, and access to education and health care.“ (USDOS, 3 March 2017, section 6)

The June 2014 NGO report on human rights violations against LGBT people in Mexico provides details about homophobic bullying in schools:

“School children throughout Mexico experience bullying, including insults, taunts, beatings, and other discriminatory behavior, based on their perceived or actual sexual orientation or gender identity. The perpetrators usually are the victims’ peers, but in some cases the bullies are teachers or other school staff.

A 2012 survey on homophobic bullying in Mexico revealed that 67% of the survey respondents reported having been victims of homophobic bullying. Seventy four percent of gay respondents reported having been bullied, as did 50% of lesbian respondents and 66% of transgender respondents. Younger students were most at risk. Fifty six percent of respondents indicated that they had experienced the most bullying in middle school (grades 7-9), and 28% indicated that they had experienced the most bullying in primary school (grades 1-6).

While the most commonly reported form of bullying was insults and taunts (experienced by 92% of victims of bullying), approximately one third (32%) of victims reported having been beaten. Asked about the response of teachers and school authorities, only 3% reported that the bullies had been punished. Forty eight percent said that teachers and school authorities did nothing because the conduct seemed normal to them, and 11% said they did nothing because they were themselves involved in the bullying.

This bullying has had profound effects on the victims. Fifty one percent reported suffering from depression and 25% had thought about suicide.” (Letra S, Sida, Cultura y Vida Cotidiana, A.C. et al., June 2014, pp. 8-9)

Broadly, a website and video channel owned by the American media company Vice, which describes its task as “representing the multiplicity of women’s experiences” provides the

following information in a November 2016 article citing information by the Mexican Center of Support for Trans Identities:

“Suárez’s group believe that a large majority of transgender sex workers in Mexico City have fled socially conservative states, often after they were kicked out of their family’s homes. He says that Mexico City has few work opportunities for trans people, and they often turn to sex work to survive. ‘They then face the double stigmatization, of being trans and being a sex worker,’ he adds.” (Broadly, 20 November 2016)

In its query response about the situation and treatment of sexual minorities, particularly in Mexico City, Cancún, Guadalajara, and Acapulco of August 2015, the Immigration and Refugee Board of Canada (IRB) writes:

“In correspondence with the Research Directorate, a representative from the Colectivo León Gay, A.C., an NGO that advocates for the rights of LGBT persons in Mexico, indicated that LGBT persons face discrimination when accessing health care services (Colectivo León Gay, A.C. 10 July 2015).” (IRB, 18 August 2015)

3.3 Killings, attacks In 2016 Letra S publishes information according to which 1,310 cases of killings of LGBT persons motivated by homophobia were committed in Mexico between 1995 and 2016 (cases registered until 30 April 2016), 44 of them in 2015 and 15 in 2016. In the last ten years there have been 71 homicides a year on average. The figures are based on the results of a media monitoring in 29 entities of Mexico and cannot be considered representative or final:

“Con un total de 1,310 casos, las cifras que se presentan a continuación son producto de un monitoreo de medios de comunicaciòn realizado en 29 entidades del país. Por lo mismo, dicho monitoreo no puede considerarse representativo ni definitivo. […]

El promedio de homicidios en los últimos 10 años es de 71.1 casos al año.“ (Letra S, Sida, Cultura y Vida Cotidiana, AC, 2016)

Transgender Europe (TGEU) a network of organisations that works for the equality of all trans people in Europe, in a November 2016 article lists the killings of trans and gender-diverse persons around the world. Regarding Mexico, the article reports 52 killings in the time period between 1 October 2015 and 30 September 2016. For the longer monitoring period of 1 January 2008 until 30 September 2016, a total of 271 killings are reported for Mexico. (TGEU, 9 November 2016)

The November 2016 article in Broadly mentions “[t]wo high-profile deaths of transgender sex workers” and adds that, according to the spokesperson of the Mexican Center of Support for Trans Identities, “12 trans people have been killed in October of this year alone”. (Broadly, 20 November 2016)

Public Radio International (PRI), an American public radio organization, provides the following information concerning homophobia and killings motivated by homophobia in a September 2016 article:

“A gay rights advocacy group said that homophobia has surged in Mexico since Pena Nieto’s proposal. The Citizen Commission against Homophobic Hate Crimes said at least 26 people from the LGBT community were killed so far this year. The group reported 44 anti- gay murders in 2015, down from 72 in 2014. The majority of the population of Mexico is Roman Catholic, and church leaders in Mexico are firmly opposed to same-sex marriage.” (PRI, 13 September 2016)

The IACHR in its December 2015 report on the human rights situation in Mexico refers to murders of and attacks against LGBT persons:

“The Commission’s Special Rapporteur on the rights of LGBTI persons received information that in a period of 15 months (between January 2013 and March 2014), there were a total of 42 murders and 2 attacks on physical integrity in Mexico (both knife attacks) against transgender people (or perceived as such); 4 attacks on the physical integrity of lesbians (or perceived as such), 3 of which were beatings and one death threat; and 37 murders of gay men (or perceived as such) and two attacks on the physical integrity, including a case of mutilation where the victim’s eyes were torn out, and another related case of sexual violence and beatings from Police agents. […]

Between 1995 and 2014 there were 1,218 murders in Mexico motivated by prejudice against individuals because of their real or perceived sexual orientation and/or gender identity, according to the report by the Citizens Commission Against Homophobic Hate Crimes (CCCOH) of the civil society organization Letra S, AIDS, Culture and Everyday Life AC. The report indicates that the largest number of such murders involved men (976), followed by transgender community members with 226 cases reported, and women (16). It also indicated that over 80% of the records show that the victims suffered various forms of aggression before being killed.” (IACHR, 31 December 2015, p. 122)

The November 2015 IACHR report mentions that the Mexican Executive Commission for Attention to Victims [‘Comisión Ejecutiva de Atención a Victimas’ (CEAV)] in 2014 “expressed its concern with regard to the rising number and increasingly violent nature of crimes based on prejudice against LGBT persons”. (IACHR, 12 November 2015, p. 83)

The June 2014 NGO report on human rights violations against LGBT people in Mexico notes the following:

“An alarmingly high number of LGBTI individuals have been murdered in Mexico in recent years. Based on a review of news media and internet sites, Letra S has compiled a register identifying 288 LGBTI individuals murdered in Mexico from 2010 through 2013. Undoubtedly, this register underestimates the true number killed during this time period. Transgender women are at particular risk of murder. According to a 2012 report by the NGO Centro de Apoyo a las Identidades Trans A.C., 126 transgender women were murdered in Mexico from 2010 through 2012.” (Letra S, Sida, Cultura y Vida Cotidiana, A.C. et al., June 2014, p. 5)

The August 2016 article of the Economist newspaper states:

“The spread of gay rights has been accompanied by more reports of violence against homosexuals. The number of homophobic murders has jumped to 71 a year on average over the past decade from 50 a year during the previous ten years, according to Letra S. In June, in the northern town of Monclova, a lorry driver shot Jessica González Tovar and ran her over in the presence of her female partner.

But reports of more homophobic violence may be misleading. Letra S draws its data from newspaper reports, since the police do not report such crimes separately. The higher numbers may show that the press is reporting them more accurately, Letra S acknowledges. ‘There seems to be more homophobia,’ says Nicolás Loza Otero of FLACSO, a university in Mexico City, ‘but I think there’s less.’

That hopeful assessment is probably right. Even the conservative areas north-west of Mexico City are changing. Fresnillo, a town in Zacatecas, elected Mexico’s first openly gay mayor, Benjamín Medrano, in 2013. Rubí Suárez Araujo became Mexico’s first transgender municipal councillor in Guanajuato in March this year. Sexual diversity is increasingly visible in Guadalajara, says María Martha Collignon of ITESO, a university there. A gay marriage takes place nearly every week.

Just under half of Mexicans support gay marriage, according to a poll conducted in 2013 and 2014 by the Pew Research Centre, a think-tank. But among those aged 18 to 34, 63% are in favour. Older Mexicans are becoming less censorious. ‘Parents aren’t saying they’re pleased at the news that their children are lesbian,’ says Paulina Martínez of Metal Muses, a lesbian pressure group. ‘But they accept it more.’ It will take years before Mexico becomes as tolerant as its capital, but gay people in the heartlands have grounds for hope.” (Economist, 18 August 2016)

The Indian online newspaper Firstpost in a January 2017 article writes on homophobia and violence against LGBT people in Mexico:

“Homophobia has surged in Mexico since president Enrique Pena Nieto proposed to legalise same-sex marriage in May, a gay rights group said, reporting 26 hate-fueled murders this year. Alejandro Brito, head of the Citizen Commission against Homophonic Hate Crimes, said there was a ‘defamation campaign’ against gays.

‘This can trigger a wave of violence and an increase in attacks against homosexuals. We think that it’s important for the authorities to take care of this before a tragedy takes place,’ he said yesterday. ‘Homophobia has worsened this year due to the opposition to the initiative that the president has sent to Congress,’ Brito said at a news conference. […] Brito said that at least 26 people from the LGBT community were killed so far this year, with some brutal homicides perpetrated after the president’s announcement. […]

Pena Nieto’s initiative has been opposed by Mexico’s Roman Catholic Church and members of conservative parties. The leftist Democratic Revolution Party and LGBT rights groups filed complaints in the interior ministry and the government’s anti-discrimination agency against bishops and a cardinal, accusing them of violating the constitution for their public stance against same-sex marriage. Brito said that propaganda has spread at private schools

claiming that children were at risk of facing questions about gender in class.” (Firstpost, 27 January 2017)

The December 2016 report written by several NGOs and alliances on discrimination due to gender identity and sex characteristics in Mexico also refers to the killing of transgender people:

“The precarious social and economic situation of the majority of trans people in Mexico also has fatal consequences for them. Killings of trans people who engage in sex work and/or who are homeless are frequent, and they tend to end in impunity. For example, only in the month of October 2016, six trans people were killed in Mexico: Paola and Alessa in Mexico City; a trans young woman whose identity couldn’t be confirmed in the State of Mexico; Itzel in Chiapas; Cheva in Chihuahua and Ariel in Guanajuato. Statistics gathered by civil society organizations (since there are no official statistics) indicate there are 77 killings of trans people per year in Mexico. The case of Paola, street sex work, shows the precarious situation of trans women: a man stopped his car in front of her, supposedly because he wanted to engage in sex with her, but he shot her until he killed her. Also, the fact that some trans women, like the young woman in the state of Mexico who died as an unidentified person, also shows their condition as ‘non-citizens’ in Mexico.” (Hombres XX et al. December 2016, p. 3)

The May 2016 report by the Cornell Law School LGBT Clinic and the Transgender Law Center provides the following information concerning violence against transgender women:

“Despite recent legal reforms in Mexico, legal advocates and individuals living in both Mexico and the U.S. report that rates of violence against transgender women are higher than ever. Specifically, violence against the LGBT community has actually increased since the recognition of same-sex marriage throughout Mexico because of backlash to these progressive changes in the law.

Despite the legal changes for same-sex couples in recent years, transgender women in Mexico still face pervasive persecution based on their gender identity and expression. Indeed, violence against LGBT people has actually increased, with transgender women bearing the brunt of this escalation. Changes in the laws have made the LGBT communities more visible to the public and more vulnerable to homophobic and transphobic violence. Increased visibility has actually increased public misperceptions and false stereotypes about the gay and transgender communities. This has produced fears about these communities, such as that being gay or transgender is ‘contagious’ or that all transgender individuals are HIV positive. These fears have in turn led to hate crimes and murders of LGBT people, particularly transgender women.” (Cornell University Law School, Transgender Law Center, May 2016, p. 4)

“Vulnerable communities, including transgender women, are often victims of drug cartel and gang violence. Transgender women fall victim to cartel kidnappings, extortions, and human trafficking. One transgender woman described how cartel members forced her into sex work in Merida. Another transgender woman was targeted for rape and robbery while traveling by bus. In another case, a transgender woman named Joahana in Cancun was tortured to death by drug traffickers who carved a letter ‘Z’ for the Zeta cartel into her

body. If a cartel targets a transgender woman, it is nearly impossible to escape the cartel’s power. An immigration attorney in the U.S. described in an interview how his transgender female client unknowingly dated a cartel member. After doing so, she could not escape persecution from the cartel.” (Cornell Law School LGBT Clinic, Transgender Law Center, May 2016, pp. 19-20)

The August 2016 article of Reuters contains the following information:

“A U.S. immigration judge warned last year of ‘an epidemic of unsolved violent crimes’ against transgender people in Mexico. Although gender identity is not the same as sexual orientation, many transgender women in Mexico are persecuted on the assumption they are gay, experts said. ‘Transgender women have become a focal point for hatred because they are often easier to detect,’ said Maria Martha Collignon, a sociologist at Guadalajara’s Western Institute of Technology and Higher Education. Ballesteros said transgender women are also at risk from the drug cartels that demand money from sex workers on the streets.” (Reuters, 22 August 2016)

The IACHR report of November 2015 further mentions the following information on LGBT persons in the penitentiary system providing information concerning, among others, Mexico:

“Several NGOs report that LGBT persons often decide to remain in their cells as much as possible in order to avoid being attacked by other inmates. […] In México, for instance, local organizations allege that at least 60% of LGBT persons deprived of their liberty have been subject to different kinds of abuse.” (IACHR, 12 November 2015, p. 100)

4 Situation of human rights defenders advocating rights of individuals of diverse SOGI The June 2014 NGO report on human rights violations against LGBT people in Mexico notes that “Letra S has compiled a register of more than 250 homicides of LGBTI individuals in the years 2010-2013, including homicides of LGBTI human rights defenders” (Letra S, Sida, Cultura y Vida Cotidiana, A.C. et al., June 2014, p. 2). The report continues to list the following examples of prominent LGBTI human rights defenders murdered in 2011 and 2012:

“Quetzalcoatl Leija Herrera, an LBGTI rights activist, was found beaten to death on May 3, 2011, near the central plaza in Chilpancingo.

Cristian Ivan Sanchez Venancio, another LGBTI human rights defender, was found stabbed to death in his home in Mexico City on July 23, 2011. He was a member of the Revolutionary Democratic Party’s Coordinating Group for Sexual Diversity, and was an organizer of Mexico City’s annual Pride Parade.

Agnes Torres, a transgender woman and LGBTI rights activist, was found murdered in Puebla on March 10, 2012. A 28-year-old psychologist and educator, she was an ardent defender of LGBTI rights who had lobbied for legislative reform. When her body was found, she was stripped to her underwear, with her throat slashed and with burns marks across her body.” (Letra S, Sida, Cultura y Vida Cotidiana, A.C. et al., June 2014, pp. 5-6)

The May 2016 report of the Cornell Law School LGBT Clinic and the Transgender Law Center also mentions the killings of Quetzalcoatl Leija Herrera, Cristian Ivan Sanchez Venancio and Agnes Torres Sulca and explains that many killings of prominent advocates in the transgender community since 2010 “occurred in Mexico City, despite its adoption of a hate crimes statute and antidiscrimination laws” (Cornell Law School LGBT Clinic, Transgender Law Center, May 2016, pp. 14, 16-17).

In addition to the assassinations referred to above, the IACHR report of November 2015 mentions the killing of Edgar Sosa Meyemberg, a gay teacher and reproductive rights activist who “was found dead with clear signs of torture and his skull destroyed by a blunt object” in 2014. (IACHR, 12 November 2015, p. 190)

Michel Forst, the United Nations Special Rapporteur on the situation of human rights defenders, notes the following in a statement on his visit to Mexico from 16 to 24 January 2017, published by the UN Office of the High Commissioner for Human Rights (OHCHR):

“As I did not want to confine my visit to Mexico City, I travelled to Chihuahua, Guerrero, Oaxaca and the State of Mexico. As a result, I had a chance to meet with more than 800 human rights defenders coming from 24 states, approximately 60 % of which were women defenders. This reinforced my impression of an active, vibrant and engaged civil society in Mexico. I met with a great number of families of disappeared persons, as well as defenders who have been arbitrarily arrested, some of whom were tortured by the police or the army, community leaders and indigenous people who reported having been deprived from their

land, defenders working on sensitive issues such as sexual and reproductive rights or sexual orientation and gender identity. […]

In recent months, defenders of LGBTI rights have also faced a strong public campaign against them, which has increased the climate of fear in which many of these defenders live. Attacks against LGBTI activists are usually related to the promotion of a bigger recognition of their rights. Prejudices based on sexual orientation and gender identity by police officers and prosecutors seem to affect the effectiveness of investigation of these attacks. Assassinations of activists are not investigated as possible hate crimes nor related to their work on defence of LGBTI people human rights. Moreover, authorities often denigrate the victim in an attempt to reduce the attacks to private issues. Transsexual human rights defenders often face more risks as a result of the high levels of sexual violence among transsexual communities. In many states, defenders of LGBTI rights face problems to organise themselves, use public space, access resources and are not taken into account by local and state authorities. I also heard testimonies of defenders working on LGBTI rights who may feel isolated from the broader community of defenders.” (OHCHR, 24 January 2017)

General information on the situation of human rights defenders can be found in the following reports:  AI - Amnesty International: Amnesty International Report 2016/17 - The State of the World’s Human Rights - Mexico, 22 February 2017 (available at ecoi.net) https://www.ecoi.net/local_link/336544/466184_en.html  Freedom House: Freedom on the Net 2016 - Mexico, November 2016 (available at ecoi.net) https://www.ecoi.net/local_link/332095/460040_en.html  HRC - UN Human Rights Council: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions in follow-up to his mission to Mexico [A/HRC/32/39/Add.2], 6 May 2016 (available at ecoi.net), pp. 13-14, 15-18 http://www.ecoi.net/file_upload/1930_1465307303_g1609208.pdf  USDOS - US Department of State: Country Report on Human Rights Practices 2016 - Mexico, 3 March 2017 (available at ecoi.net) https://www.ecoi.net/local_link/337258/467019_en.html

5 Ability and willingness of the state to provide protection to individuals of diverse SOGI and to human rights defenders In April 2014, the United Nations Human Rights Council (HRC) published a report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, on his visit to Mexico from 22 April to 2 May 2013 which contains the following information:

“86. Killings of LGBT individuals are marked by either a total failure to investigate or a faulty investigation guided by stereotypes and prejudice. This concern has also been raised by CNDH [Comisión Nacional de los Derechos Humanos], which has indicated that crimes and human rights violations based on sexual orientation, gender identity or expression are not isolated, but are emblematic of patterns of conduct of some members of society and recurrent actions of certain public servants, including prejudices, dislikes and rejections, reflecting the existence of a serious structural problem of intolerance. The Special Rapporteur was told that authorities are quick to close such cases by calling these killings ‘crimes of passion’ and choosing not to pursue their prosecution as seriously as they should.

87. The Special Rapporteur was further briefed on two cases in which an LGBT individual reported a death threat to government authorities and the state human rights commission and was subsequently killed without intervention or protective measures. According to information received, CNDH has considered a number of crimes based on homophobia in which the perpetrators have been identified as civilians and police officers. The implication of police involvement is reinforced at a systemic level by large-scale impunity.” (HRC, 28 April 2014, p. 18)

The IRB in its August 2015 query response on the situation and treatment of sexual minorities states as follows:

“According to the Queer Investigations representative, the LGBT population in Mexico continues to be persecuted, criminalized, and discriminated against due to the [translation] ‘high degree of corruption, negligence, and impunity’ in the justice system (ibid. 10 July 2015). […]

The representative from the Colectivo León Gay, A.C. indicated that even though Mexican authorities have been receiving training in sexual diversity issues, they do not have an integrated strategy nor do they seek the participation of LGBT rights organizations in that training (Colectivo León Gay, A.C. 10 July 2015).” (IRB, 18 August 2015)

In the August 2016 article of Reuters, a sex worker whose colleague had been murdered indicates that “police do little to protect the transgender community”. According to the article, “no one has been arrested in connection to any of her friends’ deaths”. Besides that the sex worker says that “street-based sex workers who may be victimized are unlikely to contact police for fear of harassment or extortion”. The same article quotes Zapopan Police Commissioner Juan Pablo Hernandez saying that his department aims to protect all citizens. According to Hernandez, sensitivity training has been provided “to promote police empathy towards different vulnerable communities, including the transgender community”. (Reuters, 22 August 2016).

In its March 2017 human rights report covering the year 2016, the USDOS states:

“The law prohibits discrimination against LGBTI individuals, but there were reports that the government did not always investigate and punish those complicit in abuses, especially outside Mexico City. […] Civil society groups reported that the full extent of hate crimes, including killings of LGBTI persons, was difficult to ascertain because authorities often mischaracterized these crimes as ‘crimes of passion,’ which resulted in the authorities’ failure to adequately investigate, prosecute, or punish these incidents.“ (USDOS, 3 March 2017, section 6)

The June 2014 NGO report on human rights violations against LGBT people in Mexico contains similar information regarding the mischaracterisation of crimes against LGBTI individuals as “crimes of passion” and the failure of the authorities to properly investigate, prosecute, or punish those crimes. (Letra S, Sida, Cultura y Vida Cotidiana, A.C. et al., June 2014, p. 2)

The November 2015 IACHR report notes the following with regard to prejudice and bias in investigations of crimes against LGBT persons providing information concerning, among others, Mexico:

“The IACHR has received copious information regarding prejudice and bias in investigations of crimes against LGBT persons, both from States and civil society organizations. The IACHR has expressed concern over the tendency of state agents in the justice systems of countries in the Americas to make biased assumptions, from the very beginning of an investigation, with regard to the motives, possible suspects, and circumstances of crimes, based on the victims’ perceived or actual sexual orientation or gender identity. The usual consequence of these biased assumptions is that — instead of thoroughly collecting evidence and conducting serious and impartial investigations — police officers and other justice system agents direct their actions toward finding evidence that confirms their prejudiced theory of events, which in turn frustrates the purpose of the investigation and may lead to the invalidation of the proceedings.“ (IACHR, 12 November 2015, p. 249)

“The IACHR has been informed that in many countries in the region where there is legislation that increases penalties for crimes committed on the basis of the sexual orientation or gender identity of the victim, the legislation is hardly ever applied to specific cases, and hate crimes are more often addressed as common crimes, disregarding the prejudice with which they were committed.” (IACHR, 12 November 2015, p. 256)

The May 2016 report of the Cornell Law School LGBT Clinic and the Transgender Law Center describes the National Council to Prevent Discrimination (CONAPRED) and its tasks as follows:

“The National Council to Prevent Discrimination (CONAPRED) was created by the 2003 Federal Law to Prevent and Eliminate Discrimination. The agency is tasked with promoting policies and measures that contribute to cultural and social development, while advancing social inclusion. People who suffer discrimination committed by private individuals or by federal authorities can file a complaint with CONAPRED. When an aggrieved person files a complaint, the Council undertakes a settlement process between the parties. If they do not

reach an agreement, CONAPRED can undertake an independent investigation. If it determines that human rights violations have been committed, it can order restitution measures including financial compensation, a public reprimand of the offender, a public or private apology, and a vow from the offender to never repeat the act.“ (Cornell Law School LGBT Clinic, Transgender Law Center, May 2016, p. 10)

However, the March 2017 USDOS report mentions with regard to CONAPRED that “[c]ivil society groups reported difficulty in determining whether individual complaints were ever resolved”. (USDOS, 3 March 2017, section 6)

The May 2016 report of the Cornell Law School LGBT Clinic and the Transgender Law Center further states that transgender women, among others, “are often victims of drug cartel and gang violence” and police often cooperate with cartels and gangs “with 98% of all crimes going unpunished”. (Cornell Law School LGBT Clinic, Transgender Law Center, May 2016, p. 19)

Sources (all sources accessed on 16 May 2017)  Actuall: Frente por la Familia: Así logramos tumbar el matrimonio homosexual de Peña Nieto, 17 November 2016 http://www.actuall.com/entrevista/familia/frente-la-familia-asi-logramos-tumbar- matrimonio-homosexual-pena-nieto/  AI - Amnesty International: Amnesty International Report 2016/17 - The State of the World's Human Rights - Mexico, 22 February 2017 (available at ecoi.net) http://www.ecoi.net/local_link/336544/466184_en.html  AP - Associated Press: Mexico City unveils capital's first constitution, 5 February 2017 (available on Factiva, login required)  Australian Government – Department of Foreign Affairs and Trade: Travel – Mexico, latest advice 22 February 2017 http://smartraveller.gov.au/Countries/americas/central/Pages/mexico.aspx  Bando de Policía y Gobierno para el Municipio de Tecate, Baja California, 25 October 2002 http://sindicaturatecate.mx/wordpress/PDFs/reglamentos/BANDO%20DE%20POLICIA%20 Y%20GOBIERNO/Fecha%20publicacion/251002_No46_Orgdes.pdf  Bando de Policía y Gobierno para el Municipio de Tecate, Baja California, 20 August 2010, with amendments up to 24 April 2015 http://sindicaturatecate.mx/wordpress/PDFs/MARCO%20JURIDICO/REGLAMENTOS/BAND O%20DE%20POLICIA%20Y%20GOBIERNO%20PARA%20EL%20MUNICIPIO%20DE%20TECAT E,%20BAJA%20CALIFORNIA-2015-04-24.pdf  Broadly: In Mexico City, a Community Rallies in Wake of Two Horrifying Trans Murders, 20 November 2016 https://broadly.vice.com/en_us/article/in-mexico-city-a-community-rallies-in-wake-of- two-horrifying-trans-murders  Código Penal Federal, 14 August 1931, with amendments up to 7 April 2017 http://www.diputados.gob.mx/LeyesBiblio/pdf/9_070417.pdf  Código Penal para el Estado libre y soberano de Jalisco, 2 August 1982, with amendments up to 1 December 2015 http://www.ordenjuridico.gob.mx/Documentos/Estatal/Jalisco/wo77048.doc  COHA - Council on Hemispheric Affairs: The Catholic Church and Mexico: The Struggle for LGBT Equality, 14 October 2016 http://www.coha.org/wp-content/uploads/2016/10/Mexico-LGBT-Equality-1.pdf  Constitución Política de la Ciudad de México, 5 February 2017 http://www.cdmx.gob.mx/storage/app/uploads/public/589/746/ef5/589746ef5f8cc44747 5176.pdf  Constitución Política De Los Estados Unidos Mexicanos, 5 February 1917, amendments up to 24 February 2017 http://www.ordenjuridico.gob.mx/Documentos/Federal/wo14166.doc  Cornell Law School LGBT Clinic; Transgender Law Center: Report on Human Rights Conditions of Transgender Women in Mexico, May 2016 http://transgenderlawcenter.org/wp-content/uploads/2016/05/CountryConditionsReport- FINAL.pdf

 Desastre: El 62% de las mujeres trans en México han sido víctimas de violencia, 9 November 2016 http://desastre.mx/mexico/el-62-de-las-mujeres-trans-en-mexico-han-sido-victimas-de- violencia/  Firstpost: homophobia up in Mexico after gay marriage push by president Enrique Pena Nieto: NGO, 27 January 2017 http://www.firstpost.com/world/homophobia-up-in-mexico-after-gay-marriage-push-by- president-enrique-pena-nieto-ngo-3223690.html  Freedom House: Freedom in the World 2016 - Mexico, 27 January 2016 (available at ecoi.net) http://www.ecoi.net/local_link/320147/445542_en.html  Freedom House: Freedom on the Net 2016 - Mexico, November 2016 (available at ecoi.net) https://www.ecoi.net/local_link/332095/460040_en.html  Frontera: Transgéneros se manifiestan contra abuso policial, 10 November 2016 http://www.frontera.info/EdicionEnLinea/Notas/Noticias/10112016/1148870- Transgeneros-se-manifiestan-contra-abuso-policial.html  Fundación Arcoíris por el respect a la diversidad sexual: Atención a personas LGBTI. La condición en algunos estados del centro del país, October 2016 https://dl.dropboxusercontent.com/content_link/ox47UORFPNrwWfoSTALLvhNfS1R3GdIh UufDiE6yK2cYhaCETbPEHTO1Ev9lBRGS/file?dl=1  Hombres XX et al.: Discrimination due to gender identity and sex characteristics in Mexico; List of themes suggested to be presented to the Working Group regarding Mexico's Report. Economic, Social and Cultural Rights Committee; 60th Session; February 27, 2017 - March 3, 2017, December 2016 (published by CESCR, available at ecoi.net) http://www.ecoi.net/file_upload/1930_1484825052_int-cescr-ico-mex-26156-e.pdf  HRC - UN Human Rights Council: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns; Addendum; Mission to Mexico [A/HRC/26/36/Add.1], 28 April 2014 (available at ecoi.net) http://www.ecoi.net/file_upload/1930_1403086675_a-hrc-26-36-add-1-eng.doc  HRC - UN Human Rights Council: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions in follow-up to his mission to Mexico [A/HRC/32/39/Add.2], 6 May 2016 (available at ecoi.net) http://www.ecoi.net/file_upload/1930_1465307303_g1609208.pdf  HRW - Human Rights Watch: World Report 2017 - Mexico, 12 January 2017 (available at ecoi.net) https://www.ecoi.net/local_link/334757/463204_en.html  Human Rights Commission of the Federal District: Defensor número 2, año xv - Discurso de odio, poder y derechos humanos, February 2017 http://cdhdf.org.mx/wp-content/uploads/2017/02/Dfensor-febrero-electronico.pdf  IACHR - Inter-American Commission on Human Rights: Violence against lesbian, gay, bisexual, trans and intersex persons in the Americas, 12 November 2015 http://www.oas.org/en/iachr/reports/pdfs/ViolenceLGBTIPersons.pdf  IACHR - Inter-American Commission on Human Rights: The Human Rights Situation in Mexico, 31 December 2015 (available at Refworld) http://www.refworld.org/pdfid/583ed735a2.pdf

 ILGA - International Lesbian, Gay, Bisexual, Trans and Intersex Association: The ILGA-RIWI 2016 Global Attitudes Survey on LGBTI People in Partnership with Logo, 17 May 2016 http://ilga.org/downloads/07_THE_ILGA_RIWI_2016_GLOBAL_ATTITUDES_SURVEY_ON_L GBTI_PEOPLE.pdf  ILGA - International Lesbian, Gay, Bisexual, Trans and Intersex Association: State Sponsored Homophobia, June 2016 http://ilga.org/downloads/02_ILGA_State_Sponsored_Homophobia_2016_ENG_WEB_150 516.pdf  International Human Rights program at the University of Toronto Faculty of Law: Mexico/ Mexico City – SOGI legislation Country Report, March 2013 https://www.icj.org/wp-content/uploads/2013/06/Mexico-SOGI-Legislation-Country- Report-2013-eng.pdf  IRB - Immigration and Refugee Board of Canada: Mexico: Situation and treatment of sexual minorities, particularly in Mexico City, Cancún, Guadalajara, and Acapulco; state protection and support services available (2012-July 2015) [MEX105241.E], 18 August 2015 (available at ecoi.net) http://www.ecoi.net/local_link/310998/435053_en.html  Letra S, Sida, Cultura y Vida Cotidiana, A.C. et al: Human Rights Violations Against Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) People in Mexico: A Shadow Report, June 2014 http://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/MEX/INT_CCPR_ICS_ME X_17477_E.pdf  Letra S, Sida, Cultura y Vida Cotidiana, A.C: Asesinatos de personas LGBT en México (1995- 2016), 2016 http://www.letraese.org.mx/proyectos/proyecto-1-2/  Letra S, Sida, Cultura y Vida Cotidiana, A.C: Suprema Corte garantiza derecho a la vida familiar a parejas del mismo sexo, 30 January 2017 http://www.letraese.org.mx/suprema-corte-garantiza-derecho-a-la-vida-familiar-a-parejas- del-mismo-sexo/  Ley del seguro social, 21 December 1995, with amendments up to 12 November 2015 http://www.ordenjuridico.gob.mx/Documentos/Federal/pdf/wo9056.pdf  Ley Federal para Prevenir y Eliminar la Discriminación, 11 June 2003, amendments up to 1 December 2016 http://www.ordenjuridico.gob.mx/Documentos/Federal/pdf/wo13222.pdf  Naamat, Talia/Osin, Nina/Porat, Dina (eds.): Legislating for Equality. A Multinational Collection of Non-Discrimination Norms. Volume II: Americas, 2013 (excerpts available on Google Books) https://books.google.at/books?id=zqxuKBcmRDUC&pg=PA301&lpg=PA301&dq=Mexico+fe deral+criminal+code+article+149+ter&source=bl&ots=Dhb63iMGTD&sig=- Fq4yt5dkAdmQia1eiXzyj_nj3M&hl=de&sa=X&ved=0ahUKEwimlujy7trSAhVD2SwKHY44Dcc Q6AEIKDAC#v=onepage&q=Mexico%20federal%20criminal%20code%20article%20149%20 ter&f=false

 NYT - New York Times: With Little Fanfare, Mexican Supreme Court Legalizes Same-Sex Marriage, 14 June 2015 https://www.nytimes.com/2015/06/15/world/americas/with-little-fanfare-mexican- supreme-court-effectively-legalizes-same-sex-marriage.html?_r=0  OHCHR - UN Office of the High Commissioner for Human Rights: End of mission statement by the United Nations Special Rapporteur on the situation of human rights defenders, Michel Forst on his visit to Mexico from 16 to 24 January 2017, 24 January 2017 (available at ecoi.net) https://www.ecoi.net/local_link/335248/463855_en.html  Página 24: Presentan Resultados de Diagnóstico Sobre la Atención a Personas LGBTI, 20 November 2016 http://pagina24zacatecas.com.mx/2016/11/20/presentan-resultados-de-diagnostico- sobre-la-atencion-a-personas-lgbti/#  Pink News: Mexico: Supreme Court rules that anti-gay slurs are hate speech, 8 March 2013 http://www.pinknews.co.uk/2013/03/08/mexico-supreme-court-rules-that-anti-gay-slurs- are-hate-speech/  PRI - Public Radio International: Gay marriage is legal in Mexico, but Mexicans are still fighting over whether it should be allowed, 13 September 2016 https://www.pri.org/stories/2016-09-13/gay-marriage-legal-mexico-mexicans-are-still- fighting-over-whether-it-should-be  Reuters: Mexican police turn blind eye to murders of transgender women, say activists, 22 August 2016 http://www.reuters.com/article/us-mexico-transgender-violence-idUSKCN10X1TY  SCJN - Suprema Corte de Justicia de la Nación: Amparo directo en revisión 2806/2012, 6 March 2013 http://www.miguelcarbonell.com/artman/uploads/1/Sentencia_amparo_en_revisi__n_28 06-2012.pdf  SCJN - Suprema Corte de Justicia de la Nación: Tesis: 1a./J. 46/2015 (10a.), 3 June 2015a (published on 19 June 2015) http://sjf.scjn.gob.mx/SJFSem/Paginas/DetalleGeneralV2.aspx?ID=2009406&Clase=Detalle TesisBL  SCJN - Suprema Corte de Justicia de la Nación: Tesis: 1a./J. 43/2015 (10a.), 3 June 2015b (published on 19 June 2015) http://sjf.scjn.gob.mx/SJFSem/Paginas/DetalleGeneralV2.aspx?Epoca=&Apendice=&Expresion=&Dominio=Te sis%20Viernes%2019%20de%20Junio%20de%202015%20%20%20%20%20.%20Todo&TA_TJ=1&Orden=3&Cl ase=DetalleSemanarioBL&Tablero=&NumTE=11&Epp=20&Desde=-100&Hasta=- 100&Index=0&SemanaId=201525&ID=2009407&Hit=9&IDs=2009418,2009417,2009416,2009415,2009414,2 009413,2009409,2009408,2009407,2009406,2009405&Epoca=-100&Anio=-100&Mes=- 100&SemanaId=201525&Instancia=-100&TATJ=1  SCJN - Suprema Corte de Justicia de la Nación: Tesis: P./J. 8/2016 (10a.), 23 June 2016 (published on 23 September 2016) http://ius.scjn.gob.mx/SJFSem/Paginas/DetalleGeneralV2.aspx?Epoca=&Apendice=&Expresion=&Dominio=T esis%20Viernes%2023%20de%20Septiembre%20de%202016%20%20%20%20%20.%20Todo&TA_TJ=1&Orde n=3&Clase=DetalleSemanarioBL&Tablero=&NumTE=21&Epp=20&Desde=-100&Hasta=- 100&Index=0&SemanaId=201639&ID=2012587&Hit=20&IDs=2012613,2012612,2012611,2012610,2012609,

2012608,2012607,2012605,2012604,2012603,2012602,2012601,2012594,2012593,2012592,2012591,2012 590,2012589,2012588,2012587&Epoca=-100&Anio=-100&Mes=-100&SemanaId=201639&Instancia=- 100&TATJ=1  SCJN - Suprema Corte de Justicia de la Nación: Tesis: 1a./J. 8/2017 (10a.), 18 January 2017 (published on 27 January 2017) http://sjf.scjn.gob.mx/SJFSem/Paginas/DetalleGeneralV2.aspx?Epoca=&Apendice=&Expresion=&Dominio=Te sis%20%20publicadas%20el%20viernes%2027%20de%20enero%20de%202017.%20Primera%20Sala&TA_TJ= 1&Orden=3&Clase=DetalleSemanarioBL&Tablero=&NumTE=2&Epp=20&Desde=-100&Hasta=- 100&Index=0&SemanaId=201704&ID=2013531&Hit=2&IDs=2013532,2013531&Epoca=-100&Anio=- 100&Mes=-100&SemanaId=201704&Instancia=1&TATJ=1  TGEU – Transgender Europe: TDoR 2016 Press Release, 9 November 2016 http://tgeu.org/tdor-2016-press-release/  The Economist: Open city, 18 August 2016 http://www.economist.com/news/americas/21705345-capital-progressive-rest-country- catching-up-slowly-open-city  The Guardian: Mexico's gay couples fight backlash against same-sex marriage, 19 December 2016 https://www.theguardian.com/world/2016/dec/19/mexico-same-sex-marriage-backlash- gay  USDOS - US Department of State: Country Report on Human Rights Practices 2016 - Mexico, 3 March 2017 (available at ecoi.net) http://www.ecoi.net/local_link/337258/467019_en.html  Verne: Por qué es importante que la Constitución de la CDMX reconozca el matrimonio igualitario, 13 January 2017 http://verne.elpais.com/verne/2017/01/13/mexico/1484275948_905097.html  Wockner, Rex: Mexico's wild ride to marriage equality, 4 April 2017 https://wockner.blogspot.co.at/2016/06/mexicos-wild-ride-to-marriage-equality.html  World Bank Group: Antidiscrimination Law and Shared Prosperity, 3 March 2017 http://documents.worldbank.org/curated/en/315281488548151723/pdf/WPS7992.pdf

TAB 7

Transgender Law Center and Cornell University Law School LGBT Clinic This guide may be used and reproduced without permission of Transgender Law Center and Cornell University Law School so long as it is properly cited. Excerpts may be taken if (a) they are properly cited AND (b) they are used within their proper context AND (c) a note is included that the excerpt is not legal advice.

Transgender Law Center Transgender Law Center is the largest national organization dedicated to advancing the rights of transgender and gender nonconforming people through litigation, policy advocacy, and public education. TLC works to change law, policy, and attitudes so that all people can live safely, authentically, and free from discrimination regardless of their gender identity or expression.

Transgender Law Center 1629 Telegraph Ave, Suite 400 Oakland, CA 94612 p 415.865.0176 f 877.847.1278 [email protected] www.transgenderlawcenter.org

Cornell Law School LGBT Clinic The Cornell Law School LGBT Clinic (“the Clinic”) is one of only a handful of law school clinics fighting specifically for the legal rights of lesbian, gay, bisexual, and transgender people. The Clinic provides free legal help to low-income LGBT individuals in a variety of cases, including immigration removal proceedings, asylum applications, appeals before the BIA, and family law, and prisoners’ rights matters. In addition to representing individuals in need of legal assistance, the Clinic undertakes advocacy projects in conjunction with other LGBT organizations to advance LGBT rights.

Cornell Law School LGBT Clinic Susan Hazeldean 158 Myron Taylor Hall Ithaca, NY 14853-4901 www.lawschool.cornell.edu/Clinical-Programs/lgbtclinic/

Cover Photo Courtesy of El/La Para TransLatinas

Report on Human Rights Conditions of Transgender Women in Mexico | 1 TABLE OF CONTENTS

INTRODUCTION ...... 3 EXECUTIVE SUMMARY ...... 4 U.S. IMMIGRATION SYSTEM ...... 5 LAWS AIMED AT PROTECTING LGBT PEOPLE IN MEXICO ...... 9 THE LGBT COMMUNITY IN MEXICO ...... 9 LIMITED ANTIDISCRIMINATION LAWS ...... 9 LIMITED SAME-SEX RELATIONSHIP RECOGNITION ...... 11 NAME CHANGE RIGHTS ...... 12 LACK OF LEGAL PROTECTIONS FOR TRANSGENDER PEOPLE ...... 12 MORALITY LAWS ...... 122 EXPANSION OF LGBT RIGHTS HAS LED TO BACKLASH ...... 14 VIOLENCE AGAINST TRANSGENDER WOMEN ...... 14 RECENT TRANSPHOBIC MURDERS OF PROMINENT TRANSGENDER WOMEN. 17 POLICE VIOLENCE ...... 18 MILITARY VIOLENCE ...... 188 DRUG CARTEL AND GANG VIOLENCE...... 19 MEXICAN GOVERNMENT AND POLICE ARE LINKED TO ORGANIZED CRIME . 20 SOCIETAL FACTORS THAT LEAD TO VIOLENCE AGAINST TRANSGENDER WOMEN ...... 211 FAMILY REJECTION ...... 211 GENDER-BASED VIOLENCE ...... 222 RELIGION ...... 222 ECONOMIC MARGINALIZATION ...... 233 LACK OF GENDER-CONFORMING IDENTITY DOCUMENTS ...... 233 LACK OF ADEQUATE HEALTH CARE ...... 244 PREVALENCE OF AND LACK OF TREATMENT FOR HIV/AIDS ...... 244 EVALUATING ASYLUM CLAIMS MADE BY MEXICAN TRANSGENDER WOMEN ...... 255 THE EFFECT OF SAME-SEX MARRIAGE & ANTI-DISCRIMINATION LAWS ON VIOLENCE ...... 255 RELOCATION PRESUMPTION ...... 266 GAY PRIDE MARCHES AND “GAY TOURISM” ...... 266 CONDITIONS FOR TRANSGENDER WOMEN IN U.S. IMMIGRATION DETENTION FACILITIES ...... 28 RECOMMENDATIONS ...... 322 CONCLUSION...... 344

Transgender Law Center and Cornell University Law School LGBT Clinic | 2

INTRODUCTION

This report's purpose is to assess the country conditions in Mexico so that immigration judges and asylum officers can be fully informed about the issues facing transgender asylum applicants. This report examines whether recent legal reforms in Mexico have improved conditions for transgender women.1 It finds that transgender women in Mexico still face pervasive discrimination, hatred, violence, police abuse, rape, torture, and vicious murder. These problems have actually worsened since same-sex marriage became available in the country in 2010. The report also suggests ways to improve the information about county conditions available to U.S. immigration judges and asylum officers so they can better adjudicate the asylum, withholding of removal, and Convention Against Torture claims of Mexican transgender women.

The Cornell Law School LGBT Clinic2 and Transgender Law Center co-authored this report. The authors collected information for this report through news sources, academic research, expert witness testimony, and individual telephone interviews with advocates at non-governmental organizations (NGOs) in Mexico and the United States. Transgender Law Center, a national organization based in Oakland, California, works to change law, policy, and attitudes so that all people can live safely, authentically, and free from discrimination regardless of their gender identity or expression. Transgender Law Center provides legal assistance and information to transgender individuals and their families and engages in impact litigation and policy advocacy to advance transgender rights. The LGBT Clinic at Cornell Law School is one of only a handful of law school clinics in the United States dedicated to serving members of the lesbian, gay, bisexual, and transgender (LGBT) community.3 The clinic represents LGBT individuals in various legal matters and undertakes advocacy projects in conjunction with other LGBT organizations.

Report on Human Rights Conditions of Transgender Women in Mexico | 3 EXECUTIVE SUMMARY

Many transgender Mexican women seek asylum in the United States claiming that, because of their gender identity or expression, they will face rape, torture, or murder if they return to Mexico. In these cases, immigration judges and asylum officers must determine how likely it is that the asylum-seeker will face persecution if she is removed. Despite recent legal reforms in Mexico, legal advocates and individuals living in both Mexico and the U.S. report that rates of violence against transgender women are higher than ever. Specifically, violence against the LGBT community has actually increased since the recognition of same-sex marriage throughout Mexico because of backlash to these progressive changes in the law.

Despite the legal changes for same-sex couples in recent years, transgender women in Mexico still face pervasive persecution based on their gender identity and expression. Indeed, violence against LGBT people has actually increased, with transgender women bearing the brunt of this escalation. Changes in the laws have made the LGBT communities more visible to the public and more vulnerable to homophobic and transphobic violence. Increased visibility has actually increased public misperceptions and false stereotypes about the gay and transgender communities. This has produced fears about these communities, such as that being gay or transgender is “contagious” or that all transgender individuals are HIV positive. These fears have in turn led to hate crimes and murders of LGBT people, particularly transgender women.

Immigration judges in the United States often conflate the particular social groups of transgender women and gay men. Moreover, immigration judges sometimes give excessive weight to reports of minor societal advancements for gay communities in Mexico. Consequently, without thoroughly examining the actual conditions in Mexico for transgender women, immigration judges are not able to assess asylum cases fully and accurately.

The report recommends that information distinguishing between issues facing the gay and transgender communities be made available in Executive Office for Immigration Review (EOIR) materials. For example, the EOIR can update their training modules with information about the transgender community specifically, so that judges can fully understand the distinct issues facing transgender women. In addition, applicants and their advocates can provide documentation of anti- transgender abuse to ensure that judges understand the issues specific to this community and make more sound findings in asylum, withholding of removal, and Convention Against Torture cases.

Transgender Law Center and Cornell University Law School LGBT Clinic | 4 U.S. IMMIGRATION SYSTEM

Every year, thousands of Mexican citizens seek asylum Approximately 11.4 million or related forms of humanitarian relief in the United Mexican immigrants live in States. the United States. Of those 11.4 million, approximately In 2012, U.S. immigration courts received 9,206 asylum 51% are undocumented, applications from Mexican people.4 That year, only 126 32% are permanent Mexican applicants were granted asylum by the residents, and 16% are immigration courts while 1,395 cases were denied.5 The naturalized U.S. citizens. asylum office granted asylum to another 337 Mexican applicants.6 There are no statistics on how many of those Mexican asylum-seekers were transgender people seeking asylum because they feared persecution based on their gender identity.7

An immigrant is eligible for asylum in the U.S. if Figure 1 she has a well-founded fear of persecution based Asylum Cases from Mexico on her “race, religion, nationality, membership in (2012) a particular social group, or political opinion.”8 16% The Board of Immigration Appeals (BIA) first 14% recognized a gay man as a member of a 12% “particular social group” in the 1990 In re 10% Toboso-Alfonso case.9 The BIA found that 8% “homosexuals” in Cuba constitute a particular 6% social group.10 In 1994, the Attorney General 4% designated the Toboso-Alfonso decision as 2% “precedent in all proceedings involving the same 0% issue or issues.”11 Since then, several courts of Granted Denied appeal have similarly recognized “homosexuals” as a particular social group.12

In 2000, the Ninth Circuit Court of Appeals decided Hernandez-Montiel v. INS, finding that a transgender person from Mexico qualified for asylum as a member of a “particular social group.” 13 But that decision did not refer to the applicant as transgender; the court instead called Hernandez-Montiel a “gay man with a female sexual identity,”14 Hernandez-Montiel had lived as a woman since the age of twelve, took female hormones, and identified as “a transsexual.”15 The immigration judge who initially decided Hernandez-Montiel’s case found her ineligible for asylum because he said she had not been persecuted on account of an “immutable” characteristic. Rather, the immigration judge found she could have chosen not to dress as a woman. On appeal, the Ninth Circuit found that Hernandez-Montiel’s identity as a “gay man with a female sexual identity” was either an “innate characteristic or one so fundamental to her identity or conscience that she either could not should not be required to change it.”16 The court therefore held that Hernandez-Montiel was persecuted on account of her membership in a particular social group.

Report on Human Rights Conditions of Transgender Women in Mexico | 5 Obviously the decision to recognize Hernandez-Montiel’s eligibility for asylum was positive, but by defining her particular social group as “gay men with female sexual identities,” the court misleadingly conflated transgender women with gay men.17 Some transgender women, including those from Mexico, may experience their gender identity and sexual orientation as interrelated in complex ways. Many transgender women who are attracted to men may go through a period of identifying as gay men, or being perceived by others as gay men, prior to coming out as transgender women. For some transgender women, the terms “gay” and “transgender” are not mutually exclusive categories, but overlapping, and they may use both terms to describe themselves. Regardless, when transgender women and feminine gay men face persecution, the root cause of both is likely the combination of cultural gender norms,18 misogyny in general and the particular vitriol targeted at people who express femininity despite being assigned a male sex at birth.

Nonetheless, it is important for adjudicators to be aware that sexual orientation and gender identity are distinct components of identity.19 Gender identity describes “each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body... and other expressions of gender, including dress, speech and mannerisms.”20 Sexual orientation, on the other hand, is “each person’s capacity for... sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.”21 Transgender women are as diverse in their sexual orientations as non-transgender women. They may identify as straight, lesbian, bisexual, queer, or any other sexual orientation.22

When asylum decisions refer to transgender women as gay men with female sexual identities,23 it is important to be aware that this may be an inaccurate and therefore disrespectful way of describing the individual’s gender identity. This inaccuracy can have serious and harmful consequences as it may contribute to misunderstandings regarding the deadly dangerous country conditions for transgender women in Mexico, as described below.

In 2015, in Avendano-Hernandez v. Lynch, a case of a transgender woman fleeing persecution and torture from Mexico, the Ninth Circuit recognized the error in conflating gender identity and sexual orientation and the harmful consequences of such a conflation.24 In denying Avendano-Hernandez’s claim, the BIA had primarily relied on Mexico’s passage of laws protecting the gay and lesbian community, in particular the passage of same-sex marriage laws in Mexico City. In overturning the BIA, the Ninth Circuit declared the relationship between gender identity and sexual orientation to be distinct, though sometimes overlapping, and criticized the BIA’s analysis as “fundamentally flawed because it mistakenly assumed that [ ] laws [protecting the gay and lesbian community] would also benefit Avendano-Hernandez, who faces unique challenges as a transgender woman.”25

The court’s decision is explicit that laws recognizing same-sex marriage do little to protect a transgender woman from discrimination, harassment and violent attacks in daily life in Mexico.26 The court also recognized that paradoxically, the passage of laws protecting the LGBT community in Mexico has actually worsened conditions for

Transgender Law Center and Cornell University Law School LGBT Clinic | 6 the LGBT community as the public and authorities react to expressions of sexual orientation and gender identity that the culture fears.27

The court ultimately granted Avendano-Hernandez relief on the record, reasoning that transgender persons in Mexico are particularly visible and vulnerable to harassment and persecution due to their public nonconformance with gender roles, that the Mexican police specifically target the transgender community for extortion and sexual favors, that there is an epidemic of unsolved violent crimes against transgender persons in Mexico, that Mexico has one of the highest documented numbers of transgender murders in the world, and that Avendano-Hernandez, who takes female hormones and dresses as a woman, is a conspicuous target for harassment and abuse.28

In order to establish her eligibility for asylum, an applicant must demonstrate that there is at least a 10% chance that she will experience harm that rises to the level of persecution.29 If she can show that she was persecuted in the past, the applicant will be presumed to have a well-founded fear of future persecution unless country conditions have so improved as to negate her fear.30 The persecution need not be inflicted by government officials; harm inflicted by private actors can also constitute persecution if the government is unable or unwilling to prevent it.31 But in cases where a non-state actor is the persecutor, the asylum-seeker must show that she cannot avoid harm by moving to another region of the country.32

Generally, an applicant can only obtain asylum if she applies within one year of her last entry into the United States.33 Unfortunately, the one-year deadline prevents many bona fide refugees from qualifying for asylum relief.34 The only exceptions are granted when an applicant can show that a “changed circumstance” or “extraordinary circumstances” justified the delay in filing.35 There is no exhaustive list of what might constitute changed or extraordinary circumstances, but serious mental illness or being an unaccompanied child have qualified as “extraordinary circumstances,”36 and a recent HIV diagnosis, recently coming out as transgender, or progressing in one’s transition can qualify as a “changed circumstance” justifying a late asylum application.37 Even if an applicant can show that she faced changed or extraordinary circumstances, she still must apply for asylum within a “reasonable” period of time.38

Applicants can seek asylum “affirmatively” by submitting an application to the United States Citizenship and Immigration Services (USCIS) if they are not in removal proceedings.39 Immigrants who are in removal proceedings before an immigration court must apply for humanitarian relief “defensively” by requesting asylum in the court proceeding.40 People in removal proceedings can also apply for withholding of removal or relief under the Convention Against Torture (CAT).41 These related forms of relief have higher burdens of proof and offer less protection than asylum, but they may be the only relief available to applicants who entered the U.S. more than one year from the time that they want to file for asylum and do not qualify for an exception to the one-year deadline42 or for those with criminal convictions that bar asylum relief.43 Being granted withholding of removal or relief under CAT protects the recipient from removal to the country where she would face persecution or torture, but it does not lead to permanent residency or citizenship.44

Report on Human Rights Conditions of Transgender Women in Mexico | 7 There is no time limit for applying for these forms of relief. An immigration judge must grant withholding of removal if the applicant is found to have a “clear probability of persecution in his or her country of origin, based on race, religion, nationality, membership in a particular social group, or political opinion,” provided no mandatory bars apply.45 Immigrants in removal proceedings can receive relief from removal under the CAT if it is “more likely than not” that they will be tortured if removed from the United States.46 Applicants can qualify for CAT relief even when their criminal convictions bar them from withholding of removal and asylum.

Transgender Law Center and Cornell University Law School LGBT Clinic | 8 LAWS AIMED AT PROTECTING LGBT PEOPLE IN MEXICO

THE LGBT COMMUNITY IN MEXICO

Mexico is a federal republic composed of thirty-one states and the Federal District of Mexico City. As of 2015, it has a population of approximately 121 million citizens.47 Although there have been some prevalence-based studies attempting to assess the number of LGBT people in other countries,48 there have been no federal population- based surveys, federal censuses, or national research studies assessing the LGBT population in Mexico. As a result, it is impossible to know the size of the Mexican LGBT community.

There are few population-based data sources that estimate the number of transgender people in any country.49 Those that do exist suggest that transgender people constitute 0.1% to 0.5% of the overall population.50 As such, transgender women likely constitute a small minority even within the Mexican LGBT community. Gathering data about the Mexican LGBT community is hampered by the fact that many individuals are reluctant to reveal their sexual orientation or gender identity because they fear harassment, violence, assault, and other negative societal consequences that may follow from such a disclosure.

LIMITED ANTIDISCRIMINATION LAWS

Mexico has enacted antidiscrimination laws that forbid discrimination on the basis of sexual orientation at the federal level. In 2003, the Federal Congress passed the “Federal Law to Prevent and Eliminate Discrimination” that includes “sexual preference” as a protected category. The law defines discrimination as:

Every distinction, exclusion or restriction based on ethnic or national origin, sex, age, disability, social or economic status, health, pregnancy, language, religion, opinion, sexual preferences, civil status or any other, that impedes recognition or enjoyment of rights and real equality in terms of opportunities for people.51

Article 9 of the law defines “discriminatory behavior” as:

Impeding access to public or private education; prohibiting free choice of employment, restricting access, permanency or promotion in employment; denying or restricting information on reproductive rights; denying medical services; impeding participation in civil, political or any other kind of organizations; impeding the exercise of property rights; offending, ridiculing or promoting violence through messages and images displayed in communications media; impeding access to social security and its benefits; impeding access to any public service or

Report on Human Rights Conditions of Transgender Women in Mexico | 9 private institution providing services to the public; limiting freedom of movement; exploiting or treating in an abusive or degrading way; restricting participation in sports, recreation or cultural activities; incitement to hatred, violence, rejection, ridicule, defamation, slander, persecution or exclusion; promoting or indulging in physical or psychological abuse based on physical appearance or dress, talk, mannerisms or for openly acknowledging one’s sexual preferences.52

Various state laws also prohibit anti-gay discrimination.53 It is important to note, however, that there are no federal laws that explicitly protect transgender individuals from discrimination on the basis of their gender identity (i.e., their transgender status) as opposed to sexual orientation. Mexico has also enacted legislation to protect women generally from gender-based violence.54 But transgender women are not explicitly included in this legislation either.55

The National Council to Prevent Discrimination (CONAPRED) was created by the 2003 Federal Law to Prevent and Eliminate Discrimination.56 The agency is tasked with promoting policies and measures that contribute to cultural and social development, while advancing social inclusion. People who suffer discrimination committed by private individuals or by federal authorities can file a complaint with CONAPRED. When an aggrieved person files a complaint, the Council undertakes a settlement process between the parties. If they do not reach an agreement, CONAPRED can undertake an independent investigation. If it determines that human rights violations have been committed, it can order restitution measures including financial compensation, a public reprimand of the offender, a public or private apology, and a vow from the offender to never repeat the act. About 60% of cases filed regarding sexual orientation discrimination in 2009-10 were resolved by conciliation.57 In 2010 CONAPRED forwarded 53 complaint files about anti-gay discrimination to the Public Ministry, which found them to be unlawful discrimination.58

Despite the existence of these formal protections around sexual orientation, advocates maintain that these laws have not prevented discrimination and violence.59 LGBT individuals face many barriers in exercising their rights under the antidiscrimination statutes. LGBT individuals who experience discrimination may be afraid to disclose their sexual orientation or gender identity to a federal agency and may be concerned about potential retaliation by public officials. This concern is especially relevant since the law does not have a clear enforcement mechanism or any provision that protects against retaliation.

The adoption of the antidiscrimination laws is certainly a positive step, but it is far from clear that their enactment has actually led to an improvement in the treatment of LGBT people generally or transgender women in particular. For example, although Mexico City has an agency charged with receiving discrimination complaints, from January 2012 to April 2013 the agency had received only one official complaint of human rights abuse against a transgender individual.60 During the same period there were at least eight violent murders of transgender women in Mexico City.61 In fact, despite having the greatest number of legal reforms for and businesses catering to

Transgender Law Center and Cornell University Law School LGBT Clinic | 10 non-transgender gay people in the country, Mexico City “has the highest total” number of “homicides of LGBT people due to homophobia or transphobia.”62

The absence of any complaints is likely due to the myriad reasons transgender women do not report when they are victims of discrimination or hate crimes: concerns about disclosing sexual orientation or gender identity, fears of retaliation, lack of confidence in national agencies, a long history of corruption in Mexican investigative agencies, and doubts about the agency’s ability to investigate and remedy these violations.

As noted, federal antidiscrimination laws only provide explicit protections based on sexual orientation and do not protect against gender identity discrimination. Moreover, these federal antidiscrimination laws do not protect transgender communities from persecution because the Mexican government is unable to enforce them, especially because the police themselves are often the perpetrators of violence against transgender people.63 Transgender women victimized by such violence are also unlikely to report the crimes because they fear retaliation from police or believe police will not accurately investigate their claims.

LIMITED SAME-SEX RELATIONSHIP RECOGNITION

Mexico has also adopted laws granting rights to people in same-sex relationships. In 2006, Mexico City’s legislature approved the “Ley de Sociedades de Convivencia” (Law Regarding Cohabitation Partnerships) which allowed civil unions between same- sex couples.64 On December 21, 2009, the Legislative Assembly approved legislation allowing same-sex marriage in Mexico City.65 The bill changed the definition of marriage in the city’s Civil Code from “a free union between a man and a woman” to “a free union between two people.” 66 The law also allows same-sex couples to adopt children, apply jointly for bank loans, inherit from one another, and be included in spousal insurance policies. In August 2010, the Mexican Supreme Court held that same-sex marriages registered in Mexico City must be recognized in all of Mexico.67 In July 2015, the Mexican Supreme Court released a “jurisprudential thesis” that effectively legalized same-sex marriage in all thirty-one states in Mexico.68

However, formal statutory advances for same-sex couples in Mexico have not reduced persecution against transgender women. In fact, as discussed in more detail later in this report, transgender women have borne the brunt of a violent backlash against same-sex marriage and other such advances. They are at a particularly intensified risk of persecution both because they are often imputed to be gay men and because they are vilified, stigmatized, and brutalized for being transgender women. This increased vulnerability also occurs because transgender women “may be more visible [and] viewed as more transgressive of social norms.”69

Report on Human Rights Conditions of Transgender Women in Mexico | 11 NAME CHANGE RIGHTS

Mexico City has created some avenues for transgender people to conform their identity documents to their gender identity. In 2004, Mexico City amended its Civil Code to permit an individual to change the name and gender marker on their birth certificate.70 Specifically, the Mexico City Civil Code was amended to allow modification of a person’s birth certificate “upon request to change a name or any other essential data affecting a person’s civil status, filiations, nationality, sex and identity.”71 In 2014, Mexico City also passed a law that permits transgender individuals to legally change their gender without a court order.72

LACK OF LEGAL PROTECTIONS FOR TRANSGENDER PEOPLE

As described earlier, transgender women have limited formal legal protections in Mexico against discrimination and hate crimes. Only Mexico City has an antidiscrimination law that explicitly protects against gender identity discrimination.73 Other protections that exist exclusively in Mexico City include name changes, legal recognition of gender changes,74 and specialized healthcare for transgender people.75 Transgender women continue to experience pervasive discrimination in public and in their private lives.76 Even a representative of CONAPRED stated that “tolerance towards groups such as homosexuals is still ‘practically the same’ even after the State [Mexico] recognized their rights.”77 The 2013 U.S. State Department Human Rights Report on Mexico stated that “discrimination based on sexual orientation and gender identity was prevalent[.]”78 It also noted that “the government did not always investigate and punish those complicit in abuses.”79

Transgender women often do not report hate crimes or police abuse because the authorities rarely investigate these crimes.80 When the police do get involved, they frequently minimize the crime and mischaracterize it. For example, in violent murder cases the police usually determine that the cases are “crimes of passion” instead of hate crimes.81 Holding police and military abusers accountable is also difficult.82 The process for punishing the police and military is “extremely slow and inadequate.”83 Transgender women avoid reporting police abuse out of fear of police retaliation against them or their family members. 84 Further, human rights commissions tend to be anti-LGBT and will often disregard complaints by transgender women.85 Transgender women cannot depend on inadequate and ineffective laws penalizing hate crimes to protect their rights.

MORALITY LAWS

Some Mexican communities have explicitly targeted transgender women by enacting morality laws that criminalize “cross-dressing.” In 2002, the city of Tecate, Mexico amended its Police and Good Governance Code to prohibit “men dressed as women in public spaces.”86 This revision “was coded in terms of infractions against morality.”87 Upon passing the law, the mayor of Tecate stated that Town Hall officials and the majority of the population supported it.88 A coalition across the political spectrum spoke out in favor of the morality law.89

Transgender Law Center and Cornell University Law School LGBT Clinic | 12

Supporters stated that Tecate’s prohibition of gender nonconformity was needed to protect against social disturbance; they regarded “cross-dressing” as a threat to order, morality, harmony, mutual respect, and children.90 They implied transgender women were pedophiles. In explaining his support for the law, counsel advisor José Luis Rojo claimed that transgender women disrupt the public peace and “take advantage of children.”91 A senior councilman, Cozme Casares, added that he and others supported the measure because they believed it would prevent the spread of AIDS and sex work.92

Local transgender women reported a dramatic increase in police harassment following the law’s passage. A woman named Gabriela reported that a police officer had “pulled [her] out of the doorway of a pool hall by her hair.”93 Transgender women were frequently accused of being involved in sex work, even when they were simply running errands like going to buy milk. Transgender women stopped by the police frequently faced extortion; “[t]he police used… the threat of arrest… to secure money or sexual favors from [transgender women].”94 The passage of morality laws like those in Tecate criminalizes transgender women and sanctions police harassment and private discrimination. The passage and retention of these laws reflect continued societal hostility towards transgender people.

Report on Human Rights Conditions of Transgender Women in Mexico | 13 EXPANSION OF LGBT RIGHTS HAS LED TO BACKLASH

Violence and discrimination against the LGBT community remains pervasive throughout Mexico.95 Legal recognition of same-sex couples has increased societal awareness of the LGBT community and made LGBT people much more visible. Ironically, increased awareness of LGBT people appears to have produced significant backlash.

VIOLENCE AGAINST TRANSGENDER WOMEN

In order to win asylum, an applicant must show she has a well-founded fear of persecution either from state actors or from private parties that the government is unwilling or unable to control.96 Even if Mexico’s prohibition of anti-gay discrimination and enactment of some formal protections for same-sex couples could be read to indicate that certain authorities are willing to prevent anti-gay abuse (or, more accurately, that they are willing to pay lip service to the notion of protecting LGBT people), it does not necessarily mean that the Mexican government is able to protect LGBT people generally or transgender women specifically from the horrific violence they face. In fact, many transgender women face violence from government actors themselves, often in the form of abuse from police and harassment by the military.

Since Mexico recognized same-sex marriage in 2010, several prominent advocates in the transgender community have been brutally murdered.97 Many of these killings occurred in Mexico City, despite its adoption of a hate crimes statute and antidiscrimination laws. In 2010, a Mexican National Survey about discrimination found that 83.4% of LGBT Mexicans had faced discrimination because of their “sexual preference.”98 In 2011, the same survey reported the principal basis of discrimination was “sexual preference.” 99 In 2012, however, “gender identity” was the most frequent basis for discrimination, showing the growing rates of discrimination against the transgender community.100 It is clear that the Mexican government is unable to effectively protect transgender women.

Figure 2a

Transgender Law Center and Cornell University Law School LGBT Clinic | 14 Transgender women regularly experience harassment and hate crimes at the hands of members of the public. The following are only a few examples of the many atrocities that transgender women have experienced in Mexico. A prosecutor in Chihuahua belittled a transgender woman who sought redress for abuse and violence she experienced, asking her, “So why are you walking in the streets?”101 In November 2011 in Chihuahua, a group of men kidnapped two transgender women in Hotel Carmen.102 Days later, the dismembered bodies of these women were found in a van.103 In June 2012 in Mexico City, the body of a transgender woman was dismembered. Her remains were found abandoned in different neighborhoods in the Benito Juarez district.104 In June 2013, police found the body of the transgender woman who headed the Special Unit for Attention to Members of the Lesbian, Gay, Bisexual, Transsexual, Transgender, Transsexual and Intersex (LGBTTTI) Community of the Attorney General of the Federal District (PGJDF).105 In July 2013, two attackers released pepper spray into a crowd of 500 at a beauty contest for transgender women.106

Figure 2b

Geographical depiction of transphobic murders in Mexico between 2008 and 2013.1 Note that many have occurred close to Mexico City (Districto Federal).

Mexico has the second-highest index of crimes motivated by transphobia in Latin America, behind Brazil.107 Reports of hate crimes—particularly transphobic murders— continue to rise,108 including in Mexico City.109 Most hate crimes against the LGBT community go uninvestigated.110 In many instances, police dismiss investigations of homophobic and transphobic murders by categorizing them as “crimes of passion.”111 Indeed, it is estimated that almost 90% of crimes in Mexico go unreported.112 It follows then that the actual number of transphobic murders in Mexico is likely much higher.

It is also critical to note that all members of the LGBT community are not similarly situated when it comes to homophobic and transphobic violence and persecution. In fact, some LGBT people are far more vulnerable than others. Transgender women are particularly likely to be singled out for abuse. Even in the United States, transgender people report far higher rates of violence and mistreatment than non- transgender lesbians and gay men.113 In Mexico, transgender people are “heavily stigmatized and discriminated against, even by members of the gay community.”114 It is therefore important to avoid erroneously conflating the experiences of non-

Report on Human Rights Conditions of Transgender Women in Mexico | 15 transgender lesbian and gay people with those of transgender women. For example, in Lopez-Berera v. Holder, the BIA affirmed the denial of asylum to an HIV-positive transgender woman from Mexico, inappropriately relying on dicta from a case about healthcare access for gay men.115 On appeal, the government filed an unopposed motion to remand the case to the BIA for reconsideration.116 Adjudicators must always examine evidence for the particular social group of transgender women and not deny asylum based on modest improvements in legal rights for non-transgender gay people.

In 2011, the year following the implementation of same-sex marriage across the country, there were more hate crimes against transgender people than in any year in recent history.117 Activists were particular targets of this backlash.118 On May 3, 2011, an LGBT activist named Quetzalcoatl Leija Herrera was found beaten to death.119 In July 2011, Cristian Ivan Sanchez Venancio, a member of the Revolutionary Democratic Party’s Coordinating Group for Sexual Diversity and an organizer of Mexico City’s annual LGBT Pride march, was found stabbed to death.120 On July 6, 2011, men in two vehicles opened fire on a group of transgender women in Chihuahua killing one and wounding several.121 In the state of Veracruz, activists noted that not only were LGBT people being killed at a high rate in 2011, but they were also increasingly being tortured before their deaths.122 On August 18, 2012, a transgender woman was found dead on the street in a suburb of Mexico City. She had been beaten horribly and then decapitated.123

Figure 3

164 Assassinations in 27 States (2007 - 2012)

Of the transphobic murders between 2007 and 2012, many took place in Mexico City (DF), where the city has enacted same-sex marriage laws and laws allowing transgender individuals to change the gender markers on their birth certificates.124

Transgender Law Center and Cornell University Law School LGBT Clinic | 16

RECENT TRANSPHOBIC MURDERS OF PROMINENT TRANSGENDER WOMEN

“The paradox is that as the LGBT community makes these advances in Latin America, there appears to be higher levels of violence against them . . . . It seems to be a backlash and may be due to the greater visibility of LGBT communities. In a sense, the violence is a symptom of the achievements made by the movement.”125

Barbara Lopez Lezama126 Ms. Lezama was murdered on April 30, 2011. The assailant strangled her with a cord and inflicted blunt force trauma to her head. She was 24 years old. Barbara worked as a stylist and enjoyed knitting. Barbara was also active in the community: she worked with street children and those who were living with HIV/AIDS.

Agnes Torres Sulca127 Ms. Torres Sulca was found murdered in a ditch outside of Puebla on March 12, 2012. Her throat had been slashed and there were several burn marks across her body. Ms. Torres Sulca was a 28-year-old psychologist and educator and is remembered as an activist and ardent defender of human rights in Mexico’s LBGT community. Authorities closed her case in three weeks without identifying the perpetrator.

Hilary Molina Mendiola128 Ms. Mendiola was murdered on September 23, 2013 in Mexico City. She was pulled from a vehicle and thrown off a bridge by two men.

Virgen Castro Carrillo129 Ms. Carrillo, a 30-year-old transgender woman, was murdered sometime between March 19 and March 21, 2009. Ms. Carrillo was from Sinaloa, Mexico. Her body was found in the Tamazula River. After conducting an investigation, police suspected that a man killed Ms. Carrillo for being transgender and then threw her body into the river.

Fernanda Valle130 On June 19, 2010, Fernanda Valle, the Vice President of Transgénero Hidalgo (Transgender Hidalgo) “disappeared.” Ms. Valle’s body was eventually found tied up and tortured with two bullets in the head. The President of Transgénero Hidalgo, Karen Quintero, demanded a full investigation, but the Hidalgo authorities did not adequately investigate the crime.

Report on Human Rights Conditions of Transgender Women in Mexico | 17 POLICE VIOLENCE

Transgender women in Mexico face brutal violence not only from private citizens, but also from state officials. Police officers and the military subject transgender women to arrest, extortion, and physical abuse.131 Many transgender women have been victims of police violence or know someone who has been a victim.132 According to Victor Clark, professor at San Diego State University and the director of the Binational Center for Human Rights in Tijuana, Mexico, the police and military are the “primary predators” targeting transgender women.133 Mexican police target transgender women and arbitrarily arrest them for pretextual reasons134 such as “disturbing the peace” because they were wearing female clothing; for being perceived to be sex workers even if they were not; for failing to carry a valid health card; for allegedly carrying drugs; or for being said to be gay.135

For example, in March 2014, police officers in Chihuahua, Mexico arrested five transgender women for not carrying a health card, even though this is not a crime.136 At the police station, male police officers forced the transgender women to undress in front of them.137 The police then illegally forced the women to take HIV tests.138 The police held the transgender women in jail for 36 hours and demanded 200 pesos from each woman for release.139

For decades the Mexican police forces have been implicated in cases of arbitrary detention, torture, and other human rights violations that are often unpunished.140 Police officers often extort transgender women for sex or money in return for not arresting them or for releasing them from jail.141 Many transgender women have to pay almost daily bribes to avoid being arrested.142 A 2010 study by the National Council for the Prevention of Discrimination (Consejo Nacional Para Prevenir la Discriminación) reported that 42.8% of LGBT interviewees indicated that the police are “intolerant” of sexual minorities.143 In a 2008 study by Mexico City’s Human Rights Commission, 11% of LGBT persons reported experiencing threats, extortion, or arrest by police because of their sexual orientation.144

A transgender woman in Tijuana, Mexico, reported the police abuse she suffered after being arrested to the Binational Center for Human Rights in Tijuana: “I was working as a sex worker, talking with a client, [when] the municipal police arrived and asked me for my identification documents. Everything was in check, [but] they [the police] accused me of being outside of the area [sex work tolerance zone] and arrested me, handcuffed me, and took me to a municipal judge. The police talked with the judge in codes and took me to the 20 [municipal jail]. They [the police] put me in a cell with 20 men all of whom were mocking me. I paid 600 pesos to the guards to not undress me.”

MILITARY VIOLENCE

The military in Mexico continues to commit human rights violations against the civilian population across the country, including against transgender women. Former president Felipe Calderon (2006-2012) waged a “War on Drugs” and ordered the

Transgender Law Center and Cornell University Law School LGBT Clinic | 18 military to combat drug cartels and organized crime. However, instead of ensuring peace for civilians, the military has itself inflicted harm in areas of increased militarization. Soldiers assigned to policing and public security tasks often lack sufficient training to properly take on law enforcement roles.145 Often, soldiers operate under militarized rules of engagement and use of force that increases the likelihood of mistreatment of civilians.146

Transgender women were already visible targets for police and military abuse, but once increased militarization began under Calderon, transgender women suffered increased aggression. Military troops engage in the same abuses as the police by making transgender women the object of arbitrary arrests, beatings, extortions, and robberies.147 In May 2007, for example, members of the Military Police beat approximately 40 transgender women in Ciudad Juarez, leaving them hospitalized and in serious condition.148

In the article “Abuses Against Mercedes Fernandez, president of the Chihuahua Transsexuals in Ciudad Juarez Lesbian Gay Movement, described conditions for Continue to Rise,” Deborah transgender women who face military persecution: Alvarez, a transgender activist “They [transgender women] can’t even go and buy declared: their groceries because they are immediately “They [the military] pick up girls transferred to the authorities where they are [transgender women] for no accused of engaging in prostitution. They take reason, they come into their them away even if they are holding their grocery apartments, slap them, insult 150 bags. They don’t have liberty of movement.” them and push them.”149

Human rights violations by the military continue under the current president Enrique Peña Nieto, who took office in 2012.151 Like the police, the military is rarely punished for the abuses reported by transgender women. Further, the military command structure prevents accountability for abuses.152 The government instead punishes the victims of military violence by accusing them of criminal acts and blaming the victims for the harms they suffered at the hands of the military.153

DRUG CARTEL AND GANG VIOLENCE

In 2012, drug cartels and gangs were responsible for Ana Frutos, a transgender the vast majority of killings and abductions in Mexico.155 woman from Guadalajara, In July 2013 the government reported that, of 869 testified before a U.S. victims of homicides related to organized crime in the Asylum Officer: “Even though I knew I would be an previous month, 830 were themselves allegedly 156 easy target for police and responsible for crimes. gang abuse, I made my transition to womanhood Police often work with the cartels and gangs, with 98% because my identity as a of all crimes going unpunished. Vulnerable woman is what defines me. communities, including transgender women, are often For me, hiding my true victims of drug cartel and gang violence. Transgender gender identity is women fall victim to cartel kidnappings, extortions, and impossible.”154 human trafficking. One transgender woman described how cartel members forced her into sex work in Merida. Another transgender woman

Report on Human Rights Conditions of Transgender Women in Mexico | 19 was targeted for rape and robbery while traveling by bus.157 In another case, a transgender woman named Joahana in Cancun was tortured to death by drug traffickers who carved a letter “Z” for the Zeta cartel into her body.158 If a cartel targets a transgender woman, it is nearly impossible to escape the cartel’s power. An immigration attorney in the U.S. described in an interview how his transgender female client unknowingly dated a cartel member. After doing so, she could not escape persecution from the cartel.159

LINKS BETWEEN MEXICAN GOVERNMENT, POLICE AND ORGANIZED CRIME

The Mexican government and cartels have been linked numerous times to incidents involving human rights violations, and cartels have been revealed to be successfully infiltrating police and military forces. In 2009, three officers from the Attorney General’s Organized Crime Investigations Unit (SIEDO) along with ten soldiers were arrested for their ties to organized crime, with the acknowledgment that there were still many officers with probable ties to cartels.160 Other officials with ties to organized crime include Héctor Santos Saucedo, then-head of Coahuila’s state investigations, who was connected to the notorious Zetas in 2010.161 Occasionally the extent of the connection is not revealed until years later, such as with the San Fernando massacres carried out in Tamaulipas in 2010-11. In 2014 a freedom of information request revealed there were “direct links between the San Fernando police, the Zetas and the San Fernando killings.”162

The disappearance of 43 students from Ayotzinapa in 2014 and their parents’ subsequent refusal to accept the half-answers from the government have put a spotlight on the connection between police and organized crime. The first reports indicated that the students were seized by local police acting on orders from the corrupt mayor of Iguala and then turned over to a local drug gang; however further information has begun to indicate that federal police were likely involved in the incident.163 Transgender women, who already find themselves to be targeted by police and cartels separately, are even less likely to report any discrimination or violence they experience if they risk being targeted by the organizations that they are reporting against.

Transgender Law Center and Cornell University Law School LGBT Clinic | 20 SOCIETAL FACTORS THAT LEAD TO VIOLENCE AGAINST TRANSGENDER WOMEN

“To society, I am not a person. To society, I am trash—do you understand?” – Anonymous transgender woman in Mexico.164

Negative attitudes towards the LGBT community remain very common in Mexico.165 Homophobic and transphobic comments from public figures, such as former President Felipe Calderon, diminish the quality and dignity of transgender women’s lives by perpetuating widespread hatred and violence.166 There is also a nationwide backlash against advances in LGBT rights, resulting in increased levels of persecution against transgender women who tend to be the most visible and marginalized members of the LGBT community.167

FAMILY REJECTION

Many transgender women face abuse and rejection at the hands of their own families. The abuse ranges from physical, verbal, and sexual attacks to murder.168 A recent survey of transgender women in Mexico City found that 45% had experienced abuse from their families.169 As many as 70% transgender women and girls in Latin America are estimated to run away from or be thrown out of their homes.170 The consequences of such family rejection include psychological trauma and emotional suffering, which often lead to mental health problems, suicide attempts, failure to complete education, and unemployment.171

A transgender woman named Yokanza Martinez Balez of Puebla described the rejection she faced after her transition in an interview with a journalist.172 Ms. Martinez Balez began living as a woman at the age of 15. Her family forced her to leave home. She dropped out of high school, migrated north to Sonora, and became a sex worker.173

Another transgender woman, Gaby Morales Arellano, was forced by her parents to leave home shortly after she began transitioning to live as a woman.174 Her dreams of becoming a lawyer ended because she had to take whatever job she could to survive.175 She explained, “There is a lot of discrimination when you come out of the closet and you face all of these critics, first your family and your neighbors who say, ‘Why is he like that? He should be normal.’ My family thought they could beat me and correct me.”176

Another Mexican transgender woman who fled to the United States and sought asylum did so to escape severe physical and mental abuse from both her family and her community. She had sought help from the police in Mexico, but they ignored her pleas for protection. Without protection from her family or the police, gang members beat her severely and left her bleeding from head wounds. Fearing for her life, she fled to the United States, where she was able to receive asylum.177

Report on Human Rights Conditions of Transgender Women in Mexico | 21 GENDER-BASED VIOLENCE

Violence against women is very prevalent in Mexico, particularly in the forms of domestic violence and murders (femicide). According to a 2012 report by the Mexican Secretary of State, the number of female murder victims increased dramatically over the previous three years, particularly in the states of Chiapas, Chihuahua, Durango, Guerrero, Michoacan, Oaxaca, Sinaloa, Sonora, and the Federal District.178 While Mexico has enacted statutes criminalizing domestic violence and femicide, their rates remain high.179 In a 2012 study, researchers reported that 67% of Mexican women had been the target of a crime.180 Despite the government’s effort to eliminate violence against women by enacting these protective laws, women continue to be subjected to violence and femicide at staggering rates.

Violence against non-transgender women is relevant to assessing conditions for transgender women because both populations experience high rates of gender-based violence that the Mexican government has been unable to control or prevent. Indeed, the overwhelming number of non-transgender women being murdered in Mexico has drawn the attention of many academics and human rights activists. Some commentators have pointed to social attitudes regarding gender roles as a factor contributing to the high rates of violence against women generally, gay and bisexual men, and transgender women.181

RELIGION

According to the 2010 Mexican Census, approximately 83% of citizens identify themselves as Roman Catholic.182 Obviously, Catholic individuals hold diverse beliefs, but the Catholic Church hierarchy in Mexico has historically failed to support increased rights for women and has actively campaigned against rights for LGBT people.183 The Church has taken a particularly vocal stance against same-sex marriage.184 Even though same-sex marriage does not directly benefit transgender women, as noted elsewhere in this report, the backlash against the legal recognition of same-sex marriage has greatly increased rates of discrimination and persecution against transgender individuals.

Although non-Catholic Christian churches make up on a small number of the total churches in Mexico, there are still areas of the country in which they are becoming very influential.185 The first half of the century saw the majority of converts located in urban areas, but gradually this has shifted to rural, poorer, and indigenous communities.186 These populations are often Jehovah’s Witnesses or members of the Church of Jesus Christ of Latter-day Saints, whose views of LGBT individuals are comparable to that of the Catholic Church; as a result, transgender people often face similar levels of discrimination and persecution from members of those churches as well.187

Many religious leaders in Mexico have expressed opposition to LGBT rights. For example, Cardinal Javier Lozano Barragán denounced same-sex marriage, saying it would be like considering “cockroaches” part of a family.188 After the passage of

Transgender Law Center and Cornell University Law School LGBT Clinic | 22 Mexico City’s same-sex marriage law, the Archbishop of Mexico City, Cardinal Norberto Rivera Carrera, declared that same-sex marriage is one of Mexico’s leading problems along with violence, poverty, and unemployment.189 Such publicly stated views by prominent figures in the Mexican Catholic Church hierarchy likely contribute to the pervasive anti-LGBT views in Mexican society, given that many Mexican Catholics respect and follow the Church’s teachings.

ECONOMIC MARGINALIZATION

Mexico’s federal antidiscrimination laws do not prohibit discrimination on the basis of gender identity. The lack of protection leaves transgender women especially 193 vulnerable to employment discrimination. As a consequence, few legal employment It should be noted that transgender opportunities exist for transgender women. people cannot simply “hide” who they are Approximately one out of three gay people and thereby escape persecution by living in accordance with their birth-assigned in Mexico report that they must remain “in gender role. Gender dysphoria is a the closet” to avoid being fired from their 194 serious condition, recognized by every jobs. But for many transgender women— major medical association, the only who largely lack access to gender- treatment for which is to live in confirming health care due to high costs, and accordance with the gender with which are generally denied the ability to change they identify, rather than the gender the name and/or gender on ID documents to assigned at birth.190 Attempting to match their gender presentation195—it may suppress one’s gender identity can have 191 be difficult or impossible to hide their dire health consequences. Moreover, a transgender status, despite the economic person’s gender identity is a fundamental component of identity, which cannot be penalty that brings. A fortunate few can required to be changed or hidden as a work as hairstylists or perhaps open a salon condition of protection under asylum if they have enough money or family laws.192 support.196 But many transgender women face such socioeconomic marginalization that they must turn to sex work to survive.197 This results in yet more violence and persecution from both community members and police.198

Mexico City prohibits gender identity discrimination and provides a legal mechanism for name and gender changes, but even there, in practice, transgender women still endure rampant employment discrimination.199 The Coordinating Committee for the Development of Diagnosis and Human Rights Program of the Federal District200 found that despite formal legal protections, transgender women in Mexico City are still discriminated against and denied their labor rights.201

LACK OF GENDER-CONFORMING IDENTITY DOCUMENTS

As noted, only Mexico City permits transgender people to legally change their name and gender to correspond to their gender identity. Even where such mechanisms are technically available, however, legal name changes are not accessible in practice for many transgender women. This is in part due to “lengthy delays and high costs—at least six months and approximately 70,000 pesos [approximately

Report on Human Rights Conditions of Transgender Women in Mexico | 23 $7,000 USD] are required, and completion sometimes depend[s] on the ‘good will’ of some civil servants.”202 Without the ability to obtain a legal name change, transgender women cannot obtain a national voter identification card with a name that reflects their female gender identity.203 The voter identification card is Mexico’s preferred identification card.204 It is necessary for exercising the right to vote, to acquire property, and to obtain medical assistance in a public hospital.205 Being forced to present a voter identification card with an old “male” name on it makes transgender women even more vulnerable to discrimination, abuse, and violence.206

LACK OF ADEQUATE HEALTH CARE

Transgender women lack adequate health care in Mexico.207 Many transgender women resist seeking medical help because they must disclose their transgender status and subsequently face hostility and threats of violence from medical providers.208 Medical care providers often do not want to provide medical attention to transgender patients. Providers have mocked and humiliated transgender patients using offensive language, threats, aggression, and hostility.209 Consequently, transgender women do not routinely access preventive or emergency care.210

In particular, medical care to support gender transition—such as hormones or surgeries—is almost entirely unavailable to most transgender women in Mexico. While medical authorities uniformly recognize the medical necessity of transition- related treatment, such care is not covered under Mexico’s national health plan and licensed providers (for those who can afford to pay out of pocket) are scarce.211 Even where it is available, such care can be prohibitively expensive for transgender women already suffering the effects of economic marginalization discussed earlier.212 Without access to gender-affirming medical care, many transgender women permanently damage their skin and muscles by injecting dangerous black-market feminizing liquid silicone or other fillers.213

PREVALENCE OF AND LACK OF TREATMENT FOR HIV/AIDS

Transgender women are also largely denied access to adequate healthcare for other life-threatening conditions, such as HIV/AIDS.214 In Latin America, transgender women face the highest prevalence of HIV of any group, with a 35% infection rate.215 Mexico City has the highest number of documented HIV cases in all of Mexico.216 Despite these high infection rates, medical treatment for HIV and AIDS is largely unavailable in less urban areas due to prohibitive costs.217 Even in urban areas that have free antiretroviral drugs available they are usually reserved for the sickest people.218 Many in Mexican society hold misconceptions about the LGBT community and HIV that further contribute to the widespread stigma associated with both HIV and LGBT people.219 A national survey found that 59% of Mexicans believe that HIV/AIDS is caused by homosexuality.220 These misconceptions and stigma exist even among medical providers.221 In fact, most hospitals view homosexuality as a risk factor for HIV and often discriminate against those who do seek treatment.222 The Commission on Human Rights in Mexico City (CDHDF) also reported that HIV/AIDS clinics often actively mistreat and discriminate against transgender people living with HIV/AIDS.223

Transgender Law Center and Cornell University Law School LGBT Clinic | 24 EVALUATING ASYLUM CLAIMS MADE BY MEXICAN TRANSGENDER WOMEN

“I would rather die than live that life. It’s like living in hell. Here I feel like I’m in my refuge, at home. ... Here I feel like a person.” – Anonymous Mexican transgender woman in the United States224

When a transgender woman seeks asylum in the United States because she fears persecution in Mexico, an asylum officer or immigration judge must decide whether she qualifies for asylum or any other humanitarian relief. These determinations are extremely difficult to make, since asylum claims by their nature involve events in a foreign country. Frequently there are no available witnesses to the incidents other than the survivor herself. Immigration judges therefore have no choice but to render life or death decisions on the basis of limited information. It is therefore critical that adjudicators consider information that accurately reflects the reality of life in Mexico for transgender women.

Unfortunately, a number of misperceptions exist about the conditions for LGBT people, particularly transgender women, in Mexico. Since inaccurate information about country conditions has the potential to compromise the adjudication of asylum claims, it is essential to examine common tropes carefully to determine whether they are accurate. Additionally, it is vital for adjudicators to remember that transgender women in Mexico make up a particular social group that is distinct from gay men (though transgender women are frequently mistaken for feminine gay men). While conditions related to LGBT Mexicans generally may be relevant, adjudicators must address evidence that specifically relates to persecution of the particular social group at issue, transgender women in Mexico. The importance of not conflating the social group of transgender women with other potentially less persecuted members of the LGBT community is equally true in the contexts of transgender asylum seekers from countries other than Mexico.

THE EFFECT OF SAME-SEX MARRIAGE AND ANTI-DISCRIMINATION LAWS ON VIOLENCE

As noted above, Mexico began recognizing same-sex marriages throughout the country in 2011. Recently enacted laws also prohibit discrimination on the basis of “sexual preference,” and Mexico City law also prohibits gender identity discrimination. Based on these changes in the law, some immigration judges have mistakenly concluded that LGBT people no longer face homophobic and transphobic violence in Mexico. Instead, the advances in LGBT rights has caused a nationwide backlash from those who oppose the changes, resulting in increased levels of persecution against transgender women who tend to be the most visible and marginalized members of the LGBT community.225

Although Mexico’s prohibition of anti-gay discrimination and enactment of some formal protections for same-sex couples may appear to show that authorities are

Report on Human Rights Conditions of Transgender Women in Mexico | 25 willing to attempt to prevent anti-gay abuse, this does not necessarily translate into them actually being capable of protecting LGBT people generally or transgender women specifically from the horrific violence they face.

Homophobic and anti-transgender violence continues to be rampant in Mexico, including Mexico City. Indeed, Mexico City has the highest rate of transphobic murders in the country. Just as the adoption of laws prohibiting violence against women generally has failed to end the rampant abuse of non-transgender women in Mexico, prohibitions on anti-gay discrimination have not diminished attacks on LGBT Mexicans. In fact, the evidence suggests that same-sex marriage and other formal legal protections have actually made homophobic and transphobic violence worse by inciting a backlash from people opposed to LGBT rights.

RELOCATION PRESUMPTION

Some immigration judges, citing the changed laws in Mexico City, hold that asylum- seekers can return to Mexico and relocate to Mexico City without fear of persecution.226 As discussed above, however, formal changes in laws permitting same-sex couples to marry and adopt children have not improved conditions for transgender women in Mexico City. In fact, rates of violence and murder have actually increased in Mexico City as well as throughout the nation since the changes in same- sex marriage and adoption laws.

Police harassment against the LGBT community remains high in Mexico City as well. Despite the reputation of the Zona Rosa district of Mexico City as an LGBT neighborhood,227 extortion and harassment particularly of transgender women continues there.228 As described above, Mexico City also has the highest rate of transphobic murders in the country. Moving to Mexico City will therefore not protect transgender women from persecution: they will remain vulnerable no matter where they reside in Mexico.

GAY PRIDE MARCHES AND “GAY TOURISM”

Gay pride demonstrations began in Mexico City in 1979. Now, Mexico City hosts a gay pride march each year in the Zona Rosa. Despite this, the violence against the gay community has not ceased or even decreased. According to the Citizens’ Commission against Hate Crimes, there are on average three homophobic murders each month in Mexico.229

Moreover, there are significant differences between gay pride parades in the United States and gay pride marches in Mexico City, and the two should not be conflated. According to Professor Victor Clark-Alfaro, the purpose of gay pride marches in Mexico is to bring awareness to and to protest violence and abuse faced by LGBT communities in Mexico. He notes that in assessing country conditions some immigration judges have alluded to gay pride marches being like “parties.” Mr. Alfaro clarified, “They were trying to say it was a fun parade, but in reality it was a protest.”230

Transgender Law Center and Cornell University Law School LGBT Clinic | 26 Another common misperception relates to the significance of “gay tourism” and its implication for the domestic LGBT community in Mexico, particularly transgender people. In asylum cases, government attorneys sometimes submit as evidence of country conditions news articles and blogs about how “gay-friendly” parts of Mexico are for foreign tourists.231 Some immigration judges have found these online articles and blogs to be persuasive and indicative of improved country conditions for LGBT people in Mexico and cited them when denying transgender women’s asylum claims.

Although tourism constitutes a large part of the Mexican economy, the existence of some tourist destinations that cater to wealthy gay men from other countries is not and could not plausibly be indicative of the safety of low-income Mexican transgender women against hate crimes and violence. Tourism guides do not constitute journalism or human rights reporting, but instead serve the purpose of promotional materials to attract wealthy non-transgender foreigners to spend money at particular clubs and hotels.232 Even foreign tourists have suffered horrific hate crimes; in one example, Ronald Bentley Main, a real-estate agent and former president of the Greater Seattle Business Association, and his partner, Martin Orozco Gutierrez, were found stabbed to death in Martin’s home in Chapala, Mexico, a city just outside of Guadalajara.233

It is important to remember that conditions for tourists are very different from the experience of ordinary Mexican citizens. And the conditions for gay tourists are completely separate from the experiences of transgender Mexican women living in Mexico.234 News articles about “gay tourism” are not evidence of the day-to-day experiences of gay or transgender Mexican citizens. Most Mexican transgender women do not have the financial security to go to expensive nightclubs, hotels, or resorts that cater to rich, white, gay foreigners.235 Using tourist gay travel guides as country conditions evidence turns opinion and off-the-cuff remarks into documented fact, allowing flimsy and generalized assertions to become the basis for legal conclusions.236 This type of “evidence” should not be given credence in asylum cases involving transgender women.

Report on Human Rights Conditions of Transgender Women in Mexico | 27 CONDITIONS FOR TRANSGENDER WOMEN IN U.S. IMMIGRATION DETENTION FACILITIES

Many transgender women who flee sexual violence in their home countries face further abuse when seeking asylum in the United States.237 LGBT immigrants in immigrant detention facilities are exposed to an increased risk of mistreatment, much like LGBT inmates in prison, who studies show are 13 to 15 times more likely than other inmates to be sexually assaulted.238 After receiving information on gay and transgender individuals who have faced solitary confinement, torture, and mistreatment, the U.N. Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment declared that the treatment of LGBT immigrants in U.S. detention facilities was a violation of the Convention Against Torture.239

Since many transgender women seek asylum after experiencing extreme violence in their countries of origin, they are especially vulnerable to the mental health strain of being held in detention.240 Studies show that detention is a threat to the psychological health of immigrants and can worsen the intense psychological distress often carried by asylum-seekers fleeing persecution.241 Asylum cases also generally take longer to resolve than other removal cases, leading asylum-seekers to spend more time in immigration facilities than other immigrants.242 While the average length of stay for an immigrant in detention is 30 days, the average length for asylum-seekers is 102.4 days.243 Some transgender women have been detained for years while fighting their asylum cases.244

Heartland Alliance’s National Immigrant Justice Center filed a report in 2011 documenting the nationwide mistreatment of immigrant transgender women held in detention.245 The report indicated a systematic problem of ill-treatment, and included complaints by transgender women of sexual assault, denial of medical care, extended periods of solitary confinement, discrimination and abuse, and an ineffectual grievance and appeals process.246 Transgender women in detention also face mistreatment because they are typically confined with men, where they are regularly subject to abuse by detained men and guards and denied access to healthcare, and where their identities are fundamentally dishonored.247 Despite ICE’s issuance of a “Transgender Care Memorandum” in 2015,248 the memorandum entirely lacks enforceability: signing onto the contact modification is optional for facilities. As of March 2016 no facilities have signed a modification to their contacts to permit transgender women to be housed with cisgender women.

A 2010 report by Human Rights Watch regarding sexual assault in immigrant detention facilities found that instances of people detained by ICE being sexually assaulted, abused, and harassed “cannot be dismissed as a series of isolated incidents” and concluded that “there are systemic failures at issue.”249 The American Civil Liberties Union filed a lawsuit against U.S. Immigration and Customs Enforcement (ICE) in 2011 upon discovering that nearly 200 cases of sexual assault had taken place in ICE detention facilities since 2007.250

Transgender Law Center and Cornell University Law School LGBT Clinic | 28 Many facilities send transgender immigrants to solitary confinement in order to isolate them from the general population, an effort that may be intended in some cases to protect them from the near-pervasive violence and sexual assault they face.251 However, solitary confinement frequently results in a number of negative psychological effects, including “hyper-sensitivity to external stimuli, hallucinations, panic attacks, obsessive thoughts, and paranoia[,]”252 as well as “impulsive, self- directed violence.”253 Even after release from solitary confinement, those effects linger, and they can permanently damage an individual’s ability to function.254

The U.N. Special Rapporteur on torture has stated that the psychological effects of solitary confinement may become irreversible after 15 days.255 There have been many reports of transgender women being held in isolation in detention facilities for much longer, however. For example, advocates from the organization Americans for Immigrant Justice reported that transgender immigrants detained at the Krome Service Processing Center in Miami, Florida were being held in solitary confinement for periods of up to six months at a time.256 Other transgender women have reported being subjected to solitary confinement even longer.257

María, a Mexican transgender woman who fled persecution in Mexico City, reported that the five months in 2010 that she spent in immigration detention, where she was kept in solitary confinement, were “true hell.”258 Detained transgender women are frequently held in isolation for up to 23 hours a day, “often without access to library resources, telephones, outdoor recreation, religious services, or legal services that are otherwise available to other people.”259 A counselor at a New Jersey detention center reported that “the treatment of people in solitary confinement is inhumane. There are many violations of human rights. One of them is that inmates in solitary confinement are forced to take tranquilizers in order to keep them calm.”260 Many transgender women have given up on their very strong asylum cases because their detention conditions were too unbearable to withstand, especially on top of the trauma that they already suffered from their experiences in Mexico. The New Jersey counselor also reported that during the first trimester of 2013, at least 10 transgender women in the facility were pressured into signing voluntary deportation documents.261

Transgender women in detention facilities also often face a lack of access to adequate medical treatment.262 HIV-positive transgender women are particularly vulnerable.263 Victoria Arellano, an HIV-positive transgender woman, died in 2007 while being held in a large men’s detention cell in an ICE facility after authorities refused to provide her with medical attention and her medication.264 As recently as November 2014, there were still reports of transgender women living with HIV being denied access to HIV medication.

Transgender immigrants in detention are also commonly denied all gender- confirming medical treatment, including hormone therapy, which many United States Courts of Appeal have found must be provided to prisoners diagnosed with gender dysphoria under the Eighth Amendment’s guarantee of basic medical care for incarcerated individuals.265 Although ICE’s Performance-Based National Detention Standards provide for access to hormone therapy for transgender women who had

Report on Human Rights Conditions of Transgender Women in Mexico | 29 already been receiving hormone therapy before being detained, these guidelines are seldom followed.266 One Mexican transgender woman held in immigration detention at the Santa Ana City Jail reported being refused hormone therapy, which she had been on for the past 10 years.267 Distraught, and not receiving treatment for trauma- related depression, she attempted suicide.268 Following her suicide attempt, authorities put her in solitary confinement.269

While in detention, transgender women also face instances of mistreatment and humiliation from facility staff and ICE personnel.270 One transgender woman held in Theo Lacy Facility in California reported that she was called a “faggot” by guards on a number of occasions, and was also mocked because she was dying of AIDS.271 Moreover, guards singled her out for public searches where they forced her to undress and then ridiculed her bare breasts.272 When staff members are themselves the source of abuse against transgender women, “protective” measures such as solitary confinement are particularly ineffective.273

Surveys conducted by the Department of Justice have found that LGBTQ people face much higher rates of sexual assault than other incarcerated people.274 Another study found that transgender women in male prisons are 13 times more likely to be sexually assaulted than the general population, with 59% reporting experiencing sexual assault.275 Although transgender women only account for 1 out of 500 detained immigrants, one out of every five confirmed cases of sexual assault in ICE facilities involved transgender survivors.276 Incidents include a case of a guard who sexually assaulted a transgender woman while she was in “protective custody.”277 Another reported incident involved an ICE officer who forced a transgender woman to remove her shirt while he ejaculated into a cup and demanded that she drink his semen.278 The officer admitted to the abuse, but served only two days in a county jail, while the victim remained locked with men in ICE detention for another five months.279

Johanna, a transgender woman from El Salvador, left for the United States after she was gang-raped.280 After living in the U.S. for 12 years, Johanna was apprehended by ICE and placed in an all-male detention facility.281 While in the facility, Johanna was sexually assaulted by another detained immigrant.282 Unable to bear the conditions of her detention, Johanna agreed to be deported.283 She would flee again to the United States two more times.284 Each time she faced sexual abuse in all-male ICE detention facilities and months of solitary confinement. Johanna ultimately won withholding of removal due to the severe violence and persecution she experienced in El Salvador.285 If she had been released or if alternatives to detention had been used in the first instance, Johanna would have been spared repeated sexual assaults and months of solitary confinement she suffered in U.S. custody.

Although in recent years the Department of Homeland Security has stated an intention to improve the treatment of LGBT immigrants in its custody, transgender women continue to be subjected to horrific treatment by ICE.286 For example, in 2014, Marichuy Leal Gamino, a 23-year-old transgender woman originally from Mexico, was detained with men at the Eloy Detention Center. Gamino faced repeated instances of mistreatment, culminating in a sexual assault by her cellmate.287 After reporting the abuse to the staff of the facility, she said that they tried to get her to

Transgender Law Center and Cornell University Law School LGBT Clinic | 30 sign a statement saying that she consented to the sexual assault.288 This series of events occurred nine years after the passage of the Prison Rape Elimination Act and nearly a year after DHS announced its regulations to implement the Act, which include explicit protections for transgender immigrants.289

Many detained transgender women continue at the time of this writing to experience transphobic abuse from guards, denial of HIV medicine and hormones, being forced to shower with men, sexual violence from guards and other detained immigrants, and solitary confinement.290 Detention conditions for transgender women are both a human rights and access to justice concern. When transgender women give up on their asylum claims under existing immigration law solely because detention conditions are unbearable, this is a grave obstacle to fair adjudication.

Report on Human Rights Conditions of Transgender Women in Mexico | 31 RECOMMENDATIONS

As a signatory to the 1967 Protocol Relating to the Status of Refugees, the United States has international obligations to ensure that those who flee persecution can seek asylum.291 Under Article 3 of the Convention Against Torture, the United States may not remove any person to countries where they would face cruel, inhuman, or degrading treatment rising to the level of torture.292 Many Mexican transgender women flee Mexico because of persecution. As explained above, transgender women commonly suffer sexual and physical abuse at the hands of state and private actors that should be considered equivalent to torture. The Mexican government is unwilling and unable to protect transgender women from this persecution.

Based on the evidence surveyed above, several key changes are essential to improve the accuracy and fairness of adjudication of Mexican transgender women’s claims for asylum in the United States:

. Executive Office for Immigration Review (EOIR) materials given to immigration judges regarding country conditions in Mexico should explicitly discuss the distinct experiences of both gay and transgender people.

. EOIR should provide specific training for immigration judges on transgender issues. Immigration judges should be informed about the nature of sexual orientation and gender identity so that they can properly adjudicate transgender respondents’ claims. For example, immigration judges should understand that being transgender relates to one’s gender identity and is not a sexual orientation, although many transgender women experience persecution both for being transgender women and because some in society may perceive them to be gay men. The U.S. Citizenship and Immigrations Services Refugee, Asylum and International Operations (USCIS RAIO) Directorate – Officer Training provides asylum officers with a comprehensive training course on LGBT Refugee and Asylum claims. EOIR should produce a similar training for immigration judges. . . The United States must end the practice of imprisoning Mexican transgender women in immigration detention during the pendency of their removal cases. Transgender women in detention are often subjected to sexual and physical assault from both guards and other detained immigrants. Many transgender prisoners are placed in solitary confinement. Physical assault, sexual violence, and solitary confinement all subject detained immigrants to physical and psychological harm and undermine their ability to pursue asylum or other humanitarian relief. . . Attorneys representing Mexican transgender women should provide immigration judges or asylum officers with country conditions materials as specifically related to transgender women as possible. Given the evolving, complex situation in Mexico and the fact that legal advances for same-sex couples have paradoxically led to increased anti-gay and anti-transgender violence, expert witness testimony is vitally important. If at all possible,

Transgender Law Center and Cornell University Law School LGBT Clinic | 32 attorneys should retain an expert witness familiar with the conditions on the ground in Mexico to testify on behalf of transgender asylum seekers.

In addition, experiences described by immigration lawyers representing transgender women suggest the following reforms will be critical as well:

. The EOIR should provide immigration judges with specific training on providing vulnerable populations, especially victims of sexual abuse, with a respectful, clear, and concise adjudication. Immigration judges should be more sensitive to the trauma that many survivors have to relive during their asylum hearings. Immigration judges should be trained to facilitate a non-hostile environment. Asylum seekers must never be shackled during their testimony. . . Immigration judges should receive guidance from EOIR on how to respectfully interact with transgender women and men, including by using their chosen names and the pronouns that reflect the person’s gender identity.

Report on Human Rights Conditions of Transgender Women in Mexico | 33 CONCLUSION

Transgender women face pervasive violence and serious human rights violations throughout Mexico. The Mexican government has not been able to prevent violent attacks on transgender women or provide effective redress for survivors. The recognition of same-sex marriage, while laudable, has not ended violence against transgender women. To the contrary, the Mexican LGBT community has experienced even more violence as increased formal equality has produced a terrifying backlash. Transgender women continue to face beatings, rape, police harassment, torture, and murder in Mexico. Despite limited formal legal advances, state and non-state actors are rarely held responsible for crimes against transgender women.

It is therefore critical that asylum officers and immigration judges do not misunderstand the effect that same-sex marriage laws have had on the daily experiences of transgender women in Mexico. Indeed, ironically, these legal changes have led to an increase in the persecution of transgender women because of backlash and increased visibility. As such, many transgender women will continue to bring credible claims for asylum in the United States because of the violent persecution and torture they risk on a daily basis in Mexico.

Transgender Law Center and Cornell University Law School LGBT Clinic | 34

1 A transgender individual is a person whose gender identity or gender expression does not match the gender the person was assigned at birth. The term transgender woman refers to someone who was designated male at birth, but identifies as a woman. A transgender man is someone who was designated female at birth but identifies as a man. Being transgender is independent of sexual orientation. GLAAD Media Reference Guide – Transgender Issues, GLAAD, http://www.glaad.org/reference/transgender (last visited Dec. 26, 2015). 2 Lyndsey Marcellino, Johanna Fernandez, Benjamin Figoten, Cesie Alvarez, Halimah Famuyide, and Susan Hazeldean authored this report on behalf of the Cornell LGBT Clinic. 3 The clinic authors would like to thank Amy Abeloff, Kristen Brennan, Marta Guzman, Oscar Lopez, Vanessa Morales, and Delia Ramirez for their assistance with translating documents from Spanish into English. 4 Exec. Office for Immigration Review, FY 2012 STATISTICAL YEAR BOOK (2012), http://www.justice.gov/eoir/statspub/fy12syb.pdf. 5 Id. 6 Id. Another 138 cases were “abandoned,” 1,906 were “withdrawn.” and 2,335 were considered “other.” 7 USCIS and EOIR keep records of how many people apply for asylum based on membership in a particular social group, but not for which specific particular social group, so there is no way to know how many sought asylum based on particular social group. For example, they do not distinguish between “homosexual” or “gay” or “transgender.” 8 8 U.S.C. § 101(a)(42)(A). 9 Toboso-Alfonso, 20 I. & N. Dec. 819 (B.I.A. 1990). 10 Id. 11 Att’y Gen. Ord. No. 1895-94 (June 19, 1994). 12 See, e.g., Amanfi v. Ashcroft, 328 F.3d 719, 721 (3d Cir. 2003) (stating that “homosexuals” constitute a social group); see Lwin v. INS, 144 F.3d 505, 511 (7th Cir. 1998) (noting that “gay men and lesbians in Cuba” constitute a particular social group); see Karouni v. Gonzalez, 399 F.3d 1163, 1172 (9th Cir. 2005) (holding that “all alien homosexuals are members of a ‘particular social group.’”). 13 Hernandez-Montiel v. I.N.S., 225 F.3d 1084, 1089 (9th Cir. 2000). See Susan Hazeldean, Confounding Identities: The Paradox of LGBT Youth Under Asylum Law, 45 U.C. DAVIS L.R. 373, 380 (2012) (noting that Hernandez-Montiel likely identified as transgender). 14 Hernandez-Montiel, 225 F.3d at 511. 15 See id. at 1087, 1088, 1095 n.7. 16 See id. at 1093. 17 Michael Santos, In the Shadows: The Difficulties of Implementing Current Immigration Policies in Adjudicating Gender-Diverse Asylum Cases in Immigration Courts, HARV. KENNEDY SCHOOL OF GOVERNMENT LGBTQ POLICY JOURNAL (2012), http://www.hkslgbtq.com/in-the-shadows-the-difficulties-of- implementing-current-immigration-policies-in-adjudicating-gender-diverse-asylum-cases-in- immigration-courts/ [hereinafter Shadow Report]. 18 Andrew A. Reding, Mexico: Update on Treatment of Homosexuals, U.S. Citizenship and Migration Services (2000), http://www.worldpolicy.org/sites/default/files/uploaded/image/1999-Mexico- QAMEX00-001-LGBT.pdf. 19 Gender identity describes “each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body . . . And other expressions of gender, including dress, speech and mannerisms.” The Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity INT’L COMM’N OF JURISTS 6 (2007), http://www.yogyakartaprinciples.org/principles_en.pdf. Sexual orientation, on the other hand, describes “each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.” Id. 20 Id. 21 Id.

Report on Human Rights Conditions of Transgender Women in Mexico | 35

22 Answers to Your Questions: About Transgender People, Gender Identity, and Gender Expression, AMERICAN PSYCHOLOGICAL ASSOCIATION (2011), http://www.apa.org/topics/lgbt/transgender.pdf; Ellen A. Jenkins, Taking the Square Peg Out of the Round Hole: Addressing the Misclassification of Transgendered Asylum Seekers, 40 GOLDEN GATE U. L. REV. 67, 70 (2009), http://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?Article=2008&context=ggulrev; Shadow Report, supra n.17 (“The transgender community is diverse; many transgender individuals do not self- identify as gay. . . . The transgender community encompasses a broad range of sexual orientations, and some transgender individuals self-identify as heterosexual.”). 23 See, e.g., Reyes-Reyes v. Ashcroft, 384 F.3d 782,787 (9th Cir. 2004). 24 Avendano-Hernandez v. Lynch, 2015 WL 515521 (9th Cir. 2015). 25 See id. at 7. 26 Id. 27 See id. at 8. 28 See id. at 7-8. 29 INS v. Cardozo-Fonseca, 480 U.S. 421, 430 (1987). 30 8 C.F.R. § 208(b)(1). 31 See Faruk v. Ashcroft, 378 F.3d 940, 943 (9th Cir. 2004) (finding abuse at the hands of their family members could constitute persecution when the government was unable or unwilling to control the persecutors); Nabulwala v. Gonzales, 481 F.3d 1115, 1118 (8th Cir. 2007) (holding an immigration judge erred in concluding that to qualify for asylum the applicant had to demonstrate government persecution). 32 See Reyes-Reyes v. Ashcroft, 480 U.S. 421, 430 (1987). 33 8 U.S.C.A. § 1158(a)(2)(B); 8 C.F.R. §§ 208.4(a)(2), 1208.4(a)(2). 34 See Victoria Neilson and Aaron Morris, The Gay Bar: The Effect Of the One-Year Filing Deadline on Lesbian, Gay, Bisexual, Transgender, and HIV-Positive Foreign Nationals Seeking Asylum or Withholding of Removal, 8 N.Y. CITY L. REV. 233 (2005). 35 8 C.F.R. §§ 204.4(a)(2)(ii), 1208.4(a)(ii). 36 Id. 37 See U.S. Citizenship and Immigration Servs., Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) Refugee and Asylum Claims 48 (2011), http://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/ Asylum%20Native%20Documents%20and%20Static%20Files/RAIO-Training-March-2012.pdf. 38 8 C.F.R. §§ 204.4(a)(4) to (5), 1208.4(a)(4) to (5). 39 See U.S. Citizenship and Immigration Services, Obtaining Asylum in the U.S., http://www.uscis.gov/humanitarian/refugees-asylum/asylum/obtaining-asylum-united-states. 40 Id. 41 See 8 U.S.C. § 1231(b)(3). 42 See Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001). 43 See Zheng v. Holder, 644 F.3d 829, 835 (9th Cir. 2011). 44 See supra note 41. 45 Id.; INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). 46 8 C.F.R. § 208.17. 47 Central Intelligence Agency, The World Factbook – Mexico, https://www.cia.gov/library/publications/the-world-factbook/geos/mx.html. 48 See, e.g., Anthony Bogaert, The Prevalence of Male Homosexuality: The Effect of Fraternal Birth Order and Variations in Family Size, JOURNAL OF THEORETICAL BIOLOGY, 230, 33–37 (2004). 49 Gary J. Gates, How Many People are Lesbian, Gay, Bisexual, and Transgender?, WILLIAMS INSTITUTE 5, 5 (April 2011). 50 See id. at 5–6 (suggesting that transgender people make up 0.3% of the U.S. population). 51 Ley Federal para Prevenir y Eliminar la Discriminación [LFPED] [Federal Law to Prevent and Eliminate Discrimination], Art. 9, DIARIO OFICIAL DE LE FEDERACIÓN [DO], (June 11, 2003) (Mex.) [hereinafter LFPED].

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52 Id. 53 Guía de Acción contra la Discriminación,“Institución Comprometida con la Inclusión” (ICI) [Guide Against Discrimination], (2012) http://www.conapred.org.mx/index.php?Contenido=noticias&id=727&id_opcion=108&op=214. 54 Ley General de Acceso de las Mujeres a una Vida Libre de Violencia [General Law of Access for Women to a Life Free of Violence], Art., DIARIO OFICIAL DE LA FEDERACION [DO] 21 (Feb. 1, 2007) (Mex.)[hereinafter Art]; Código Penal Federal [Federal Criminal Code], DIARIO OFICIAL DE LA FEDERACION [DO], Capítulo V, Feminicidio, Artículo 325 (Mex.). 55 See Art 27 - 32. 56 LFPED, supra n. 51. 57 Treatment of Sexual Minorities, Other State Protection, Recourse and Services Available; Treatment of Sexual Minorities in the Federal District; Information on the Zona Rosa, RESEARCH DIRECTORATE, IMMIGRATION AND REFUGEE BOARD OF CANADA, MEXICO (Sept. 16, 2011). 58 Id. 59 Thelma Gomez Durán, Tiene Sida y Es Gay!, EL UNIVERSAL (Feb. 21, 2011). 60 CDHDF y OSC rechazan toda manifestación, agresiones y crímenes contra la población LGBTTTI [CDHDF and OSC reject all manifestations, aggressions and crimes against the LGBTTTI population], La Comisión de Derechos Humanos del Distrito Federal (CDHDF) (2013) http://cdhdfbeta.cdhdf.org.mx/2013/05/cdhdf-y-osc-rechazan-toda-manifestacion-agresiones-y- crimenes-contra-la-poblacion-lgbttti/. 61 Transgender Europe, Transrespect Versus Transphobia Worldwide, TDOR 2012 (April 21, 2014), http://www.transrespect-transphobia.org/en_US/tvt-project/tmm-results/tdor2012.htm. 62 See Brianfo, Mexico Celebrates First Annual International Day Against Transphobia, JUSTICE IN MEXICO PROJECT (May 21, 2014), https://justiceinmexico.wordpress.com/2014/05/21/mexico-celebrates-first- annual-international-day-against-homophobia/. 63 LGBT Persecution in Mexico and Canada’s Refugee Program: Backgrounder, EGALE CAN. 2-3 (2013), http://egale.ca/wp-content/uploads/2013/08/Backgrounder-Mexico-and-Bill-C-31.pdf. 64 Erich Adolfo Moncada Cota, Mexico City Approves Same Sex Unions, OH MY NEWS (Nov. 19, 2006), http://english.ohmynews.com/articleview/article_view.asp?Menu=c10400&no=329768&rel_no=1. 65 Código Civil Federal [Federal Civil Code], Art. 146, DIARIO OFICIAL DE LE FEDERACIÓN [DO] (Jan. 7, 2014) (Mex.) (“Marriage is the union of two people free for the community of life, where both respect, equality and mutual assistance are sought. Must be held before a judge and civil registration formalities stipulated by the present code.”). 66 Id. 67 Ratifica Corte: Bodas Gay, Validas en el Pais [Court Affirms: Gay Weddings, Valid in the Country], EL UNIVERSAL NACION (Aug. 10, 2010), http://www.eluniversal.com.mx/notas/700789.html. 68 Mexico Effectively Legalises Same-Sex Marriage, THE INDEPENDENT (June 15, 2015), http://www.independent.co.uk/news/world/americas/mexico-legalises-samesex-marriage- 10319898.html. 69 The Night is Another Country: Impunity and Violence Against Transgender Women Human Rights Defenders in Latin America, REDLACTRANS 38 (2012), http://www.aidsalliance.org/assets/000/000/405/90623-Impunity-and-violence-against-transgender- women-human-rights-defenders-in-Latin-America_original.pdf?1405586435 [hereinafter REDLACTRANS]. 70 Código Civil Federal [Federal Civil Code], Art. 135, DIARIO OFICIAL DE LE FEDERACIÓN [DO] (June 11, 2003) (Mex.) (permits an individual to request a new birth certificate to reflect a change of sex). 71 Id. 72 Michael K. Lavers, Mexico City Lawmakers Approve Transgender Rights Bill, WASHINGTON BLADE (Nov. 14, 2014), http://www.washingtonblade.com/2014/11/14/mexico-city-lawmakers-approve-trans- rights-bill/. 73 LFPED, supra n.51. 74 Lavers, supra n.72. 75 Organization For Refuge, Asylum & Migration, The Unseen Struggles of Lesbian, Gay, Bisexual, Transgender and Intersex Urban Refugees in Mexico, Uganda and South Africa: Blind Alleys Part II

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Country Findings: Mexico, 5 (2013), http://www.refworld.org/docid/524d445e4.html [hereinafter ORAM Report]. See also Un Estudio Comparativo de la Situación de los Derechos Humanos de las Personas Transgénero [Comparative Study on the Situation of Human Rights of Transgender People],TRANSGENDER RESPECT VERSUS TRANSPHOBIA WORLDWIDE 90 (2012), http://www.transrespect- transphobia.org/en_US/tvt-project/publications.htm. 76 See Shadow Report, supra note 17. 77 Francisco Iglesias, According to Conapred, Rejection of Gays is “Still the Same” During the Last Five Years, MILENIO (April 4, 2011). 78 U.S. Dep’t of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices, Mexico, 31 (2014) [hereinafter State Dep’t Report]. 79 Id. 80 Diagnóstico de Derechos Humanos del Distrito Federal [Coordinating Committee for the Continual Implementation and Programing of Human Rights in Mexico City], COMITÉ COORDINADOR PARA LA ELABORACIÓN DEL DIAGNÓSTICO Y PROGRAMA DE DERECHOS HUMANOS (May 2008), http://www.pdh.df.gob.mx/index.php/diagnostico-en-derechos-humanos [hereinafter Comité Coordinador]. 81 Mexico Country Report for Use in Refugee Claims Based on Persecution Relating to Sexual Orientation and Gender Identity, UNIVERSITY OF TORONTO FACULTY OF LAW INTERNATIONAL HUMAN RIGHTS PROGRAM 13 (2009), http://ihrp.law.utoronto.ca/utfl_file/count/documents/SOGI/Mexico%20- %20SOGI%20Country%20Report%202011,%20Final%20Copy.pdf [hereinafter Toronto Report]; See also Shadow Report, supra note 17. 82 See Shadow Report, supra note 17. 83 Amnesty International, Mexico Laws Without Justice: Human Rights Violations and Impunity in the Public Security and Criminal Justice System, 21 (2007), http://www.amnesty.org/en/library/asset/AMR41/002/2007/en/7aa562fb-d3c5-11dd-8743- d305bea2b2c7/amr410022007en.pdf. 84 Mexico: Reports of Sexual Abuse Committed by Police Officers Against Homosexuals, and Against Other Vulnerable Individuals (2006-November 2007), RESEARCH DIRECTORATE, IMMIGRATION AND REFUGEE BOARD OF CANADA (Jan. 9, 2008), http://www.refworld.org/docid/47ce6d7fc.html. 85 Id. 86 TRANSGENDER MIGRATIONS: THE BODIES, BORDERS, AND POLITICS OF TRANSITION 32 (Trystan T. Cotton, ed., 2012). 87 Id. 88 Id. 89 Id. 90 Id. 91 See id. 92 Id. 93 Id. at 51. 94 Id. 95 See Shadow Report, supra note 17. 96 INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A)(2005). 97 Transgender Europe, Transgender Murder Monitoring: March 2013, TRANSGENDER RESPECT VERSUS TRANSPHOBIA WORLDWIDE (May 5, 2015), http://www.transrespect-transphobia.org/en_US/tvt- project/tmm-results/march-2013.htm. 98 El Combate a la homofobia: Entre Avances y Desafíos [National Council to Prevent Discrimination, Combating Homophobia: Between Progress and Challenges], CONSEJO NACIONAL PARA PREVENIR LA DISCRIMINACIÓN 6 (2013), http://www.conapred.org.mx/documentos_cedoc/documentohomofobia_ACCSS.pdf. 99 See id. at 7. 100 Id. 101 Press Release, Columbia Law School, Sexuality and Gender Law Clinic at Columbia Law School Secures Asylum for Transgender Mexican Woman, Grant of Asylum Highlights Dangers Transgender

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People Face for Expressing True Gender Identity (Jun. 25, 2009) [hereinafter Columbia Law School], https://www.law.columbia.edu/media_inquiries/news_events/2009/june2009/AsylTransMexi. 102 CENTRO DE APOYO A LAS IDENTIDADES TRANS [Support Center for Transgender Identities], Informe de Crímenes de Mujeres Trans en México: Invisibilidad=Impunidad [Report on Mexican Crimes Against Transgender Women: Invisibility=Impunity],] 18 (2013), http://www.amecopress.net/IMG/pdf/PRESENTACIONCRIMENESMUJERESTRANSENMEXICO.pdf. 103 Id. 104 Id. 105 Leonard Bastida Aguilar, Asesinan en Hidalgo a Funcionaria Capitalina Transexual [Transexual Public Official from Capital Killed], NOTIESE AGENCIA ESPECIALIZADA DE NOTICIAS EN SALUD, SEXUALIDAD, SIDA, (June 2013), http://www.notiese.org/notiese.php?Ctn_id=6664. 106 Denuncian Ataque Homofóbico en Durango Durante Certamen Gay [Homophobic Attack Reported in Durango During a Gay Beauty Pageant], EXCELSIOR ESPECIALES (July 10, 2013), http://www.excelsior.com.mx/nacional/2013/10/07/922258. 107 Transgender Europe, supra note 97. 108 Tipifican crímenes de odio por homofobia en el DF [Homophobic hate crimes are criminalized in Mexico City], NOTIESE AGENCIA ESPECIALIZADA DE NOTICIAS EN SALUD, SEXUALIDAD, SIDA, (Aug. 20, 2009) http://www.notiese.org/notiese.php?Ctn_id=3154. 109 Id. 110 Impunes, 80% de Crímenes por Homofobia: CDHDF [80% of Homophobic Crimes Go Unpunished], EL ECONOMISTA (May 17, 2009), http://eleconomista.com.mx/distrito-federal/2009/05/17/impunes- 80-crimenes-homofobia-cdhdf. 111 Minimizan Autoridades Crímenes de Odio: CDHDF [Authorities Minimize Hate Crimes: CDHDF], ANODIS, (Jul. 20, 2009). 112 Neither Rights Nor Security: Killings, Torture, and Disappearances in Mexico’s “War on Drugs, NEW YORK: HUMAN RIGHTS WATCH (Nov. 2011), https://www.hrw.org/report/2011/11/09/neither-rights-nor- security/killings-torture-and-disappearances-mexicos-war-drugs. 113 Community United Against Violence Lesbian Gay, Bisexual, Queer, and HIV-Affected Hate Violence in 2013, NATIONAL COALITION OF ANTI VIOLENCE PROGRAMS101 (2013), http://www.equalitymi.org/files/2013-ncavp-hv.pdf. 114 C. Infante et al., Sex Work in Mexico: Vulnerability of Male, Travesti, Transgender and Transsexual Sex Workers, 11(2) CULTURE, HEALTH & SEXUALITY 125, 131 (Feb. 2009). 115 Amicus Brief of Lambda Legal et al. at 26, Lopez-Berrera v. Holder, No.11-71250 (2011) (discussing the BIA’s reliance on Castro-Martinez v. Holder, 641 F.3d 1103, 1109 (9th Cir. 2011)) [hereinafter Lambda Legal Amicus Brief], http://www.lambdalegal.org/sites/default/files/lopez_us_20111129_amicus-lambda-legal-et-al.pdf. 116 Order, Lopez-Berrera v. Holder, No. 11-71250 (9th Cir. Apr. 9, 2012). 117 Affidavit of Dr. Thomas Davies, Paragraph 36 [document on file with authors]. 118 See Rebekah Curtis, Transgender People Murdered as World Resists Change, REUTERS, (Nov. 17, 2011), http://www.reuters.com/article/2011/11/17/us-transgender-idustre7af1ua20111117. 119 Laura Reyes Michel, Guerrero: matan a golpes a un defensor de los derechos de los homosexuals, CNN Mexico (May 6, 2011), http://mexico.cnn.com/nacional/2011/05/06/guerrero-matan-a-golpes-a- un-defensor-de-los-derechos-de-los-homosexuales. 120 Gay Rights Activist Murdered in Mexico City, FOX NEWS LATINO (Jul. 2011), http://latino.foxnews.com/latino/news/2011/07/25/gay-rights-activist-murdered-in-mexico-city/. 121 Leonardo Bastida Aguilar, Atacan con Armas de Fuego a Comunidad Transexual de Chihuahua [Chihuahua Transexual Community Are Attacked with Firearms], NOTIESE AGENCIA ESPECIALIZADA DE NOTICIAS EN SALUD, SEXUALIDAD, SIDA (July 6, 2011), http://www.notiese.org/notiese.php?Ctn_id=5057. 122 Repunta la Homofobia en Veracruz [Homophobia in Veracruz Increases], CRONICADIGITAL (Aug. 4, 2011). 123 Golpeado y Degollado Encuentran a Presunto Homosexual [Alleged homosexual found beaten and slain], LA PRENSA, (Aug. 18, 2012), http://www.oem.com.mx/laprensa/notas/n2662158.htm. 124 See Centro de Apoyo a las Identidades Trans, supra note 103.

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125 Simeon Tegel, Latin American has a Homophobic Killing Problem, THE TUSCON SENTINEL (Dec. 30, 2013), http://www.tucsonsentinel.com/nationworld/report/123013_lat_am_homophobia/latin- america-has-homophobic-killings-problem/ (quoting Graeme Reid, LGBT Director of Human Rights Watch). 126 Elizabeth Rodriguez Lezama, Exige la Comunidad LGBTT Esclarecer Crímen de Transexual Ocurrido en Puebla [LGBT Community Demands Investigation of Transsexual Crime that Occurred in Puebla], LA JORNADA DE ORIENTE (May 2, 2011), http://www.lajornadadeoriente.com.mx/2011/05/02/puebla/jus409.php. 127 Agnes Hernandez, Mexican Transgender Activist, Brutally Murdered, HUFFINGTON POST, (Mar. 15, 2012), http://www.huffingtonpost.com/2012/03/15/agnes-hernandez-hate-crime-mexican- transgender-activist-brutally-murdered_n_1345867.html. 128 Sujetos Arrojan a Transexual de Puente en Circuito Interior [Transsexual Suspects Thrown from a Bridge in the Circuito Interior], TERRA MEXICO (Sept. 23, 2013), http://noticias.terra.com.mx/mexico/df/sujetos-arrojan-a-transexual-de-puente-en-circuito- interior,6e82a48712d41410vgnvcm20000099cceb0arcrd.html. 129 Carsten Balzer and Jan Simon Hutta, List of names of 162 reported murdered trans persons from November 20th 2008 to November 12th 20099 (Nov. 2012), http://www.transrespect- transphobia.org/uploads/downloads/TMM/TGEU-TMM-namelist-TDOR09-en.pdf . 130 Por qué asesinaron a Fernanda? [Why did they murder Fernanda?], DESDE ABAJO, (Jun. 23, 2010). 131 Frida Garcia & Oralia Gomez, Mujeres Trans: Discriminación y Lucha por Derechos [Transgender Women: Discrimination and the Fight for Rights], REFERENCIAS 63 (Nov. 2011), http://www.corteidh.or.cr/tablas/r27476.pdf; see Shadow Report, supra note 17. 132 Id. 133 Victor Clark-Alfaro, Transgéneros: Derechos Negados, Derechos Violados [Transgender: Denied Rights, Rights Violated Binational Center Of Human Rights], CENTRO BINACIONAL DE DERECHOS HUMANOS [BINATIONAL CENTER FOR HUMAN RIGHTS] 3 (2011) [hereinafter CBDH Report]. 134 See REDLACTRANS, supra note 69 at 23. 135 See CBDH Report, supra note 134. 136 Leonardo Bastida Aguilar, Acción Urgente en Defensa de los Derechos de Trabajadoras Sexuales Transgender de Chihuahua [Urgent Action in Defense of Transgender Sex Workers’ Rights in Chihuahua], LETRA S (Mar. 13, 2014). 137 Id. 138 Id.; see also Trabajadoras Sexuales Transgénero Acusan Abuso Policial en Tijuana [Transgender Sex Workers Allege Police Abuse in Tijuana], LA NOTA ROJA DE MEXICO LA POLICIACA (Mar. 14, 2014), http://www.lapoliciaca.com/nota-roja/trabajadoras-sexuales-transgenero-acusan-abuso-policial-en- chihuahua/. 139 See Aguilar, supra note 137. 140 Maureen Meyer, Mexico’s Police: Many Reforms, Little Progress, WASHINGTON OFFICE OF LATIN AMERICA (2014), http://www.wola.org/sites/default/files/Mexicos%20Police.pdf. 141 See REDLACTRANS, supra note 69. 142 See Shadow Report, supra note 17. 143 Pronunciamiento de la Asamblea Consultiva del Conapred sobre Resolución por Disposición dirigida al IMSS e ISSSTE por discriminación a matrimonios entre personas del mismo sexo [CONAPRED Assembly Counsel on Resolution for Disposition directed to IMSS and ISSSTE for the discrimination of same sex marriages], CONAPRED, http://www.conapred.org.mx/index.php?Contenido=noticias&id=714&id_opcion=446&op=447 (last visited Dec 28, 2015). 144 See Shadow Report, supra note 17. 145 Out of Control: Torture and Other Ill-Treatment in Mexico, AMNESTY INTERNATIONAL, 19 (Sept. 2014), http://www.amnestyusa.org/sites/default/files/amr410202014en.pdf. 146 Id. 147 Crecen los abusos contra mujeres transexuales en Ciudad Juárez, Denuncian palizas, extorsiones y abusos de autoridad [Abuses against transsexuals in Ciudad Juarez continue to rise. Reports of

Transgender Law Center and Cornell University Law School LGBT Clinic | 40 beatings, extortion and abuses of authority], AMECOPRESS (Oct. 31, 2008), http://www.amecopress.net/spip.php?Article1733 [hereinafter Ciudad Juarez.] 148 Consejo Nacional para Prevenir la Discriminación, La Transgeneridad y la Transexualidad en Mexico: En Busqueda del Reconocimiento de la Identidad de Género y la Lucha contra la Discriminacion [National Council to Prevent Discrimination, The Transgender and Transsexuality in Mexico: In Search of Recognition of Gender Identity and Combating Discrimination], TRANSEXULEGAL (Dec. 2008. 149 See Ciudad Juarez, supra note 148. 150 Mario Alberto Reyes, En Chihuahua no cesan agresiones contra transexuales [In Chihuahua aggressions against transsexuals never stop], Notie Se, (Apr. 7, 2008), http://www.notiese.org/notiese.php?Ctn_id=1911. 151 Jose Miguel Vivanco, Mexico: President’s Disappointing First Year on Human Rights, Abuses Continue with Impunity under Peña Nieto, HUMAN RIGHTS WATCH (Nov. 26, 2013), http://www.hrw.org/news/2013/11/26/mexico-president-s-disappointing-first-year-human-rights. 152 Id. 153 See Neither Rights Nor Security: Killings, Torture, and Disappearances in Mexico’s “War on Drugs”, HUMAN RIGHTS WATCH (Nov. 9, 2011), https://www.hrw.org/report/2011/11/09/neither-rights-nor- security/killings-torture-and-disappearances-mexicos-war-drugs. 154 EU refugia a transgénero discriminado y perseguido en México [US grants refuge status to a transgender discriminated against and persecuted in Mexico], ZOCALO SALTILLO (Jun. 25, 2009), http://www.zocalo.com.mx/seccion/articulo/eu-refugia-a-transgenero-discriminado-y-perseguido-en- mexico; See also Columbia Law School, supra note 102. 155 Annual Report 2013, AMNESTY INT’L 177 (2013), http://files.amnesty.org/air13/amnestyinternational_annualreport2013_complete_en.pdf. 156 See Ciudad Juarez, supra note 148. 157 ORAM Report, supra note 75. 158 Carsten Balzer & Jan Simon Hutta, List of 265 reported murdered transgender persons from November 15th 2011 to November 14th 2012, TRANSRESPECT VERSUS TRANSPHOBIA WORLDWIDE, TRANSGENDER EUR., 6, 12, 27, 44, 51, 53, 55, 68 (2012), http://www.transrespect- transphobia.org/uploads/downloads/TMM/tvt-TMM-TDOR2012-Namelist-en.pdf. 159 Interview with Ally Bolour, Immigration Law Attorney, Law Offices of Ally Bolour (Mar. 11, 2014). 160 Jesse Franzblau, Why Is the US Still Spending Billions to Fund Mexico’s Corrupt Drug War?, THE NATION (Feb. 27, 2015), http://www.thenation.com/article/us-connection-mexicos-drug-war- corruption/. 161 Id. 162 Id. 163 Id. 164 Centro de Apoyo a las Identidades Trans, Informe de Crímenes de Mujeres Trans en México, Invisibilidad=Impunidad, AMECCOPRESS (2013), http://www.amecopress.net/IMG/pdf/PRESENTACIONCRIMENESMUJERESTRANSENMEXICO.pdf. 165 See Shadow Report, supra note 17. 166 See Andres Duque, Mexican President Felipe Calderón in Hot Water Over Comment Perceived as Homophobic, BLABBEANDO (Oct. 5, 2011), http://blabbeando.blogspot.com/2011/10/mexican- president-felipe-calderon-in.html#.vsasl-Hu-UE. 167 See Columbia Law School, supra note 102. 168 See REDLACTRANS, supra note 69 at 26. 169 Rocio Suarez, Diagnóstico Discriminación y Exclusión Laboral de la Población Travesti, Transgenéro y Transexual En La Ciudad De México [Survey on Discrimination and Labor Exclusion of the Transvestite, Transgender, and Transsexual Population in Mexico City], NOTIESE AGENCIA ESPECIALIZADA DE NOTICIAS EN SALUD, SEXUALIDAD, SIDA (Sept. 8, 2009), http://www.notiese.org/notiese.php?Ctn_id=3195. 170 Id.

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171 La Transgeneridad y la Transexualidad en Mexico: En Busqueda del Reconocimiento de la Identidad de Género y la Lucha contra la Discriminacion [Being Transgender and Transsexuality in Mexico: In Search of Recognition of Gender Identity and Combating Discrimination], CONSEJO NACIONAL PARA PREVENIR LA DISCRIMINACIÓN [National Council to Prevent Discrimination] (Dec. 2008). 172 See Amy Liberman, Transgenders in Mexico Dream of Escape, WENEWS (July 18, 2013), http://womensenews.org/story/lesbian-and-transgender/130717/transgenders-in-mexico-dream- escape#.u1kxx-zdviy. 173 Id. 174 Id. 175 Id. 176 Id. 177 Case: In re Y.G., NatIONAL CENTER FOR LESBIAN RIGHTS, http://www.nclrights.org/cases-and- policy/cases-and-advocacy/in-re-y-g/. 178 State Dep’t Report, supra note 78. 179 Estudio Nacional sobre las Fuentes, Orígenes y Factores que Producen y Reproducen la Violencia contra las Mujeres [National Study Concerning the Sources, Origins, and Factors that Produce and Reproduce the Violence against Women], CONAVIM (2013), http://www.conavim.gob.mx/work/models/CONAVIM/Resource/103/1/images/estudiosnacionalestomo ivolumeni.pdf. 180 Id. 181 See e.g., Matthew C. Gutmann, THE MEANINGS OF MACHO: BEING A MAN IN MEXICO CITY, 2 (1996); Roger N. Lancaster, LIFE IS HARD: MACHISMO, DANGER, AND THE INTIMACY OF POWER IN NICARAGUA (1992); see also Davies Aff. ¶ 36. 182 See Bureau of Democracy: Human Rights and Labor, International Religious Freedom Report, U.S. DEP’T OF STATE, http://www.state.gov/j/drl/rls/irf/religiousfreedom/index.htm. 183 See Julian Miglierini, Mexico's Catholic Church fans flames of gay rights row, BBC NEWS (Aug. 28, 2010), http://www.bbc.com/news/world-latin-america-11119011; Mary Cuddehe, Mexico’s Anti- Abortion Backlash, THE NATION (Jan. 4, 2012), http://www.thenation.com/article/mexicos-anti- abortion-backlash/. 184 Id. 185 Toomas Gross, Protestantism and Modernity: The Implications of Religious Change in Contemporary Rural Oaxaca, 64:4 Sociology of Religion, 481 (2003). 186 Id. 187 Id. 188 Cardinal Ridicules Same-Sex Marriages, L.A. TIMES (Oct. 13, 2004), http://articles.latimes.com/2004/oct/13/world/fg-briefs13.4. 189 See ORAM Report, supra note 75. 190 Gender Identity, Am. Psychiatric Publishing (2013), http://www.dsm5.org/documents/gender%20dysphoria%20fact%20sheet.pdf. 191 See World Professional Assn. for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (2007), http://www.wpath.org/uploaded_files/140/files/Standards%20of%20Care,%20V7%20Full%20Book.pd f [hereinafter Standards]. 192 Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000) (“Sexual orientation and sexual identity are immutable; they are so fundamental to one's identity that a person should not be required to abandon them.”). 193 Debra A. Castillo et. al, Violence And Transvestite/Transgender Sex Workers In Tijuana, in GENDER VIOLENCE AT THE US-MEXICO BORDER: MEDIA REPRESENTATION AND PUBLIC RESPONSE 15 (Hector Dominguez- Ruvulcaba & Ignacio Corona eds., 2010). 1941 de cada 3 homosexuales en México sufre discriminación laboral [1 in 3 homosexual Mexicans suffer work discrimination], DIARIO PRESENTE (May 15, 2014),

Transgender Law Center and Cornell University Law School LGBT Clinic | 42 http://www.diariopresente.com.mx/section/nacional/108469/1-de-cada-3-homosexuales-en-mexico- sufre-discriminacion-laboral/. 195 Id. 196 See Liberman, supra note 173. 197 Id. 198 See Toronto Report, supra note 81. 199 Rocio Suarez, Discriminación y exclusión laboral de la población transgénero de la Ciudad [Work Discrimination and Exclusion of the Transgender Population in the City], NOTIESE (Sept. 8, 2009), http://www.notiese.org/notiese.php?Ctn_id=3195. 200 See Programa de Derechos Humanos del Distrito Federal [The Federal District’s Human Rights Program], CIUDAD DE MEXICO [Mexico City] (Aug. 2009), http://www.derechoshumanosdf.org.mx/docs/programa.pdf. 201 Diagnóstico de derechos humanos del Distrito Federal [Survey of Human Rights in Mexico City], CONSEJO NACIONAL PARA PREVENIR LA DISCRIMINACIÓN [National Council to Prevent Discrimination], (May 2008). 202 See Toronto Report, supra note 81 at 16. 203 See Shadow Report, supra note 17. 204 David Agren, Mexico's national voter IDs part of culture, USA TODAY (Jan. 25, 2012), http://usatoday30.usatoday.com/news/world/story/2012-01-22/mexico-national-voter-ID- cards/52779410/1. 205 Issue Paper: Mexico State Protection (Dec.2003-Mar.2005), IMMIGRATION AND REFUGEE BOARD OF CANADA 13 (May 2005), http://www.justice.gov/eoir/vll/country/canada_coi/mexico/ISSUES_PAPER_STATE-PROTECTION.pdf. 206 Ashley Lourdes Hunter, National Coming Out Day: “Today I am Honoring My Truth” (Oct. 10, 2014), http://www.hrc.org/blog/entry/national-coming-out-day-today-i-am-honoring-my-truth. 207 C. Infante, supra note 115. 208 See Transgender Europe, supra note 97. 209 See Comité Coordinador, supra note 80. 210 See Wendy Glauser et al., Health care system stigmatizes and discriminates against transgender people, HEALTHY DEBATE (Jul. 2, 2015), http://healthydebate.ca/2015/07/topic/transgender-health- access. 211 Standards, supra note 193; See Shadow Report, supra note 17. 212 See Debra A. Castillo, supra note 191. 213 See Infante, supra note 115. 214 Consejo Nacional Para Prevenir La Discriminación, El Combate a la homofobia: Entre Avances y Desafíos [National Council to Prevent Discrimination, Combating Homophobia: Between Progress and Challenges], (2013), http://www.conapred.org.mx/documentos_cedoc/documentohomofobia_ACCSS.pdf. 215 See REDLACTRANS, supra note 69 at 8. 216 See Comité Coordinador, supra note 80. 217 Alexandra Mcanarney, Efforts to Provide HIV-AIDS and Other Health Services to Migrants Face Major Obstacles, AMERICAS PROGRAM (Feb. 9, 2013), http://www.cipamericas.org/archives/8948. 218 Id. 219 Consejo Nacional Para Prevenir La Discriminación [National Council to Prevent Discrimination], El Combate a la homofobia: Entre Avances y Desafíos [Combating Homophobia: Between Progress and Challenges], (2013), http://www.conapred.org.mx/documentos_cedoc/documentohomofobia_ACCSS.pdf. 220 Id. at 10. 221 Ricardo Baruch, La población LGBT y los servicios de salud en México [The LGBT population and health services in Mexico], (Sept. 15, 2011), http://homozapping.com.mx/2011/09/la-poblacion-lgbt- y-los-servicios-de-salud-en-mexico/.

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222 Documento informativo de homophobia [Information Document on Homophobia], Consejo Nacional para Prevenir la Discriminación [National Council to Prevent Discrimination] (Oct. 26, 2011); HIV/AIDS Health Profile, USAID MEXICO (Sept. 2010), http://pdf.usaid.gov/pdf_docs/pdacu639.pdf. 223 See Comité Coordinador, supra note 80. 224 Lauren Smiley, Border Crossers, SF WEEKLY (Nov. 26, 2008), http://www.sfweekly.com/2008-11- 26/news/border-crossers/. 225 See Columbia Law School, supra note 102. 226 See Lambda Legal Amicus Brief, supra note 117 at 22. 227 Immigration Refugee Board of Canada, Responses to Information Requests 5 (Sept. 16, 2011), http://www.justice.gov/eoir/vll/country/canada_coi/mexico/MEX103804.E.pdf. 228 Id. 229 Informe Especial Sobre la Homofobia y Crímenes de Odio [Special Report on Homophobia and Hate Crimes], COMISION DE DERECHOS HUMANOS DEL DISTRICTO FEDERAL [Human Rights Commission of Mexico City] (CDHDF) (July 27, 2007). 230 Interview with Victor Clarke-Alfaro, Professor of Latin American Studies, San Diego State University (Feb.17, 2014). 231 U.S. Dep’t of Homeland Security, Submission of Additional Mexico Country Background Materials (2012) [document on file with authors]. 232 Nicole Laviolette, Independent human rights documentation and sexual minorities: an ongoing challenge for the Canadian refugee determination process, 13 INT’L J. HUM. RTS. 437, 449 (2009). 233 Shaun Knittel, Gay Seattle Expatriate Murdered in his Mexico Home, SOUTH FLORIDA GAY NEWS (Mar. 18, 2013) http://southfloridagaynews.com/World/gay-seattle-expatriate-murdered-in-his-mexico- home.html. 234 Felisa Cardona, Mexican transgender asylum seeker allowed to stay in US, DENVER POST (Nov. 9, 2010) http://www.denverpost.com/ci_16560073. 235 Saseen Kawzally, Oh, the fun we’ll have! Selling (out) gay Beirut, MENASSAT (Aug. 19, 2009), http://www.menassat.com/?Q=en/news-articles/7131-nyt-tbd. 236 See Jenni Millbank, Imagining Otherness: Refugee Claims on the Basis of Sexuality in Canada and Australia, 26 MELB. U. L. REV. 144, 156 (2002). 237 Cristina Costantini, Jorge Rivas & Kristofer Rios, Why Did the U.S. Lock Up These Women With Men?, FUSION (Nov. 19, 2014), http://interactive.fusion.net/trans/. 238 Sharita Gruberg, Dignity Denied: LGBT Immigrants in U.S. Immigration Detention, CENTER FOR AMERICAN PROGRESS 1 (Nov. 2013), https://cdn.americanprogress.org/wp- content/uploads/2013/11/ImmigrationEnforcement-1.pdf. 239 United Nations, Juan E. Méndez, Interim Report of the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman, or degrading treatment or punishment A/66/268 (Aug. 5, 2011), https://documents-dds- ny.un.org/doc/UNDOC/GEN/N11/445/70/PDF/N1144570.pdf?OpenElement. 240 See Gruberg, supra note 239 at 3. 241 Id. 242 Id. 243 Id.. 244 See Rahimzadeh v. Holder, 613 F.3d 916, 918 (9th Cir. 2010); Hernandez-Montiel v. I.N.S., 225 F.3d 1084, 1087 (9th Cir. 2000). 245 Mary Meg McCarthy & Eric Berndt, Letter re: Submission of Civil Rights Complaints regarding Mistreatment and Abuse of Sexual Minorities in DHS Custody, HEARTLAND ALLIANCE’S NATIONAL IMMIGRANT JUSTICE CENTER (Apr. 13, 2011), http://www.immigrantjustice.org/sites/immigrantjustice.org/files/OCRCL%20Global%20Complaint%2 0Letter%20April%202011%20FINAL%20REDACTED_0.pdf. 246 Id. 247 Id.

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248 U.S. Immigration and Custom Enforcement, 2015 Transgender Care Memorandum (2015), https://www.ice.gov/sites/default/files/documents/Document/2015/TransgenderCareMemorandum.pdf . 249 Human Rights Watch, Detained and at Risk 3 (2010), http://www.hrw.org/sites/default/files/reports/us0810webwcover.pdf. 250 American Civil Liberties Union, ACLU of Texas Today Files Lawsuit on Behalf of Women Assaulted at T. Don Hutto Detention Center (Oct. 19, 2011), https://www.aclu.org/news/documents-obtained-aclu- show-sexual-abuse-immigration-detainees-widespread-national-problem. See Gruberg, supra note 241 at 6. 251 Id. 252 Id. 253 National Center for Transgender Equality, Our Moment for Reform: Immigration and Transgender People 20 (2013), http://transequality.org/Resources/CIR_en.pdf. 254 Id. 255 United Nations, Juan E. Méndez, Interim Report of the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman, or degrading treatment or punishment A/66/268 (Aug. 5, 2011), https://documents-dds- ny.un.org/doc/UNDOC/GEN/N11/445/70/PDF/N1144570.pdf?OpenElement. See Gruberg, supra note 239 at 6. 256 Id. 257 See Costantini et al., supra note 238. 258 Cristina Loboguerrero, Transgender Immigrants Detail Detention Abuse, VOICES OF NY (Aug. 29, 2013), http://www.voicesofny.org/2013/08/transgender-immigrants-detail-detention-abuse/. 259 See NATIONAL CENTER FOR TRANSGENDER EQUALITY, supra note 254. 260 See Loboguerrero, supra note 259. 261 Id. 262 See Gruberg, supra note 239 at 7. 263 Id. 264 Id. 265 Id. 266 Id. 267 See McCarthy & Berndt, supra note 246 at 4. 268 Id. 269 Id. 270 Id. 271 Id. at 6. 272 Id. 273 See National Center for Transgender Equality, supra note 254. 274 U.S. Dept. of Justice, Bureau of Justice Statistics, Sexual Victimization in Prisons and Jails Reported by Inmates, 2011-2012, 30 (May 2013), http://www.bjs.gov/content/pub/pdf/svpjri1112.pdf. 275 Lori Sexton et al., Where the Margins Meet: A Demographic Assessment of Transgender Inmates in Men’s Prisons, 27 JUSTICE QUARTERLY 6, 12 (2010). 276 U.S. Government Accountability Office, Immigration Detention: Additional Actions Could Strengthen DHS Efforts to Address Sexual Abuse, GAO HIGHLIGHTS 60 (Dec. 6, 2013), http://www.gao.gov/assets/660/659145.pdf. 277 Id. 278 Cristina Constantini, et. al., Why Did the U.S. Lock Up these Women With Men?, FUSION.COM (Nov. 17, 2014) http://interactive.fusion.net/trans/. 279 Id. 280 See Advocates for Informed Choice, et al., Immigration Organizations Ask President to Release Detained LGBTQ Immigrant 1 (2014), http://transgenderlawcenter.org/archives/11302. 281 Id.

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282 Id. 283 Id. 284 Id. 285 Id. 286 Zack Ford, Transgender Woman Says Immigration Detention Officials Told Her To Pretend Her Rape Was Consensual, THINKPROGRESS.ORG (Aug. 5, 2014), http://thinkprogress.org/lgbt/2014/08/05/3467761/transgenderimmigrationrape/. 287 Id. 288 Id. 289 Dept. of Homeland Security, DHS Announces Finalization of Prison Rape Elimination Act Standards (Feb. 28, 2014), https://www.dhs.gov/news/2014/02/28/dhs-announces-finalization-prison-rape- elimination-act-standards. 290 These conditions are also documented in a report from Human Rights Watch, “Do You See How Much I’m Suffering Here?”: Abuse Against Transgender Women in US Immigration Detention (forthcoming March 2016). 291 United Nations High Commissioner for Refugees, Convention and Protocol Relating to the Status of Refugees, UNHCR (2011), http://www.unhcr.org/3b66c2aa10.html. 292 United Nations High Commissioner for Human Rights, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (1987), http://www.ohchr.org/EN/professionalinterest/Pages/CAT.aspx.

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TAB 8 THE STATE AS A CATALYST FOR VIOLENCE AGAINST WOMEN VIOLENCE AGAINST WOMEN AND TORTURE OR OTHER ILL-TREATMENT IN THE CONTEXT OF SEXUAL AND REPRODUCTIVE HEALTH IN LATIN AMERICA AND THE CARIBBEAN Amnesty International is a global movement of more than 7 million people who campaign for a world where human rights are enjoyed by all.

Our vision is for every person to enjoy all the rights enshrined in the Universal Declaration of Human Rights and other international human rights standards.

We are independent of any government, political ideology, economic interest or religion and are funded mainly by our membership and public donations.

Amnesty International Publications

First published in 2016 by Amnesty International Publications International Secretariat Peter Benenson House 1 Easton Street London WC1X 0DW United Kingdom www.amnesty.org

Index: AMR 01/3388/2016 Original Language: Spanish.

All rights reserved. This publication is copyright, but may be reproduced by any method without fee for advocacy, campaigning and teaching purposes, but not for resale. The copyright holders request that all such use be registered with them for impact assessment purposes. For copying in any other circumstances, or for reuse in other publications, or for translation or adaptation, prior written permission must be obtained from the publishers, and a fee may be payable. To request permission, or for any other inquiries, please contact [email protected]

Cover photo: Demonstration commemorating International Day for the Elimination of Violence against Women, Santo Domingo, Dominican Republic, 25 November 2014. © Erika Santelices CONTENTS

EXECUTIVE SUMMARY...... 5

METHODOLOGY...... 11

ACKNOWLEDGMENTS...... 12

1. VIOLENCE AGAINST WOMEN GENERATED BY THE STATE...... 13

2. EXAMPLES OF INSTITUTIONAL VIOLENCE, INCLUDING TORTURE OR ILL -TREATMENT, IN THE CONTEXT OF SEXUAL AND REPRODUCTIVE HEALTH...... 17 Legislation that generates violence against women and torture or other ill-treatment...... 18 State practices that generate violence against women and, sometimes, torture or other ill-treatment...... 25

3. CONSEQUENCES: THE STATE AS A CATALYST FOR VIOLENCE AGAINST WOMEN...... 41 Ill-treated and denied care in health facilities: A violation of the right to life, health and humane treatment...... 42 Breaches of doctor-patient confidentiality: A violation of the right to privacy...... 44 The impact on families: A violation of the right to humane treatment and family life...... 48 Imposition of moral or religious precepts...... 50 Violations of the right to equality: gender stereotypes and intersectional discrimination against women...... 58

4. HUMAN RIGHTS STANDARDS...... 61 Violations of sexual and reproductive rights as a form of violence against women (institutional violence)...... 62 Violations of the sexual and reproductive rights as a form of torture or other cruel, inhuman or degrading treatment...... 65 Specific violations of reproductive rights as a form of torture or other cruel, inhuman or degrading treatment...... 74

5. CONCLUSIONS AND RECOMMENDATIONS...... 79

The state as a catalyst for violence against women 5 Violence against women and torture or other ill-treatment in the context of sexual and reproductive health in Latin America and the Caribbean

EXECUTIVE SUMMARY

The World Health Organization recently declared a Public Health Emergency of International Concern after detecting an “explosive” spread of cases of the Zika virus in Latin America and the Caribbean.1 Fears that mother-to-child transmission of the virus may be linked to microcephaly in babies, as well as the possible sexual transmission of the virus, have turned the spotlight on the huge challenges regarding sexual and reproductive rights that exist in the region today.

Some countries in the region have recommended that women not become pregnant for some time.2 This recommendation is not just absurd; it is insulting in a region where more than half of pregnancies are unwanted or unplanned, where there are extremely high rates of sexual violence, where the demand for contraception far outstrips availability and where cultural norms continue to give pride of place to women’s role as mothers. In addition, 97% of the women in Latin America and the Caribbean of reproductive age live in countries where access to safe abortion is severely restricted by law. As always happens in this the most unequal region in the world, the unmet need for sexual and reproductive health disproportionately affects people living in poverty and marginalized communities.

This recommendation is also discriminatory as it lays all the responsibility on women, without mentioning the role of men in pregnancy or the multiple barriers that health systems themselves put in the way of women making a choice about whether and when to have children and, if they do, how many. This recommendation and all the debate around the Zika virus bring into stark focus the harmful gender stereotypes and prejudices that persist in the region as a whole regarding the reproductive role of women. It also highlights the power of the state to impose these stereotypes and the systematic, devastating forms of violence against women that this generates – the central theme of this report.

1 See World Health Organization, “WHO announces a Public Health Emergency of International Concern”, available at: http://www.paho.org/hq/index.php?option=com_content&view=article&id=11640%3A2016- who-statement-on-1st-meeting-ihr-2005-emergency-committee-on-zika-virus&Itemid=135&lang=en&hoot PostID=1c9c5791ea6d35f9c39b93deda30c20f%3Cx3/%3E.

2 See, for example, “Ante epidemia de zika, Gobierno recomienda evitar los embarazos en zonas afectadas”, Noticias Colombianas (online) available at: http://www.noticiascolombianas.com.co/index. php/226371/ante-epidemia-de-zika-gobiernorecomienda-evitar-los-embarazos-en-zonas-afectadas; “El Salvador Advises Women to Avoid Pregnancy for 2 Years Due to Zika Outbreak”, ABC News, 26 January 2016, available at: http://abcnews.go.com/Health/el-salvador-adviseswomen-avoid-pregnancy-years-due/ story?id=36524952; “Jamaica advises women to delay pregnancy due to Zika virus,” Associated Press, 18 January 2016, available at: http://bigstory.ap.org/article/6bdff0c8fe734934b57418a1d8d7d7d2/ jamaica-advises-women-delaypregnancy-due-zika-virus; “Panamá: piden aplazar embarazos en comarca indígena por zika,” Terra Noticias (online), 26 January 2016, available at: http://noticias.terra.com/ mundo/latinoamerica/panama-piden-aplazarembarazos-en-comarca-indigena-por-zika,5b14d2a7a6f157 2732c9277e9bd7e5c516vap4qb.html ; “Brazil warns women not to get pregnant as Zika virus is linked to rare birth defect”, The Guardian, 4 December 2015, available at: http://www.theguardian.com/global- development/2015/dec/04/brazilzika-virus-pregnancy-microcephaly-mosquito-rare-birth-defect.

Index: AMR 01/3388/2016 Amnesty International, March 2016 6 The state as a catalyst for violence against women Violence against women and torture or other ill-treatment in the context of sexual and reproductive health in Latin America and the Caribbean

For several years Amnesty International has been adding its voice to the hundreds of women’s organizations in the region demanding an end to violence against women. All the human rights violations described in this report have been highlighted and worked on consistently by organizations fighting for women’s rights at the national, regional and international levels. The movements for women’s rights and gender justice in Latin America and the Caribbean are growing in strength. They are becoming more organized and more sophisticated in their analysis of rights and more effective in their advocacy.

This debate on the Zika virus underscores the central message set out by Amnesty International in this report: violence against women will not be eradicated unless states in the region change discriminatory legislation, public policies and practices in the area of sexual and reproductive health.

While discrimination against women is evident in almost all areas of life, it is in the area of sexual and reproductive health that it reaches shocking levels. It is the regulation of women’s sexuality and reproduction that most clearly reveals gender stereotypes and bias. It also brings into focus prevailing ideas about the role that women should play in society and how they are imposed on all women through legislation and highly discriminatory practices.

This report argues that these discriminatory norms not only violate a range of human rights, they also generate violence against women and constitute torture or other cruel, inhuman or degrading treatment.

In order to arrive at this conclusion, the report starts from an analysis of the context of persistent gender-based violence in the region and the failure of states to show the political commitment needed to combat and eradicate it. In this report, Amnesty International argues that states are not only failing to prevent and eliminate violence against women by third parties, but they are themselves propagating institutional violence.

The central part of the report consists of representative cases from eight different countries in the region that illustrate how states generate violence against women and girls. The life stories of Rosaura, Tania, Teodora, Mónica, Mainumby, Esperanza and Michelle, reveal situations in which women or girls experienced physical and emotional suffering due to abuse and ill-treatment either when they sought sexual and reproductive health services or because they were denied these services. These are not isolated cases; they highlight patterns that are repeated throughout the region. Discriminatory behaviour based on gender stereotypes and prejudices that causes harm and suffering to women is common to the experiences of all seven women and girls. The cases are divided into two groups, but it is important to stress that these kinds of violations have multiple causes and are the result of a complex cycle of discrimination.

The first group are cases showing how legislation can produce institutional violence, including torture or other ill-treatment, in areas of sexual and reproductive health. This group includes the stories of Rosaura in the Dominican Republic, Tania in Chile and Teodora in El Salvador. These countries criminalize abortion in all circumstances, even when the life of the woman is at risk.3 Both Tania and Rosaura needed a termination to allow them to continue

3 In Latin America and the Caribbean, seven countries prohibit abortion in all circumstances or do not have laws that explicitly set out exceptions to the total ban, even to save the life of the woman. They are: Chile, El Salvador, Haiti, Honduras, Nicaragua, Suriname and the Dominican Republic.

Amnesty International, March 2016 Index: AMR 01/3388/2016 The state as a catalyst for violence against women 7 Violence against women and torture or other ill-treatment in the context of sexual and reproductive health in Latin America and the Caribbean

treatment for cancer. Both women were denied access to safe, legal abortion. Tania had the means and the support to have a clandestine abortion and so was able to continue the treatment that saved her life. Rosaura, however, who was just 16 years old, had to undergo an unwarranted delay in her treatment for leukaemia, treatment that could have saved her life. Teodora suffered an obstetric emergency in the last weeks of pregnancy. When she went to the hospital to get help, she was charged with having induced an “abortion”. Teodora’s family has limited financial resources, so they could not afford an effective legal defence; Teodora was sentenced to 30 years in prison.

The second group of cases illustrate how state practices can generate institutional violence, including torture or other ill-treatment, in the area of sexual and reproductive health. The cases detailed here are those of Esperanza in Peru, Michelle in Mexico, Mainumby in Paraguay and Mónica in Argentina. The experiences of Mónica and Mainumby are in many ways similar to those of Teodora, Tania and Rosaura. Although legislation in their countries permitted legal abortion in their cases, the state did not allow the terminations to go ahead and subjected them to institutional violence, including torture. Both were denied the freedom to choose what was best for their lives and health. They were also forcibly “detained” in what were essentially prison conditions. Mainumby, who was just 10 years old, was also separated from her mother and had to face a pregnancy that was the result of rape alone while her mother was wrongfully imprisoned.

These five representative cases provide stark illustrations of a regional pattern: the use of the law to criminalize abortion in all circumstances with no or few exceptions. The ostensible aim of these laws is to prevent abortions. However, this report confirms what many others have said: the criminalization of abortion does not reduce the number of abortions. Rather, it results in increased mortality and morbidity because it forces women and girls to seek clandestine abortions, putting their lives and health at risk.4 Latin America and the Caribbean have the highest estimated percentage of unsafe abortions in the world.5

Abortion in all circumstances remains a crime in several countries and in most others is prohibited in all but very limited circumstances due to religious and moral influence on laws and policies. The result is that priority has been accorded to the absolute, or near absolute, protection of the foetus, at the expense of the rights to life, health and humane treatment of women and girls. This protection is strongly influenced by the concept that “life is sacred and must be protected from the moment of conception” promoted by the Catholic and Evangelical churches, whose hierarchies have enormous influence in the region and in individual states. Human rights bodies have stated that this concept is discriminatory because it imposes a stereotype of women as mothers, viewing them mere instruments of reproduction. They have also determined that while states may wish to protect the foetus, this protection cannot be absolute but must be developed gradually and incrementally . Fundamentally, protection of the foetus is ensured via the pregnant woman or girl and by giving primacy to guaranteeing her life or health.

4 World Health Organization, Safe abortion: technical and policy guidance for health systems (Second edition), 2012, p90; World Health Organization, Sexual health, human rights and the law, 2015, p16.

5 WHO, UNICEF, UNFPA, The World Bank and the United Nations Population Division, Trends in Maternal Mortality: 1990 to 2013. Estimates by WHO, UNICEF, UNFPA, The World Bank and the United Nations Population Division, Geneva, WHO, 2014, available at: http://www.who.int/reproductivehealth/ publications/monitoring/maternal-mortality-2013/en/.

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The cases of Esperanza and Michelle illustrate another prejudice, which is just as discriminatory, violates human rights and results in violence. Both women were sterilized without their consent. In both cases, the state considered that other people were better able to decide than the women whether or not they should have more children. Esperanza was the victim of a programme implemented in Peru in the 1990s in which women, most of whom were Indigenous or living in poverty, were coerced or deceived into having their fallopian tubes sealed. The stated aim of the programme was poverty reduction. Esperanza was pregnant at the time the procedure was carried out and wanted to continue with the pregnancy.6 Michelle is living with HIV. Despite abundant evidence that with proper treatment the risk of vertical mother-to-child transmission of HIV is minimal, Michelle was coerced into being sterilized “in order not to bring more children with HIV into the world”.

Chapter 3, which gives this report its title, analyses another regional pattern that emerges from the cases: laws or practices that violate sexual and reproductive rights also act as triggers for continuing violence. By upholding such laws and practices, the state itself acts as a catalyst, generating further violence. It is the state that promotes and legitimizes the structural discrimination that underpins all gender-based violence. These “other forms of violence” in turn generate further violations of human rights.

Examples of these other forms of violence include ill-treatment and denial of services in health-care institutions; breaches of patient confidentiality; the impact on families who are also victims of violence; the imposition of certain moral or religious views on women and girls; and multiple discrimination. The chapter ends with an examination of the role of conscientious objection in the area of sexual and reproductive health. Operating without regulation or poorly regulated, this is a key factor infringing on the rights of women, as the example from Uruguay detailed in this chapter shows.

It is important to highlight that throughout the region there is a lack of access to justice in order to lodge complaints and obtain redress for the human rights violations described in the report. One case, that of Esperanza, shows how the failure for nearly 20 years to ensure justice and reparation for violations of reproductive rights results in institutional violence and revictimization.

In all the cases detailed, prejudices and gender stereotypes underpin and result in discriminatory behaviour towards women. Discrimination against women is unquestionably the root cause of the violence, torture or other ill-treatment and other violations of human rights documented.

The report also includes an overview of relevant human rights standards. This report is based on the premise that sexual and reproductive rights are human rights, fully established in international and national human rights standards. It analyses violations of these rights as constituting violence against women perpetrated by the state itself (state violence), and torture or other ill-treatment. As regards torture or other ill-treatment, the report sets out a detailed analysis, using case examples, of the four elements of torture under international human rights law and their application in the field of sexual and reproductive health.

6 The World Health Organization recommends postponing surgical sterilization procedures such as that performed to Esperanza, if a pregnancy is detected. WHO, Medical eligibility criteria for contraceptive use (Fifth Edition) 2015, p232, available at: iris/bitstream/10665/181468/1/9789241549158_eng. pdf?ua=”1”.

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The report concludes that states in the region can and should do much more to prevent and eradicate violence against women and torture or other ill-treatment in the context of sexual and reproductive health. In the conclusions, Amnesty International argues that the cycle of violence against women cannot be broken unless states undertake to reform discriminatory norms and practices in the area of sexual and reproductive health. The report ends with a series of recommendations which place particular emphasis on measures to protect young and adolescent girls because of their special vulnerability and because of the increasing tendency in the region to force them to carry pregnancies to term and give birth.

In this, the 20th anniversary year of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará) and almost 30 years after the Inter-American Convention to Prevent and Punish Torture came into force, this report argues that states in Latin America and the Caribbean owe a huge outstanding debt to women and girls in the region because of the lack of progress in preventing and eradicating violence against them and torture or other ill-treatment in the context of sexual and reproductive health. Amnesty International therefore urges states in the region to:

■■ Implement measures to eliminate discrimination against women and stereotyped patterns of behaviour that promote the unequal treatment of women in society, especially in the area of sexual and reproductive health care, including special measures to address multiple discrimination.

■■ Prevent institutional violence, torture or other ill-treatment in the area of sexual and reproductive health and ensure the availability of mechanisms to provide effective, appropriate and impartial access to justice for victims as well as comprehensive reparation.

■■ Create protocols on how to respond to and investigate sexual violence. Ensure the availability of emergency contraception for all women and girls, and especially for those who have been raped.

■■ Regulate the exercise of conscientious objection by health professionals to ensure that there is no risk to the health of the patient and that the patient’s right to receive services and contraceptives,7 a termination, or any other necessary health-care service is guaranteed. Implement mechanisms to ensure that health professionals who can provide this care are always accessible.

7 Committee on the Elimination of all forms of Discrimination against Women (CEDAW), Concluding observations: Mexico, para 33, (2006); Committee on Economic, Social and Cultural Rights, General Comment No 14: The right to the enjoyment of the highest attainable standard of health (article 12), United Nations, 2000.

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■■ Taking into account the principles of the Convention on the Rights of the Child, in particular the best interests of girls, develop public policies to protect them from forced pregnancy and maternity.

In addition, Amnesty International calls on the Inter-American System for the protection of human rights, in light of its influence on countries in the region and given the context of structural discrimination, to become more involved in this crucial debate for the region.

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METHODOLOGY

This regional report is part of Amnesty International’s “My body My rights” campaign.8 It is the result of research involving both primary and secondary sources in eight countries in the region9 and secondary sources on the regional situation.

To document the seven representative cases and the particular situation in Uruguay, Amnesty International interviewed the victims of human rights violations whose cases are highlighted, their relatives and friends, health personnel, lawyers, organizations who supported them and others relevant to their cases. The organization also obtained victims’ free and informed consent to the inclusion of their cases in this report. In order to document the regional and national context government officials and civil society organizations in each of the countries covered in the report were also interviewed.

Amnesty International researchers carried out interviews between August and December 2015 in Argentina, Chile, El Salvador, Mexico, Paraguay, Peru and Uruguay. In researching the situation in the Dominican Republic, Amnesty International delegates worked closely with the Women and Health Collective (Colectiva Mujer y Salud) and with Women’s Link Worldwide.

In order to produce this report, Amnesty International carried out 31 interviews in eight countries in the region10 with nine women, five relatives, six doctors as well as 11 members of civil society organizations. In addition, researchers reviewed the medical records (4) and judicial records (2) available and two requests for access to information in Uruguay had not elicited a response by the time of writing.

Researchers requested interviews with eight officials in the countries where the representative cases were identified, seven of whom agreed to be interviewed (some on condition that they remain anonymous). Amnesty International met the Head of the Legal Reform Unit, SERNAM, in Chile; the Director of Sexual and Reproductive Health at the Ministry of Public Health and Social Welfare in Paraguay; the Ombudsperson for Children and Adolescents at the Justice and Public Defence Ministry in Paraguay; the Health Secretary for the State of Veracruz in Mexico; the Director of the National Center for the Prevention and Control of HIV and AIDS (CENSIDA) in Mexico City and the Head of the Sexual and Reproductive Health at the Ministry of Public Health in Uruguay.

8 See Amnesty International, My life, my health, my education, my choice, my future, my body my rights (Index: ACT 35/001/2014), available at: amnesty.org/en/library/info/ACT35/001/2014/en.

9 Argentina, Chile, El Salvador, Mexico, Paraguay, Peru, the Dominican Republic and Uruguay.

10 Argentina, Chile, El Salvador, Mexico, Paraguay, Peru, the Dominican Republic and Uruguay.

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ACKNOWLEDGMENTS

Amnesty International would like to thank Aya Fujimura-Fanselow for her help with legal research and to civil society organizations and activists who shared their analysis, experience and knowledge with Amnesty International, without their insights this report would not have been possible. In particular we thank: Carolina Comaleras, a graduate in obstetrics and women’s human rights activist (Entre Rios, Argentina); Alejandro Gelmi, a specialist in obstetrics-gynaecology (Argentina); the Citizens Association for the Decriminalization of Therapeutic, Ethical and Eugenic Abortion (Agrupación Ciudadana por la Despenalización del Aborto Terapéutico, Ético y Eugenésico, El Salvador) and Feminist Collective for Local Development (Colectiva Feminista para el Desarrollo Local, El Salvador); Association of Women Affected by Forced Sterilizations of Cusco, Anta (Asociación de Mujeres Afectadas por las Esterilizaciones Forzadas de Cusco, Anta, AMAEFC, Peru) and the Association of Women Affected by Forced Sterilization in Chumbivilcas (Asociación de Mujeres Afectadas por Esterilizaciones Forzadas de Chumbivilcas, Peru); as well as all organizations and members of the Monitoring Group on Reparations for Victims of Forced Sterilization (Grupo de Seguimiento a las Reparaciones a Víctimas de Esterilizaciones Forzadas-GREF, Peru); Women’s Link Worldwide; the Women and Health Collective (Colectiva Mujer y Salud, Dominican Republic); Maria AC (Mexico); and Balance Network (Red Balance A.C., Mexico); the Committee for the Defence of Women’s Rights in Latin America and the Caribbean (Comité de América Latina y el Caribe para la Defensa de los Derechos de la Mujer, CLADEM Paraguay); Ana Lima, lawyer, CLADEM, (Uruguay); Lilian Abracinskas, founder and head of Women and Health in Uruguay (Mujer y Salud en Uruguay, MYSU); and María José and Alicia Benitez Scaniello of Women in the Oven (Mujeres en el Horno, Uruguay).

Amnesty International is especially grateful to the women who shared their painful personal experiences in order to help ensure that these human rights violations are not repeated. We would like to thank: Rosaura, Rosa, Tania, Teodora, Esperanza, Michelle, Mainumby, CEF and Mónica for all their efforts and courage. This report and all our efforts to combat torture and violence in sexual and reproductive health in the region are dedicated to you.

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1. VIOLENCE AGAINST WOMEN GENERATED BY THE STATE

In 2015, Amnesty International documented a pattern of increasing violence against women in Latin America and the Caribbean.11 This epidemic of violence remains one of the major human rights problems in the region.

Some women are at particular risk of violence in the Americas. In the USA and Canada, for example, Indigenous and Alaska Native women continue to experience disproportionate levels of violence. In the USA, they are 2.5 times more likely to be raped than other women. In Canada, the homicide rate is at least six times higher for Indigenous women. In Colombia, women living in areas of armed conflict are more likely to be victims of sexual violence by both state forces and members of the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia, FARC). Impunity for these crimes remains the norm.

Lesbian, gay, bisexual, transgender and intersex (LGBTI) people throughout the region are also at heightened risk of gender-based violence, despite progress in some countries with the passing of legislation prohibiting discrimination on grounds of sexual orientation and gender identity. During 2015, there were violent unsolved murders of transgender women in Argentina, as well as hate crimes, including murder and rape, against LGBTI people in the Dominican Republic. Between January 2013 and March 2014, the Inter-American Commission on Human Rights (IACHR) learned of 594 cases of killings of people who were, or were believed to be, LGBTI and 176 cases of attacks on their physical integrity in the Americas.12 In 2015, Amnesty International documented episodes of violence against LGBTI people in El Salvador, Guyana, Honduras, Trinidad and Tobago and Venezuela. Consensual sexual relations between men remain a criminal offence in Jamaica where the authorities continue to fail to investigate threats and harassment of LGBTI people.

It is clear that states in the region have not made sufficient progress in stopping what the Pan American Health Organization13 has described as a “pandemic”. Tragically the shortcomings of states on the issue do not end there. As this report shows, states have not only failed to fulfil their obligation to prevent violence against women by third parties, but many are promoting or tolerating laws, policies and practices that harm or cause suffering to women because of their gender. This constitutes state-generated violence against women; that is, “institutional violence”.

11 Amnesty International Report 2015, “Americas Regional Summary”, published 28 February 2016.

12 Inter-American Commission on Human Rights, An Overview of Violence against LGBTI Persons in the Americas: a Registry Documenting Acts of Violence between January 1, 2013 and March 31, 2014, available at: http://www.oas.org/en/iachr/media_center/PReleases/2014/153A.asp.

13 “Whether at home, on the street or in armed conflict, violence against women is a global pandemic that occurs in public and private spaces. The main forms of violence are physical, sexual and psychological.” http://www.paho.org/ecu/index.php?option=com_content&view=article&id=1411:eliminar- la-violencia-contra-las-mujeres-una-pandemia-mundial-que-adopta-muchas-formas&Itemid=360.

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The stories of the women and girls from seven countries in the region that are documented here, all of which are related to attempts to access sexual and reproductive health services, are representative examples of a widespread problem throughout the region. These stories detail with stark clarity the suffering caused by certain practices, public policies and legislation, or the lack of laws, relating to access to sexual and reproductive health for women and girls. This often constitutes torture or other ill-treatment.

These stories are part of a complex situation. More than half of all pregnancies in Latin America and the Caribbean are unwanted or unplanned. This rate has remained unchanged since 198514 despite an increase in the use of modern contraceptives. There are many reasons for this such as very high levels of sexual violence, including intimate partner violence;15 lack of access to contraception,16 including emergency contraception; and cultural patterns that promote the role of women first and foremost as mothers. In addition, 97% of women of reproductive age in Latin America and the Caribbean live in countries where abortion is severely restricted by law.17 In 2014, at least 10% of all maternal deaths in the region were due to unsafe abortions.18 El Salvador is one of only eight countries in the world where the number of maternal deaths has risen since 200319 while in Argentina abortion- related complications have been the leading direct cause of pregnancy-related deaths since 1980.20 Around 760,000 women in the region are hospitalized each year for complications linked to unsafe abortions.21

14 Seguimiento de la CIPD en América Latina y el Caribe después de 2014: documento técnico, p25, available in Spanish only at: http://www.clacaidigital.info:8080/xmlui/handle/123456789/535.

15 29.8% of women experience either physical and/or sexual intimate partner violence or sexual violence by a non-partner. World Health Organization, Global and regional estimates of violence against women: Prevalence and health effects of intimate partner violence and non-partner sexual violence, 2013, available at: http://www.who.int/reproductivehealth/publications/violence/9789241564625/en/.

16 World Health Organization, Family planning/Contraception: Fact sheet N°351, updated May 2015, available at: http://www.who.int/mediacentre/factsheets/fs351/en/

17 Guttmacher Institute, “Facts on Abortion in Latin America and the Caribbean”, November 2015, available at: < https://www.guttmacher.org/pubs/IB_AWW-Latin-America.pdf >.

18 Ibid. Citing unpublished data from S Singh et al, Adding It Up: The Costs and Benefits of Investing in Sexual and Reproductive Health 2014, New York: Guttmacher Institute, 2014.

19 Institute for health metrics and evaluation, available at:

20 Guttmacher Institute, “Facts on Abortion in Latin America and the Caribbean”, op. cit.

21 Ibid. Citing S Singh et al, Facility-based treatment for medical complications resulting from unafe pregnancy termination in the developing world, 2012: a review of evidence from 26 countries, BJOG, 2015, doi:10.1111/1471-0528.13552.

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The inadequate provision of sexual and reproductive health services in the region as a whole disproportionately affects people living in poverty.22

In this the 20th anniversary year of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (Convention of Belém do Pará)23 and almost 30 years after the Inter-American Convention to Prevent and Punish Torture24 came into force, this report argues that the states in Latin America and the Caribbean must show greater commitment to preventing violence against women and torture or other ill-treatment in the context of sexual and reproductive health.

A NOTE ON TERMINOLOGY: “INSTITUTIONAL VIOLENCE” In this report the term “institutional violence” is used to refer to a systematic state practice which subjects women and girls to violence and that occurs in contexts where the state has control over women’s freedom and autonomy, for example, health care institutions in relation to the provision of sexual and reproductive health services.

Traditionally, recommendations on violence against women focus on a series of measures that the state should take to eradicate and prevent violence against women perpetrated by third parties. However, the violence documented in this report is promoted and facilitated by the state itself; its most immediate causes are laws, policies or practices that violate sexual and reproductive rights. That is why the term “institutional violence” is used.

The concept of “institutional violence” is not set out as such in human rights instruments, unlike the concept of violence against women. Traditionally regional human rights organizations have used the term in relation to violence perpetrated by law enforcement bodies (the police and justice system). It denotes actions by those who have control over the freedom and autonomy of individuals that were promoted, facilitated or at least not adequately prosecuted by the state.25 The term refers to violence as a pattern or systematic practice rather than an isolated incident.

22 Ibid. For example, only 71% of women in the poorest households give birth in a health facility, compared with 99% of women in wealthier households. See also Tia Palermo, Jennifer Bleck, and Elizabeth Westly, “Knowledge and Use of Emergency Contraception: A Multicountry Analysis,” International Perspectives on Sexual and Reproductive Health, 2014, 40 (2): 79-86; documenting the lack of access to emergency contraception in women with less access to formal education.

23 Came into force 3 May 1995; ratified by 31 states in the region.

24 Came into force on 28 February 1987; ratified by 18 states in the region.

25 According to a UNICEF study, “The term institutional violence refers to different forms of violence practised by institutions, organs and agents of the state while maintaining law and order, that is social control” UNICEF, “Violence against children and adolescents.” Report on Latin America as part of the United Nations World Survey. 2006. p54, available only in Spanish at: http://www.unicef.org/lac/ Estudio_violencia(1).pdf. Similarly, a report by Argentine NGOs to the UN Human Rights Committee, defines it as “any arbitrary or illegitimate use of force exercised or allowed by the state organs”, available only in Spanish at: http://www.derechos.org/nizkor/arg/onga/violence.htm. Similarly, see the study “Institutional violence and social violence,” by Dr Elias Dobr. http://www.proceso.com.mx/203025/ violencia-institucional.

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The Inter-American Court of Human Rights has also used the concept of institutional violence to refer to various forms of violence by state authorities against women during the judicial process.26

The Committee of Experts of the Follow-up Mechanism to the Belém do Pará Convention (MESECVI) issued a statement in 2014 acknowledging that: “the negation of public policy and sexual and reproductive health services exclusively to women, through norms, practices, and discriminatory stereotypes, constitutes a systematic violation of their human rights and subjects them to institutional violence by the State, causing physical and psychological suffering.”27

26 See Inter-American Court of Human Rights, Access to Justice for Women Victims of Violence in the Americas, para 164, available at: https://www.cidh.oas.org/women/Acceso07/cap2.htm.

27 Declaration on Violence against Women, Girls and Adolescents and their Sexual and Reproductive Rights, available at: https://www.oas.org/en/mesecvi/docs/CEVI11-Declaration-EN.pdf.

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2. EXAMPLES OF INSTITUTIONAL VIOLENCE, INCLUDING TORTURE OR ILL-TREATMENT, IN THE CONTEXT OF SEXUAL AND REPRODUCTIVE HEALTH

“They never saw me as a person, as a whole human being. They saw me as an incubator, someone who could bring children into this world. And afterwards, it didn’t matter if I raised them or not, if I died, if we would go hungry – to them that didn’t matter. They see us an incubators. As machines, machines for reproduction.”

Tania, Chile.

The gender-based violence described in the previous chapter is a form of discrimination against women.28 This discrimination is evident throughout the region and in most everyday situations. However, it is in the area of sexual and reproductive health that it reaches shocking levels. The prevailing prejudices in Latin America and the Caribbean about the role that women should play in society are particularly pronounced in the regulation of women’s sexual and reproductive lives.

When it comes to the right of women and girls to decide whether to be sexually active or not and whether to have children – and accessing appropriate information and services in order to be able to exercise these rights autonomously and responsibly – states in the region put up insuperable barriers and mete out treatment that often constitutes violence against women and, in numerous situations, torture or other ill-treatment.

28 General recommendation No 19 of the Committee on the Elimination of Discrimination against Women (CEDAW Committee).

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The cases documented in this report by Amnesty International are representative of a regional pattern. They were selected to illustrate a broader and more widespread situation throughout Latin America and the Caribbean. The stories of Rosaura, Tania, Teodora, Mónica, Mainumby, Esperanza and Michelle reveal how certain state laws, policies and practices not only violate sexual and reproductive rights, but also generate violence against women and in some circumstances inflict torture or other cruel, inhuman or degrading treatment. At the same time, these stories show how these regulations and practices tend to promote a culture of violence towards women in the area of sexual and reproductive health, resulting in a proliferation of human rights violations against women in the region.

The cases have been organized in the report according to the main cause of institutional violence, including torture or other ill-treatment. In the first set of cases that cause is legislation; in subsequent cases the violations are a result of public policy or state practice. However, it is important to highlight that this structure is purely for presentation purposes, and that state violence against women is a continuum. It has many causes and is the cumulative result of various situations related to their sexual and reproductive rights that compound one another.

LEGISLATION THAT GENERATES VIOLENCE AGAINST WOMEN AND TORTURE OR OTHER ILL-TREATMENT “Nothing will give me back my daughter, but I can’t just let this pass without demanding that they admit clearly that what they did in this case was wrong. Until this is clarified and it’s established where responsibility lies, there’s nothing to stop another mother having to live through what I did trying to get them to care for my daughter”.

Rosa Hernández, Dominican Republic

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ROSAURA’S STORY: THE DOMINICAN REPUBLIC Rosaura Arisleida Almonte Hernández (known in the media as “Esperanza”), a 16-year-old Dominican girl, suddenly developed a high temperature, extreme weakness, bruises on her body and intense abdominal pain. Her mother, Rosa Hernández, a teacher in a public school, took her to the medical unit at the SEMMA Teaching Hospital in Santo Domingo in the Dominican Republic, where she was admitted on 2 July 2012. After some initial examinations, the health worker merely said that Rosaura should stay in hospital because there seemed to be “something in the blood and they didn’t know what it was”. Rosaura and her mother, Dominican Republic, 2009. © Private

Rosaura was diagnosed with a form of leukaemia29 that requires urgent treatment; without treatment the disease has a mortality rate of 100% within weeks.30 However, this treatment was not given to her because the day after she was admitted to hospital it was discovered that she was 7.2 weeks pregnant. There were also signs of foetal injury and vaginal bleeding with the risk of miscarriage, and a closed cervix. Although the doctor treating Rosaura recommended a therapeutic abortion so that they could start treatment for the leukaemia, the hospital authorities decided not to proceed with the termination because, according to them it was “prohibited by the Constitution” (under the Dominican Criminal Code abortion is criminalized in all circumstances).

Faced with such a serious diagnosis and given that Rosaura was so young, both mother and daughter clearly told doctors that they wanted to go ahead with a termination of the pregnancy and start the treatment for leukaemia immediately. They repeatedly made this request at various times during the month and a half Rosaura was in hospital. But those treating her and the hospital management did not take any notice.

Rosaura only started to have chemotherapy on 18 July, but it was stopped the following day because the doctors decided to wait until the 12th week of pregnancy to avoid endangering the development of the foetus. It was not until 26 July (24 days after Rosaura was hospitalized) that doctors began to treat her for leukaemia. On 16 August Rosaura suffered a miscarriage. She died the following day at 8am.

Rosaura’s story is an extreme example of the violence and torture in the context of sexual and reproductive health to which women are subjected by the states in Latin America and the Caribbean. Sadly, she lost her life, but hers is not an isolated case.

Violations of sexual and reproductive rights that constitute violence against women and sometimes torture, have many interconnected causes. In the Dominican Republic, the chain of events leading to the death of Rosaura began with legislation criminalizing abortion in

29 Philadelphia chromosome (Ph)-negative, CALLA positive, precursor B acute lymphoblastic leukaemia. Acute lymphoblastic leukaemia (ALL) is a cancer of the white blood cells. Its causes are not known.

30 “Acute leukaemia needs immediate full treatment irrespective of gestational stage because delay or modification of therapy results in lower maternal prognosis “. B. Brenner, I. Avivi, M. Lishner, “Hematologic cancers in pregnancy “(2012), The Lancet, 379; 580-587.

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all circumstances that did not set out any exceptions, not even when a pregnancy poses a threat to the life or health of the woman. Legislation such as that in force in the Dominican Republic violates a number of human rights and constitutes in itself a form of torture.31

Despite various efforts initiated by feminist and human rights organizations and taken up by the Dominican executive and legislature, the laws on which doctors based their decision not to provide Rosaura with the treatment that could have saved her life remain in force. In December 2014, a new Criminal Code was approved that included the decriminalization of abortion when the life or health of a woman is at risk, when malformations mean the foetus is not viable and when pregnancy is the result of rape or incest. However, in December 2015, the Constitutional Court declared the new legislation unconstitutional on procedural grounds, leaving in place the previous Criminal Code (Law 2274) of 1884. So, the Dominican Republic has returned to the 19th century with laws that criminalize abortion in all circumstances, subject women to institutional violence by the health service and, in cases like Rosaura’s, violate their right to life. Significantly, the Dominican Republic is one of the countries with the highest rates of maternal mortality and teenage pregnancy in the region.32

But the human rights violations go beyond this. When the state, through its legislation, sends a message as clear as this, professionals working in the public health sector, who are also government officials, feel they must “exercise their authority” and that they have a duty to “enforce the law”. This “obligation” often reinforces the prejudices and fears of health professionals themselves. Laws that criminalize abortion also create an atmosphere of fear given that health professionals can face prosecution. As a result, health workers end up subjecting women and girls to more violence and even torture in their everyday practices by denying them the right to make decisions about their own lives and health. They deprive them of the ability to make informed decisions or force them to make life and death decisions in secret. This is effectively what happened to Tania in Chile, where abortion in all circumstances is prohibited by law.

31 According to International human rights law, the criminalization of abortion in all circumstances, violates a series of human rights including the right to life, the right to physical and mental integrity, the right to be free from torture and other ill-treatment, the right to live free from violence, the right to the highest attainable standard of health, the right to privacy, the right to decide how many children to have and at what intervals, the right to non-discrimination (for more information on the human rights standards relevant to abortion, see On the brink of death: Violence against women and the abortion ban in El Salvador; (Index: AMR 29/003/2014, September 2014), pp47-50. Legal restrictions on abortion as torture and other cruel, inhuman and degrading treatment, see Chapter 4, p47.

32 The Dominican Republic has one of the highest rates of maternal mortality and teenage pregnancy in the region; more than 20% of women under 20 are either pregnant or have children (Women and Health Collective. Boletín Ciudadanas 2015, “28 de Mayo. Día Internacional de Acción por la Salud de las Mujeres”. pp2-3). This takes place in a context where there is very little progressive, age-appropriate sex education available to children and adolescents, no ready access to contraception or to services to help prevent sexually transmitted diseases and widespread gender-based violence. Early pregnancy, in addition to posing a high risk to the health of adolescents and girls, is also often indicative of sexual abuse or rape.

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TANIA’S STORY: CHILE Tania was 31 years old with a husband and three children aged between three and seven and was undergoing cancer treatment when she became pregnant. In order to continue the pregnancy without putting the foetus at risk she would have had to stop the cancer treatment, which would have put her life at risk. However, the doctor treating her gave her no choice. He told her to stay calm, that everything would be fine and that if she tried to have an abortion, he would have to report her to the authorities. Tania sought other opinions (from a midwife and another doctor). They confirmed that the pregnancy was incompatible with her cancer treatment. She decided to have an abortion, even though it was against the law, with all the risks to her life and health that that implied. Fortunately, Tania had the means to pay for the procedure at a private clinic with qualified personnel and in hygienic conditions.

According to Tania, the doctor who treated her initially withheld crucial information about the cancer treatment and his first reaction was to get annoyed with her for getting pregnant. “He was very annoyed when he learned that I was pregnant. He made me feel guilty. I remember that there was something on the table, I don’t remember what. He took it and threw it. He was very angry, very annoyed.” Then suddenly, he changed: “It was as if he became another person and he said, ‘don’t worry because your illness is under control. Straight away he was separating things, it was as if he was cutting me up: the illness, me and the baby, as if we were three separate things.”

“It wasn’t an easy decision to take because, looking beyond what was happening to me at that moment, I wanted to have more children and the only option I had was to have a hysterectomy and so I would never be able to have another child.” In the end “with the father of my children, the midwife and the gynaecologist, we decided that in reality I had to decide to save my life because that was the choice, it was that stark. It was clear there was no other way. I felt sure when I did it. I felt at that point I was fighting for my life.” Tania described how “they took me to a clinic at night, at around 10 or 11 o’clock. It was all very clandestine, but the procedure was carried out in a clinic.” When Tania woke up after her operation, she was alone: “There was no support, there was no one to support me at that moment. They took me there at night and the following morning I went home and I had check-ups after that as though I’d had an operation to remove cysts. That’s what they wrote in the records; that I’d had an operation for cysts.”

She added: “I have been in hospital many times [for the cancer] and seen women who had had abortions. They were treated very badly. You can’t imagine the inhuman treatment they get, from the person who sweeps the wards to the doctor. They faced constant recriminations, all day.”

Tania has kept her story a closely guarded secret for more than 30 years. “Most people don’t know. My children don’t know. It stayed between the midwife, the doctor, my husband and me. Because that’s what we agreed between us.”

Image used by Amnesty International Chile for its campaign to decriminalize abortion. © Amnesty International

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Despite the progress made in protecting human rights in Latin America and the Caribbean, the region still has some of the most restrictive laws on sexual and reproductive rights. Chile is one of seven countries in the region (along with El Salvador, Haiti, Honduras, Nicaragua, Suriname and the Dominican Republic) that criminalize abortion in all circumstances. The total ban means that women and girls are faced with institutions and health professionals who are not prepared to respond appropriately to their situation. In the absence of clear regulations and protocols, decisions in each case are at the discretion of the doctor or health professional. They can provide partial information that does not take into account the emotional needs of women dealing with a difficult situation or simply recommend treatment be suspended, as in the case of Tania, which could cost them their lives. Safe abortion is an option for those who have the means. For those who don’t, it means risking their lives and health having clandestine abortions in insanitary conditions or losing their lives without access to medical treatment.

This legislation has been in force in Chile since 1989, when the military government of General Augusto Pinochet introduced the criminalization of abortion without exceptions. Before then, abortion was a criminal offence but the law allowed for exceptions, namely to save the life or protect the health of the pregnant woman. In January 2015, President Michelle Bachelet presented a bill to Congress to introduce three exceptions to the total ban on abortion: when the life of the woman is at risk, when the foetus is not viable and when the pregnancy is the result of rape. At the time of writing, the bill was being debated in the Chilean Congress.

In El Salvador, similar legislation produces similar violence against women and promotes a discriminatory attitude towards women. It means that women are under suspicion and that pregnancy is turned into a very dangerous experience, to the point where women suffering an obstetric emergency are almost invariably suspected of a “crime”. If they do not have the resources to pay for a good defence, they can face sentences of up to 40 years’ imprisonment. That is what happened to Teodora.

Teodora Vásquez in the Ilopango municipal prison, El Salvador, 2015. © Amnesty International

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TEODORA’S STORY: EL SALVADOR33 Teodora del Carmen Vásquez, is 31 years old and is the sixth of 11 children in a poor farming family. She was not able to finish her basic education because she had to go to work at a very early age to supplement the family income. The family’s difficult economic situation led to her leaving her home village at 17 and going to the city where she was employed as a domestic worker. Teodora’s wages were a vital source of income for her family throughout her working life.

Teodora gave birth to her first child when she was 20; her son is now 12 years old. Cecilia, Teodora’s sister, told Amnesty International how every year, Teodora “would celebrate his birthday with piñatas and music. She would decorate his room and they would go for a walk together, just the two of them.”

In 2006, Teodora became pregnant. On 13 July 2007, Teodora was in her ninth month of pregnancy when her whole world was turned upside down. That day, while she was at work, Teodora started to have pains and feel unwell.

“When the pain got too bad, I grabbed my phone and started to dial 911, because that was the only number I could think of. A woman answered and said that she had made the request and help was on its way. But no one arrived to help me… I rang at least five times.”

Teodora had not been able to attend prenatal check-up sessions during her pregnancy because she didn’t have the money and she was working from six in the morning until nine at night. She didn’t get the medical support she needed because she lacked the resources and the time.

While she was waiting for help, Teodora felt she needed to go to the toilet. As she was on her way to the bathroom the pain got worse and she fell. She subsequently had a miscarriage in the bathroom. She passed out and was bleeding profusely. Several police officers arrived at her workplace. Teodora was handcuffed, accused of aggravated homicide on suspicion of having induced an “abortion” and detained. The following day, in her hospital bed and still confused and disorientated, she was confronted by the accusatory questioning of police officers who asked her: “Why did you do it?” She was then taken to prison.

Teodora’s family have few financial resources and so were unable to pay for an effective legal defence. In 2008, she was sentenced to 30 years in prison. She has already served eight years (she has been in prison since 2007). Despite the sentence, she has continued to study and at the moment is studying for her baccalaureate. From her prison cell, Teodora told Amnesty International: “Every day I get up with a positive attitude, eager to learn something new.”

These three cases, like those of Mónica and Mainumby which are described in the following chapter, bring into sharp focus a pattern that is repeated across the region; namely, the use of the criminal law to criminalize abortion in all, or almost all, circumstances. The ostensible purpose of these laws is to prevent abortions. However, this report documents how these draconian laws result in violations of human rights – including the right to life, health and women’s equality – and subject women and girls to institutional violence, including torture or other ill-treatment.

33 To read more about the story of Teodora and other women in a similar situation in El Salvador, see Amnesty International, Separated families, Broken Ties, November 2015, Index: AMR 29/2873/2015.

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There are numerous studies that show that criminalization does not reduce the number of abortions but rather increases maternal mortality and morbidity because it forces women and girls to seek clandestine treatment that puts their lives and health at risk.34 States in Latin America and the Caribbean have already acknowledged this.35 However, abortion is still a crime in much of the region because the foetus is afforded absolute, or near absolute, protection, even at the expense of the rights to life, health and humane treatment of women.

As discussed in detail below (Chapter 3: “Impositions of moral or religious precepts”), this protection is strongly influenced by the notion that “life is sacred and should be protected from the moment of conception” advanced by the Catholic and Evangelical churches, which have a huge presence and influence in the region. Human rights bodies have stated that this concept is discriminatory because it imposes a stereotype of women as mothers, viewing them as mere instruments of reproduction.36 They have also determined that while states may wish to protect the foetus, this protection cannot be absolute but must be gradual and incremental, according to the development of the foetus.37 Fundamentally, protection of the foetus is ensured via the pregnant woman or girl38 and by giving primacy to guaranteeing her life or health.39

34 See for example, World Health Organization, Safe abortion: technical and policy guidance for health systems (Second edition), 2012, p90. 2015, World Health Organization, Sexual health, human rights and the law, 2015, p16.

35 In the Montevideo Consensus on Population and Development, states in the region stated that they were, “Concerned at the high rates of maternal mortality, due largely to difficulties in obtaining access to proper sexual health and reproductive health services or due to unsafe abortions, and aware that some experiences in the region have demonstrated that the penalization of abortion leads to higher rates of maternal mortality and morbidity and does not reduce the number of abortions, and that this holds the region back in its efforts to fulfil the Millennium Development Goals.” ECLAC, LC/L.3697, 23 September 2013, p15

36 See Committee on the Elimination of Discrimination against Women, the case of L.C. vs Peru, Op. cit.

37 Inter-American Court of Human Rights, Artavia Murillo and other vs Costa Rica, para 264.

38 “Also, taking into account, as indicated previously, that conception can only take place within a woman’s body... it can be concluded with regard to Article 4(1) of the Convention, that the direct subject of protection is fundamentally the pregnant woman, because the protection of the unborn child is implemented essentially through the protection of the woman, as revealed by Article 15)(3)(a) of the Protocol of San Salvador, which obliges the States Parties “to provide special care and assistance to mothers during a reasonable period before and after childbirth,” and article VII of the American Declaration, which establishes the right of all women, during pregnancy, to special protection, care, and aid.” Inter-American Court of Human Rights Case of Artavia Murillo et al (in vitro fertilization) vs Costa Rica; Preliminary Objections, Merits, Reparations, and Costs; Judgment of November 28, 2012, para 264.

39 Committee on the Elimination of Discrimination against Women, View: Communication No 22/2009, L.C. vs Peru, para 8.15, 2011; Committee on the Elimination of Discrimination against Women, Concluding observations on Hungary, 2013, para 30.

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STATE PRACTICES THAT GENERATE VIOLENCE AGAINST WOMEN AND, SOMETIMES, TORTURE OR OTHER ILL-TREATMENT

In other cases, the state supports or tolerates public policies or practices on sexual and reproductive rights that are deeply discriminatory towards women and result in violence against women and, in some instances, torture and other cruel, inhuman or degrading treatment.

In Peru, for example, implementation of the National Programme for Reproductive Health and Family Planning 1996-2000 (Programa Nacional de Salud Reproductiva y Planificación Familiar, PNSRPF), resulted in the forced sterilization of an as yet unknown number of mostly Indigenous women in rural areas living in poverty. The Office of the Ombudsman has documented the sterilization of 272,028 women during the period 1996-200140 and has concluded, after three in-depth reports, that there were no guarantees of free choice in the application of this permanent method of contraception.41 Esperanza is one of the women affected.

Esperanza Huayama, President of the Women’s Association of Huancabamba, Peru, October 2015. © Amnesty International / Raúl García Pereira

40 Ombudsperson’s Office. “La aplicación de la Anticoncepción quirúrgica y los derechos reproductivos III”. Informe Defensorial Nº 69. Lima: Ombudsperson’s Office, 2002, p62.

41 Ibid. p304

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ESPERANZA’S STORY: PERU Esperanza is 59 years old and lives in the northern Andean region of Peru. In 1998, she had nine children and recalls that at that time “health promoters were coming to the villages to see us and tell us that a group of doctors from Lima was coming to the area. They told us to come so we could get food and help. So lots of us went along.”

When Esperanza arrived at the polyclinic, she learned that they had brought them there to have their tubes sealed as part of the Family Planning Programme being implemented at that time. During the operation, Esperanza overheard a conversation between the doctor and the nurse who pointed out that she was pregnant: “I heard the nurse speaking to the doctor and talking about my ‘condition’.” That’s when I reacted and told him, ‘If they’re going to take my child, I want die with him’. I begged them not to remove the foetus. They didn’t say anything. They just gave me another injection and I fell asleep. I don’t remember anything, until I woke up at 6pm.”42

In the months following sterilization, Esperanza experienced continuous pains in her belly and nausea. She went to see a doctor living in the province who finally determined that she had lost the pregnancy: “I lost my baby son against my will because of what those doctors who operated on me did. They didn’t care about my life or my baby.”

Esperanza still lives with the scars of that forced sterilization: “The pain of losing my baby never leaves me. I’m sick and it’s because I let them operate on me; that’s why I’m like this. My belly swells up and I have no energy. I feel awful. Sometimes, a few of us who had our tubes sealed get together. They have backaches and headaches too. They suffer from the same aches and pains as I do. Some have been left in very poor health; they can barely walk. Others have died. I’ve been able to buy medicines and take care of myself, thank God. I also use medicinal plants; I don’t neglect my health. The Comprehensive Health Insurance [Seguro Integral de Salud, SIS] only prescribes paracetamol for us and that doesn’t do anything at all. We don’t get to see specialist doctors, just nurses. We’ve been forgotten”.

Like many of the women who were sterilized, Esperanza’s life has changed. She can no longer do the work she did before and so has lost her source of an income: “I used to spin and weave, but now I can’t because my back aches and my body swells up. I can’t do anything.” Fortunately my husband supports me, unlike some other women whose husbands have abandoned them because they can’t do anything now. We are suffering. Some have even died of cancer because they couldn’t get treatment.”

Those responsible for violating the human rights of Esperanza, and all the other women sterilized without their consent during that period, continue to enjoy total impunity. Esperanza is the current President of the Women’s Association of Huancabamba Province (Asociación de Mujeres de la Provincia de Huancabamba, AMHBA). “Although people say I am illiterate, it doesn’t discourage me, because as a member of the organization I have learned to be strong, to hold my own so that they don’t try to fool me, so that they don’t mock us as Indigenous women.” In the AMHBA we have organized ourselves to defend the rights of sterilized women.”

42 The World Health Organization recommends postponing surgical sterilization procedures such as that performed on Esperanza if the woman is pregnant. WHO, Medical eligibility criteria for contraceptive use, Fifth Edition 2015, p232, available at: http://apps.who.int/iris/ bitstream/10665/181468/1/9789241549158_eng.pdf.

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The policy and practice of mass sterilizations in Peru have now ended,43 but the violence they inflicted on Esperanza and the other women sterilized against their will has not. By failing to guarantee truth, justice and reparations for such serious human rights violations, the state is subjecting the victims of forced sterilizations to further and ongoing violence.

In April 2015, the Public Prosecutor’s Office reopened an investigation into the systematic practice of forced sterilization in the country as a grave violation of human rights.44 At the time of writing, the investigation was continuing. In addition, in November 2015, the government began recording the names of victims of forced sterilization in order to provide them with psychological and medical support and to facilitate their access to justice, although so far, it has not provided them with comprehensive reparation.45

Mural created for International Day for the Elimination of Violence against Women. The mural reads: “A life free of violence is a human right”. Veracruz, Mexico, 2015 © Veracruz Municipality Department of Social Communications

43 The Ombudsperson in Peru has recognized that following the recommendations made to the Ministry of Health, various actions have been taken, including changes in regulations (both in the Programme for Reproductive Health and Family Planning Handbook 1996-2000 as well as in the AQV Manual, as well as in its implementation. Ombudsperson, Eduardo Vega Luna, at the «Foro sobre los derechos humanos de las mujeres en Esterilizaciones forzadas. 18 años sin justicia», Lima, Auditorio del Congreso de la República, 6 July 2015, available at http://www.defensoria.gob.pe/modules/Downloads/prensa/discursos/2015/discurso-06-07-2015.pdf.

44 In April 2015, the Senior Public Prosecutor Specializing in Organized Crime, Luis Landa Burgos, stated that: “Extending the preliminary investigation into the case by THREE MONTHS will allow for detailed proceedings and allow us to clarify the matter.” Legal complaint N ° 01-2014. In February 2016 the investigation was extended for a further 150 days.

45 In adopting “Supreme Decree No 006-2015-jus”, the Peruvian government declared prioritizing care for victims of forced sterilizations between 1995 and 2001 to be a matter of national interest and created the relevant register. This includes declaring the social support and the physical and mental health of the victims of forced sterilization of national interest and ensuring free legal aid so that they can have access to justice. The decree establishes that the Register of Victims aims to identify all those affected and ensure their access to justice.

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Unfortunately, the practice of sterilizing women without their consent is not confined to the past or to Peru. Civil society organizations have documented cases in at least four countries in the region where women living with HIV are being coerced or forced to undergo sterilization,46 including some states in Mexico.47

In Mexico, as in all countries of the region, when pregnant women go to hospital, they run a serious risk of experiencing obstetric violence.48 Obstetric violence can take the form of being denied treatment, have requests or demands ignored, criticisms or jibes, or making medical decisions about childbirth without their consent. Women living with HIV are even more exposed to such violence. Some may even be forced or coerced into undergoing sterilization because of their HIV status by the failure to provide appropriate information about mother-to- child transmission of the virus.49

In recent years various civil society organizations, such as the Maria Fund (Fondo María A.C) and the Balance Network (Red Balance A.C), have received a number of testimonies from women living with HIV who point out that misinformation about the transmission of the virus has often resulted in coerced or forced sterilization. Despite the fact that there is ample evidence about effective interventions to reduce the risk of mother-to-child transmission, a

46 Forced sterilization is when a person is sterilized without their knowledge or informed consent. “Sterilization under coercion” is when people give their consent for the procedure, but on the basis of incorrect information or other coercive tactics such as intimidation or that conditions are attached to sterilization, such as financial incentives or access to health services, etc. Conf. T Kendall and C Albert, “Experiences of coercion to sterilize and forced sterilization among women living with HIV in Latin America.” Journal of the International AIDS Society, 2015, 18:19462.

47 A report carried out in El Salvador, Honduras, Mexico and Nicaragua, concluded that women living with HIV and whose health providers knew about their condition when they became pregnant, were six times more likely to undergo forced or coerced sterilization in these countries. In addition, many of these women reported that health-care providers were told that the fact that they were living with HIV meant they no longer had a right to choose the number and spacing of their children, or to use a contraceptive method of their choice. Health-care workers also provided incorrect information about the consequences for their health and that of their children and denied them access to treatments that minimize mother- to-child HIV transmission to coerce them into being sterilized. T Kendall and C Albert, “Experiences of coercion to sterilize and forced sterilization among women living with HIV in Latin America”, Journal of the International AIDS Society, 2015, 18:19462. Similarly, a regional study (carried out by Balance A.C. among 100 women with HIV in 2013) reveals similar results, including difficulties in getting access to information about reproductive matters, from the time of the diagnostic test, to treatment options, to protected sex and safe sex, and about options to choose to have children (report Balance A.C., unpublished, on file with AI).

48 According to a report by the Information on Reproductive Choice (Grupo de Información en Reproducción Elegida, GIRE), obstetric violence is a serious problem in Mexico, as in many cases obstetric health services in Mexico can end in obstetric violence or maternal death. This has a significant impact on Indigenous women living in poverty. GIRE, Niñas y Mujeres sin Justicia: derechos reproductivos en México, 2015, p119.

49 New HIV infection in children can be prevented and the lives of their mothers can be saved if pregnant women living with HIV and their children have a timely access to quality life-saving antiretroviral drugs. These are not only important for the women’s own health, but also prevent HIV transmission during pregnancy, childbirth and breastfeeding. When antiretroviral drugs are available as a preventative measure, HIV transmission can be reduced to less than 5%. UNAIDS, Global Plan towards the elimination of new HIV infections among children by 2015 and keeping their mothers alive, 2011, p8.

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number of HIV-positive women have been forced to undergo sterilizations or have agreed to be sterilized without having the proper information and knowledge about their options.50 This is what happened to Michelle in Mexico. MICHELLE’S STORY: MEXICO Michelle is a 23-year-old woman living with HIV. Originally from Veracruz, she is housewife and mother of two. In 2014, during her second pregnancy, Michelle started attending the General Hospital in her municipality as part of her prenatal care. When she was four months pregnant, the hospital informed her that she was HIV- positive. From that moment on and even after the birth of her child, she was subjected to various forms of ill-treatment by health-care providers in the State of Veracruz.

As she was nearing her due date, Michelle attended an appointment with the gynaecologist, accompanied by her mother, to plan her caesarean section. The gynaecologist told her she would need surgery to prevent her having any more children (bilateral tubal occlusion).51 Michelle did not want this procedure; her preferred method of contraception was a coil (intrauterine device, IUD). However, the doctor insisted that she undergo the procedure. Michelle remembers being told in a very brusque manner: “What are you waiting for? You have HIV and you’re about to bring a sick child into the world: Why do you want to get pregnant again?”

Michelle told Amnesty International: “I felt under a lot of pressure and I felt ashamed. The doctor even had a go at my mother, telling her that, as a mother, ‘she must understand’. After a series of accusations and intimidation, he forced my mother to sign a paper authorizing the procedure. He didn’t explain what the procedure entailed or provide information about the possible risks.” Michelle remembers that was very scared because she had been told it was a painful procedure. Although Michelle said several times that she did not want the procedure, the operation went ahead without obtaining her full informed consent.

On 27 September 2014, Michelle arrived at the General Hospital in labour, but the surgeon on duty did not want to carry out a caesarean section. She had to wait several hours for a doctor to arrive who was willing to carry out the procedure on women with HIV. While she was in the General Hospital, she was subjected to discriminatory treatment and verbal abuse; a large sign was placed above her bed giving her name, age, date of admission and the letters HIV. Likewise, health workers repeatedly ignored her requests for help for basic things, like going to the toilet.

Michelle suffered a haemorrhage and health personnel responded by thrusting a piece of cloth at her and telling her to clean up her own blood, shouting that she had to do it because hospital staff didn’t want to be infected. Michelle also remembers that she was the only one who was given her food on disposable plates and then only after all the other women in the ward had eaten.

Michelle currently works for a foundation that helps pregnant women living with HIV. The organization helped her to overcome the trauma and share her experiences with other women like herself who have undergone forced sterilization. “It caused me a great deal of suffering, not because I wanted to have another child -- I wasn’t planning on having another baby -- but because it is a scar that I will carry all my life. It wasn’t my decision. They did it to me by force.”

50 Even though national legislation defines family planning as the right of every person to decide in a free, responsible and informed manner on the number and spacing of their children and to obtain specialized information and appropriate services. The exercise of this right applies to all, irrespective of gender, age and people’s social or legal status. (NOM 005-SSA2-1993).

51 Bilateral tubal occlusion is a permanent contraceptive method for women. It consists of blocking both fallopian tubes in order to prevent fertilization. See Norma Oficial Mexicana, NOM 005-SSA2-1993, De los Servicios de Planificación Familiar, available at: http://www.hgm.salud.gob.mx/descargas/pdf/dirgral/ marco_juridico/normas/nom_02.pdf

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Michelle’s case exposes a practice which, in addition to being highly discriminatory, violates human rights standards which recognize that women living with HIV have the right to contraception and other reproductive health services in the same conditions as all women. According to these standards contraceptives must be available and affordable and women must have the right to freely choose or reject family planning services (including sterilization).52

The element common to the experiences of Esperanza and Michelle and those of Rosaura and Tania is that it was other people, usually medical staff working for the state, who made decisions about their reproductive future, their health and their lives. And each of the women is still living with the serious consequences of those decisions. All four women were deprived of the freedom to make such important decisions as stopping a pregnancy that put their life or health at risk, or keeping a child that they wanted or permanent sterilization that would prevent them ever having children again. The experience of Mainumby, a young girl in Paraguay, also illustrates the same violence inflicted by the state.

In April 2015, the story Mainumby53 caused a public outcry and made international headlines. Mainumby, who was 10 years old and weighed just 34kgs, was 21 weeks pregnant as a result of rape, apparently committed by her stepfather. MAINUMBY’S STORY: PARAGUAY Mainumby lived with her mother, her brother WF and her stepfather in a deprived area on the outskirts of Asunción. Mainumby’s mother, CEF,54 worked in a school kitchen and would leave home very early in the morning and return late in the evening. Mainumby’s stepfather worked as a mechanic and had no fixed working hours. CEF suspected that her daughter was being abused. Therefore, in January 2014 she began lodging complaints with the relevant authorities, but these were dismissed. The authorities failed to investigate the allegations properly or to give immediate protection to the girl by keeping the alleged abuser away from her.

In January 2015, Mainumby began to complain of stomach pains and said she was feeling unwell. Her mother took her to two different public health centres and both diagnosed a parasitic infection. But Mainumby continued to feel ill and in mid-April they went to a private hospital where she was diagnosed with a possible tumour and an ultrasound was requested. On 21 April 2015, Mainumby and her mother arrived at the Holy Trinity Maternity and Infant Hospital to have the ultrasound, which revealed by chance that she was 20-21 weeks pregnant.

At the hospital the girl and her mother received comprehensive care. The Hospital Director filed the relevant reports and publicly stated that this was a high-risk pregnancy because the girl was so young and her uterus was not developed enough to carry a baby. According to press reports, the Hospital Director said that, “in

52 “The interagency statement of the World Health Organization (WHO), UN women, UN AIDS, UNICEF, the United Nations Population Fund, the United Nations Development Programme and the Office of the High Commissioner for human rights (OHCHR) on involuntary sterilization”, p3-4; Eliminating forced, coercive and otherwise involuntary sterilization: An interagency statement, 2014, available at: http:// www.unaids.org/sites/default/files/media_asset/201405_sterilization_en.pdf

53 Not her real name.

54 The woman asked to be identified by these initials.

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the event that the girl’s life or health is at risk, a termination will be considered. We are legally mandated to do so.”55 From that moment, organizations with religious affiliations began to apply constant pressure on CEF and on various officials in different state departments to prevent the termination of the Mainumby’s pregnancy.

On 23 April, the Public Prosecutor on duty ordered that Mainumby be admitted to the private Queen Sofia Hospital run by the Paraguayan Red Cross, accompanied by her mother, and that for the time being she stop attending school. Four days later, they separated Mainumby from CEF by issuing a detention order against CEF on charges of failing to exercise her duty of care and complicity in the abuse of her daughter, even though she had previously reported her suspicions about the abuse. Mainumby’s rapist remained at large. The arrest of CEF took place on the same day as a termination of Mainumby’s pregnancy was requested to avoid risk to her life and health. The case provoked a media storm and the resulting pressure led to a press statement by the country’s highest authorities categorically rejecting the request for an abortion.56

In addition to being denied an abortion, Mainumby was separated from her mother and was left on her own in the hospital. A few days later, a judicial order “interned” Mainumby in a home, described as the “hostel for child mothers”.57 This hostel is in an enclosed area and the judge dealing with the case ordered that visits be strictly limited. While she was in the hostel, Mainumby was not able to attend school and it was only after numerous requests from CEF that she received educational support once a week. On May 24, Mainumby’s 11th birthday, her mother was able to visit her for the first time (CEF was allowed to spend 15 minutes with her daughter in the hostel).

During the time she was in prison, CEF received no news of her daughter from the authorities; her only sources of information were the press and human rights organizations who were providing her with support and advice.

Mainumby finally gave birth by caesarean section on 13 August 2015 at the Red Cross Hospital. She was discharged 10 days later. The after-effects, physical and psychological and in terms of Mainumby’s project of life, are still not clear. Mainumby is having enormous difficulty in getting hold of the medicines she needs for her recuperation and the enriched whole milk for the newborn that would enable her to pursue important aspects of her development as a child, including going to school; this is virtually impossible while she is having to breastfeed the baby.

The case against CEF has been dismissed, but she has lost her job and now must take care of her two young children and the new baby.

55 ABC Color, Declaraciones del Dr Ricardo Oviedo, Director del Hospital Materno Infantil de Trinidad; 24 April 2015, available at: http://www.abc.com.py/edicion-impresa/locales/si-la-vida-de-nina-embarazada- corre-riesgo-interrumpiran-gestacion-dicen-1359702.html. See also https://www.youtube.com/ watch?v=8_0LLY0iam8.

56 “We [in the state] are not, from every point of view, in favour of the termination of the pregnancy”, statement published in the local media regarding the Minister of Public Health and Social Welfare Antonio Barrios’ rejection of abortion, in the case of “Mainumby”: http://www.ultimahora.com/nina- embarazada-ministro-salud-no-esta-favor-del-aborto-n892740.html. Abortion is criminalized in Paraguay, except when the life of the woman or girl is in danger.

57 On 30 April, the Youth Judge issued preventative measures ordering the internment of Mainumby in the Maternal Hostel “Andres Gutebich”, very close to the Hospital.

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Demonstration to commemorate International day for the Elimination of Violence against Women, Asunción, Paraguay, 25 November 2015. © REUTERS

This is probably one of the cases that most starkly exposes the cycle of institutional violence to which women and girls are subjected by agents of the state. CEF first reported the possible abuse of Mainumby in January 2014 to the Municipal Council of Child and Adolescents Rights (Consejería Municipal de Derechos del Niño, Niña y Adolescente, CODENI), but no action was taken.58 Although CODENI has a legal obligation to investigate and ensure protection in cases of child abuse, all state officials did was tell CEF that she should lodge a criminal complaint with the Public Prosecutor. On 20 January 2014, CEF lodged a complaint with the Public Prosecutor’s Office, which opened an investigation that was dismissed on the basis that psychological assessments of the girl found no signs of abuse.59 The Prosecutor did not follow any of the due diligence measures, set out in international human rights standards,

58 CODENI comes under the auspices of municipal government and is mentioned in Paraguay’s Code on Children and Adolescents (2001), which incorporates the principles of the Convention on the Rights of the Child. Law 4295/11 also establishes a procedure to deal with child abuse in Paraguay. Both set out the obligation of CODENI to receive complaints about violations of the rights of girls and to immediately take measures to protect and support them (see Code on Children and Adolescents, Articles 5 and 34 and Law 4295/11, Article 4). CODENI has stated that it has no record of CEF’s complaint. However, it has acknowledged that “in cases involving allegations of sexual abuse, it advises the complainant to report it to the Public Prosecutor’s Office (Cf. expediente penal de la causa sobre abuso sexual de Mainumby - Causa 484/2014, Fjs 19, on file with Amnesty International).

59 On 20 August 2014, the Public Prosecutor requested that the complaint be dismissed. Case 484/2014. Criminal prosecution official, Zone No 5, Luque (Agente Fiscal Penal de la Fiscalía Zonal Numero 5 de Luque).

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that state officials are required to take when investigating violence against women and girls.60 Neither was the alleged abuser identified in order to remove him from the girl’s surroundings as a preventive measure, nor was the Children’s Commissioner (Defensoría de la Niñez) informed of the case so that they could protect the girl’s rights.

According to the Convention of the Rights of the Child (CRC), children and adolescents have the same rights as every other person and also to specific safeguards because they are still developing and their capacities are evolving. Article 3.1. of the CRC states: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” The CRC also establishes special mechanisms for the protection of children and adolescents from physical, mental and sexual abuse and ill-treatment, including the obligation of the state to protect them and investigate the perpetrators of such crimes.61

The Committee on the Rights of the Child recommends “that cases of violence in the home and of ill-treatment and abuse of children, including sexual abuse in the family, be investigated according to judicial procedures that are child sensitive and with due regard for the protection of the right to privacy of the child. Measures should also be taken to ensure that support services are available to children during legal proceedings to ensure the physical and psychological recovery and social reintegration of victims of violations and avoid their being treated as criminals or ostracized.”62

60 Among other requirements, in the course of a criminal investigation for rape: i) the victim’s statement should be taken in a safe and comfortable environment, providing privacy and inspiring confidence; ii) the victim’s statement should be recorded to avoid the need to repeat it, or to limit this to the strictly necessary; iii) the victim should be provided with medical, psychological and hygienic treatment, both on an emergency basis, and continuously if required, under a protocol for such attention aimed at reducing the consequences of the rape; iv) a complete and detailed medical and psychological examination should be made immediately by appropriate trained personnel, of the sex preferred by the victim insofar as this is possible, and the victim should be informed that she can be accompanied by a person of confidence if she so wishes; v) the investigative measures should be coordinated and documented and the evidence handled with care, including taking sufficient samples and performing all possible tests to determine the possible perpetrator of the act, and obtaining other evidence such as the victim’s clothes, immediate examination of the scene of the incident, and the proper chain of custody of the evidence, and vi) access to advisory services or, if applicable, free legal assistance at all stages of the proceedings should be provided. Inter-American Court of Human Rights, the case of Fernández Ortega et al vs Mexico, Preliminary Objections, Merits, Reparations, and Costs; Judgment of 30 August 2010, para 194. See also, Inter-American Court of Human Rights, the case of Rosendo Cantu and another vs Mexico, Preliminary Objections, Merits, Reparations, and Costs; Judgment of 31 August 2010, para 178; Inter- American Court of Human Rights, the case of J vs Peru, Preliminary Objections, Merits, Reparations, and Costs; Judgment of 27 November 2013, para 344.

61 Art. 19 of the Convention on the Rights of the Child: “1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. 2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.”

62 Rachel Hodgkin and Peter Newell, Implementation Handbook for the Convention on the Rights of the Child, UNICEF, “Article 19”, p281.

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As happens throughout the region, victims of family violence are often not taken seriously; their complaints are not investigated properly and no protection is provided. If the CODENI or the Public Prosecutor’s Office had taken immediate steps to protect Mainumby and to remove the alleged perpetrator from her environment, she would not have continued to be raped by her stepfather and she would not have become pregnant.63

This re-victimization by a justice system that should have protected her was compounded by the failures of the state health system. CEF took her daughter to two public health institutions where not only did they fail to diagnose the problem and prescribe the wrong medication, but one doctor accused her of being “sulky and difficult”. It was by chance that, four months later, a public hospital finally spotted the result of the rape and by then Mainumby was already 20 weeks pregnant.

Abortion is criminalized in Paraguay, except when the life of the woman or girl is in danger.64 No exceptions are allowed in any other circumstances, even when pregnancy is the result of rape or incest or when the health of the woman or girl is at risk. This violates the minimum requirements set out in human rights standards. The Committee on the Rights of the Child, analysing the situation in another country,65 recently expressed concern at the criminalization of abortion in cases of rape or incest and at restrictive interpretations of therapeutic abortion which create a situation in which girls are obliged to resort to unsafe abortions, endangering their health and their lives. The Committee called on the state to:

“Decriminalise abortion in all circumstances, ensure children’s access to safe abortion and post-abortion care services, at least in cases of rape, incest, serious impairment of the foetus and in cases of risk to the life and health of mothers, and provide clear guidance to health practitioners and information to adolescents on safe and abortion and post-abortion care. The views of pregnant girls should always be heard and respected in abortion decisions.” 66

63 According to the diagnosis, Mainumby was 20-21 weeks pregnant on 21 April 2015. The rape that resulted in the pregnancy must therefore have occurred in mid-December 2014.

64 Article 109.4 of the Criminal Code, Death indirectly caused in childbirth by necessary treatment. “Anyone indirectly bringing about the death of the foetus will not be liable to prosecution if, in the opinion of medical experts, this was necessary to protect the life of the mother from serious risk.” (Unofficial translation.)

65 International human rights standards require states to: 1) decriminalize abortion in all circumstances in order to eliminate the punitive measures imposed on women and girls who seek abortion services and on health professionals providing them if there is a full consent. 2) Ensure access to abortion in law and in practice as a minimum in cases where the pregnancy poses a risk to the life or health of the woman, where the foetus suffers from severe malformation or is not viable, or where the pregnancy is the result of rape or incest. 3) Take steps to ensure that the life and health of the woman or girl take precedence over the protection of the foetus. 4) Regardless of the legal status of the termination, states have an obligation to ensure access to quality and confidential health services for the treatment of complications arising from unsafe abortions and miscarriages. This treatment should be free from discrimination, coercion and violence. For more information on human rights standards regarding abortion, see Amnesty International, On the brink of death: Violence against women and the abortion ban in El Salvador, (Index: AMR 29/003/2014), pp47-50 and Annex I. The Special Rapporteur on torture has repeatedly expressed concerns about restrictions on access to abortion and about absolute bans on abortion as violating the prohibition of torture and ill-treatment. (See CAT/C/PER/CO/4, para 23). On legal restrictions on abortion as torture and other cruel, inhuman and degrading treatment, see Chapter 4, p47.

66 Committee on the Rights of the Child, Concluding observations on the combined fourth and fifth periodic reports of Peru (11-29 January 2016). Para 56 b, available at: http://tbinternet.ohchr.org/_ layouts/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fPER%2fCO%2f4-5&Lang=en.

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Nevertheless, even under the restrictive legislation in Paraguay, Mainumby should have had access to a legal abortion. The World Health Organization has declared that pregnancy poses a danger to the lives of adolescents; adolescents aged under 16 face four times the risk of maternal death compared to women in their 20s.67 According to news sources, Dr Maria Ligia Aguilar, Director of Comprehensive Child and Adolescent Health at the Ministry of Health of Paraguay, has expressed similar views.68

Although they had all this information at their disposal, state officials still refused to consider terminating this high-risk pregnancy. In the face of their refusal to allow a termination, experts from the UN, the European Parliament, the Inter-American Commission on Human Rights and other national and international organizations asked the authorities to take urgent measures to protect the life and health of the child by ensuring her access to all the treatment necessary to safeguard her health, including the option of safe abortion.69 However, the authorities continued to reject abortion as an option, claiming that the girl was in a stable condition.70 Subsequently, Paraguay refused to implement the precautionary measures requested by the Inter-American Commission on human rights on 8 June 2015 to protect Mainumby’s life and personal safety by ensuring all medical options were available.71

The state at no point took into consideration the implications for Mainumby’s overall health and project of life, and all the mental and physical dangers posed in the short, medium and long term by this high-risk pregnancy. This very small child was already suffering from the profound trauma of rape and sexual abuse and the pregnancy was a daily reminder of those violations. It is difficult to fully comprehend the extreme cruelty involved in forcing a child to continue a pregnancy and forced motherhood. The physical and mental impact of continuing with this high-risk pregnancy, giving birth and breastfeeding a newborn baby could be devastating and comparable to torture or other cruel, inhuman or degrading treatment.

67 World Health Organization, “Adolescent pregnancy: a culturally complex issue”, available at: http:// www.who.int/bulletin/volumes/87/6/09-020609/en/.

68 She stated that pregnancy at a young age creates several complications that may compromise both the life of the young mother and the baby: “One of the risks is the threat of premature birth, which occurs in 18% of cases. This can reduce the baby’s chances of survival. There can also be complications during the birth itself which have, on occasion, resulted in the deaths of adolescent girls” http://www. abc.com.py/edicion-impresa/locales/si-la-vida-de-nina-embarazada-corre-riesgo-interrumpiran-gestacion- dicen-1359702.html.

69 See United Nations, Human rights: Paraguay has failed to protect a 10-year old girl child who became pregnant after being raped, say UN experts, 11 May 2015, http://www.ohchr.org/EN/NewsEvents/ Pages/DisplayNews.aspx?NewsID=15944&LangID=E. See also inter-American Commission on Human Rights, Precautionary Measures, MC 178/15, Case of the girl named Mainumby in Paraguay, 8 June 2015, http://www.oas.org/es/cidh/decisiones/pdf/2015/MC178-15-ES.pdf, (available in Spanish only); European Parliament, resolution of 11 June 2015 on the legal aspects related to child pregnancy (2015/5/2733(RSP). See also Amnesty International, “Paraguay insiste en desconocer el drama de niña de diez años violada y embarazada” (Index: AMR 45/1695/2015), (available in Spanish only).

70 Paraguayan Ministry of Health, http://www.mspbs.gov.py/v3/nina-embarazada-gestacion-no-presenta- complicaciones/ and Ministry of Foreign Affairs http://www.mre.gov.py/v2/Noticia/2876/comunicado-de- prensa.

71 See Ministry of Foreign Affairs, press release, 11 June 2015, http://www.mre.gov.py/v2/Noticia/2876/ comunicado-de-prensa.

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In a similar case in 2012, the European Court of Human Rights found that the actions of the state had violated the “prohibition of inhuman or degrading treatment” and that the difficulties were the result of “the lack of a clear legal framework, the delay of medical staff and also as a result of harassment [by religious institutions]”.72

Mainumby’s case is one of extreme violence, but unfortunately hers is not an isolated case either in Paraguay or indeed in the region, which has the second highest rate of teenage pregnancies in the world (around 70 births per 1,000 women aged 15-19) and it is estimated that 38% of women become pregnant before the age of 20. Almost 20% of births are to adolescent mothers.73

The pregnancy rate for girls under 14 in the region is not known. However, very worryingly, preliminary studies indicate that it is a problem in almost all countries in the region and affects above all families living in poverty and rural and Indigenous communities. It is the product of a series of serious shortcomings in state protection of these children.74 In Paraguay, where the age of consent is 16, all pregnancies involving girls under the age of 14 are by definition the result of sexual abuse. For many years the rate of these crimes has remained constant, showing no improvement.75

Unfortunately, it is not only in cases involving young girls that certain state agents consider that they have greater decision-making power than the person whose life, health and future, as well as the future of their family, are at stake. Near Asunción, in Entre Ríos (Argentina), Mónica suffered similar violence at the hands of the state with serious consequences for their health and life. The cases of Mainumby and Mónica have another thing in common: the special vulnerability of women and girls with limited resources faced with a system that inflicts violence on them.

72 European Court of Human Rights, Case of P. & S. vs Poland, ECHR 398, 2012. The case involved a 14-year-old girl “P”, who was pregnant as a result of rape and who was denied her right to abortion. At the local hospital, the Head of Obstetrics and Gynaecology said that P and her mother needed a priest, not an abortion, and set up a meeting with a Catholic priest. P discovered that the priest had been given confidential information about her pregnancy without her consent. In desperation, P and her mother travelled to Warsaw, where, with the support of an NGO, they finally saw a doctor, but the Church continued interfering and mother and daughter were harassed to the point where they needed police protection. Weeks after the rape and only a few days before reaching the time limit for a legal abortion, the Ministry of Health intervened and P was able to obtain the abortion she had right to in a hospital of 500km from her home. The European Court of Human Rights found that the state had violated P’s human rights (hfile:///Users/lina/Downloads/Chamber%20judgment%20P.%20and%20S.%20v.%20 Poland%2030.10.12.pdf).

73 UNFPA Paraguay, JOPARE, July 2013, www.unfpa.org.py.

74 Planned Parenthood, Federation of America, Global: Stolen Lives, CLADEM (report to be published in March 2016, preliminary conclusions on file with Amnesty International).

75 Official statistics indicate that in 2009, 590 pregnancies were recorded among children and adolescents in this age group; in 2010 there were 555; and in 2011, a total of 611. UNFPA Paraguay, JOPARE, July 2013, www.unfpa.org.py.

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MÓNICA’S STORY: ARGENTINA76 Mónica suffers from a congenital heart disease. The condition causes various complications77 resulting in a series of five miscarriages between 1997 and 2005. The latest miscarriage occurred in the sixth month of pregnancy. Given the risks that each pregnancy posed to Mónica’s health and life, the doctor advised that she undergo tubal ligation, and she agreed. But the day she was admitted to undergo the procedure, the public hospital was not able to carry it out because, according to her medical records, “the operating theatre was not ready”. Mónica was discharged. The appointment was not rescheduled and she was not offered any alternative contraceptive method.78

Mónica and her husband have a 17-year-old son, M, who was born on 15 June 1998, at 27 weeks weighing 1.7kgs. M suffers from developmental delay (learning difficulties) because of his premature birth, which was in turn a direct result of his mother’s heart condition.

On 15 June 2011, Mónica went to the San Roque Public Hospital where it was discovered that she was 10 weeks pregnant. The hospital knew Mónica’s medical history, but they carried out tests on her heart to confirm her state of health. The same tests were carried out in late July when she was 17 weeks pregnant.

On 4 August, the Multidisciplinary Unit at the San Roque Hospital concluded unanimously that “in order to protect the life of the patient, given the particular and serious health conditions that have been uncovered and confirmed... we advise that that the patient undergo a termination of her pregnancy... in order to protect her health and avoid a life-threatening situation.”

In Argentina, abortion is legal in cases of rape and also where there is a danger to the life or health of the woman. The latter was the case here.

On the same day, 4 August, Mónica gave her written consent for the termination and the procedure was scheduled for 11 August in San Martin Hospital, which has a cardiology department in case that was needed.

On 11 August, as Mónica was preparing to go into the operating theatre, accompanied by her sister, a doctor came into the room, saying that what they were about to do “was a crime” and that he would report the doctors carrying out the procedure to the authorities. He stopped the procedure from going ahead. This doctor not only managed to cancel the procedure without Mónica’s consent, but he also subjected her to new cardiology examinations by other doctors who accessed her medical records without her consent. Although all these breaches were reported, no sanctions were imposed on the medical personnel involved.79

76 At their request, the names used in this case have been altered to protect people’s identities.

77 Tetralogy of Fallot is a complex heart condition involving a large ventricular septal defect, an overriding aorta, pulmonary stenosis and right ventricular hypertrophy. Most sufferers undergo early corrective surgery. The condition results in reduced pulmonary arterial blood flow and some degree of pulmonary hypoplasia. (http://www.sachile.cl/upfiles/revistas/51c333327fc54_revision_carvajal.pdf). Studies have shown that the most common obstetric complications include, caesarean sections (20%), as well as cardiovascular problems such as significant arrhythmias (8.1%), postpartum haemorrhage (10%) and hypertension (8%). Other less common complications include, heart failure, myocardial infarction and strokes http://www.reproduccionasistida.org/tetralogia-fallot-embarazo/.

78 Despite the fact that tubal ligation is expressly provided for in Article 6 of the Law No 25673 on Sexual Health and Responsible Parenthood (2003), it was only in 2006 that this was accepted as an approved method available to patients with this type of health risk.

79 Administrative proceedings were initiated against medical personnel as a result of a complaint filed by NGOs who were following the case. However, the case was closed “as the actions of hospital staff presented no evidence of wrongdoing.” Official Gazette, Province of Entre Rios, Parana, No. 25.378 - 007/14, Friday, 10 January 2014, Resolution No. 3336, 11 September 2013.

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That same day Monica was sent back to San Roque Hospital “because the hospital has experience in this type of pathology”. The following day, that hospital ordered that Monica be transferred to the Posadas Hospital in the Province of Buenos Aires, some 1,250km from her home and her family, because it had more specialized facilities.

On 14 August, Monica was admitted to the Posadas Hospital. She was completely alone; her husband could visit only once a week between 4 and 5pm. The distances involved, the cost of travel and the fact that he needed to take care of their son and go to work meant that Monica spent almost four months totally alone in the hospital. She gave birth to a daughter by caesarean section on 25 November.

Eight days later, while still in the Posadas Hospital, Monica suffered a stroke (cerebrovascular accident CVA). The genetic heart disease, the fact that she was forced to continue with the pregnancy, the large amount of drugs that she was given in the last stage of pregnancy and the fact that she was hospitalized against her will and separated from her family were all contributing factors. The stroke left her paralyzed on the left side of the body. Monica subsequently suffered other complications that forced her to stay in hospital for another six months.

The stroke caused permanent damage and Monica remains scarred by the trauma she has lived through. She cannot move her hand, she has little mobility in one of her legs and she is afraid to go out of the house. Her life and that of her family are no longer the same.

In Argentina, the law permits legal abortion when the life or health of a pregnant woman is at risk or when the pregnancy is the result of rape. In Mónica’s case there was no doubt that the abortion was legal. She had asked for a termination and a multidisciplinary group of doctors had recommended the procedure in order to save her life and protect her health.

Extract from Mónica’s medical records showing the abortion she had requested, and that doctors had recommended, was arbitrarily stopped, Argentina, 2015. © Amnesty International

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The legality of abortion in such cases was confirmed by the Supreme Court of Justice on 13 March 2012.80 However, nearly four years later, access to legal abortion (in force since 1921) has yet to be implemented throughout the country.81

According to official Ministry of Health figures, 243 women died in 2013 in Argentina of pregnancy-related complications.82 Since 1980, complications related to abortion has been the leading direct cause of maternal deaths.83 Complications resulting from unsafe abortions are the leading single cause of maternal deaths in 17 of the 24 provinces. It is estimated that more than 60,000 women have to be admitted to a public hospital because of the consequences of abortions performed in unsafe conditions. Most of the victims come from low-income groups.84

Although in Mónica’s case, the abortion was clearly legal, the state prevented her from exercising her right and inflicted violence similar to that seen in the cases of Rosaura, Tania and Teodora. This violence included transferring her to various health centres, subjecting her to a forced pregnancy that posed grave risks to her life and health, and forced internment very similar to arbitrary detention that separated her from her family for nearly a year. This whole cycle of violence had very serious consequences for her physical and mental health and her life. It also revealed the power medical staff have to impose their own beliefs on women’s rights to health, physical integrity, autonomy and life, even in situations where the legality of abortion was not in doubt. It also highlights the complicity of the state in allowing them to do so.

Some 53,000 abortion-related admissions are recorded by public hospitals in Argentina every year.85 About 15% involve adolescents aged under 20; about 50% of the women affected are aged between 20 and 29. Unfortunately, the lack of accurate and reliable data on hospitalizations, fertility and births makes it difficult to assess the number of abortions.

80 In the case of “F.A.L”, the Supreme Court clarified the way in which Article 86 of the Criminal Code should be interpreted. It established that legal abortion should be available, without the need for judicial authorization, and that in cases of rape, the sworn statement of the woman was sufficient. It urged the national and provincial authorities and those of the city of Buenos Aires to remove all administrative or practical barriers by implementing and enforcing hospital protocols on the provision of legal abortions. Supreme Court, Caso F.A.L s/ medida autosatisfactiva, 13 March 2012.

81 Only eight jurisdictions have protocols that are almost entirely in line with the Supreme Court judgment; Chaco, Chubut, Jujuy, La Rioja, Misiones, Santa Cruz, Santa Fe, and Tierra del Fuego. The provinces of Córdoba, Entre Ríos, La Pampa, Neuquén, Buenos Aires, Río Negro, Salta and the autonomous city of Buenos Aires should amend their protocols to bring them into line with the standards set by the Court; while eight other jurisdictions still do not have any manual setting out procedures: Catamarca, Corrientes, Formosa, Mendoza, San Juan, San Luis, Santiago del Estero and Tucumán.

82 National Ministry health of the nation, Estadísticas Vitales, 2014 available at: http://www.deis.gov.ar/ Publicaciones/Archivos/Serie5Nro57.pdf.

83 Ibid.

84 Edith Pantelides (Conicet y Cenep-Centro de Estudios de Población) and Silvia Mario (Instituto Gino Germani), Estimación de la magnitud del aborto inducido en Argentina, National Ministry of Health.

85 Department of Health Statistics and Information (Dirección de Estadísticas e Información de Salud, DEIS), National Ministry of Health, Egresos de establecimientos oficiales por diagnóstico, año 2010, December 2012, p19.

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There are many different obstacles preventing women and girls from exercising their rights: the abuse of conscientious objection by health care providers; the use of the justice system to delay or prevent abortions; health facilities that discourage women and girls with negatives comments; the bad faith of health-care providers and public officials; the violation of patient confidentiality; the harassment and persecution of women and girls; the influence of the church on the national and local governments; the lack of a regulation that explicitly incorporates the provision of legal abortion as an essential health-care procedure. All these are delaying tactics that work against the right to legal abortion and subject women and girls to institutional violence.

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3. CONSEQUENCES: THE STATE AS A CATALYST FOR VIOLENCE AGAINST WOMEN

State laws or discriminatory practices, such as those described here, inflict institutional violence whose effects extend beyond the implementation of legislation. When state institutions are organized in such a way as to restrict the fundamental rights of women, as the examples in this report illustrate, the state is sending a very clear message to its officials. That message is that women’s inequality, gender-based discrimination and violence against women are promoted, or at the very least tolerated, by the state.

This makes the state itself directly responsible for generating and reproducing violence against women and sometimes torture or other ill-treatment. Laws and the actions of those who act with “state authority” have a symbolic influence on the culture, on politics and on how women are viewed in society. The result is that women in such societies face state and social practices that inflict greater violence on them. By upholding such laws and practices, the state itself acts as a catalyst, generating further violence.

There are many examples of these “other forms of violence” to which women are subjected. In turn, each of these forms generates a new violation of human rights such as the right to life, integrity and health, and to privacy and family life, among others; discrimination cuts across them all. The following section details some of the most representative examples from among the cases documented. However, these violations are systemic and widespread throughout the region.

Women’s rights activists protest in front of the Supreme Court, to demand the decriminalization of abortion, San Salvador, El Salvador, 15 May 2013. © REUTERS/Ulises Rodriguez

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ILL-TREATED AND DENIED CARE IN HEALTH FACILITIES: A VIOLATION OF THE RIGHT TO LIFE, HEALTH AND HUMANE TREATMENT “Inside, the women were under anaesthesia and moaning. It was very upsetting and I was scared. I remember they asked me my name. I said to the doctor, that I had not had a period for three months. He told me that this didn’t mean anything and took me into a room. I was given an anaesthetic in my back and I must have been only half asleep because I was conscious, even when the doctor cut me: it hurt. I was sharing the bed with another woman. She moved and kicked the drip I was attached to and that really hurt. My back also hurt.”

Esperanza, Peru.

Women and girls in the region often suffer abuse at the hands of the health workers treating them and some are even denied treatment that could save their lives or protect their health because of gender stereotypes and discriminatory attitudes.

The experience of Teodora, in El Salvador shows this clearly. She was taken to a public health facility after suffering an obstetric emergency. While still in her hospital bed and confused and disorientated, she was confronted by the accusatory questioning of police officers who asked her: “Why did you do it?” Teodora was then handcuffed, accused of aggravated homicide on suspicion of having induced an “abortion” and taken to prison.

The same patterns are highlighted by the experience of Mainumby who spent at least four months in various public hospitals in Paraguay being misdiagnosed and given the wrong medication before it was finally revealed that she was 20-21 weeks pregnant and she was then forced to carry the pregnancy to term despite the serious risks posed to her health and her life. In addition she was separated from her mother, who was denied the ability to decide what she thought best for the life and health of her daughter. The state inflicted forced pregnancy and motherhood on Mainumby and then abandon her to her fate when she needed medicine, baby formula and other special care.

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Mónica’s story again illustrates the same forces at work. She also went to a number of public hospitals and was interned hundreds of kilometres from her family and isolated in hospital, because someone concluded that she was not capable of making the decision to terminate her pregnancy, even though she had requested the termination because the pregnancy was putting her life and health at risk and the procedure was permitted by law. This is also true of Tania’s, story. She had to seek out a clandestine abortion in Chile to avoid losing her life because doctors were not prepared to continue with the cancer treatment that saved her life.

It is also Rosaura’s story in the Dominican Republic. She died at the age of 16, deprived of the vital treatment that would have helped her to combat leukaemia; doctors delayed chemotherapy because she was pregnant. Moreover, she also had to endure “psychological support” provided by the hospital whose sole aim was to encourage her to continue her pregnancy, even at the expense of her own life. And it is the story of Michelle in Mexico whose abusive treatment in the health facility, was largely the result of the stigma experienced by women living with HIV.

The treatment meted out to these women and girls, constitutes violence against women by state agents, such as health-care workers. This is violence against women and girls by the apparatus of state; that is, institutional violence.

The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (Rapporteur on torture) has stated that: “International and regional human rights bodies have begun to recognize that abuse and mistreatment of women seeking reproductive health services can cause tremendous and lasting physical and emotional suffering, inflicted on the basis of gender. Examples of such violations include abusive treatment and humiliation in institutional settings; involuntary sterilization; denial of legally available health services such as abortion and post-abortion care; forced abortions and sterilizations; female genital mutilation; violations of medical secrecy and confidentiality in health-care settings, such as denunciations of women by medical personnel when evidence of illegal abortion is found; and the practice of attempting to obtain confessions as a condition of potentially life- saving medical treatment after abortion.”86

The Rapporteur on torture recognizes that the task of ending torture and ill-treatment in health-care settings faces unique obstacles due, among other things, to the perception that the authorities can defend certain health-care practices on grounds of administrative efficiency or medical opinion or to modify behaviour.87

86 Human Rights Committee, General Comment No 28, 2000, para 11; Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, February 2013, A/HRC/22/53, para 46.

87 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Op. cit., para 46.

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Doctor holding a stethoscope, 2012. © Adam Berry/Getty Images

BREACHES OF DOCTOR-PATIENT CONFIDENTIALITY: A VIOLATION OF THE RIGHT TO PRIVACY “In the General Hospital they put a big sign above my bed with the word ‘HIV’.”

Michelle, Mexico

Non-consensual disclosure of personal medical information is a violation of the right to privacy. States have an obligation to protect the right to privacy, which “includes the obligation to guarantee that adequate safeguards are in place to ensure that no testing occurs without informed consent, that confidentiality is protected, particularly in health and social welfare settings, and that information on HIV status is not disclosed to third parties without the consent of the individual”.88 As the case of Michelle in Mexico and most of the documented cases show, the regional pattern is unfortunately one of breaches of patient confidentiality in the context of sexual and reproductive health.

Patient confidentiality must be guaranteed because if people fear that their confidentiality or privacy will not be protected in a health-care context, it can deter them from using services

88 The Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS, International Guidelines on HIV/AIDS and Human Rights, 2006 Consolidated Version, 2007, para 121, available at: http://www.ohchr.org/Documents/Publications/ HIVAIDSGuidelinesen.pdf.

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and so put their health at risk.89 Health professionals have an ethical duty which also guarantees the human right of every person to privacy set out in several international human rights treaties.90 This duty of confidentiality acquires special relevance when women approach health personnel seeking support in contexts where restrictive legislation governs decisions on sexual and reproductive issues, as is the case in Latin America and the Caribbean.

It is clear that if women are not sufficiently confident that their privacy will be respected and confidentiality guaranteed, as is the case in practically all of the stories detailed in this report, this reduces the likelihood that they will promptly seek out the health services they need. It makes it more likely that they will resort to unsafe practices in order to avoid being reported and/or that third parties will become involved in decisions, putting women’s health and lives at risk.91 This has been recognized by the Committee on the Elimination of all forms of Discrimination against Women and the World Health Organization.92

In this respect, the duty of confidentiality has an undeniable relationship with the “do no harm” principle.93 Equal consideration should be given to this before informing third parties about decisions or situations related to women’s sexual and reproductive health (such as their partners or parents). The World Health Organization (WHO) has stated that unless women give explicit approval for the health-care supplier to consult their husband, father or any other person that is not essential to ensure safe and appropriate care, any such consultation constitutes a serious breach of confidentiality.94

The risk is even greater in countries where medical staff are required to report an offence (for example, abortion), regardless of whether such an obligation is actually set out in medical codes or is something medical staff believe to be the case; either way, it generates fear and uncertainty.95

89 Committee on the Elimination of Discrimination against Women General recommendation No 24 UN, 2009; Committee on the Rights of the Child General Comment No 3, 2003.

90 World Health Organization “Sexual health, human rights and the law”, Op. cit.

91 Panel for Women’s Life and Health (Mesa por la Vida y la Salud de las Mujeres) and the National Alliance for the Right to Decide (Alianza Nacional por el Derecho a Decidir), “Causal Salud: interrupción legal del embarazo, ética y derechos humanos”, 2008, p207.

92 Committee on the Elimination of Discrimination against Women, Op. cit. World Health Organization “Sexual health, human rights and the law”, Op. cit.

93 Panel for Women’s Life and Health (Mesa por la Vida y la Salud de las Mujeres) and the National Alliance for the Right to Decide (Alianza Nacional por el Derecho a Decidir), “Causal Salud: interrupción legal del embarazo, ética y derechos humanos”, 2008, p207.

94 World Health Organization, Safe abortion: technical and policy guidance for health systems, 2003, p68.

95 R. Cook and B.M. Dickens, “Law and ethics in conflict over confidentiality”, International Journal of Gynecology & Obstetrics. Faculty of Medicine and Joint Center for Bioethics, University of Toronto, pp385-391.

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“They say that if you do not reports this type of situation, you are part of the crime, you are an accomplice and you risk losing your job. They are stopping us from being doctors and turning us into policemen. My bosses have raised this with me several times. But I tell that that I can’t breach the doctor-patient confidentiality I owe my patients. When you know your rights, no one can intimidate you.”

Dr “Lemus”, El Salvador96

In Chile, for example, the Health Code prohibits any action whose purpose is to cause an abortion and under the Criminal Code any woman who induces or consents to a termination and anyone who assists her, whether or not they are health-care professionals, faces a possible prison sentence. The Code of Criminal Procedure states that health professionals who observe injuries suggesting that a crime may have been committed are obliged to report it. Even though a regulation issued by the Ministry of Health has limited this obligation, in practice women who go to a health centre with complications arising from a clandestine abortion are likely to be reported by their doctor or midwife, as happened in 2015 on at least two occasions.97

In some cases, medical care for women whose lives were in danger because of complications arising from clandestine abortions has been made conditional on them providing information on those who carried out the terminations. The Committee against Torture has expressed concern about this situation98 and recommends eliminating the practice of extracting confessions to further prosecutions from women who seek emergency care for the consequences of clandestine abortions.99 In accordance with the directives of the World Health Organization, the state party should guarantee the immediate and unconditional treatment of people seeking emergency medical attention.100

96 Amnesty International, “Aborto en El Salvador: La delgada línea entre médicos y policías”, disponible en https://www.amnesty.org/es/latest/news/2015/12/aborto-en-el-salvador-la-delgada-linea-entre-medicos- y-policias/.

97 See Amnesty International, Chile: Urgent progress needed on right to choose after young woman arrested for a clandestine abortion, November 2015, available at: https://www.amnesty.org/en/press- releases/2015/11/chile-urgent-progress-needed-on-right-to-decide-after-young-woman-arrested-for-a- clandestine-abortion-1/.

98 CAT/C/CR/32/5 (2004), para 6.

99 Ibid., para 7.

100 Ibid.

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The Human Rights Committee has also recommended that states amend their legislation to protect patient confidentiality.101 The Inter-American Court of Human Rights has stated that: “physicians have a right and an obligation to protect the confidentiality of the information to which, as physicians, they have access.”102

This is essential not only to protect women and girls, but also to protect medical staff. In El Salvador,103 Chile104 and Nicaragua,105 Amnesty International has documented the fear and confusion felt by medical staff as a consequence of legislation that places them in a policing role, forcing them to violate their duty of confidentiality. They also find themselves facing the ethical dilemma of either risking the health of a pregnant woman who needs an abortion, even letting her die, or going to jail.

Obstetrician René Castro highlighted the problems caused by having to wait until there is an imminent danger of death before being able to take action:

“Today there is a much greater consensus internationally when talking about quality of life. The issue is whether I wait until a woman is in intensive care because of a grave complication of a pre-existing condition before taking action, or whether I’m going to forestall this serious episode and accept it when a woman tells me ‘doctor, I’d prefer to terminate the pregnancy before I get to that point… [because] the focus should be on the woman’s own decision”.106 So great is the pressure on medical staff that recently 834 doctors and the health professionals from 44 countries in all regions of the world added their voices to growing calls for the decriminalization of abortion by signing an open letter to governments. In the letter, they call for an end to interference in the work of health professionals and warn that the criminalization of abortion is endangering the health and lives of women and girls.107

101 Human Rights Committee, Concluding observation on Chile, U.N.Doc. CCPR/C/79/Add.104 (1999).

102 Inter-American Court of Human Rights, the case of De la Cruz Flores vs Peru, Judgment of 18 November 2004 (Merits, Reparations and Costs), para 101.

103 Amnesty International, “Abortion in El Salvador...” Op. cit.

104 Amnesty International, “Abortion is not a crime, doctors warn governments”, November 2015; Amnesty International, Chile: Urgent progress needed on right to decide after young woman arrested for a clandestine abortion, November 2015, available at: https://www.amnesty.org/en/latest/news/2015/11/ chile-urgent-progress-needed-on-right-to-decide-after-young-woman-arrested-for-a-clandestine-abortion/.

105 See, for example, Amnesty International, The total abortion ban in Nicaragua: Women’s lives and health endangered, medical professionals criminalized, July 2009, available at: https://www.amnesty.org/ en/documents/AMR43/001/2009/en/.

106 Amnesty International, “Abortion is not a crime...”, Op. Cit. Amnesty International, “Chile: Urgent progress needed on right to choose after young woman arrested for a clandestine abortion”, Op.cit.

107 Amnesty International, “Abortion is not a crime...”, Op. cit.

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THE IMPACT ON FAMILIES: A VIOLATION OF THE RIGHT TO HUMANE TREATMENT AND FAMILY LIFE

“No one can understand the agony you feel seeing your daughter like that. She is a little girl who should be playing, studying, sharing things with her friends. No one can put themselves in my shoes. When the baby wakes, I have to wake up my daughter so she can breastfeed her”. CEF, Paraguay

“My greatest suffering is that my daughter isn’t here. They destroyed her and losing her destroyed me and my family. Rosaura was everything to me. Everything I did, I did for her. It’s very hard to talk about it, but I am not going to quit, I’m not going to give up until justice is done.” Rosa, Dominican Republic

The families of women who experience institutional violence, including torture in sexual and reproductive health contexts suffer equally devastating consequences both psychologically and in terms of morale. As the words of these two mothers highlight, the suffering is especially acute when the victim is a child or adolescent.

These mothers not only suffer the pain of her daughters, but they are also judged and treated with suspicion by society and subjected to “disciplinary proceedings” by medical or even religious personnel aimed at imposing certain moral values on them. This is especially so if they decide to raise their voices in defence of their daughters’ sexual and reproductive rights.

“To stop me going round talking about my daughter’s case, the Monsignor even came to tell me that they would make me sign documents and that they would deceive and undermine me because I don’t speak English.” CEF, Paraguay108

They, too, are victims of institutional violence. In the case of CEF, the price of speaking out went as far as being imprisoned. The criminal justice system had failed them when CEF reported possible abuse of her daughter in 2014; it only took action when the case sparked a public outcry. Unfortunately the action taken was to revictimize Mainumby by ordering the detention of CEF for two months while she was left to face on her own a pregnancy that was the result of rape.

The case against CEF was dismissed on 11 November 2015. However, between April 2015 and November, the possibility of returning to prison and not be able to support her daughter or her other young son, and now her newborn granddaughter, weighed on her like a sword of Damocles. This greatly hampered her ability to fight for her own and her daughter’s rights.

108 Referring to a trip that she planned to make to Washington DC with CLADEM to a meeting at the Inter-American Commission on Human Rights on the precautionary measures granted in favour of her daughter.

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María Sánchez, Teodora’s mother, standing in what had been Teodora’s bedroom, before she was imprisoned, El Salvador, 2015. © Amnesty International

The unjustified detention of CEF caused extreme suffering to both mother and daughter and is yet another example of discrimination against women by the criminal justice system. The woman is always regarded with suspicion; Mainumby’s aggressor meanwhile remained at liberty.109

In the case of Michelle, her mother was also humiliated by health staff and intimidated to try to get her to bring her daughter, who was over 18, into line. She was pressured into giving her consent for an irreversible sterilization procedure to go ahead.

In the cases of Mónica, Esperanza and Tania there were partners, sons and daughters whose suffering often remains invisible. Amnesty International has documented the effects on the families of women who, like Teodora in El Salvador, are in jail for obstetric complications:110

“When the boy went [to the prison] the first time, while we were outside I told him that he must be brave and that he mustn’t cry, that he must be strong for her. He was not yet four years old… When we left the prison, that was hard. He clung to her. ‘Mummy, I’m taking you with me’, he said. ‘Why don’t you turn into a dove and get out, and come with us? I don’t want to leave you here’.” Teodora’s mother, María

The way in which the children experience the various stages of criminal proceedings against their mothers -- from arrest to sentencing and imprisonment -- can affect them for the rest of their lives. In addition, criminalization has an impact on families because of the violence inflicted in their dealings with prosecutors and medical staff. Criminalization often has physical, psychological and emotional implications for relatives, as well as negative financial repercussions, especially for families where the woman’s income was essential to support her children.

109 On 9 May 2015, the alleged abuser was captured; he was in custody awaiting trial at the time of writing.

110 Amnesty International, Separated families, Broken Ties, November 2015 (Index: AMR 29/2873/2015).

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IMPOSITION OF MORAL OR RELIGIOUS PRECEPTS

Underlying most of the cases documented in this report is a pernicious trend that is in evidence throughout the region: the power of medical personnel, state officials and certain religious groups to impose their opinions about women and girls, even if this is at the expense of women’s human rights to health, physical integrity, autonomy, privacy and life. Among the factors that make this possible is the tremendous imbalance of power in the doctor-patient relationship in general and the relationship between doctors and women seeking reproductive services in particular. Another contributory factor is that these groups often have the “weight of the law” on their side, or else benefit from an absence of legislation or regulations. This makes the state an accomplice to the violence inflicted.

This violence is inflicted on women and girls throughout the region by state agents who try to persuade them of, or in many cases impose, their own moral or religious beliefs or gender stereotypes. And they succeed in this by removing women’s ability to decide for themselves, according to their own convictions and circumstances, what is best for them.

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In some instances, this influence is more formal, as for example when religious groups challenged the constitutionality of decriminalization in certain limited circumstances in the Dominican Republic.111 Similarly, in Uruguay, members of the Medical Association filed a collective judicial action to “protect” their right to conscientious objection (see “Conscientious objection in health facilities”, page 55).

As stated earlier, the whole area of women’s sexuality and reproduction is beset with prejudices about women’s “proper” role in society -- as mothers (as long as they are not poor or living with HIV) and carers -- which women are expected to accept unquestioningly. Anyone who deviates from these norms risks severe punishment by the state.

In the case of Mainumby, the state imprisoned her mother the day she requested a termination of her daughter’s pregnancy. A prosecutor ordered that Mainumby be interned in a private hospital a day after the Director of the Public Hospital made statements to the press indicating that they were legally entitled to interrupt the pregnancy in order to safeguard the life and health of the girl. The judge then ordered that Mainumby be interned in a “hostel for child mothers”, a sealed enclosure where girls are kept in conditions of strict isolation and high security.

It is clear in this case how the highest state authorities prioritized their personal convictions over the rights of Mainumby and flatly denied the option of a termination.112 The same thing happened in the cases of Rosaura, Tania and Mónica.

This imposition also works in the opposite direction. In cases of forced sterilization, there is a belief that the state or medical staff know better than women themselves what is right for them. The fact that women are poor or Indigenous or living with HIV is deemed to justify taking away their right to decide whether they want to have children or not, as happened to Esperanza and Michelle. This view is also discriminatory and violates human rights. The imposition of the views of certain state agents on women and their right to decide whether or not to have children is equally arbitrary.

111 In December 2014 a new Criminal Code was approved in the Dominican Republic that included the decriminalization of abortion when the life or health of a woman is at risk, when embryo malformations mean it is not viable and when pregnancy is the result of rape or incest. In January 2015, three foundations presented three appeals of unconstitutionality before the Constitutional Court. One of them is the Happy Marriage Foundation which, according to its website, is “a not-for-profit institution of Catholic inspiration, a living reality in the service of the Church and the Dominican family. At a time when marriage and the family are subject to many forces trying to distort them and destroy them, the Happy Marriage Foundation, assumes responsibility for proclaiming the wishes of God, for these holy institutions.” (available at: http://www.matrimoniofeliz.org/fundaci-n-matrimonio-feliz.html, accessed 20 January 2016). The appeals argue that the articles are unconstitutional both for procedural reasons (relating to the procedure for their approval by parliament), and on the grounds that they violate the right to life from the moment of conception, established in Article 37 of the Dominican Constitution. In December of the same year, the Constitutional Court upheld the appeals and declared the new legislation unconstitutional on procedural grounds, leaving in place the previous Criminal Code (Law 2274) of 1884.

112 The views of the authorities were evident, for example, in the publicity given to an action supporting the idea of human life beginning at the moment of conception which was published on the official website of the Ministry of Public Health and Social Welfare. A call for Amnesty International to be expelled from Paraguay was also published on the website: http://www.mspbs.gov.py/v3/piden- manifestarse-a-favor-de-la-vida-desde-el -moment-de-la-concepcion /.

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PROTECTING THE FOETUS ABOVE ALL ELSE In the region there has been a trend towards establishing absolute protection of the foetus (including by granting foetuses legal personality) which has resulted in the foetus being prioritized over the human rights of women and girls. Several countries in the region have integrated the concept of absolute protection into the criminal law by means of a total prohibition of abortion in all circumstances (El Salvador, the Dominican Republic and Chile) or through partial bans on abortion (Argentina and Paraguay), which often in practice become absolute bans. In the case of Rosaura, Teodora, Tania, Mónica and Mainumby, efforts to protect the foetus played a central role in the violence to which they were subjected.

No international human rights body has ever recognized the foetus as the object of protection under the right to life or other provisions of international human rights treaties, including the Convention on the Rights of the Child.113

The American Convention on Human Rights is the only treaty which contains a clause stating that the right to life shall be protected “in general, from the moment of conception”.114 In interpreting this clause, both the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights have said that such protection is not absolute.115 When interpreting this clause, the Inter-American Court echoed international and national jurisprudence on the subject which clearly states that the direct object of protection is

113 See R. Copeland et al, “Human Rights Being at Birth: International Law and the Claim of Fetal Rights”, Reproductive Health Matters (2005), vol. 13, issue 26, pp120-129. An opposing argument was put forward that this was a misreading of paragraph 9 of the Preamble to the Convention on the Rights of the Child, which states: “Bearing in mind that, as indicated in the Declaration of the Rights of the Child, ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth’ “ The legislative history on this treaty clarifies that these safeguards “before birth” should not affect the choice of women to terminate an unwanted pregnancy. As originally drafted, the Preamble contained no reference to protection “before as well as after birth.” The Vatican put forward the proposal to add the phrase, while at the same time affirming that “the purpose of the amendment was not to exclude the possibility of an abortion” (Commission on Human Rights, Question of a Convention on the Rights of a Child: Report of the Working Group, 36th Session, E/CN.4/L/1542, 1980). Although the words “before or after birth” were accepted, the limitation on their purpose was reinforced by the statement that “the Working Group does not intend to prejudice the interpretation of Article 1 or any other provision of the Convention by States Parties.” (UN Commission on Human Rights, Report of the Working Group on a draft Convention on the Rights of the Child, E/CN.4/1989/48, p 10). Meanwhile, the legislative history of the International Covenant on Civil and Political Rights indicates that a proposed amendment stating “The right to life is inherent in the human person from the moment of conception. This right shall be protected by law” was rejected. Annex A GAOR, 12th Session, Item 33 of the agenda, at 96, a / C.3 / L.654; UN GAOR, 12th Session, Item 33 of the agenda, in 113, A / 3764, 1957. The Commission finally voted to adopt Article 6 as it stands, without any reference to conception, by a vote of 55 for, none against and 17 abstentions.

114 American Convention on Human Rights, Article 4.1

115 Inter-American Court of Human Rights, Resolution 23/81, Case 2141 (United States), OEA/Ser.L/V/ II.54, doc. 9 rev 1, 1981, para 25; Inter-American Court of Human Rights, the case of Artavia Murillo (in vitro fertilization) et al vs Costa Rica. Preliminary Objections, Merits, Reparations, and Costs; Judgment of November 28, 2012, para 222.

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fundamentally the pregnant women, given that the defence of the foetus is essentially achieved through the protection of the woman.116

In addition, the Inter-American Court on Human Rights has established that any interest states may have in protecting the foetus, should be gradual and incremental, in accordance with the development of the foetus, and cannot be absolute. This is the basis for exceptions to the general rule.117

It is on the basis of this interpretation that the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights have stated that the American Convention does not establish absolute protection of the right to life before birth when granting precautionary and provisional measures on behalf of women whose lives were at risk because of the total ban on abortion.118

According to international human rights standards, states have an obligation to take measures to ensure that the life and health of the woman or girl take priority over the protection of the foetus.119 The Committee on the Elimination of the Discrimination against Women has indicated that the “decision to postpone the surgery due to the pregnancy was influenced by the stereotype that protection of the foetus should prevail over the health of the mother” and was discriminatory.120 Abortion in all circumstances should be decriminalized to eliminate the punitive measures imposed on women and girls who seek these services and health professionals providing them, if there is a full consent.121 Finally, states must ensure access to abortion in law and in practice, at least in cases where pregnancy entails a risk to the life

116 “Also, taking into account, as indicated previously, that conception can only take place within a woman’s body... it can be concluded with regard to Article 4.115.3. of the Convention, that the direct subject of protection is fundamentally the pregnant woman, because the protection of the unborn child is implemented essentially through the protection of the woman, as revealed by Article 15)(3)(a) of the Protocol of San Salvador, which obliges the States Parties “to provide special care and assistance to mothers during a reasonable period before and after childbirth,” and article VII of the American Declaration, which establishes the right of all women, during pregnancy, to special protection, care, and aid.” Inter-American Court of Human Rights the case of Artavia Murillo et al (in vitro fertilization) vs Costa Rica, Op. cit., para 264. See also, Committee on Economic, Social and Cultural Rights, General Comment No 14, “The right to the highest attainable standard of health” E / C.12 / 2000/4, para 14.

117 Inter-American Court of Human Rights, Artavia Murillo and other vs Costa Rica, para 264.

118 Inter-American Commission on Human Rights, Precautionary Measures 43-10, “Amelia,” Nicaragua (2010); Inter-American Court of Human Rights, Provisional Measures, the case of B vs El Salvador, 2013.

119 L.C. vs Peru, Op. cit .; Committee on the Elimination of Discrimination against Women, Concluding Observations on Hungary, 2013, para 30

120 Committee on the Elimination of Discrimination against Women, the case of L.C. vs Peru, Op. cit.

121 Committee on the Elimination of Discrimination against Women, Concluding observations on the Philippines, 2006, para 28; Committee on the Rights of the Child, Concluding observations on Nigeria, 2010, para 59 (b).

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or health of the woman, of severe malformation or non-viability of the foetus or when the pregnancy is the result of rape or incest.122

Agents of the state are, of course, entitled, like everyone else (including the women and girls whose cases are documented in this report) to hold their own beliefs and to live according to them. However, they do not have the right to impose them on others, especially not in the exercise of their powers as agents of the state and not when other rights of women and girls, which have been recognized internationally, are in conflict with these beliefs. This imposition of ideology is a grave form of violence and a breach of the human rights obligations of the state. In addition, states are violating their human rights obligations if they allow some (medical staff) exercising their “conscience” to violate the rights of others.

The Inter-American Court of Human Rights has addressed the issue and given an unequivocal ruling. The case under discussion was a ban on in vitro fertilization (IVF) in Costa Rica. This had been ordered by the Costa Rican Supreme Court on the grounds that it involved discarding fertilized eggs and that these were a “human life”, according to the “scientific literature”. The ban on IVF, therefore, aimed to avoid the violation of the right to life recognized in Article 4 of the American Convention on Human Rights. The Inter-American Court of Human Rights stated: the Court considers that this is a question that has been assessed in different ways from a biological, medical, ethical, moral, philosophical and religious perspective, and it concurs with domestic and international courts that there is no one agreed definition of the beginning of life. Nevertheless, it is clear to the Court that some opinions view a fertilized egg as a complete human life. Some of these opinions may be associated with concepts that confer certain metaphysical attributes on embryos. Such concepts cannot justify preference being given to a certain type of scientific literature when interpreting the scope of the right to life established in the American Convention, because this would imply imposing specific types of beliefs on others who do not share them.123

122 Regarding the obligation to ensure access to abortion when a pregnancy poses a risk to the life or health of the woman, UN treaty bodies have consistently stated that to prevent maternal mortality and morbidity and safeguard the lives and health of women, states must ensure access to legal abortion when there is a risk to the life or health of the woman. International health and human rights bodies consistently interpret “health” to encompass both physical and mental health. On the obligation to ensure access to abortion in cases of sexual assault, rape and incest, the UN treaty bodies have consistently urged states to implement laws that establish rape and incest as grounds for abortion and have repeatedly requested that states which do not have laws to that effect to amend their legislation. In two separate Latin American cases, the Human Rights Committee and the Committee on the Elimination of Discrimination against Women have stated that by not providing young women with access to a legal therapeutic abortion in cases of rape or life-threatening foetal malformation, states are violating numerous rights, including the right to equality and non-discrimination, the right to privacy and the right not to be subjected to torture or other cruel, inhuman and degrading treatment. See L. C. vs Peru; and KL vs Peru, Human Rights Committee, 2005.

123 Inter-American Court of Human Rights, Artavia Murillo et al vs Costa Rica, Preliminary Objections, Merits, Reparations and Costs; Judgment of November 28, 2012, Series C 257, para 185,

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CONSCIENTIOUS OBJECTION IN HEALTH FACILITIES Conscientious objection is a right that is held by an individual, not by institutions (such as hospitals, pharmacies or clinics). It is also a right that allows for exceptions, for example in order to protect public health.124 In the field of health, conscientious objection can function as a barrier, denying women and girls their human rights. It is for this reason that the Committee against Torture has expressed concern about the unregulated exercise of conscientious objection125 and various treaty bodies have called on states to regulate its exercise by health professionals so that there is no risk to the health of the patient and their right to receive contraceptive goods and services.126

Human rights standards stipulate that health services should be organized in such a way as to ensure that the exercise of the freedom of conscience by health professionals will not impede people, and in particular women, from accessing the services to which they are entitled by law.127 Laws and regulations should not allow care providers or institutions to block people’s access to legal health services.128 Health professionals who claim conscientious objection must refer people to others willing and qualified to provide the care either in the same health centre or in another that is readily accessible. When such a referral is not possible, the health professional exercising their conscientious objection has a duty to provide safe services to save life or to prevent damage to a person’s health.129

124 The right to freedom of thought, conscience and religion (which includes the freedom of belief) is recognized in paragraph 1 of Article 18 of the International Covenant on Civil and Political Rights (ICCPR). Paragraph 3 of Article 18 allows for limitations to the manifestation of religion or belief in order to protect inter alia, public health, or the rights and freedoms of others. In interpreting the scope of permissible limitation clauses, states parties should proceed from the need to protect the rights guaranteed by the Covenant, including the right to equality and non-discrimination in all areas; Cf. Human Rights Committee, General Comment No 22, Article 18; Freedom of thought, conscience and religion, UN Doc. HRI/GEN/1/Rev.7 at 179 (1993).

125 Committee against Torture, Concluding observations on Poland, 2013, para 23.

126 Committee on the Elimination of Discrimination against Women, Concluding observations on Mexico, 2006, para 33; Committee on Economic, Social and Cultural Rights, General Comment No 14: The right to the highest attainable standard of health, Article 12, United Nations, 2000.

127 World Health Organization, Sexual health, human rights and the law, 2015, p16. Citing the following precedents and sources: Yazgül Yilmaz v. Turkey. Application No 36369/06, Strasbourg: European Court of Human Rights, 2011; P. and S. v. Poland. Application No 57375/08, Strasbourg: European Court of Human Rights, 2012; FIGO Committee for the Ethical Aspects of Human Reproduction and Women’s Health; “Ethical guidelines on conscientious objection”, Int J Gynecol Obstet. 2006; Safe abortion: technical and policy guidance for health systems, revised edition, Geneva: World Health Organization, 2012; Ensuring human rights in the provision of contraceptive information and services, World Health Organization, Geneva, 2014.

128 World Health Organization “Sexual health, human rights and the law”, 2015, p.16.

129 World Health Organization; Safe abortion: technical and policy guidance for health systems, revised edition, Geneva: 2012. World Health Organization, Ensuring human rights in the provision of contraceptive information and services, Geneva, 2014.

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The World Health Organization states that in the field of sexual and reproductive health, conscientious objection acts as a barrier to certain health services to which women have a right.130 It emphasizes that in cases of access to abortion it is a unique barrier because it pits the right of a woman to life and health against that of the medical professional to act according to their conscience. This is because conscientious objection in health services seeks to challenge or change a rule or a public policy and has implications for the provision of health services and the protection of the rights of third parties.131 In addition, conscientious objection in the fields of reproductive health tends to have discriminatory effects, because it affects almost exclusively or disproportionately women and girls of reproductive age.

130 World Health Organization, Sexual health, human rights and the law, Op. cit.

131 Ana Cristina González Vélez, M.D. “Objeción de conciencia: un debate sobre la libertad y los derechos. Estado del debate en América Latina”, en CLACAI Digital, available at: http://www. clacaidigital.info:8080/xmlui/bitstream/handle/123456789/600/AC%20Gonzalez%20Velezd2. pdf?sequence=1.

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THE CASE OF URUGUAY The case of Uruguay is an example of how throughout the region conscientious objection is an obstacle to legal terminations of pregnancy; a situation that affects women and girls exclusively.

In November 2012, Uruguay became one of the four Latin American countries132 that allow voluntary terminations following the approval of the Law No 18987 and its Regulatory Decree (375/012).133 Abortion is not a crime134 provided the woman complies with the requirements set out in law and that the abortion takes place in the first 12 weeks of pregnancy. This regulatory framework complements Law No 18,426 on the Defence of the Right to Sexual and Reproductive Health adopted in 2008.135

This progress in the field of reproductive rights was limited for some Uruguayan women when, in August 2015, the Federal Administrative Court (Tribunal de lo Contencioso Administrativo) decided to suspend the implementation of several key provisions of the Regulatory Decree of the law of abortion, on the basis of an appeal by a group of gynaecologists who claimed it imposed an “unlawful restriction” of their right to conscientious objection.136 Conscientious objection was valid originally, according to the legislation,137 only for the abortion itself, not for consultation prior to the abortion or post-abortion care.

In the Department of Salto, 100% of gynaecologists declared themselves to be conscientious objectors. Faced with this situation, the state sought to settle the issue by bringing in a gynaecologist from Montevideo (500km away) once a week to provide abortion services at both at private and public sector clinics in the Department. However, reports suggest that “women go to the clinics for treatment for complications resulting from abortions performed outside the health system more than for actual abortions. Lack of knowledge about the new legislation puts them at risk of legal action as abortions performed outside of the national integrated health system are a criminal offence”.138

In effect, the Administrative Court ruling means that women in the Department of Salto cannot access health services that are guaranteed by the Uruguayan public health system in the same way as women in Montevideo. It is difficult to imagine men being denied access to health services destined exclusively for men and which may be necessary to save their lives or protect their health on grounds of conscience.

Dr Ana Visconti, Coordinator of the Sexual Health and Reproduction Programme at the Ministry of Public Health, told Amnesty International that following the Administrative Court ruling on the Regulatory Decree, a plan is being developed that will set out guidelines for the proper implementation of the Law, as well as a new regulatory decree. At the time of writing, the new regulations had not been published.

132 The other three are: Cuba, Guyana and Puerto Rico.

133 Voluntary termination can only be requested by Uruguayan citizens or foreign citizens resident in the country for at least a year (Article 13).

134 Criminal Code, Articles 325 to 328.

135 Article 4b (2). In 2008 President Tabaré Vázquez appealed the veto which removed the clause decriminalizing abortion, after which it was approved by both houses of parliament. The text recognized the right of women to terminate a pregnancy within the first 12 weeks. Judgment 586/2016, available at: http://www.tca.gub.uy/fallos.php.

136 Ibid.

137 Conscientious objection is covered by Law 18.987 on the voluntary termination of pregnancy. Abortion Law, Article 11 and its Regulatory Decree 375/012, Chapter VIII conscientious objection, Articles 28 to 35. Further, only individuals, not institutions, can exercise “conscientious objection”.

138 Organization for Women and Health in Uruguay (Organización Mujer y Salud en Uruguay, MYSU) Asegurar y avanzar sobre lo logrado. Estado de situación de la salud y los derechos sexuales y reproductivos en Uruguay. Monitoreo 2010-2014, p61.

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VIOLATIONS OF THE RIGHT TO EQUALITY: GENDER STEREOTYPES AND INTERSECTIONAL DISCRIMINATION AGAINST WOMEN

Underlying each of the stories described in this report is another common pattern. The human rights violations experienced by these women and girls are rooted in the structural discrimination which exists in all countries in the region. This discrimination against women because they are women, flourishes thanks to entrenched gender stereotypes in society and reaches its most pernicious levels in the area of sexuality and reproduction.

Examples of these stereotypes in Latin America and the Caribbean are beliefs such as: “every woman wants to be and should be a mother”; “We must reduce the number of children that poor and Indigenous women have because that reduces poverty”; “Every pregnant woman should carry the pregnancy to term regardless of her personal circumstances, health or even risk to their lives”; “Adolescents are not able to make decisions about their sexuality or whether they want to be mothers or not”; “Girls who become pregnant as a result of sexual violence must carry the pregnancy to term”; “Women living with HIV should be sterilized to stop the virus spreading”; “Women who come to the hospital with obstetric emergencies undoubtedly induced it themselves, especially if they have limited resources”, among others.

Stereotypes exist in all societies. The way in which we perceive others may be determined by simplistic assumptions, based on particular characteristics such the fact of being a woman or girl. Stereotypes are based on social norms, practices and beliefs, many of which are promoted by religion, and reflect underlying power relationships.139 In this report there are numerous examples of how these stereotypes are violently imposed on women and girls by those who hold more power in society than they do.

Gender stereotypes generate discrimination and this is a violation of the right to equality set out in all international human rights treaties. However, it was not until some years after the entry into force of the Convention Against all Forms of Discrimination against Women (CEDAW), that the link began to be made between the right to equality between men and women and to non-discrimination and state human rights obligations; that is, the positive obligation of states to take measures to combat discrimination against women.140 The Convention and its Committee have developed the concept of equality as a human right composed of various elements: substantive equality or equality of outcomes, non- discrimination and state responsibility.141

The structural discrimination which is evident in the stories set out in this report shows a regional pattern that cannot be overcome using a purely legislative or a formal programmatic approach. To achieve substantive equality enshrined in CEDAW, states must adopt special

139 UN Women, see http://www.unwomen.org/es/news/stories/2011/7/countering-gender-discrimination- and-negative-gender-stereotypes-effective-policy-responses#sthash.BNXwfZJG.dpuf.

140 Alda Facio, “La responsabilidad Estatal frente al Derecho Humano a la Igualdad”, Mexico 2014, Human Rights Commission of the Federal District (Derechos Humanos del Distrito Federal). Available at: ihttps://www.justassociates.org/sites/justassociates.org/files/alda_facio_finalsin.pdf.

141 Ibid.

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Members of the Women’s Association of Huancabamba gather to discuss forced sterilizations, Huancabamba, Peru, October 2015. © Amnesty International / Raúl García Pereira

measures to eliminate forms of discrimination, including treating men and women differently in order to overcome these inequalities.142

Similarly, an analysis of the state as generating and reproducing violence against women must also highlight the fact that women are discriminated against because they are women, but also because they are Indigenous, because they live in poverty or in rural areas, because they have had limited access to education, because they are living with HIV, because they are young, because they are children and because they are victims of sexual violence. Each of them experience discrimination differently since they suffer multiple forms of discrimination simultaneously.

In this the most unequal region in the world, access to sexual and reproductive health services and the risk of encountering institutional violence trying to access them, are heavily interlinked with other aspects of women’s personal situations. What would have happened if Teodora had been able to pay for a good defence lawyer or had access to quality prenatal checkups? What would have happened to Mónica if she had gone to a private health clinic and demanded a termination of the pregnancy to protect her health? What would have happened to Tania if she hadn’t had the resources to go to a private doctor to terminate her pregnancy in safe conditions and so be able to continue with her cancer treatment?

The CEDAW Committee has highlighted how women belonging to certain groups, in addition to suffering discrimination for being women, may also be subjected to multiple forms of discrimination on grounds such as race, ethnic origin, age or other factors. This discrimination affects these groups of women in different ways to men.143

142 CEDAW Committee, General recommendation No 25 on paragraph 1 of article 4 of the Convention on the Elimination of all Forms of Discrimination against Women, concerning temporary special measures, para 12.

143 Ibid.

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This cycle of multiple discrimination builds on itself. The violence and sometimes torture experienced by these women and girls puts them at increased risk of further violations of human rights, including their sexual and reproductive rights.

Although no cases are documented in this report, the intersectionality of discrimination is also evident in the gender-based violence targeted against LGBTI people in the region. Discrimination on grounds of identity and gender is a reality throughout the region and in the area of health it becomes particularly acute for members of certain groups. For example, denying people access to adequate contraception, denying transgender or intersex people access to the services they need to be able to exercise their identity (including hormone therapy) or imposing health services without consent.

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4. HUMAN RIGHTS STANDARDS

Sexual and reproductive rights are rooted in human rights set out in international and regional human rights treaties that most states in the region have ratified and committed to fulfil:

■■ Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

■■ The International Covenant on Civil and Political Rights (ICCPR)

■■ The International Covenant on Economic, Social and Cultural Rights (ICESCR)

■■ Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

■■ The Convention on the Rights of the Child (CRC)

■■ The American Convention on Human Rights (ACHR)

■■ The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará)

Sexual and reproductive rights are not new rights. The term describes a set of rights recognized in these human rights instruments which protect the right of people to make informed decisions about their sexual and reproductive lives, free from violence, coercion or discrimination and to ensure that those decisions are respected. They include rights such as the right to privacy, physical and mental integrity and to freedom from discrimination and torture or other ill-treatment. Fundamental sexual and reproductive rights include: the freedom to decide whether or not to be sexually active; to engage in consensual sexual relationships irrespective of sexual orientation; to have sex that is not linked to reproduction; to choose one’s partner; to decide how many children to have and when; to freedom from violence and harmful practices; as well as access to information, and contraception and family planning services, and to comprehensive sexuality education, especially for children and adolescents. All states that have ratified human rights treaties have an obligation to respect, protect and fulfil sexual and reproductive rights.

Violations of sexual and reproductive rights have often been understood as violations of the right to health, physical integrity, autonomy and equality, among others. However, the denial of certain services or ill-treatment in the context of sexual and reproductive health care are also a form of violence against women (caused by the state; that is, institutional violence) which in some cases also constitutes torture other cruel, inhuman or degrading treatment.

This chapter brings together the relevant human rights standards that support this statement. These standards are mainly drawn from the international system of human rights protection (United Nations) and, to a lesser extent, from the Inter-American System.

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These standards are binding on all state parties to these human rights treaties. By ratifying international and regional human rights treaties, states make a commitment to implement measures and bring national legislation into line with the obligations and duties they have undertaken. International and regional human rights law sets minimum obligations that states must respect, protect and fulfil. Monitoring compliance with international human rights is the responsibility of bodies created by UN treaties. These bodies have a mandate to provide states with guidance and interpretations on the obligations of state parties to enable them to fulfil in practice the human rights set out in each of these treaties (“human rights standards”). At the regional level, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights are the bodies charged with interpreting the scope and content of state obligations and setting regional human rights standards.

VIOLATIONS OF SEXUAL AND REPRODUCTIVE RIGHTS AS A FORM OF VIOLENCE AGAINST WOMEN (INSTITUTIONAL VIOLENCE)

“[t]he negation of public policy and sexual and reproductive health services exclusively to women, through norms practices, and discriminatory stereotypes, constitutes a systematic violation of their human rights and subjects them to institutional violence by the State, causing physical and psychological suffering.” Committee of Experts of the Follow-up Mechanism to the Belém do Pará Convention (MESECVI), 2014

International human rights law defines violence against women in broad terms and sets out the array of human rights violations that can be categorized as violence against women. Particularly relevant is the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, or the “Convention of Belém do Pará,” which defines violence against women as “any act or conduct, based on gender, which causes death or physical, sexual or psychological harm or suffering to women, whether in the public or the private sphere.”144 The Convention also defines the broad scope of the right to be free from violence, explaining that it includes, but is not limited to “the right of women to be free from all forms of discrimination”.145

Similarly, in its General Recommendation on Violence against Women, the CEDAW Committee explains that discrimination under CEDAW “includes gender-based violence” which is defined as “violence that is directed against a woman because she is a woman or that affects women disproportionately.” It goes on to provide examples of acts that can be characterized as violence against women including those “that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty” and also clarifies that such violence may violate Convention articles, whether or not those articles explicitly mention violence.146 The CEDAW Committee goes on to note that some of the rights that women do not enjoy as a result of gender-based violence include the right to life as well as the right to “the highest standard attainable of physical and mental health.”147

144 Convention of Belém do Pará), Article 1 (emphasis added).

145 Convention of Belém do Pará, Article 6.

146 Committee on the Elimination of Discrimination against Women, General recommendation No 19 on Violence Against Women, 1992 para 6.

147 Committee on the Elimination of Discrimination against Women, General recommendation No 19 on Violence Against Women, 1992, para 7(g).

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It can be argued that violations of reproductive rights that breach, among other rights, the right to life and the right to health constitute forms of gender-based violence. That is, they are directed against women or affect women disproportionately and they inflict a range of different types of harm or suffering. In other words, it is violence that is directed specifically against women and girls and is based on stereotypes such as “women living with HIV can not make decisions about motherhood”; “Poor women can not have more children because that reproduces poverty”; “A pregnant woman or girl should give birth at all costs, regardless of their personal situation, their health and even the risk to their lives”. Such violence constitutes gender-based violence and such violations of sexual and reproductive rights constitute violence against women. The seven cases documented in this report clearly show that the violence experienced by these women was rooted in discrimination (see Chapter 3: “Violation of the right to equality”).”148

Some practices that violate specific reproductive and sexual rights have been recognized as violence against women. For example, forced sterilization and restrictions on abortion and contraception. However, the concept of institutional violence is applicable to any law or practice relating to women’s sexual and reproductive health that causes death or physical, sexual or psychological suffering to women on grounds of discrimination or gender.

With respect to forced sterilization, the Special Rapporteur on Violence against Women has referred to the practice as “a severe violation of women’s reproductive rights”149 and specifically characterized it as a form of violence against women, explaining that it is “the battery of a woman – violating her physical integrity and security.”150 The Special Rapporteur explicitly states that “forced sterilization constitutes violence against women.” She goes on to provide examples of this practice in Peru in circumstances very similar to those of Esperanza whose case is detailed in this report.151 She also gives the example of China, where forced sterilization is directed at women who are “detained, restricted, or forcibly taken from their homes to have the operation.”152

148 Similarly, the Declaration on the Elimination of Violence Against Women, which although not binding, is an important guide, defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” Declaration on the Elimination of Violence Against Women, General Assembly Resolution 48/104, art. 1, Doc. ONU, A/RES/48/104, available at: http://www.un.org/documents/ga/res/48/a48r104.htm.

149 Report of the Special Rapporteur on violence against women, its causes and consequences, Radhika Coomaraswamy: Policies and practices that impact women’s reproductive rights and contribute to, cause or constitute violence against women (Fifty-fifth session), para 51, Doc. ONU E/CN.4/1999/68/Add.4 (1999) (Report of Radhika Coomaraswamy, 1999).

150 Radhika Coomaraswamy, Report of the Special Rapporteur on violence against women, its causes and consequences: Policies and practices that impact women’s reproductive rights and contribute to, cause or constitute violence against women, (55th Sess.), para 51, U.N. Doc. E/CN.4/1999/68/Add.4 (1999).

151 Radhika Coomaraswamy Report 1999, para 52, Doc. ONU E/CN.4/1999/68/Add.4 (1999) Available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G99/103/26/PDF/G9910326.pdf?OpenElement.

152 Radhika Coomaraswamy Report 1999, para 53, Doc. ONU E/CN.4/1999/68/Add.4 (1999).

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In addition, in its general recommendation on violence against women the CEDAW Committee has stated that “compulsory sterilization or abortion adversely affects women’s physical and mental health, and infringes the right of women to decide on the number and spacing of their children.”153

The Special Rapporteur on torture and other cruel, inhuman or degrading treatment (Special Rapporteur on Torture) in his 2013 report, characterizes forced sterilization as an act of violence (citing both CEDAW’s General Recommendation discussed above as well as the Human Rights Committee’s General Comment on the equality of rights between men and women) and requests that state parties provide information about measures to prevent forced sterilization.154

The Special Rapporteur’s recent report is instructive in framing these unwanted medical interventions as serious human rights violations. He unequivocally declares non-consensual sterilization to be “an act of violence, a form of social control, and a violation of the right to be free from torture and other cruel, inhuman or degrading treatment.” He calls on states “to outlaw forced or coerced sterilization in all circumstances” and clarifies that sterilization to prevent pregnancy can never be justified on grounds of medical emergency.155

The Inter-American System has characterized coercive sterilization as a form of violence against women. The Inter-American Commission on Human Rights has held that “sterilization performed by health personnel without a woman’s informed consent” and the “physical and psychological consequences of such a procedure” are forms of violence against women.156 Its report on Peru states that: “The Commission considers that when a family planning program ceases to be voluntary and turns women into a mere object of control so as to make adjustments to population growth, it loses its raison d’etre and instead poses a danger of violence and direct discrimination against women.” The implementation of family planning programmes, such as the practice of coercive sterilization, can, therefore, be considered a form of violence against women.157

153 CEDAW Committee, General recommendation No 19, para 22, available at: http://www.un.org/ womenwatch/daw/cedaw/recommendations/recomm-sp.htm.

154 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez U.N. (Report of the Special Rapporteur Juan Méndez, 2013) Doc. ONU A/HRC/22/53 (2013), available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G13/105/80/PDF/ G1310580.pdf?OpenElement.

155 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez U.N. (Report of the Special Rapporteur Juan Méndez, 2013) Doc. ONU A/HRC/22/53 (2013), available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G13/105/80/PDF/ G1310580.pdf?OpenElement.

156 IACHR, Access to Maternal Health Services from a Human Rights Perspective, OEA/Ser.L/V/II. Doc. 69, 7 June 2010, para 75, available at: https://www.oas.org/en/iachr/women/docs/pdf/saludmaternaeng. pdf.

157 IACHR, Second Report on the Situation of Human Rights in Peru, OEA / Ser.L / V / II.106 Doc. 59 rev. 2 June 2000, para 26, available at: https://www.cidh.oas.org/countryrep/Peru2000en/TOC.htm.

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In 2015, the Commission referred a case of sterilization without consent in Bolivia to the Inter-American Court, claiming that “[a]n international consensus exists that non-consensual sterilization constitutes a form of violence against women in which, as indicated in earlier sections above, a series of human rights are infringed.”158

Restrictions on abortion and contraception have also been considered a form of violence against women. The Special Rapporteur on violence against women has noted that restrictions or bans on access to voluntary contraception is a form of violence in the context of reproductive health. “Acts deliberately restraining women from using contraception or from having an abortion constitute violence against women by subjecting women to excessive pregnancies and childbearing against their will, resulting in increased and preventable risks of maternal mortality and morbidity.”159

VIOLATIONS OF THE SEXUAL AND REPRODUCTIVE RIGHTS AS A FORM OF TORTURE OR OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT

While the prohibition of torture may initially have been applied above all in contexts such as the interrogation, punishment or intimidation of detainees, the international community has begun to acknowledge that torture may also occur in other contexts, for example in health care.160 As the cases in this report show, health institutions are places where people are often not free to discharge themselves at will, most notably the cases of Mónica and Mainumby who were held against their will in hospitals on the orders of the state to give birth.

The definition of torture contained in the UN Convention against ortureT and other Cruel, Inhuman or Degrading Treatment or Punishment (UN Convention against Torture)161 comprises at least four essential elements:

1. it inflicts severe pain or suffering, either physical or mental; 2. it is intentional; 3. it has a specific purposes, including discrimination; 4. it occurs with the consent or acquiescence of a public official.162

158 IACHR, I.V. vs Bolivia (Merits, Report No 72/14), 15 August 2014, para 156.

159 Report of the Special Rapporteur on violence against women, its causes and consequences, Integration of the rights of women and a gender perspective: violence against women, UN Doc. E/ CN.4/1999/68/ Add.4, (1999). para 57.

160 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, A/HRC/22/53, 1 February 2013, paras 15-16.

161 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the United Nations General Assembly in its resolution 39/46 of 10 December 1984, entered into force on 26 June 1987; Article 1.

162 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, A/HRC/22/53, 1 February 2013, para 17.

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In the Inter-American System for the Protection of Human Rights, the Inter-American Convention to Prevent and Punish Torture (Inter-American Convention against Torture) 163 contains similar elements but with some differences, namely:

■■ There is no requirement that the pain or suffering inflicted be “severe”.

■■ The purpose is not specified and can be “for any other purpose”.

Neither the American Convention nor the Inter-American Convention on Torture define what would constitute cruel, inhuman or degrading punishment (hereinafter “ill-treatment” or “cruel, inhuman or degrading treatment”). However, the Inter-American Court of Human Rights has stated that the violation of the right to physical and psychological integrity is a category of violation that has several gradations and embraces treatment ranging from torture to other types of humiliation or cruel, inhuman or degrading treatment with varying degrees of physical and psychological effects caused by factors which must be proven in each specific situation.164

Under Article 16 of the UN Convention against Torture, acts that do not conform to the definition of torture can constitute cruel, inhuman or degrading treatment or punishment. According to the Committee against Torture, in order for an act to qualify as cruel, inhuman or degrading treatment, neither the intention element nor the “impermissible purpose” element contained in the definition of torture needs to be satisfied.165 In order to differentiate between torture and cruel, inhuman and degrading treatment or punishment, the Inter- American Court has looked to case law from the European Court of Human Rights and has largely used the difference in the intensity of the suffering to distinguish between the two.166

However, the concept of torture and cruel, inhuman or degrading treatment is not a static one. It has evolved over time, underpinned by the progressive nature of international human rights law and to reflect the changing conditions and values in society. For example, the Inter-American Court of Human Rights, in its decision Cantoral-Benavides v. Peru, cites the European Court of Human Rights, noting that that Court “has pointed out recently that certain acts that were classified in the past as inhuman or degrading treatment, but not as torture, may be classified differently in the future; that is, as torture, since the growing demand for the protection of fundamental rights and freedoms must be accompanied by a more vigorous response in dealing with infractions of the basic values of democratic societies.”167

163 Organization of American States, Inter-American Convention to Prevent and Punish Torture (2003), OAS / Ser.L / V / I.4 Rev. 9 Article 2 (Inter-American Convention against Torture), available at: http:// www.oas.org/juridico/english/treaties/a-51.html

164 Inter-American Court of Human Rights, Case of Loayza-Tamayo v Peru, Judgment of September 17, 1997(Merits), C33; para 57.

165 CAT Committee, General Comment 2 (2007), para 10, available at: http://www2.ohchr.org/english/ bodies/cat/docs/CAT.C.GC.2.CRP.1.Rev.4_en.pdf

166 Inter-American Court of Human Rights, case of Caesar vs Trinidad and Tobago, Judgment of 11 March 2005, H.R., (Ser. C) No 123, para 50.

167 Case of Cantoral Benavides vs Peru, Judgment of 18 August 2000, ICHR, (Ser. C) No 69, para 99, citing the European Court Human Rights, Selmouni v. France, Judgment of 28 July 1999, para 101. In its jurisprudence, the Inter-American Court has referred to the three specific international instruments -

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The following sections looks at how the four essential elements which define an action as torture in international human rights law (that is, severe suffering, intention, purpose and state involvement) apply to an analysis of abuses in the context of sexual and reproductive health care.

TORTURE OR OTHER ILL-TREATMENT IN THE CONTEXT OF SEXUAL AND REPRODUCTIVE HEALTH: SEVERE HARM OR SUFFERING The first element of the definition of torture in international law has to do with the severity of the suffering or harm that is inflicted on the victim of torture. Obviously, this has to be analysed on a case-by-case basis. However, the examples set out in this report show how severe the damage and suffering caused by violations to sexual and reproductive rights can be.

In cases where access to abortion is completely prohibited or severely restricted, the suffering caused is so severe that women and girls die from preventable causes. The link between unsafe abortions and maternal mortality and morbidity has been proven and is incontestable.168 Indeed, it has recently been acknowledged by states in the region.169 In Latin America and the Caribbean, women are resorting to unsafe abortions because of restrictive laws, with direct effects on their health and well-being.170 The region has the highest estimated percentage of unsafe abortion in the world.171

that combat torture and other ill-treatment: UN Convention against Torture (1984 and its 2002 Protocol); the Inter-American Convention against Torture (1985) and European Convention against Torture (1987). See for example the case Maritza Urrutia vs Guatemala, Judgment of 27 November 2003, (Ser. C) 103, para 90; Bámaca Velásquez vs Guatemala, Judgment of 25 November 2000, Inter-American Court of Human Rights (Ser. C) No 70, para 156; and Cantoral Benavides vs Peru, Judgment of 18 August 2000, Inter-American Court of Human Rights (Ser. C) No 69, para 183. Some of the judges consider that the implementation of the three international instruments are complementary and not mutually exclusive; see Maritza Urrutia vs” Guatemala”, supra note 29; Separate opinion of Judge Cançado Trindade, para 2.

168 See World Health Organization, Safe abortion: technical and policy guidance for health systems, Second Edition, WHO 2012, p 23, available at: http://www.who.int/reproductivehealth/publications/ unsafe_abortion/9789241548434/en/ ; and WHO Global and Regional estimates of the incidence of unsafe abortion and associated mortality in 2003, 5ª Edition, 2003, available at: http://who.int/ reproductivehealth/publications/unsafeabortion_2003/ua_estimates03.pdf.

169 States in the region stated that they were: “Concerned at the high rates of maternal mortality, due largely to difficulties in obtaining access to proper sexual health and reproductive health services or due to unsafe abortions, and aware that some experiences in the region have demonstrated that the penalization of abortion leads to higher rates of maternal mortality and morbidity and does not reduce the number of abortions, and that this holds the region back in its efforts to fulfil the Millennium Development Goals.” Montevideo Consensus on Population and Development, ECLAC, LC/L.3697, 5 September 2013, para 33.

170 Department of Reproductive Health and Research, World Health Organization. Unsafe abortion: global and regional estimates of the incidence of unsafe abortion and associated mortality in 2008, 6a ed., Geneva, WHO, 2011. 2. World Health Organization, World Health Statistics 2012, Geneva, WHO, 2012.

171 WHO, UNICEF, UNFPA, The World Bank and the United Nations Population Division. Trends in Maternal Mortality: 1990 to 2013. Estimates by WHO, UNICEF, UNFPA, The World Bank and the United Nations Population Division [Internet]. Geneva: WHO; 2014, available at: http://www.who.int/ reproductivehealth/publications/monitoring/maternal-mortality-2013/en/.

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The suffering is often so severe that women sometimes contemplate suicide. A representative case illustrating this pattern is that of L.C vs. Peru. L.C. became pregnant when she was 13 years old as a result of repeated rape by an older man. L.C. tried to commit suicide by throwing herself off the roof of a neighbour’s house and suffered a spinal cord injury. She was taken to a public hospital where doctors recommended urgent surgery to prevent the injuries caused by the fall from becoming permanent. The surgery was not carried out after it was confirmed that she was pregnant; a formal request made to the hospital management for a therapeutic abortion was rejected. It was only after L.C. suffered a miscarriage, almost three months after the injury, that the surgery went ahead. However, despite the surgery, she remained paralysed in all four limbs.172 The CEDAW committee recommended that Peru review its legislation with a view to decriminalizing abortion when the pregnancy is the result of rape or sexual abuse and that it establish a mechanism to ensure effective access to therapeutic abortion, which is legal in the country.173

Recently, the Peruvian Ministry of Health reported that 56% of reported deaths among pregnant teenagers in 2012 not directly attributable to their condition were the result of suicide.174 Studies have identified a disproportionate correlation between teenage pregnancies and suicide.175 The Committee against Torture has repeatedly called on the state to take measures to prevent suicides.176

Maternal deaths and suicides are just two indicators of the pain and suffering experienced by women and girls in situations where abortion is illegal and criminalized. In this report we have documented many other instances of appropriate treatment being denied -- for example treatment for diseases such as cancer in the case of Tania and Rosaura, or for a genetic heart condition in the case of Mónica -- on the grounds that the treatment could harm the foetus. Denial of health treatment on the grounds that the treatment could harm the foetus could constitute torture or other ill-treatment.

172 Centre for Reproductive Rights, Factsheet: the case of L.C vs Peru (CEDAW), available at: http://www. reproductiverights.org/case/lc-v-peru-un-committee-on-the-elimination-of-discrimination-against-women.

173 CEDAW Committee, Communication No. 22/2009, October 2011, CEDAW/C/50/D/22/2009.

174 Committee on the Rights of the Child, Fourth and fifth periodic reports of States parties due in 2012, available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G15/048/74/PDF/G1504874. pdf?OpenElement.

175 WHO and United Nations Population Fund (UNFPA), Mental health aspects of women’s reproductive health. A global review of the literature, 2009, p. 9, http://whqlibdoc.who.int/ publications/2009/9789241563567_eng.pdf. Amnesty International translation.

176 See, for example, Conclusions and recommendations of the Committee against Torture on the United Kingdom, CAT/C/CR/33/3, para 4 (h) in which the Committee expresses concern about “reports of incidents of bullying followed by self-harm and suicide in the armed forces, and the need for full public inquiry into these incidents and adequate preventive measures”; and Conclusions and recommendations of the Committee against Torture on the Republic of Korea, CAT/C/KOR/CO/2, para 14: “The Committee is concerned about the high number of suicides and other sudden deaths in detention facilities... The State party should take all necessary steps to prevent and reduce the number of deaths in detention facilities...and suicide prevention programmes should be established in such facilities.”; Conclusions and recommendations of the Committee against Torture on Portugal CAT/C/PRT/CO/4, para 11: “[The State party]... should also step up measures aimed at preventing violence among inmates, including sexual violence, and suicide by prisoners”.

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Despite restrictive legislation, women turn to abortion when faced with a pregnancy they do not want to or cannot continue.177 Unsafe abortions can have a dramatic impact on their lives and health. Often objects inserted into the vagina result in perforation of the uterus or injuries such as haemorrhage, sepsis, toxaemia or permanent disability. Criminalization of abortion exposes women and girls to social, medical, psychological and legal risks. These are heightened when, because women lack social support, financial resources or reliable, quality information on which to base their decisions, terminations take place in inadequate conditions.178

When analysing the level of serious harm or suffering in the context of sexual and reproductive health, it is important to bear in mind that the interpretation of the concept of torture and cruel, inhuman or degrading treatment is evolving and, in particular, that the “degree of suffering” varies according to personal characteristics and the circumstances of the case; different people experience pain in different ways. The cumulative effect of suffering in the areas of sexual and reproductive health also need to be taken into account.

The Inter-American Court, echoing a decision by the European Court, has stated that: “analysis of the gravity of the acts that may constitute cruel, inhumane or degrading treatment or torture, is relative and depends on all the circumstances of the case, such as duration of the treatment, its physical and mental effects and, in some cases, the sex, age, and health of the victim, among others.179

In addition, human rights bodies, including the Inter-American Court of Human Rights, are increasingly recognizing that women, as a result of their sex or gender, may experience pain and suffering differently and that, therefore, the effects of these harms may also be different.180

Finally, it is not only physical suffering that can be considered severe. In interpreting acts that constitute torture, the Inter-American Court of Human Rights has made clear that

177 Guttmacher Institute [homepage on the Internet]. Nueva York: Guttmacher Institute; 2012. [issued January 2012]. Facts on Induced Abortion Worldwide. Worldwide Incidence and Trends, available at: http://www.guttmacher.org/pubs/fb_IAW. html

178 Alejandra López Gómez, “Mujeres y aborto” in, Investigación sobre aborto en América Latina y El Caribe: una agenda renovada para informar políticas públicas e incidencia, available at: http://clacaidigital.info:8080/xmlui/bitstream/handle/123456789/661/Inv-aborto-ALyC-web. pdf?sequence=2&isAllowed=y [An executive summary is available in English at: http://www. clacaidigital.info:8080/xmlui/bitstream/handle/123456789/662/Executive%20summary. pdf?sequence=5&isAllowed=y

179 Inter-American Court of Human Rights, the case of Brothers Gómez Paquiyauri vs Peru, Judgment of 8 July 2014, (Ser. C) No 110, para 113, citing Eur. Court H.R., Case Ireland v. the United Kingdom, Judgment of 18 January 1978, Series A No 25, para 162.

180 Criminal case of Miguel Castro Castro vs Peru, Judgment of Merits, Reparations and Costs, Inter- American Court of Human Rights, (ser. C) No 160 (25 November 2006).

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inflicting psychological suffering or moral anguish can constitute torture.181 That is, the element of physical violence is not necessary in order for torture to be established. For example, in its decision in Maritza Urrutia v. Guatemala, the Court stated the following:

“according to the circumstances of each particular case, some acts of aggression inflicted on a person may be classified as mental torture, particularly acts that have been prepared and carried out deliberately against the victim to eliminate his mental resistance and force him to accuse himself of or confess to certain criminal conducts, or to subject him to other punishments, in addition to the deprivation of freedom itself.”182

There is no doubt that violations of reproductive rights documented in this reports, such as denying safe abortion services to women and girls who need them or inflicting forced abortions or sterilization (as in the cases of Esperanza and Michelle) causes severe mental pain and suffering.

TORTURE AND OTHER ILL-TREATMENT IN THE CONTEXT OF SEXUAL AND REPRODUCTIVE HEALTH: INTENTIONALITY AND SPECIFIC PURPOSE The Committee against Torture makes clear in General Comment No 2 that “elements of intent and purpose in Article 1 do not involve a subjective inquiry into the motivations of the perpetrators, but rather must be objective determinations under the circumstances.”183 It is clear that countries that have passed legislation criminalizing abortion in all circumstances, intend to prohibit that treatment for women and girls even if their lives or health are at risk or the pregnancy is the result of an inherently traumatic experience such as rape.184 There is also a clear intention to criminalize them and subject them, and any medical personnel treating them, to imprisonment.

With respect to the requirement of “intent”, the Special Rapporteur on torture has stated that this can be deemed to be present in cases where someone has been discriminated against, for example on ground of disability. On the other hand, according to the Rapporteur, conduct

181 “[T]he Court has established that an act of torture can be perpetrated both by acts of physical violence and by acts that produce acute mental or moral suffering for the victim.” Inter-American Court of Human Rights, Fernández Ortega et al vs Mexico. Preliminary Objections, Merits, Reparations, and Costs, Judgment of 30 August 2010, para 124.

182 Inter-American Court of Human Rights, Maritza Urrutia vs Guatemala, Judgment of 27 November 2003, (Ser. C) 103, para 93.

183 Committee against Torture, General Comment No 2 Implementation of Article 2 by States Parties, CAT/C/GC/2, 24 January 2008, para 9.

184 The Inter-American Court of Human Rights: “has recognized that rape is an extremely traumatic experience that can have severe consequences and cause significant physical and psychological damage that leaves the victim “physically and emotionally humiliated,” a situation that is difficult to overcome with the passage of time, contrary to other traumatic experiences. This reveals that the severe suffering of the victim is inherent in rape, even when there is no evidence of physical injuries or disease.” Fernández Ortega et al vs Mexico. Preliminary Objections, Merits, Reparations, and Costs, Judgment of 30 August 2010, para 114. Case of the Río Negro massacres vs Guatemala, Preliminary Objections, Merits, Reparations, and Costs; Judgment of 4 September 2012, para 132. Case of the Massacres of El Mozote and Nearby Places v. El Salvador, Merits, Reparations, and Costs; Judgment of 25 October 2012, para 165.

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that is merely negligent lacks the intentionality required in Article 1, but may constitute ill- treatment if it causes severe pain or suffering.185

The criterion of “particular purpose” perhaps requires further analysis in the area of sexual and reproductive health. In the context of medical treatment, the options for women and girls are often undermined while their so-called “best interests” are pursued and grave violations and discrimination against certain groups of people are perpetrated under the guise of health professionals’ “good intentions”.186

The cases documented in this report illustrate this. Mainumby was interned, forced to carry a pregnancy to term and to give birth in the name of protecting a greater good, in the opinion of prosecutors, judges and politicians. They considered the protection of the foetus to be more important than her best interests, her health or project of life. The same happened to Mónica, Tania and Rosaura. In legal contexts that criminalize abortion, as is the case in Latin America and the Caribbean, this is very common. In the cases of Michelle and Esperanza, it is possible that the doctors treating them also believed that forced sterilization was “for their own good”.

In the context of discrimination, the actions of staff in the state justice and health systems in the region are often intended to punish women who have dared to make decisions about their sexuality and reproduction, or who have experienced situations that they consider “reprehensible”. This was what happened to Teodora who was blamed for her obstetric emergency, ill-treated during her stay in hospital because of her supposed guilt and then sent to prison. The same pattern is evident in the case of Michelle who was ill-treated in hospital because she was HIV positive and pregnant, something deemed reprehensible by the doctor treating her. In Tania’s case, the first reaction of the doctor treating her was to blame her for getting pregnant in the middle of cancer treatment. He then lied to her saying that her cancer treatment could be suspended without putting her life at risk.

It is important to emphasize that health personnel are often also victims of the state’s punitive system. For example, when abortion is criminalized in all cases or with few exceptions, they are faced with the dilemma of either letting their patient die or risking imprisonment.

In the areas of sexual and reproductive health, proving that a doctor intentionally caused harm or suffering often poses considerable challenges because in the majority of cases, they are protected by legislation or “a perception that, while never justified, certain practices in health-care may be defended by the authorities on grounds of administrative efficiency, behaviour modification or medical necessity.”187

185 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, A/HRC/22/53, 1 February 2013, para 19.

186 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, A/HRC/22/53, 1 February 2013, para 19, referring to people with disabilities.

187 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, A/HRC/22/53, 1 February 2013, para 13.

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However, according to the UN Convention against Torture, the element of particular purpose includes “any reason based on any kind of discrimination”. Consequently, it is not necessary to prove that the intention of the doctors carrying out the treatment was to cause harm, but rather that the reason for the harm or severe suffering was based on discrimination. It is clear that this would apply to all the violations of sexual and reproductive rights described in this report and many others in the region, given that the basis of such violations is gender discrimination.188

This is the case because denying or imposing without consent health care services that only women or girls of reproductive age may need is gender-based discrimination.

Several UN special rapporteurs have explained the clear link between gender-based violence, including violations of reproductive rights, and torture. Their analyses explain that because reproductive rights violations are driven by discrimination, by definition, they satisfy the element of the definition of torture that requires that there be a purpose behind the commission of torture. The Special Rapporteur on torture clearly sets out this link:

“Discrimination plays a prominent role in an analysis of reproductive rights violations as forms of torture or ill-treatment because sex and gender bias commonly underlie such violations. The mandate has stated, with regard to a gender-sensitive definition of torture, that the purpose element is always fulfilled when it comes to gender-specific violence against women, in that such violence is inherently discriminatory and one of the possible purposes enumerated in the Convention is discrimination.”189

Similarly, the Committee against Torture has specifically identified the context of medical treatment, “particularly involving reproductive decisions” as one in which women are particularly “subject to or at risk of torture or ill-treatment and the consequences thereof.”190

The Human Rights Committee found that in the case of Peru there was discrimination in the state’s efforts to ensure the right to life (set out in Article 6 of the ICCPR) as men were able to seek medical care for conditions that put their lives at risk without having to fear that they or those providing that medical care could face criminal charges, while women were denied this possibility.191

188 As previously stated, in the Inter-American System the element of “purpose” is not elaborated, as according to the American Convention against Torture, torture can an act committed “for any other purpose”.

189 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment Manfred Nowak: Promotion and protection of all human, civil, political, economic, social and cultural rights, including the right to development, para 68, Doc. ONU A/HRC/7/3 (2008).

190 Committee against Torture, General Comment No 2 (2007), para 22.

191 Concluding observations of the Human Rights Committee: Peru, 15 September 2000, CCPR/CO/70/ PER, para 20, available at: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbol no=CCPR%2FCO%2F70%2FPER&Lang=en.

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The element of “specific intent” required by Article 1 of the UN Convention against Torture is, therefore, present whenever severe pain or suffering is caused by legislation, policies or practices of sexual and reproductive health, which is discriminatory.

TORTURE AND ILL-TREATMENT IN THE CONTEXT OF SEXUAL AND REPRODUCTIVE HEALTH: STATE INVOLVEMENT The other element of the definition of torture is that it is committed at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. Health workers in state facilities are considered state officials. The Special Rapporteur on torture has stated explicitly that the element of state participation in the definition of torture extends, among others, to doctors and health professionals, including those who work in private hospitals and other institutions.192

Other bodies of the UN and the Inter-American Court of Human Rights have provided a more in-depth analysis of the circumstances in which the state is responsible for the acts of private actors. For example, the Committee on the Elimination of Discrimination against Women has indicated that “the State is directly responsible for the action of private institutions when it outsources its medical services and that, furthermore, the State always maintains the duty to regulate and monitor private health-care institutions.”193

Similarly, in cases of cruel, inhuman and degrading treatment, the Inter-American Court of Human Rights has explained that the duty of the state “to regulate and supervise the institutions which provide health care services... includes both public and private institutions which provide public health care services, as well as those institutions which provide only private health care.”194

In 2015, the Inter-American Court of Human Rights condemned Ecuador for violating the right to life and to physical integrity of a young woman who was infected with HIV through a private blood bank. It held the state responsible for the negligence that led to the infection on the grounds that it had failed in its obligation to control and supervise the provision of health services.195

In light of the jurisprudence, the state is unquestionably responsible for torture and cruel, inhuman or degrading treatment or punishment committed in public and private health care institutions.

192 2008 report of the Special Rapporteur, Manfred Nowak, Doc. ONU A/HRC/63/175 (2008), para 51.

193 CEDAW, Case of Silva Pimentel vs Brazil, Communication No 17/2008, para 7.5 Available at: http:// www.ohchr.org/Documents/HRBodies/CEDAW/Jurisprudence/CEDAW-C-49-D-17-2008_en.pdf.

194 Inter-American Court of Human Rights, Ximenes Lopes vs Brazil, Merits, Reparations, and Costs, C) No 149, ¶ 141 (4 July 2006).

195 Inter-American Court of Human Rights, Gonzalez Lluy et al vs Ecuador, Preliminary objections, merits, reparations and costs (1 September 2015) para 191.

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SPECIFIC VIOLATIONS OF REPRODUCTIVE RIGHTS AS A FORM OF TORTURE OR OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT

A number of UN treaty bodies have stated that certain violations of sexual and reproductive rights are a form of torture and/or cruel, inhuman or degrading treatment. The following are examples of these violations. However, it is important to stress that, in line with the analysis set out above of the applicability of the constituent elements of torture and other cruel, inhuman or degrading treatment in health-care contexts, many other violations of sexual and reproductive rights could be considered torture or other cruel, inhuman or degrading treatment.

RESTRICTIONS ON ACCESS TO ABORTION AND THE TOTAL BAN ON ABORTION The Special Rapporteur on torture has “repeatedly expressed concerns about restrictions on access to abortion and about absolute bans on abortion as violating the prohibition of torture and ill-treatment.”196

In Latin America and the Caribbean, the Committee against Torture has expressed concern about restrictive abortion laws on more than one occasion. For example, in Peru the Committee found that: “Current legislation severely restricts access to voluntary abortion, even in cases of rape, leading to grave consequences, including the unnecessary deaths of women... that constitute cruel and inhuman treatment.” 197 In Nicaragua, the Committee against Torture added its voice to concerns about the total ban on abortion submitted to the Human Rights Council, the Committee on the Elimination of Discrimination against Women and the Committee on Economic, Social and Cultural Rights. These bodies made recommendations to the state that it consider allowing exceptions to the general prohibition of abortion for cases of therapeutic abortion and pregnancy resulting from rape or incest.198 In the case of Chile, the Committee against Torture recommended that the state: “Eliminate the practice of extracting confessions for prosecution purposes from women seeking emergency medical care as a result of illegal abortion”.199

Another case in which recognition of restrictions on access to abortion was recognized as a form of torture or cruel, inhuman and degrading treatment is that of KL vs. Peru in which the Human Rights Committee found that Peru violated the prohibition against torture or cruel, inhuman or degrading treatment under the International Covenant on Civil and Political Rights (ICCPR) when it did not allow KL to have a therapeutic abortion, despite the fact that she was carrying an anencephalic foetus. The Human Rights Committee explained that the suffering that KL experienced, including the distress and deep depression that she experienced both during her pregnancy and after having given birth was a result of the state’s refusal to allow her to have an abortion. This refusal meant she was forced to carry her pregnancy to term and to give birth to her daughter, who died four days after her birth.200

196 2013 report the Special Rapporteur Juan Méndez, Doc. UN A/HRC/22/53 (2013), para 50.

197 Committee against torture, CAT/6/PER/CO/4 (2008) para 23, available at: < http://tbinternet.ohchr. org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT%2fC%2fPER%2fCO%2f4&Lang=en>.

198 CAT/C/NIC/CO/1 (2009) para 16, available at: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/ Download.aspx?symbolno=CAT%2fC%2fNIC%2fCO%2f1&Lang=en.

199 CAT/C/CR/32/5 (2004) para 7.

200 KL vs Peru, Human Rights Committee, Communication No 1153 / 2003 (2005), para 6.3, available at: https://www1.umn.edu/humanrts/undocs/1153-2003.html.

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In a case of Argentina, the Human Rights Committee also considered that the state’s failure to ensure a woman’s access to abortion, which was permitted by law, had caused physical and mental suffering that constituted cruel, inhuman or degrading treatment.201 The Committee cited its General Comment No 20, which states that the prohibition in Article 7 of the ICCPR refers to psychological suffering as well as physical pain.202

Demonstrating a broad consensus with respect to framing the prohibition of abortion as cruel, inhuman and degrading treatment, three UN Special Rapporteurs recently issued a statement calling on the El Salvadoran government to provide a Salvadoran woman, Beatriz, with life- saving treatment, that is, a termination of her pregnancy. Beatriz was denied an abortion, in light of El Salvador’s total ban on abortion, despite the fact that her life was known to be in danger owing to a high-risk pregnancy and that she was carrying an anencephalic foetus. In their statement, these Rapporteurs characterized Beatriz’ situation as “cruel, inhumane and degrading.”203

The European Court of Human Rights has stated on more than one occasion that states are violating the prohibition of cruel, inhuman and degrading treatment by denying women an abortion that was permitted under the law.204

FORCED STERILIZATION The Committee against Torture, in its Concluding observations, has stated that before a sterilization is performed, the consent of the woman must be obtained, noting that obtaining “free, full and informed” consent is a necessary prerequisite to a sterilization procedure. Special mention has been made of the need to obtain this consent in situations involving individuals who are particularly vulnerable for various reasons. For example, the Special Rapporteur on health has highlighted the importance of consent regarding individuals with mental disabilities, explaining that “consent to treatment is one of the most important human rights issues relating to mental disability,” going on to note that this issue relates to the prohibition against inhuman and degrading treatment.205

201 Human Rights Committee, L.M.R. vs Argentina, Views, Communication No 1608/2007, 101st session, 28 April 2011, (CCPR/C/101/D/1608/2007) para 9.2

202 Human Rights Committee, L.M.R. vs Argentina, Views, Communication No 1608/2007, 101st session, 28 April 2011, (CCPR/C/101/D/1608/2007) para 9.2.

203 Joint statement of UN Special Rapporteurs on torture, violence against women and health and the UN Working Group on discrimination against women in law and in practice, “El Salvador: UN Rights Experts Appeal to Government to Provide Life-Saving Treatment to Woman at Risk (26 April 2013), available at: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13269&LangID=E#s thash.3kcIpwK6.dpuf

204 European Court of Human Rights, case of RR v. Poland, No 27617/04. (2011) & Case of P. & S. vs Poland, ECHR 398 (2012) 30.10.2012, (http://hudoc.echr.coe.int/fre- press?i=003-4140612-4882633).

205 Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental, E/CN.4/2005/51, para 87.

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Similarly, the Committee against Torture has made special note of situations in which forced sterilization has been targeted at marginalized groups, including Roma women, and called for the investigation, prosecution and punishment of perpetrators and the provision of compensation to victims in cases in which women are sterilized involuntarily; that is, without their free, full and informed consent.206 The Committee has framed the issue of sterilization without free and informed consent of those individuals with “mental incompetence” as linked to the prohibition against cruel, inhuman or degrading treatment and has, for example, called for the repeal of a decree in Peru allowing this practice.207

The Committee against Torture has also expressed concern about forced and coerced sterilization practices in Kenya involving women who are HIV positive or who have disabilities, also framing this issue under the Convention’s prohibition of cruel, inhuman or degrading treatment.208 Similarly, the Special Rapporteur on health has raised the issue of groups who are particularly vulnerable to rights violations, including women who have mental disabilities, pointing out that they are particularly vulnerable to being forcibly sterilized, characterizing this practice as a violation of sexual and reproductive health rights.209

The Human Rights Committee, too, has framed issues around both sterilization and abortion as potential violations of Article 7 of the ICCPR, which prohibits torture or cruel, inhuman or degrading treatment.210 For example, the Committee has explained that state failure to respect women’s privacy, for example by requiring that a husband authorize a woman’s decision to be sterilized, by putting in place other requirements that must be met for a woman to be sterilized, or by requiring that doctors and other health personnel report cases of women who have had abortions, potentially violate the ICCPR’s prohibition of torture or cruel, inhuman and degrading treatment.211 The Human Rights Committee has also expressed

206 Committee against Torture, Concluding observations: Slovakia, para 14, Doc. de la ONU CAT/C/ SVK/CO/2 (2009). “The Committee is deeply concerned about allegations of continued involuntary sterilization of Roma women. The State party should: (a) Take urgent measures to investigate promptly, impartially, thoroughly and effectively all allegations of involuntary sterilization of Roma women, prosecute and punish the perpetrators and provide the victims with fair and adequate compensation; (b) Effectively enforce the Health-care Act (2004) by issuing guidelines and conducting training of public officials, including on the criminal liability of medical personnel conducting sterilizations without free, full and informed consent, and on how to obtain such consent from women undergoing sterilization.”

207 Committee against Torture, Concluding observations: Peru, para 15 and 19, Doc. CAT/C/PER/CO/5-6 (2013). See also, Committee against Torture, Concluding observations: Peru, para 23, CAT/C/PER/CO/4.

208 Committee against Torture, Concluding observations: Kenya, para 27, Doc. CAT/C/KEN/CO/2 (2013).

209 Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental, E/CN.4/2005/51, para 12.

210 ICCPR, article 7: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experiments.

211 Human Rights Committee, General Comment No 28, Article 3 (equality of rights between men and women), Sixty eighth session (2000), in Compilation of General Comments and General recommendations adopted by Human Rights Treaty Bodies, p228, para 20, Doc ONU HRI/ GEN/1/Rev.5 (2001), available at: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=HR I%2fGEN%2f1%2fRev.5&Lang=en.

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serious concern about forced sterilization and framed the issue within the context of the prohibition of torture and other cruel, inhuman or degrading treatment in its Concluding observations.212

DENIAL OF POST-ABORTION CARE AND THE OBLIGATION TO REPORT TO THE AUTHORITIES The Committee against Torture has repeatedly expressed concern that restrictions on access to and absolute prohibitions of abortion violate the prohibition of torture and ill-treatment.213 The Human Rights Committee explicitly noted that forced abortion and denial of access to a safe abortion for women pregnant as a result of rape were violations of Article 7 of the International Covenant on Civil and Political Rights214 and expressed concern about the obstacles imposed on abortion when it was allowed by law.

The Committee against Torture, in its review of Paraguay, for example, has expressed concern about the denial of post-abortion care, given that it could “seriously jeopardize” women’s health. It has characterized this denial as potentially constituting “cruel and inhuman treatment.”215

As explained above, according to the definition of torture in the Convention against Torture, when severe pain or suffering is inflicted in order to obtain information or a confession, this constitutes an impermissible purpose under the Convention. In its Concluding observations to Chile, the Committee against Torture has called for an end to “the practice of extracting confessions for prosecution purposes from women seeking emergency medical care as a result of illegal abortion.”216 Therefore, it can be argued that the practice of making the provision of medical care to women who have suffered complications after having had illegal abortions conditional on their confessing or giving information about who performed the abortion so that those individuals can be prosecuted, would constitute torture given that severe pain or suffering is inflicted in order to obtain information.217

212 See also, Concluding observations of the Human Rights Committee on Slovakia, CCPR/CO/78/SVK, para 12; and Concluding observations of the Human Rights Committee on Japan and Peru, without qualifying forced sterilizations as torture or cruel, inhuman or degrading treatment, CCPR/C/79/Add.102, para 31; CCPR/CO/70/PER, para 21. “The Committee is concerned about recent reports of forced sterilizations, particularly of indigenous women in rural areas and women from the most vulnerable social sectors. The State party must take the necessary measures to ensure that persons who undergo surgical contraception procedures are fully informed and give their consent freely.”

213 See CAT/C/PER/CO/4, para 23. Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, 1 February, 2013, A/HRC/22/53. Para 50.

214 General Comment No 28, para 11; See also CCPR/CO.70/ARG, para 14 and the report of the Special Rapporteur on torture and other inhuman or cruel, inhuman or degrading treatment or punishment, op

215 Committee against Torture, Concluding observations on Paraguay, para 22, Doc. CAT/C/PRY/CO/4-6 (2011).

216 Committee against Torture, Concluding observations on Chile, para 7(m), Doc. CAT/C/CR/32/5 (2004).

217 Committee against Torture, Concluding observations on Chile, para 6(j), Doc. CAT/C/CR/32/5 (2004).

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Similarly, in its Concluding observations to Peru, the Committee against Torture, referring to the prohibition of cruel, inhuman and degrading treatment, has expressed concern about a law requiring doctors to report women seeking post-abortion health services to the authorities.218 The Committee has been particularly critical of, and called for the elimination of, the practice of obtaining confessions from women who need emergency medical care after having illegal abortions as well as punishing doctors for exercising their professional duties.219 Again, assessing this practice against the definition of torture under the Convention against Torture, the argument can be made that extracting confessions from women who are seeking medical care would constitute a form of torture.

218 Committee against Torture, Concluding observations on Peru, para 15, Doc. CAT/C/PER/CO/6 (2012).

219 Committee against Torture, Concluding observations on Peru, para 15(d) Doc. Doc. CAT/C/PER/CO/5-6 (2013).

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5. CONCLUSIONS AND RECOMMENDATIONS

The pandemic of violence against women in Latin America and the Caribbean is a clear reflection of the lack of resources allocated and the lack of political will shown by states in the region to protect the rights of women and girls. States can and should do more to prevent and eradicate gender-based violence. The measures needed are well known; numerous national and international organizations have produced evidence and information on this.

For several years, Amnesty International has been adding its voice to that of hundreds of women’s rights organizations throughout the region demanding the eradication of violence against women.

Amnesty International believes that violence against women will not be eliminated unless states in the region change laws, public policies and discriminatory practices in the area of sexual and reproductive health. These laws and practices not only violate many human rights, they also generate institutional violence, torture and other cruel, inhuman or degrading treatment. In addition, as this report shows, by imposing these discriminatory practices based on gender stereotypes, the state is acting as a catalyst, generating further violence against women. It is the state that promotes and legitimizes the structural discrimination that underpins all gender-based violence.

To end this cycle of violence, states in the region must accept their historic responsibility without further delay and eradicate the gender stereotypes that inform current state regulations governing access to sexual and reproductive health services. This report argues that it is in the area of sexuality and reproduction that gender stereotypes about the role women should play in their societies are most clearly revealed, as is the abuse of state power to impose these roles through legislation, public policies and discriminatory practices.

If states in the region eliminated from their norms and practices gender stereotypes – such as: “every woman wants to be and should be a mother”; “We must reduce the number of children that poor and Indigenous women have because they reduce poverty”; “Every pregnant woman should carry the pregnancy to term regardless of her personal circumstances or health or the risk to her life”; “Adolescents are not capable of making decisions about their sexuality or whether they want to be mothers or not”; “Girls who become pregnant as a result of sexual violence must carry the pregnancy to term”; “Women living with HIV should be sterilized to stop them spreading the virus”; “Women who come to the hospital with obstetric emergencies induced it themselves, whatever they say, especially if they poor” – it would send a clear message that the authorities have the political will and commitment to ensure the human rights of women and girls.

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In addition, states in the region have already made a commitment to eliminate norms and practices based on such stereotypes and which are harmful to the right to equality of women and girls, both in the Montevideo Consensus on Population and Development220 as well as in the Sustainable Development Goals.221

The following recommendations place considerable emphasis on young and adolescent girls, who are particularly vulnerable because their physical and emotional capacities are still evolving. This focus also reflects grave concern about the increasing rates of teenage pregnancy in the region as well as the emerging and alarming pattern of forcing even girls under the age of 14 to continue with a pregnancy and give birth.

In light of the analysis of the regional situation described in this report and of the human rights standards that all states in the region who are parties to the major human rights treaties are obliged to uphold, Amnesty International makes the following recommendations. Latin American and Caribbean states:

■■ Amend all laws, regulations, practices and public policies relating to sexual and reproductive health that may produce institutional violence, torture or other cruel, inhuman or degrading treatment or punishment. This obligation must be fulfilled by the legislative, the executive and judicial bodies. In particular:

•• Decriminalize abortion in all circumstances in order to eliminate the punitive measures imposed on women and girls who seek abortion services and on health professionals providing them where full consent is given.222

•• Ensure access to abortion in law and in practice as a minimum in cases where the pregnancy poses a risk to the life or health of the woman, where the foetus suffers from

220 The Montevideo Consensus on Population and Development, ECLAC, LC/L.3697, 5 September 2013, contains many commitments by states relating to the eradication of gender discrimination and multiple discrimination.

221 The Sustainable Development Goals (SDGs) is a new development programme which all UN member states have committed to achieve. SDG 5 deals with gender equality and its targets include: end all forms of discrimination against all women and girls everywhere; eliminate all forms of violence against all women and girls in the public and private spheres; and eliminate all harmful practices. In addition, Goal 16 includes the target: end abuse, exploitation, trafficking and all forms of violence against and torture of children See http://www.un.org/sustainabledevelopment/.

222 Committee on the Elimination of Discrimination against Women, Concluding observations on the Philippines, 2006, para 28; Committee on the Rights of the Child, Concluding observations on Nigeria, 2010, para 59 (b). Committee on the Rights of the Child, Concluding observations on the combined fourth and fifth periodic reports of Peru (11-29 January 2016), para 56 b.

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severe malformation or is not viable, or where the pregnancy is the result of rape or incest.223

•• Take steps to ensure that the life and health of the woman or girl take precedence over the protection of the foetus.224

•• Regardless of the legal status of abortion, ensure access to quality and confidential health services for the treatment of complications arising from unsafe abortions and miscarriages. This treatment should be free from discrimination, coercion and violence and must ensure providers have adequate training, support and equipment in order to treat complications linked to abortion.225

•• Guarantee patient confidentiality for women and girls who receive post-abortion care and establish procedures to investigate and punish anyone who fails to respect their confidentiality.226

•• Eliminate laws or practices that require health professionals to report to the authorities patients who have or appear to have had an abortion.227

223 Regarding the obligation to ensure access to abortion when a pregnancy poses a risk to the life or health of the woman, UN treaty bodies have consistently stated that to prevent maternal mortality and morbidity and safeguard the lives and health of women, states must ensure access to legal abortion when there is a risk to the life or health of the woman. International health and human rights bodies consistently interpret “health” to encompass both physical and mental health. On the obligation to ensure access to abortion in cases of sexual assault, rape and incest, the UN treaty bodies have consistently urged states to implement laws that established rape and incest as grounds for abortion and have repeatedly requested that states which do not have laws to that effect amend their legislation. In two separate Latin American cases, the Human Rights Committee and the Committee on the Elimination of Discrimination against Women have stated that by not providing young women with access to legal therapeutic abortion in cases of rape or life-threatening foetal malformation, states are violating numerous rights, including the right to equality and non-discrimination, the right to privacy and the right not to be subjected to torture or other cruel, inhuman and degrading treatment. See L. C. vs Peru, Committee on the Elimination of Discrimination against Women, 2011; K.L. vs Peru, Human Rights Committee, 2005. See also, the Committee on the Rights of the Child, Concluding observations on the combined fourth and fifth periodic reports of Peru (11-29 January 2016), para 56 b.

224 L.C. vs Peru, Committee on the Elimination of Discrimination against Women, para 8.15, 2011; Committee on the Elimination of Discrimination against Women, Concluding observations on Hungary, 2013, para 30.

225 Committee against Torture, Concluding observations on Chile, 2004, para 7 (m); Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, A/66/254, 2011, paras 27 and 65 (k).

226 Committee on the Elimination of Discrimination against Women, General recommendation No 24: (article 12: Women and health), 1999, para 12 (d).

227 Human Rights Committee, General Comment No 28: Equality of rights between men and women, para 20; Committee on the Elimination of Discrimination against Women, Concluding observations on Chile, 1999; Committee against Torture, Concluding observations on Chile, 2004, para 7 (m); Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, A/66/254, 2011.

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•• Ensure that women and girls who ask for post-abortion care are not forced to make a statement admitting to having had an abortion in order to receive care and that any statements that are given are not used to incriminate them.228

•• Ensure that health facilities are staffed by health-care professionals who have the necessary technical skills and can provide information and quality services, including ensuring informed consent and respecting the privacy and confidentiality of all patients, including adolescents.229

•• Explicitly prohibit sterilization without free and informed consent.

■■ Implement measures to eliminate discrimination against women and patterns of behaviour based on gender stereotypes that promote the unequal treatment of women in society, especially in the area of sexual and reproductive health care. In particular:

•• Explicitly recognize that certain violations of sexual and reproductive rights constitute institutional violence, including torture or other cruel, inhuman or degrading treatment. Put in place a comprehensive plan to end these violations and bring those responsible to justice.

•• Recognize explicitly that the personal opinions or religious beliefs of civil servants, including personnel in the health and justice sectors, must never be an obstacle to women and girls accessing their human rights. Put in place a plan to guarantee this, including imposing sanctions on those who violate this principle and incorporating the principle that only individuals, not institutions, can exercise “conscientious objection”.

•• Guarantee the right of women and girls (in accordance with the principle of girls’ “evolving capacities”) to decide on issues related to their sexual and reproductive health without undue interference, based on comprehensive sexuality education and timely and confidential access to information, advice, medical technology and quality services.

•• Ensure that the views of pregnant girls are always listened to and respected regarding decisions about abortion.230

•• Increase access to information, counselling and sexual and reproductive health services for men, including children, adolescents and young people, and promote men’s equal participation in care responsibilities through programmes that sensitize men about gender equality and promote the construction of new masculinities.231

228 Committee against Torture, Concluding observations on Chile, 2004, para 7 (m). See also Committee on the Elimination of Discrimination against Women, Concluding observations on Chile, 1999, para 229; and Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, A/66/254, 2011.

229 Committee on Economic, Social and Cultural Rights, General Comment No 14: The right to the enjoyment of the highest attainable standard of health (Article 12), para 12; Committee on the Rights of the Child, General Comment No 4: Adolescent health and development 2003.

230 Committee on the Rights of the Child, Concluding observations on the combined fourth and fifth periodic reports of Peru (11-29 January 2016), para 56 b, available at: http://tbinternet.ohchr.org/_ layouts/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fPER%2fCO%2f4-5&Lang=en.

231 Montevideo Consensus on Population and Development, ECLAC, LC/L.3697, 5 September 2013, para 59.

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•• Recognize and guarantee the right of everyone to make free, informed, voluntary and responsible choices about their sexuality with respect to their sexual orientation and gender identity, free from coercion, discrimination and violence, and guarantee the right to the information and measures necessary for their sexual and reproductive health.232

•• Create campaigns to raise awareness of and change patterns of behaviours based on gender stereotypes and eradicate them in all fields, especially health care.

■■ In policies to promote gender equality, take into account the particular risk of human rights violations women can face as a result of intersecting factors combined with their sex, such as their age, race, ethnicity or economic status, among others. On the basis of the concept of substantive equality, states should adopt special measures to eliminate forms of multiple discrimination against women and their negative and complex consequences,233 including in the areas of sexual and reproductive health. These include:

•• Ensure access to information and contraception services; incorporate these services into the work of health centres and into maternal and reproductive health services.234

•• Ensure the availability and accessibility of a full range of modern quality contraceptive methods, including those contained in national drug formularies and in the World Health Organization Model List of Essential Medicines, to avoid unwanted pregnancies.235

•• Ensure that contraceptive services and products are affordable, addressing any economic obstacles, such as health insurance and other economic and budget problems, especially for people on low income or living in poverty.236

•• Pay special attention to the contraceptive needs of vulnerable and disadvantaged populations and groups, such as adolescents and sex workers.237

•• Ensure that sexually active adolescents have ready access to modern contraceptive methods such as condoms, hormonal methods and emergency contraception.238

232 Montevideo Consensus on Population and Development, para 34.

233 CEDAW Committee, General recommendation No 25 on paragraph 1 of article 4 of the Convention on the Elimination of all Forms of Discrimination against Women, concerning temporary special measures, para 12.

234 Committee on Economic, Social and Cultural Rights, General Comment No 14: The right to the enjoyment of the highest attainable standard of health (article 12), 2000, para 12; see also World Health Organization, Integrating sexual and reproductive health-care services, Policy Brief, 2006.

235 Committee on Economic, Social and Cultural Rights, General Comment No 14: The right to the enjoyment of the highest attainable standard of health (article 12), paras 11, 12 and 21.

236 Committee on the Elimination of Discrimination against Women, Concluding observations on Hungary, 1996, para 254, A/51/38; Slovakia, para 28, CEDAW/C/SVK/CO/4, 2008. See also Human Rights Committee, Concluding observations: Poland, para 9, CCPR/CO/82/POL, 2004.

237 Committee on Economic, Social and Cultural Rights, General Comment No 14: The right to the enjoyment of the highest attainable standard of health (article 12, paras 18-27; Committee on the Elimination of Discrimination against Women, General recommendation No 24 (article 12: Women and health), 1999, para 6.

238 Committee on the Rights of the Child, General Comment No 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (article 24), 2013, para 70.

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■■ Put in place effective, appropriate, and impartial mechanisms to ensure access to justice for victims of institutional violence, including torture and other ill-treatment in the area of sexual and reproductive health, as well as comprehensive reparation for victims.

■■ Act promptly and with due diligence to prevent, investigate, and punish without delay all acts of violence against women, including torture or other ill-treatment in the area of sexual and reproductive health.

■■ Put in place protocols on how to respond to and investigate sexual violence against women, taking into account the relevant provisions of the Istanbul Protocol and the Guidelines of the World Health Organization.239 In addition, investigations must be conducted by appropriately trained staff who understand how to provide support to victims of discrimination and gender-based violence.240

■■ Ensure the availability of emergency contraception for all women and girls, especially for those who have been raped.241

■■ Regulate the exercise of conscientious objection by health professionals to ensure that there is no risk to the health of the patient and that the patient’s right to receive services and contraceptives,242 a termination, or any other necessary health-care service is guaranteed. Implement mechanisms to ensure that health professionals who can provide this care are always accessible.

239 Inter-American Court of Human Rights Case Rosendo Cantú and another vs Mexico, Preliminary Objections, Merits, Reparations, and Costs; Judgment of 31 August 2010, para 242.

240 “Among other requirements, in the course of a criminal investigation for rape: i) the victim’s statement should be taken in a safe and comfortable environment, providing privacy and inspiring confidence; ii) the victim’s statement should be recorded to avoid the need to repeat it, or to limit this to the strictly necessary; iii) the victim should be provided with medical, psychological and hygienic treatment, both on an emergency basis, and continuously if required, under a protocol for such attention aimed at reducing the consequences of the rape; iv) a complete and detailed medical and psychological examination should be made immediately by appropriate trained personnel, of the sex preferred by the victim insofar as this is possible, and the victim should be informed that she can be accompanied by a person of confidence if she so wishes; v) the investigative measures should be coordinated and documented and the evidence handled with care, including taking sufficient samples and performing all possible tests to determine the possible perpetrator of the act, and obtaining other evidence such as the victim’s clothes, immediate examination of the scene of the incident, and the proper chain of custody of the evidence, and vi) access to advisory services or, if applicable, free legal assistance at all stages of the proceedings should be provided.” Inter-American Court of Human Rights, the case of Fernández Ortega et al vs Mexico, Preliminary Objections, Merits, Reparations and Costs; Judgment of 30 August 2010, para 194. See also, Inter-American Court of Human Rights, the case Rosendo Cantu and another vs Mexico, Preliminary Objections, Merits, Reparations, and Costs; Judgment of 31 August 2010, para 178; Inter-American Court of Human Rights, the case of J vs Peru, Preliminary Objections, Merits, Reparations and Costs; Judgment of 27 November 2013, para 344.

241 Committee on the Elimination of Discrimination against Women, Concluding observations on Mexico, 2006, para 33; Committee on Economic, Social and Cultural Rights, General Comment No 14: The right to the enjoyment of the highest attainable standard of health, 2000.

242 Committee on the Elimination of all forms of Discrimination against Women (CEDAW), Concluding observations on Mexico, para 33, (2006); Committee on Economic, Social and Cultural Rights, General Comment No 14: The right to the enjoyment of the highest attainable standard of health (article 12), United Nations, 2000.

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■ ■ Taking into account the principles set out in the Convention on the Rights of the Child, in particular the best interests of girls, develop public policies to protect them from forced pregnancy and maternity. In particular,

•• Recognize explicitly that for a young girl, pregnancy always represents a danger to her life and health and refrain from insisting that they be on the brink of death before they are given the option of having an abortion. States must explicitly recognize that girls are not sufficiently physically and mentally developed to cope with pregnancy and motherhood and take into account existing evidence of the impact on their overall health (physical, mental and social) and on their project of life, as well as all the mental and physical dangers posed by a pregnancy to girls under 18.

•• Review legislation, regulations and practices that restrict access to sexual and reproductive health services for girls, children and adolescents. In particular provide comprehensive, patient-friendly services for adolescents and young people and ensure that everyone has access to comprehensive information on all the options available, without discrimination of any kind.243

•• Given that quality and comprehensive sexual education combined with access to contraception is one of the best strategies for reducing unwanted pregnancies that are not the result of sexual violence, review and reform laws and practices that require parents or guardians to authorize access to contraceptive services.244

•• Ensure the effective implementation of comprehensive age-appropriate sexuality education programmes. These should be available from early childhood and respect the progressive autonomy of the child and the informed decisions of adolescents and young people about their sexuality. Programmes should be participatory and have an intercultural, gender and human rights focus.245

•• States should implement the principle of “evolving capacities”, in relation to adolescents developing sufficient maturity and understanding to akem informed decisions without the authorization of their parents or guardians, on matters of importance in order to access sexual and reproductive health services, including contraception.246

243 Montevideo Consensus on Population and Development, para 35.

244 Committee on Economic, Social and Cultural Rights, General Comment No 14: The right to the enjoyment of the highest attainable standard of health (article 12), para 23; Committee on the Rights of the Child, General Comment No 4: Adolescent health and development 2003, para 40.

245 Montevideo Consensus on Population and Development, para 11.

246 Committee on the Elimination of Discrimination against Women, General recommendation No 24, see note 35 above, para 14; Committee on the Rights of the Child, Concluding observations on Austria, 1999, para 15, CRC/C/15/ Add.98; Bangladesh, 2003, para 60, CRC/C/15/Add.221; and Barbados, 1999, para 25, CRC/C/15/Add.103.

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The Inter-American System for the Protection of Human Rights:

The Inter-American System for the Protection of Human Rights has produced jurisprudence on violence against women that is both diverse and progressive. However, 20 years after the Convention of Belém do Pará and almost 30 years after the Inter-American Convention to Prevent and Punish Torture came into effect, the Inter-American System has yet to set a precedent or issue clear guidelines stating that a lack of access to sexual and reproductive health services and certain restrictions imposed on women’s sexual and reproductive rights are violations of the right to live free of violence and torture or other ill-treatment. In light of its influence in countries in the region, Amnesty International urges the Inter-American System to:

■■ Issue guidelines that provide clear guidance for state parties to the Inter-American System on how to prevent and eradicate violence against women and torture or other ill-treatment in the area of sexual and reproductive health.

■■ Generate a debate on the application of the concept of “a life with dignity” in the areas of sexual and reproductive health, including in cases where abortion is permitted by law to save the life (or health) of the woman, as is the case in most countries in the region.

■■ In light of the seriousness of the situation in the region, expand the debate on forcing girls to continue with a pregnancy and give birth. In particular, given the evidence of the impact these pregnancies have on the health of girls and their project of life, issue clear guidelines for states that establish that the health and lives of girls are always at risk in pregnancy (without requiring proof of this) and that states should ensure in such cases that girls have the option to access a legal abortion to protect their health and lives.

Amnesty International, March 2016 Index: AMR 01/3388/2016 WHETHER IN A HIGH-PROFILE CONFLICT OR A FORGOTTEN CORNER OF THE GLOBE, AMNESTY INTERNATIONAL CAMPAIGNS FOR JUSTICE, FREEDOM AND DIGNITY FOR ALL AND SEEKS TO GALVANIZE PUBLIC SUPPORT TO BUILD A BETTER WORLD

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For Amnesty International offices worldwide: www.amnesty.org/en/worldwide-sites TO HELP If there is not an Amnesty International office in your country, please return this form to: Amnesty International, International Secretariat, Peter Benenson House, 1 Easton Street, London WC1X 0DW, United Kingdom THE STATE AS A CATALYST FOR VIOLENCE AGAINST WOMEN VIOLENCE AGAINST WOMEN AND TORTURE OR OTHER ILL-TREATMENT IN THE CONTEXT OF SEXUAL AND REPRODUCTIVE HEALTH IN LATIN AMERICA AND THE CARIBBEAN.

The pandemic of violence against women continues unabated in Latin America and the Caribbean. In this report, Amnesty International documents examples in eight countries that highlight patterns of violence against women, including torture or other ill-treatment, in the areas of sexual and reproductive health. These patterns are repeated throughout the region and include ill-treatment and the denial of health services, breaches of patient confidentiality, the imposition of certain moral or religious precepts on patients and the abuse of conscientious objection.

All these are human rights violations based on gender stereotypes about the role that women should play in society. States violently impose these stereotypes on women and girls through legislation, public policies and discriminatory practices in the areas of sexuality and reproduction that violate a range of human rights and generate institutional violence, including torture or other cruel, inhuman or degrading treatment.

This report demonstrates how the state, by imposing such discriminatory practices based on gender stereotypes, generates further violence against women. It is the state that promotes and legitimizes the structural discrimination that underpins all gender-based violence.

Amnesty International concludes that violence against women will not be eradicated until states in the region assume their historic responsibility towards women and girls and stop propagating violence against them. And to do that, they must immediately amend these discriminatory norms in the area of sexual and reproductive health.

March 2016 Index: AMR 01/3388/2016

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TAB 9 Open Access Research BMJ Open: first published as 10.1136/bmjopen-2015-010388 on 4 February 2016. Downloaded from HIV testing among men who have sex with men in Tijuana, Mexico: a cross-sectional study

Heather A Pines,1 David Goodman-Meza,1 Eileen V Pitpitan,1 Karla Torres,2 Shirley J Semple,3 Thomas L Patterson3

To cite: Pines HA, Goodman- ABSTRACT et al Strengths and limitations of this study Meza D, Pitpitan EV, . Objectives: HIV testing is critical to the delivery of HIV testing among men who comprehensive HIV prevention and care services, yet ▪ have sex with men in Tijuana, We examined HIV testing behaviours among coverage of sexual minorities by HIV testing Mexico: a cross-sectional men who have sex with men in Tijuana, Mexico, study. BMJ Open 2016;6: programmes remains insufficient in many low- and a population disproportionately affected by HIV e010388. doi:10.1136/ middle-income countries, including Mexico. The with a high prevalence of undiagnosed HIV bmjopen-2015-010388 objective of this study was to identify the prevalence infection. and correlates of HIV testing among men who have sex ▪ Respondent-driven sampling was employed to with men (MSM) in Tijuana, Mexico. ▸ Prepublication history overcome barriers to accessing this marginalised and additional material is Methods: We conducted a cross-sectional study population, but may have limited the generalis- available. To view please visit (2012–2013) among 189 MSM recruited via ability of our findings. the journal (http://dx.doi.org/ respondent-driven sampling (RDS). RDS-weighted ▪ Participants may have under-reported sensitive 10.1136/bmjopen-2015- logistic regression was used to identify correlates of information on sexual and substance use beha- 010388). prior HIV testing. viours due to social desirability bias. Results: RDS-adjusted prevalence of prior and recent Received 28 October 2015 (≤12 months) HIV testing was 63.5% (95% CI 51.9% Revised 29 December 2015 Accepted 15 January 2016 to 73.5%) and 36.8% (95% CI 25.4% to 46.4%), respectively. Prior HIV testing was positively associated regular HIV testing is critical to the delivery with older age (adjusted OR (AOR)=1.09, 95% CI 1.04 of comprehensive HIV prevention, treatment 3 to 1.15), being born in Tijuana (AOR=2.68, 95% CI and care services. Given that men who have 1.05 to 6.86), higher levels of education (AOR=2.65, sex with men (MSM) are disproportionately 95% CI 1.08 to 6.53), identifying as homosexual or affected by HIV/AIDS worldwide, including http://bmjopen.bmj.com/ gay (AOR=3.73, 95% CI 1.48 to 9.42), being more those in low- and middle-income countries ‘out’ about having sex with men (AOR=1.28, 95% (LMIC),4 the WHO recommends that MSM CI:1.02 to 1.62), and a history of sexual abuse undergo HIV testing annually.3 Yet coverage (AOR=3.24, 95% CI 1.06 to 9.86). Prior HIV testing of sexual minorities by HIV testing pro- was negatively associated with reporting more grammes remains insufﬁcient in many condomless anal intercourse acts (past 2 months) 5 (AOR=0.95, 95% CI 0.92 to 0.98) and greater LMIC. internalised homophobia (AOR=0.92, 95% CI 0.86 to Research with MSM in LMIC has docu- 0.99). mented a relationship between HIV testing on June 16, 2020 by guest. Protected copyright. Conclusions: Our findings indicate an urgent need for and several sociodemographic, behavioural, 6–15 expanded HIV testing services for MSM in Tijuana. psychosocial and structural factors. HIV Innovative, non-stigmatising, confidential HIV testing testing has been associated with older – – interventions targeted at young, less educated, migrant age,6 10 13 higher levels of education6912 713 1Division of Global Public and non-gay identifying MSM may facilitate HIV testing and self-identifying as homosexual or gay. Health, Department of and timely linkage to HIV care and treatment within Individuals who have never tested for HIV Medicine, University of this population. tend to perceive themselves to be at low risk California, San Diego, of infection,9 while testing is more common La Jolla, California, USA 2 among those with greater HIV-related knowl- Agencia Familiar Binacional, 6 AC, Tijuana, Mexico edge, a history of sexually transmitted infec- 7–9 6 3Department of Psychiatry, INTRODUCTION tion (STI), a history of sexual violence University of California, Early HIV diagnosis, linkage to care, initi- and those reporting sexual risk behaviours San Diego, La Jolla, USA ation of antiretroviral therapy (ART) and (ie, more sexual partners12 and transactional 8 Correspondence to viral suppression improve the health of sex ). However, an inverse association 1 Dr Heather A Pines; HIV-infected individuals and reduce the risk between condomless anal intercourse and [email protected] of onward sexual transmission.2 As such, HIV testing has been reported.71011

Pines HA, et al. BMJ Open 2016;6:e010388. doi:10.1136/bmjopen-2015-010388 1 Open Access BMJ Open: first published as 10.1136/bmjopen-2015-010388 on 4 February 2016. Downloaded from Individuals with stigmatised attitudes towards people six individuals with large social networks (>15 indivi- living with HIV,11 as well as those who fear a positive test duals) and heterogeneous with respect to age, ethnicity, result and the negative social consequences associated socioeconomic status, location of residence in Tijuana with testing positive, are also less likely to seek HIV and sexual orientation were selected to serve as seeds. testing.914Structural factors, including homophobia Halfway through the study, four additional seeds were and HIV-related stigma, have also been inversely asso- selected to boost recruitment. Seeds were given three ciated with HIV testing.91415Moreover, research has coupons to invite male peers who have sex with men shown that HIV testing is dependent on access to HIV from their social networks to participate in the study. education or service programmes,12 which are often less Eligible recruits were then given three coupons to invite prevalent in LMIC due to limited resource allocation to their male peers who have sex with men in subsequent HIV prevention services for sexual minorities as well as recruitment waves. Each coupon was coded with a the criminalisation and stigmatisation of same-sex sexual unique number and had a 3-week expiration date. Given behaviours.5 that the study’s primary purpose was to determine the In Mexico, HIV prevalence among MSM (16.9%, 95% prevalence of HIV among MSM in Tijuana, recruitment CI 15.6% to 18.3%)16 is 73 times that among continued until a sample size of approximately 200 was reproductive-aged adults (0.23%, 95% CI 0.18% to achieved to detect an HIV prevalence of 20% with at 0.32%).17 Although Mexico implemented universal least 80% power, assuming a design effect of 2 and an access to ART for HIV-infected individuals in 2003, α-level of 0.05. Nine seeds recruited 191 eligible peer national HIV prevention strategies have not emphasised recruits. Eligible seeds and peer recruits were at least targeted HIV testing for key populations, including 18 years old, biologically male, Tijuana residents, MSM.16 Tijuana borders San Diego, California and is reported oral or anal intercourse with a male in the past located in Mexico’s northern state of Baja California, year, not under the influence of alcohol or drugs at which has the third highest cumulative HIV incidence in enrolment and willing to provide informed consent. the country.18 Although HIV-related research with MSM Fifteen peer recruits did not meet eligibility criteria and in the Mexico-USA border region has been limited, a were excluded for the following reasons: no oral or anal recent Tijuana-based study estimated an HIV prevalence intercourse with male in the past year (n=8); under the of 20.2% (95% CI 12.5% to 29.1%) among MSM, and influence of alcohol or drugs at enrolment (n=4); and 89% of those infected are unaware of their HIV-positive not a Tijuana resident (n=3). status.19 Despite the availability of free HIV testing at government-funded clinics and community-based orga- Study procedures nisations in Tijuana, only 63.7% (95% CI 53.2% to RDS Coupon Manager (Cornell University, Ithaca, New 74.5%) of MSM have ever been tested.19 Taken together, York, USA) software was used to track peer recruitment these findings underscore the need for targeted HIV and collect biometric data to prevent repeat enrolment. testing services to curb the HIV epidemic within this Trained AFABI staff trusted by the community screened http://bmjopen.bmj.com/ population. individuals for eligibility, obtained informed consent To contribute to the limited HIV-related literature on and administered surveys via computer-assisted personal MSM in the Mexico-US border region and inform the interviewing. All participants also underwent rapid HIV development of HIV testing programmes that facilitate testing (Advanced Quality HIV Test Kits; Intec Products, adherence to the WHO testing guidelines within this Inc, Xiamen, China), as well as pretest and post-test population, we aimed to (1) describe HIV testing beha- counselling according to Mexican national guidelines. If viours, (2) characterise motivations and barriers to HIV positive, a second rapid test was performed. Positive testing, and (3) identify correlates of prior HIV testing results on both rapid tests were confirmed via immuno- on June 16, 2020 by guest. Protected copyright. among MSM in Tijuana. fluorescence assay at the San Diego County Public Health Laboratory. Confirmed HIV-positive participants were referred to psychosocial support services at AFABI METHODS and medical care at CAPASITS, the main HIV care and Study population and sampling methods treatment clinic in Tijuana. Participants were compen- Between August 2012 and May 2013, a Tijuana-based sated up to US$35: US$20 for completing study proce- HIV prevalence study19 recruited 216 MSM via dures and US$5 for each recruited peer. Study respondent-driven sampling (RDS), a chain-referral sam- procedures were approved by Human Subjects pling technique often employed to reach hidden and Protection Committees at the Universidad Autónoma de marginalised populations.20 21 The study was conducted Baja California and the University of California, San in collaboration with Agencia Familiar Binacional Diego (#120517). (AFABI), a community-based organisation in Tijuana that addresses the HIV prevention and treatment needs Measures of key populations. As previously described,19 AFABI out- Sociodemographics included age, gender identity (male or reach workers recruited potential seeds at venues fre- transgender female), birthplace (Tijuana, outside quented by MSM (eg, discos, bars, bathhouses). Initially, Tijuana in Mexico, USA, or other), sexual orientation

2 Pines HA, et al. BMJ Open 2016;6:e010388. doi:10.1136/bmjopen-2015-010388 Open Access BMJ Open: first published as 10.1136/bmjopen-2015-010388 on 4 February 2016. Downloaded from (homosexual/gay, bisexual, or heterosexual/straight), assessing participants’ perception of others’ reactions to highest level of education (cannot read or write, some people living with HIV/AIDS (eg, “People treat others grade school, completed grade school, some secondary differently when they find out that they are school, completed secondary school, some high school, HIV-positive”).25 Item scores were summed such that completed high school, some university, completed uni- higher total scores indicate greater perceived versity or advanced degree), employment status HIV-related stigma (α=0.87). (unemployed, part-time or full-time), monthly income Outness about having sex with men was assessed among (no income,<$1000, $1000–$1499, $1500–$1999, $2000– participants identifying as gay or bisexual by asking $2499, $2500–$2999, $3000–$3500, >$3500), travel to them to describe how ‘out’ they are about having sex the USA, deportation from the USA and incarceration with men on a scale of 1–7 (1=not out to anyone; 4=out history. to about half the people I know; 7=out to everyone).26 Sexual behaviours were measured in the past 2 months Internalised homophobia refers to the internalisation of and included the number of sexual partners, relation- societal stigma towards MSM and was measured among ship types (spouse, steady, casual or anonymous), fre- participants identifying as gay or bisexual using a 9-item quency of and condom use during anal and/or vaginal scale.27 Participants indicated their level of agreement intercourse, and venues visited to meet male sexual part- with scale items (eg, “I feel that being gay/bisexual is a ners (bar, nightclub, disco, bathhouse or sauna, dark personal shortcoming for me”) via Likert scale responses room (unlit rooms attached to bars where men have (1=strongly disagree, 2=disagree, 3=neither agree nor sex),22 adult movie theatre, internet café and public disagree, 4=agree, 5=strongly agree). Item scores were places (eg, park, restroom, bus)). Participants were also summed such that higher total scores indicate greater asked whether they had exchanged money for sex in the internalised homophobia (α=0.90). past 6 months. HIV-related knowledge was measured via 18 true/false Substance use measures elicited information on life- questions on HIV transmission behaviours (eg, “A time and past month use of illicit drugs (marijuana, person will not get HIV if she/he is taking antibio- heroin, inhalants, methamphetamine, ecstasy, cocaine, tics”).28 Knowledge scores were calculated by summing tranquillisers, barbiturates, amyl nitrites (poppers), the number of correct responses. Participants were also γ-hydroxybutyric acid, ketamine and other), as well as asked if they had accessed an HIV/STI counselling or the frequency of alcohol and drug use before or during education programme in the past 2 months. sex in the past 2 months. Hazardous alcohol consump- HIV testing history was assessed via the following: “Have tion was measured using the Alcohol Use Disorder you ever tested for HIV?” and “When was your last HIV Identification Test (AUDIT) and defined as an AUDIT test?” Those reporting any prior HIV testing were asked score ≥8.23 what motivated them to seek or agree to their last test, Personal social network size was measured by asking the while those reporting no prior testing were asked about following questions: “How many MSM at least 18 years of barriers to testing. http://bmjopen.bmj.com/ age do you know in Tijuana, Mexico?”; “How many of HIV/STI diagnosis history was assessed via self-report. If these men have seen you in the past month?”; “How participants reported prior HIV testing, they were asked many of these men know you back?” Participants’ per- the result of their last test. Participants were also asked if sonal social network size was determined on the basis of they had been diagnosed with gonorrhoea, chlamydia or their response to the third question, which provides an syphilis in the past 2 months. estimate of the number of MSM ≥18 years of age living in Tijuana with whom participants had been in contact Statistical analysis in the past month and believed would have recruited Seeds (n=10) and peer recruits with previous HIV diag- on June 16, 2020 by guest. Protected copyright. them if provided with a coupon. noses (n=2) were excluded from the present analysis. All History of sexual, physical and emotional abuse was other peer recruits who provided information on their assessed via three separate questions about whether par- HIV testing history contributed to the analysis (n=189). ticipants had ever been forced or coerced to have sex RDS-unadjusted and RDS-adjusted descriptive statistics against their will, physically abused (ie, hit or assaulted) were calculated to characterise the sample and the MSM or emotionally abused. population in Tijuana, respectively. RDS-adjusted popula- Social support was measured via Likert scale responses tion estimates were obtained using the RDS Analysis Tool (1=strongly disagree, 2=disagree, 3=agree, 4=strongly (RDSAT V.7.1; Cornell University, Ithaca, New York, agree) to 7 items on help and support received from USA), with parameters set to dual component for average friends and family (eg, “The people close to you let you network estimation, 25 000 resamples for bootstrapping, know they care about you”).24 Item scores were summed 0.025 for the α level and enhanced data smoothing for such that higher total scores indicate greater social the estimation algorithm. Individual RDS weights were support (α=0.91). generated following an RDSAT partition analysis of prior Perceived HIV-related stigma was measured via Likert HIV testing (outcome of interest) and were applied to scale responses (1=strongly disagree, 2=somewhat dis- the analysis sample for use in RDS-weighted logistic agree, 3=somewhat agree, 4=strongly agree) to 7 items regression analyses.21 RDS-weighted logistic regression

Pines HA, et al. BMJ Open 2016;6:e010388. doi:10.1136/bmjopen-2015-010388 3 Open Access BMJ Open: first published as 10.1136/bmjopen-2015-010388 on 4 February 2016. Downloaded from

Table 1 Characteristics of men who have sex with men in Tijuana, Mexico (N=189) RDS-unadjusted* RDS-adjusted† n (%) % 95% CI Sociodemographics Age (in years) 18–24 65 (34.4) 38.2 27.9 to 48.6 25–29 46 (24.3) 22.3 14.2 to 30.0 30–34 32 (16.9) 14.4 8.1 to 22.0 ≥35 46 (24.3) 25.1 17.1 to 35.0 Gender identity Male 174 (92.6) 94.3 89.4 to 99.0 Transgender female (male-to-female) 14 (7.5) 5.7 1.0 to 10.6 Sexual orientation Homosexual or gay 118 (62.8) 61.1 49.6 to 71.5 Bisexual 64 (34.0) 35.7 25.9 to 46.8 Heterosexual or straight 6 (3.2) 3.2 0.2 to 7.2 Birthplace Tijuana, Mexico 60 (31.8) 31.1 21.2 to 41.9 Outside Tijuana in Mexico 126 (66.7) 67.8 57.2 to 77.9 USA 3 (1.5) 1.1 0.0 to 2.3 At least a high school education 92 (48.7) 48.0 37.5 to 60.6 Employed 115 (61.2) 58.2 47.6 to 69.2 Monthly income ≥3500 pesos (US$∼280) 102 (56.4) 52.6 41.8 to 64.5 Ever incarcerated (jail or prison) 53 (29.1) 32.2 20.6 to 42.6 Ever travelled to the USA 54 (34.4) 33.5 21.5 to 45.6 Ever deported from the USA 13 (8.6) 3.5 0.6 to 8.5 Sexual behaviours Traded sex for money (≤6 months) 47 (25.1) 23.2 13.3 to 34.2 Any female sexual partners (≤2 months) 45 (30.0) 32.4 23.4 to 52.4 Number of male sexual partners (≤2 months), mean (SD) 6.5 (11.3) –– Number of CAI acts with male sexual partners (≤2 months), mean (SD) 7.7 (21.9) –– Relationship to male sexual partners (≤2 months) Spouse or live-in partner 46 (25.8) 30.7 19.9 to 43.5 Steady non-live-in partner 118 (65.9) 65.6 56.1 to 76.8 Casual partner 98 (54.4) 47.0 37.1 to 58.5 http://bmjopen.bmj.com/ Anonymous partner 62 (37.6) 32.5 20.1 to 42.1 Venues visited to meet male sexual partners (≤2 months) Bar, nightclub or disco 51 (28.2) 22.3 13.6 to 31.5 Bathhouse or sauna 20 (10.7) 8.5 3.8 to 14.4 Adult movie theatre 16 (8.6) 4.0 1.8 to 6.8 Dark room 18 (9.7) 6.8 2.9 to 11.6 Internet café 16 (8.6) 11.3 3.9 to 23.7 Public place (eg, park, restroom, bus) 36 (19.5) 11.5 5.8 to 18.5

Substance use on June 16, 2020 by guest. Protected copyright. Illicit drug use (lifetime) Marijuana 95 (50.5) 53.6 42.4 to 63.8 Methamphetamine 53 (28.2) 29.5 18.9 to 39.7 Cocaine 52 (27.8) 32.2 20.9 to 42.8 Amyl nitrite (poppers) 32 (17.0) 15.6 8.7 to 26.7 Heroin 15 (8.0) 8.9 3.2 to 16.5 Illicit drug use (≤1 month) Marijuana 57 (30.5) 32.4 21.6 to 43.4 Methamphetamine 41 (21.8) 22.1 12.9 to 31.7 Cocaine 16 (8.6) 9.1 3.2 to 17.1 Amyl nitrite (poppers) 11 (5.9) 6.6 1.7 to 10.2 Heroin 10 (5.3) 4.8 0.7 to 10.5 Any injection drug use (≤1 month) 9 (5.0) 5.0 0.7 to 10.8 Hazardous alcohol consumption (≤12 months) 76 (40.6) 33.7 24.2 to 44.3 Any drug use before/during sex (≤2 months) 23 (12.8) 10.7 5.6 to 18.8 Any alcohol use before/during sex (≤2 months) 75 (40.3) 34.8 25.2 to 44.7 Continued

4 Pines HA, et al. BMJ Open 2016;6:e010388. doi:10.1136/bmjopen-2015-010388 Open Access BMJ Open: first published as 10.1136/bmjopen-2015-010388 on 4 February 2016. Downloaded from

Table 1 Continued RDS-unadjusted* RDS-adjusted† n (%) % 95% CI History of abuse Ever experienced sexual abuse 52 (27.7) 24.4 15.2 to 34.9 Ever experienced physical abuse 35 (18.8) 16.3 9.9 to 23.6 Ever experienced emotional abuse 62 (33.7) 30.4 21.5 to 41.6 Psychosocial factors Social support, mean (SD) 22.2 (3.5) –– Perceived HIV-related stigma, mean (SD) 22.7 (3.9) –– Outness about having sex with men, mean (SD)‡ 5.2 (1.9) –– Internalised homophobia, mean (SD)‡ 19.0 (6.3) –– HIV/STI knowledge HIV/STI counselling or education programme (≤2 months) 28 (15.9) 12.3 6.3 to 19.9 HIV knowledge, mean (SD) 13.5 (2.6) –– HIV/STI prevalence Tested HIV-positive 31 (16.4) 20.2 12.2 to 28.8 Self-reported STI diagnosis (≤2 months) 29 (15.4) 17.0 9.7 to 25.5 HIV testing history Any prior HIV testing (lifetime) 133 (70.4) 63.5 51.9 to 73.5 Recent HIV testing (≤12 months) 79 (42.7) 36.8 25.4 to 46.4 Numbers may not sum to total due to missing data; percentages may not sum to 100 due to rounding or omission of one category for binary variables. *RDS-unadjusted sample estimates. †RDS-adjusted population estimates obtained using RDS Analysis Tool v7.1 (Cornell University, Ithaca, New York, USA). ‡Only asked of participants who identify as gay or bisexual. CAI, condomless anal intercourse; RDS, respondent-driven sampling; STI, sexually transmitted infection.

was used to examine prior HIV testing in univariate and Participants were recruited by friends (78%), sex part- multivariate analyses as a function of sociodemographics, ners (15%), acquaintances (5%) and relatives (2%). sexual behaviours, substance use, abuse history, psycho- Table 1 presents RDS-unadjusted and RDS-adjusted social factors, HIV knowledge and STI history. Covariates descriptive statistics. Participants mostly identified as were selected for inclusion in multivariate models on the male (93%), 59% were aged under 30 years, 32% were basis of previous research indicating their association born in Tijuana and 49% had at least a high school edu- http://bmjopen.bmj.com/ with HIV testing among MSM (ie, age, sexual orientation, cation. Most participants identified as homosexual or education, exchange of money for sex (past 6 months), gay (63%), while 34% identified as bisexual and 3% number of condomless anal intercourse acts (past 2 identified as heterosexual or straight. months), history of sexual abuse, outness about having Overall, 70% (n=133) of participants reported any sex with men, internalised homophobia, HIV knowledge, prior HIV testing and 43% (n=79) of participants – self-reported STI diagnosis (past 2 months))6 15 and uni- reported recent (≤12 months) HIV testing. Among variate results (ie, p value ≤0.05; birthplace, venues those reporting any prior HIV testing, 61% reported visited to meet male sexual partners, substance use). testing in the past 12 months (median time since last on June 16, 2020 by guest. Protected copyright. Missing data on travel to the USA (n=34), deportation test=8.9 months; IQR=4.1–24.9). The RDS-adjusted from the USA (n=39) and the number of female sexual population estimates of any prior HIV testing and recent partners (past 2 months) (n=45) precluded their inclu- HIV testing were 63.5% (95% CI 51.9% to 73.5%) and sion in regression analyses. All regression analyses were 36.8% (95% CI 25.4% to 46.4%), respectively. conducted using SAS V.9.3 (SAS Institute, Inc, Cary, Differences in RDS-unadjusted and RDS-adjusted esti- North Carolina, USA). mates may be explained by preferential recruitment of peers with similar characteristics and differential recruitment by personal social network size (see online supple- RESULTS mentary table S2). Of the 603 coupons distributed to seeds and peer Motivations for and barriers to HIV testing are reported recruits, 206 (34.2%) were returned and led to the enrol- in table 2. Among those reporting any prior HIV testing, ment of 191 peer recruits (see online supplementary 78% sought their last test because they wanted to know figure S1). The median number of waves was five, with their HIV status, while only 20% sought their last test 55% of participants recruited at wave five or higher. The based on a doctor or other healthcare provider’s recom- largest recruitment chain had 11 waves and recruited mendation. Among those reporting no prior HIV testing, 59% of participants (see online supplementary table S1). “I worry that testing HIV-positive will change my life” was

Pines HA, et al. BMJ Open 2016;6:e010388. doi:10.1136/bmjopen-2015-010388 5 Open Access BMJ Open: first published as 10.1136/bmjopen-2015-010388 on 4 February 2016. Downloaded from estimated that 63.5% of this population has ever tested Table 2 Motivations for and barriers to HIV testing for HIV, which is lower than that reported for MSM in among men who have sex with men in Tijuana, Mexico 8 (N=189) Peru (74.3%), but higher than that reported for MSM in Brazil (51.6%).6 However, our findings corroborate n (%)* earlier evidence that many MSM in Tijuana do not Motivation for seeking or agreeing to last HIV test† undergo annual HIV testing22 as recommended by the Wanted to know my HIV status 97 (78.2) WHO.3 Given that regular HIV testing is integral to the Regular testing 53 (46.9) implementation of comprehensive HIV prevention, treat- Risky behaviour 44 (37.9) ment and care services,3 efforts to scale up testing Someone I know tested HIV+ 32 (29.4) ’ among sexual minorities in Tijuana are urgently needed. Doctor/healthcare professional s suggestion 22 (20.2) fi Someone I know died of AIDS 21 (19.3) Our ndings suggest that several sociodemographic, Partner or family member’s suggestion 18 (16.2) behavioural and psychosocial factors are associated with Health concerns 15 (13.5) HIV testing and shed light on potential strategies to Risky behaviour with HIV+ person 14 (12.8) promote testing within this population. Consistent with – Barriers to HIV testing‡ previous research, we found that younger age6 10 13 and – I worry that testing HIV+ will change my life 29 (53.7) lower levels of education6912 were associated with never I am at low risk for HIV/AIDS 25 (47.2) having tested for HIV. These findings emphasise the HIV test results are not confidential 24 (44.4) need for age-specific HIV education and testing cam- I am too healthy to be HIV+ 23 (43.4) paigns to support regular testing and adherence to the There is no testing on weekends or after 16 (32.7) WHO guidelines. hours Getting tested for HIV costs too much 17 (32.1) The odds of prior HIV testing were also lower for parti- I do not trust the clinics that do HIV testing 17 (32.1) cipants born outside Tijuana. The Mexico-USA border I will be discriminated against by medical 16 (29.6) region is characterised by migration from Central professionals if I test HIV+ America and within Mexico in search of economic oppor- I will think too much about dying if I test 14 (27.5) tunities in the region, as well as cross-border mobility HIV+ with the Tijuana-San Diego border recognised as the It is difficult for me to get transportation to a 12 (23.1) busiest international border crossing in the world.29 testing clinic Migrants in the region are particularly vulnerable to It takes a long time to get your test results 9 (18.4) HIV/STIs, which have been linked to their experiences *Respondent-driven sampling (RDS) unadjusted sample of social isolation, economic insecurity and discrimin- estimates. 30 †Among those who had ever tested for HIV (n=133). ation. Research with people who inject drugs in Tijuana ‡Among those who had never tested for HIV (n=56). suggests that these social and structural factors may limit access to HIV testing and other healthcare services among migrants deported from the USA.31 Given that http://bmjopen.bmj.com/ most frequently reported as a barrier to testing (54%) 68% of our sample was born outside Tijuana, research followed by “I am at low risk for HIV/AIDS” (47%) and examining HIV/STI vulnerability and access to health- “HIV test results are not confidential” (44%). care among migrant MSM in Tijuana is needed to design In an RDS-weighted multivariate logistic regression HIV testing and prevention services for this population. analysis (table 3), any prior HIV testing was positively Encouragingly, participants with a history of sexual associated with older age (adjusted OR (AOR)=1.09, abuse were more likely to have ever tested for HIV. 95% CI 1.04 to 1.15), having been born in Tijuana However, participants reporting other risk factors for (AOR=2.68, 95% CI 1.05 to 6.86), having at least a high HIV were less likely to report prior HIV testing. For on June 16, 2020 by guest. Protected copyright. school education (AOR=2.65, 95% CI 1.08 to 6.53), iden- example, reporting more condomless anal intercourse tifying as homosexual or gay (AOR=3.73, 95% CI 1.48 to acts in the past 2 months was inversely associated with 9.42), being more ‘out’ about having sex with men prior HIV testing. This finding is consistent with previ- (AOR=1.28, 95% CI 1.02 to 1.62) and a history of sexual ous research conducted with sexual minorities in other abuse (AOR=3.24, 95% CI 1.06 to 9.86). Prior HIV LMIC,71011as well as earlier research with MSM in testing was negatively associated with reporting more Tijuana documenting a relationship between condom- condomless anal intercourse acts in the past 2 months less anal intercourse in the past year and not having had (AOR=0.95, 95% CI 0.92 to 0.98) and greater interna- a recent HIV test.22 MSM in Tijuana who engage in HIV lised homophobia (AOR=0.92, 95% CI 0.86 to 0.99). A risk behaviours may incorrectly perceive themselves to sensitivity analysis excluding participants identifying as be at low risk and/or have limited access to HIV testing transgender female yielded qualitatively similar results. and prevention services.22 Tailored HIV education interventions that include risk reduction messages and encourage regular HIV testing may improve testing rates DISCUSSION among MSM at greatest risk of HIV infection in Tijuana. We determined the prevalence and identified correlates Internalised homophobia was associated with never of prior HIV testing among MSM in Tijuana, Mexico. We having tested for HIV, while prior HIV testing was

6 Pines HA, et al. BMJ Open 2016;6:e010388. doi:10.1136/bmjopen-2015-010388 Open Access BMJ Open: first published as 10.1136/bmjopen-2015-010388 on 4 February 2016. Downloaded from

Table 3 Factors associated with prior HIV testing among men who have sex with men in Tijuana, Mexico No prior Prior HIV Multivariate HIV testing testing Univariate RDS-weighted† (N=56) (N=133) RDS-weighted* (N=176) n (%)‡ n (%)‡ OR 95% CI OR 95% CI Sociodemographics Age in years, mean (SD) 27.7 (9.2) 30.2 (8.3) 1.04 1.01 to 1.08 1.09 1.04 to 1.15 Male-identifying 53 (94.6) 121 (91.7) 0.28 0.06 to 1.32 Gay-identifying 26 (46.4) 92 (69.7) 3.11 1.68 to 5.73 3.73 1.48 to 9.42 Born in Tijuana 14 (25.0) 46 (34.6) 2.26 1.10 to 4.62 2.68 1.05 to 6.86 At least a high school education 19 (33.9) 73 (54.9) 2.40 1.29 to 4.45 2.65 1.08 to 6.53 Employed 27 (48.2) 88 (66.7) 1.57 0.87 to 2.84 Monthly income ≥3500 pesos (US$∼280) 28 (51.9) 74 (58.3) 1.05 0.57 to 1.93 Ever incarcerated (jail or prison) 16 (29.6) 37 (28.9) 1.15 0.60 to 2.19 Sexual behaviours Exchanged money for sex (≤6 months) 19 (33.9) 28 (21.4) 0.42 0.21 to 0.82 1.28 0.49 to 3.37 Number of male sexual partners (≤2 months), 7.0 (14.5) 6.3 (9.8) 1.00 0.97 to 1.04 mean (SD) Number of CAI acts (≤2 months), mean (SD) 6.6 (18.8) 8.2 (23.2) 0.98 0.97 to 1.00 0.95 0.92 to 0.98 Relationship to male sexual partners (≤2 months) Spouse or live-in partner 12 (24.0) 34 (26.6) 1.02 0.51 to 2.02 Steady non-live-in partner 37 (69.8) 81 (64.3) 0.88 0.47 to 1.66 Casual partner 29 (53.7) 69 (54.8) 0.95 0.52 to 1.72 Anonymous partner 18 (37.5) 44 (37.6) 0.69 0.36 to 1.34 Venues visited to meet male sexual partners (≤2 months) Bar, nightclub or disco 15 (28.9) 36 (27.9) 0.59 0.29 to 1.20 Bathhouse or sauna 7 (12.5) 13 (9.9) 0.33 0.12 to 0.94 0.33 0.08 to 1.43 Adult movie theatre 5 (9.1) 11 (8.4) 0.62 0.14 to 2.71 Dark room 7 (12.7) 11 (8.4) 0.19 0.05 to 0.71 0.31 0.06 to 1.74 Internet café 7 (12.7) 9 (6.8) 0.88 0.34 to 2.31 Public place (eg, park, restroom, bus) 13 (24.1) 23 (17.6) 0.56 0.23 to 1.35 Substance use Illicit drug use (lifetime) Marijuana 29 (52.7) 66 (49.6) 0.56 0.31 to 1.03 Methamphetamine 21 (38.2) 32 (24.1) 1.18 0.61 to 2.27 http://bmjopen.bmj.com/ Cocaine 14 (25.5) 38 (28.8) 1.30 0.69 to 2.48 Amyl nitrite (poppers) 5 (9.1) 27 (20.3) 2.76 1.01 to 7.53 2.32 0.49 to 10.96 Heroin 5 (9.1) 10 (7.5) 2.07 0.62 to 6.90 Illicit drug use (≤1 month) Marijuana 19 (34.6) 38 (28.8) 0.74 0.40 to 1.39 Methamphetamine 18 (32.7) 23 (17.3) 0.77 0.38 to 1.55 Cocaine 5 (9.1) 11 (8.3) 0.44 0.16 to 1.20 Amyl nitrite (poppers) 2 (3.6) 9 (6.8) 9.43 0.64 to 138.01

Heroin 4 (7.3) 6 (4.5) 2.54 0.52 to 12.43 on June 16, 2020 by guest. Protected copyright. Any injection drug use (≤1 month) 4 (7.4) 5 (4.0) 2.50 0.50 to 12.43 Hazardous alcohol consumption (≤12 months) 22 (40.0) 54 (40.9) 0.49 0.26 to 0.91 0.78 0.32 to 1.89 Any drug use before/during sex (≤2 months) 8 (15.1) 15 (11.8) 1.05 0.40 to 2.76 Any alcohol use before/during sex (≤2 months) 20 (36.4) 55 (42.0) 0.67 0.36 to 1.24 History of abuse Ever experienced sexual abuse 11 (19.6) 41 (31.1) 4.91 2.00 to 12.05 3.24 1.06 to 9.86 Ever experienced physical abuse 8 (14.6) 27 (20.6) 2.21 0.88 to 5.54 Ever experienced emotional abuse 16 (29.6) 46 (35.4) 1.67 0.85 to 3.28 Psychosocial factors Social support, mean (SD) 21.8 (3.2) 22.4 (3.6) 1.03 0.95 to 1.13 Perceived HIV-related stigma, mean (SD) 23.4 (3.9) 22.5 (3.9) 1.01 0.94 to 1.09 Outness about having sex with men, mean (SD)§ 4.5 (2.0) 5.5 (1.7) 1.27 1.08 to 1.50 1.28 1.02 to 1.62 Internalised homophobia, mean (SD)§ 21.2 (6.5) 18.1 (6.1) 0.96 0.91 to 1.00 0.92 0.86 to 0.99 HIV/STI knowledge HIV/STI counselling or education programme 4 (8.2) 24 (18.9) 1.95 0.69 to 5.57 (≤2 months) HIV knowledge, mean (SD) 12.3 (2.9) 14.1 (2.3) 1.29 1.14 to 1.46 1.10 0.93 to 1.31 Continued

Pines HA, et al. BMJ Open 2016;6:e010388. doi:10.1136/bmjopen-2015-010388 7 Open Access BMJ Open: first published as 10.1136/bmjopen-2015-010388 on 4 February 2016. Downloaded from

Table 3 Continued No prior Prior HIV Multivariate HIV testing testing Univariate RDS-weighted† (N=56) (N=133) RDS-weighted* (N=176) n (%)‡ n (%)‡ OR 95% CI OR 95% CI HIV/STI prevalence Tested HIV-positive 11 (19.6) 20 (15.0) 1.43 0.67 to 3.07 Self-reported an STI diagnosis (≤2 months) 7 (12.7) 22 (16.5) 1.11 0.50 to 2.45 0.67 0.20 to 2.23 *Univariate RDS-weighted ORs=study design adjusted estimates. †Multivariate RDS-weighted ORs=study design and confounder adjusted estimates. ‡RDS-unadjusted sample estimates. §Only asked of participants who identify as gay or bisexual; analysis excludes participants who identify as heterosexual. AOR, adjusted OR; CAI, condomless anal intercourse; RDS, respondent-driven sampling; STI, sexually transmitted infection. associated with identifying as homosexual or gay and However, given the stigmatisation of same-sex sexual beha- being more ‘out’ about having sex with men. These find- viours in Mexico,32 MSM may be reluctant to disclose their ings are consistent with research documenting interna- sexual orientation or same-sex sexual practices to health- lised homophobia as a barrier to accessing HIV testing care providers. Provider training on culturally competent and prevention services.15 Cultural norms of machismo care for sexual minorities34 may promote open discussions and homophobia contribute to stigma towards same-sex about sexual practices, facilitate risk reduction counselling, sexual behaviours in Mexico. Previous research suggests support the delivery and uptake of antiretrovirals for use as that non-gay identifying, HIV-positive men who have sex pre-exposure (once approved in Mexico) and postexposure with both men and women in Mexico avoid gay commu- prophylaxis, increase HIV testing and ensure timely nity affiliation out of fear of homophobic reactions.32 As linkage to HIV care for this population. such, innovative strategies are needed to engage non-gay Our study has several limitations. First, given the identifying MSM in HIV testing programmes without study’s cross-sectional design, we cannot infer that exacerbating experiences of stigma and discrimination. observed associations are causal. Second, although RDS Structural interventions addressing societal stigma was implemented to overcome barriers to accessing this towards MSM may also minimise internalised homopho- hidden population, using this potentially biased recruit- bia and support HIV testing uptake among sexual ment method may have limited the generalisability of minorities in Tijuana. our findings. Third, RDS weighting procedures can yield Motivations for and barriers to HIV testing point to imprecise estimates,21 35 and may explain the wide 95% additional strategies that may promote testing within this CIs obtained for some ORs in our RDS-weighted logistic http://bmjopen.bmj.com/ population. The most frequently reported barrier to regression analyses. Fourth, participants may have under- HIV testing was “I worry that testing HIV-positive will reported sensitive information on sexual and substance change my life,” suggesting that MSM in Tijuana may use behaviours. However, to minimise the potential for perceive testing HIV-positive as a death sentence or this social desirability bias, surveys were administered by worry about the potential for negative social conse- AFABI staff who are trusted members of the community. quences on testing positive.914Community-wide educa- Fifth, barriers to HIV testing were not measured via tion campaigns that correctly frame HIV/AIDS as a open-ended questions. As such, future research should chronic disease in the context of ART, focus on the ben- include in-depth interviews with MSM in Tijuana, par- on June 16, 2020 by guest. Protected copyright. efits of regular HIV testing, and raise awareness about ticularly subgroups with a low prevalence of prior HIV universal ART access in Mexico may decrease testing (eg, young, less educated, migrant MSM), to HIV-related stigma and improve HIV testing rates within better understand their barriers to testing and inform this population. Moreover, our ability to recruit MSM in targeted interventions for MSM least likely to access HIV Tijuana via RDS suggests that HIV educational cam- testing. Finally, although our findings were qualitatively paigns and prevention interventions that rely on the dif- similar in analyses excluding biological males who have fusion of information through social networks might sex with men and identify as transgender female, add- increase HIV-related knowledge and support regular itional research examining the unique barriers to HIV HIV testing uptake among MSM in Tijuana.33 testing experienced by this population is needed as they Most participants who reported prior HIV testing sought may differ from those experienced by biological males their last test because they wanted to know their HIV status. who have sex with men and identify as male. However, only 20% of those reporting prior HIV testing indicated that their last test was motivated by a healthcare provider’s suggestion. Although data on the location of par- CONCLUSIONS ticipants’ last HIV test were not collected, this finding Our findings highlight the need for HIV testing pro- points to potential missed opportunities for testing. grammes among MSM in Tijuana, Mexico and provide

8 Pines HA, et al. BMJ Open 2016;6:e010388. doi:10.1136/bmjopen-2015-010388 Open Access BMJ Open: first published as 10.1136/bmjopen-2015-010388 on 4 February 2016. Downloaded from useful information for the development of HIV testing 12. Park JN, Papworth E, Billong SC, et al. Correlates of prior HIV ﬁ testing among men who have sex with men in Cameroon: a services that address the speci c needs of this popula- cross-sectional analysis. BMC Public Health 2014;14:1220. tion. Innovative, non-stigmatising, conﬁdential HIV edu- 13. Sandfort TG, Nel J, Rich E, et al. HIV testing and self-reported HIV status in South African men who have sex with men: results cation and testing interventions targeted at young, less from a community-based survey. Sex Transm Infect 2008;84: educated, migrant and non-gay identifying MSM may 425–9. facilitate regular HIV testing and timely linkage to HIV 14. Beattie TS, Bhattacharjee P, Suresh M, et al. Personal, interpersonal and structural challenges to accessing HIV testing, treatment and care and treatment among MSM in this setting. care services among female sex workers, men who have sex with men and transgenders in Karnataka state, South India. J Epidemiol Acknowledgements The authors thank the participants and staff without Community Health 2012;66(Suppl 2):ii42–8. whom this study would not have been possible. 15. Santos GM, Beck J, Wilson PA, et al. Homophobia as a barrier to HIV prevention service access for young men who have sex with Contributors DG-M was responsible for data collection. KT helped oversee men. J Acquir Immune Defic Syndr 2013;63:e167–70. study procedures and data collection. HAP and TLP contributed to the design 16. Bautista-Arredondo S, Colchero MA, Romero M, et al. Is the HIV of the present study. HAP conducted the analysis and wrote the manuscript. epidemic stable among MSM in Mexico? HIV prevalence and risk All authors contributed to the interpretation of results, manuscript revisions behavior results from a nationally representative survey among men and approved the final manuscript. who have sex with men. PLoS ONE 2013;8:e72616. 17. Secretaria de Salud, Centro Nacional para la Prevención y el Control Funding The parent study was supported by an AIDS International Training in del VIH y el SIDA (CENSIDA). Informe nacional de avances en la Research Program (AITRP) seed grant to Goodman. This study was respuesta al vih y el sida: Mexico 2015. 2015. http://www.unaids.org/ supported by the National Institute on Drug Abuse grants (T32 DA023356; sites/default/files/country/documents/MEX_narrative_report_2015.pdf (accessed 23 Dec 23 2015). K01 DA040543; K01 DA036447). 18. Instituto Nacional de Estadistica y Geografia. Estadísticas a Competing interests None declared. propósito del día mundial de la lucha contra el SIDA. 2011. http:// www.inegi.org.mx/inegi/contenidos/espanol/prensa/contenidos/ Ethics approval Study procedures were approved by Human Subjects estadisticas/2011/sida11.asp?s=inegi&c=2819&ep=78 (accessed 23 Protection Committees at the Universidad Autónoma de Baja California and Jul 2014). the University of California, San Diego (#120517). 19. Pitpitan EV, Goodman-Meza D, Burgos JL, et al. Prevalence and correlates of HIV among men who have sex with men in Tijuana, Provenance and peer review Not commissioned; externally peer reviewed. Mexico. J Int AIDS Soc 2015;18:19304. 20. Heckathorn DD. Respondent-driven sampling: a new approach to Data sharing statement No additional data are available. the study of hidden populations. Soc Probl 1997;44:174–99. 21. Heckathorn DD. Extensions of respondent-driven sampling: Open Access This is an Open Access article distributed in accordance with analyzing continuous variables and controlling for differential the Creative Commons Attribution Non Commercial (CC BY-NC 4.0) license, recruitment. Soc Methodol 2007;37:151–207. which permits others to distribute, remix, adapt, build upon this work non- 22. Barrón-Limón S, Semple SJ, Strathdee SA, et al. Correlates of commercially, and license their derivative works on different terms, provided unprotected anal sex among men who have sex with men in the original work is properly cited and the use is non-commercial. See: http:// Tijuana, Mexico. BMC Public Health 2012;12:433. 23. Saunders JB, Aasland OG, Babor TF, et al. Development of the creativecommons.org/licenses/by-nc/4.0/ alcohol use disorders identification test (audit): who collaborative project on early detection of persons with harmful alcohol consumption–II. Addiction 1993;88:791–804. REFERENCES 24. Pearlin LI, Mullan JT, Semple SJ, et al. Caregiving and the stress 1. Lundgren JD, Babiker AG, Gordin F, et al. Initiation of antiretroviral process: an overview of concepts and their measures. Gerontologist 1990;30:583–94.

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TAB 10 ‘Unsafe’ and on the Margins Canada’s Response to Mexico’s Mistreatment of Sexual Minorities and People Living with HIV This publication is the result of an investigation by the International Human Rights Program (IHRP) at the University of Toronto, Faculty of Law. The IHRP is a multiple-award winning program that enhances the legal protection of existing and emerging international human rights obligations through advocacy, knowledge-exchange, and capacity-building initiatives that provide experiential learning opportunities for students and legal expertise to civil society.

AUTHORS: Maia Rotman, Kristin Marshall DESIGN: Shannon Linde COVER ILLUSTRATION: Justin Renteria

This report was written in collaboration with Advisory Committee members: Sandra Ka Hon Chu, Stéphanie Claivaz-Loranger and Richard Elliott, of the Canadian HIV/ AIDS Legal Network; Dr. Meb Rashid and Dr. Philip Berger, of the former Canadian Doctors for Refugee Care; Meagan Johnston, of HALCO; and John Norquay and Andrew Brouwer of the Refugee Law Office at Legal Aid Ontario.

The IHRP would like to thank the Elton John Aids Foundation for its generosity in funding this project.

International Human Rights Program (IHRP) University of Toronto Faculty of Law 39 Queen’s Park, Suite 106 Toronto, Ontario Canada M5S 2C3 http://ihrp.law.utoronto.ca

2 I. EXECUTIVE SUMMARY

6 II. HUMAN RIGHTS IN MEXICO 6 A. Overview 6 1. Mexico as a Refugee-producing Country 8 2. Access to Health and HIV Treatment as a Human Right 12 B. Human Rights Abuses against Key Populations in Mexico 14 1. LGBTI 16 Transgender Women 17 Transgender women and access to healthcare 18 Gay Men and Men Who Have Sex with Men 18 Gay men and men who have sex with men and access to healthcare 18 2. Women and Girls 19 Women and girls and access to healthcare 21 3. Sex Workers 21 Sex workers and access to healthcare 23 4. People Who Inject Drugs 24 People who inject drugs and access to healthcare

28 III. Canadian Asylum Policies and Designated Countries of Origin 28 A. Canada’s International Legal Obligations 28 B. Designated Countries of Origin 29 C. Impact of Designated Country of Origin 30 d. Mexico’s Designation

34 IV. Recommendations

38 V. APPENDIX A: Tables

40 VI. APPENDIX B: Methodology

42 Acknowledgments

43 Endnotes

EXECUTIVE SUMMARY I. EXECUTIVE SUMMARY

On paper, Mexico’s federal government professes to be a human rights protector. The country boasts an impressive array of human rights legislation and is a signatory to many international human rights conventions. In reality, vulnerable Mexicans, especially sexual minorities and people living with HIV, have little protection.

In June 2015, a few days before Mexico City hosted a massive Pride parade, unknown armed assailants savagely beat and shot in the head a transgender woman in Chihuahua. The victim’s body was wrapped in a Mexican flag — apparently a protest against the Supreme Court’s June ruling allowing gay marriage. According to the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, between 2005 and 2013 in Mexico, 555 homicides targeting individuals because of their sexual orientation or gender identity were reported. The actual number is likely greater, as many crimes of violence in Mexico go unreported due to a lack of confidence in the justice system.

This report examines the right to health and HIV treatment in Mexico and is based on in-country interviews with 50 Mexicans, including human rights activists, journalists, members of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, people living with HIV, healthcare professionals and others involved in human rights advocacy. Julio, a gay asylum seeker from El Salvador, described how the discrimination he faced in Mexico prevented him from accessing healthcare and life-saving HIV treatment. Although Mexico has a national healthcare system that, by law, “guarantees” access to healthcare for all, including migrants, it failed Julio. He almost died from a cerebral infection after being denied HIV treatment for 18 months because of a lack of sufficient personal identification to access services. His experience is consistent with other cases from among Mexico’s marginalized communities, as documented in this report by the International Human Rights Program (IHRP). Transgender women told the IHRP that they experience discrimination from healthcare administration and practitioners and are routinely denied HIV treatment. Many cannot even enter hospitals or other healthcare facilities because they lack identification and fear police officers stationed at entrances. People living with HIV in detention face similar discrimination and barriers to HIV-related healthcare services. Such mistreatment underscores the gap between a “paper right” to universal healthcare in Mexico and the on-the-ground reality of discrimination and exclusion facing vulnerable populations — a breach of Mexico’s international human rights obligations.

According to the HIV Director of Mexico’s National Commission for Human Rights (CNDH), HIV-prevalence is increasing in Mexico, especially among LGBTI individuals, heterosexual women, sex workers and people who inject drugs. The Mexican government’s introduction of the Programa Frontera Sur (the “Plan”), a security control apparatus along Mexico’s southern border, has had a chilling effect on HIV-prevention initiatives, including condom distribution, because of a fear of criminal charges under the new Plan. There is, in Mexico, a general insufficiency of access to information on sexual and reproductive health and to human rights–based health education. Even when sexual minorities do get access to HIV treatment, they continue to experience human rights violations. Health advocates report breaches of confidentiality, segregation within healthcare centres and other discriminatory practices that undermine the right to health of minorities and people living with HIV.

2 EXECUTIVE SUMMARY

This report criticizes Canada’s ongoing designation of Mexico as a “safe” country, which arose as part of a massive overhaul of the refugee determination system by the former federal government in late 2012. The rationale for the designation was that Mexico, a significant trade partner with Canada, respects human rights and protects its citizens and thus, by extension, any refugee claim against Mexico must be “bogus” and unfounded. However, this report concludes that Mexico remains unsafe for many Mexicans, particularly for people living with HIV or at heightened risk of infection, as well as those belonging to communities disproportionately affected by the HIV epidemic. The country should be removed from Canada’s Designated Country of Origin (DCO) list. The impact of designation is potentially harmful to refugee claimants because they are afforded fewer procedural rights, and coming from a country labeled “safe” can foster prejudgment among decision-makers at the Immigration and Refugee Board (IRB). Finally, the report concludes that greater investments in HIV prevention, care, treatment and support are critically needed in Mexico.

3 4 HUMAN RIGHTS IN MEXICO II. HUMAN RIGHTS IN MEXICO

A. Overview

Mexico’s government projects an inaccurate or, at the least, heavily curated image of itself as a progressive democracy, one where human rights instruments are adopted and institutionalized to protect and defend Mexicans from human rights abuses. Canada adopted this narrative when it labeled Mexico a “safe” country in early 2013. But the narrative is incomplete; in reality, the most marginalized people in Mexico, especially those living with or vulnerable to HIV, suffer as a result of this label.

The reforms undertaken by Mexico’s federal government to combat discrimination and human rights violations are significant. Mexico amended its Constitution in 2011 to add a prohibition against discrimination on the basis of “sexual preference,” in addition to the grounds of ethnic or national origin, social status, health condition, religious opinion, civil status or any other reason which violates human dignity.1 In 2003, the Federal Law to Prevent and Eliminate Discrimination prohibited public and private sector discrimination, including discrimination based on sexual preference.2

However, on closer examination, the façade of a progressive, open and safe country reveals cracks. The president of the National Council for the Prevention of Discrimination (CONAPRED) has described the Federal Law to Prevent and Eliminate Discrimination in Mexico as “insufficient” because many Mexican states have failed to reform their laws in accordance with the federal law, leaving many Mexicans without access to this law’s protection.3

Leading up to the Pride parade in Mexico City in June 2015, the historic El Ángel de la Independencia (“The Angel of Independence”) monument in the centre of the city was illuminated in rainbow colours, an unprecedented symbolic act intended to convey Mexico’s embrace of Pride celebrations and human rights. However, the IHRP later learned that the government only agreed to illuminate the monument after fierce debate in the moments before the parade and after significant pressure from the United States.4

Even with federal and state laws declaring protection for human rights, compliance is far from assured. Human Rights Watch reports that, because of corruption, collusion of government actors and public defenders and a general lack of resources, the criminal justice system in Mexico “routinely fails to provide justice” to victims of human rights violations and violent crimes.5 Mexico has the second highest number of hate crimes against sexual minorities in the Americas and these crimes, such as the murder of a transgender woman in Chihuahua in June 2015, are often perpetrated with impunity.6 The Catholic Church, entrenched in the Mexican political landscape, continues to advocate strenuously against progressive reforms.7 Indeed, CONAPRED has stated that homophobia is widely prevalent and deeply rooted throughout Mexico.8 Sexual minorities, targeted and vulnerable to enforced disappearances, report not feeling safe anywhere in the country.9

1. Mexico as a Refugee-producing Country

Mexico is a migration hub: It is a country of origin, destination and transit. The dominant narrative propagated by Mexico’s government is that the country, a haven for human rights in the region, is a refugee-receiving, not 6 HUMAN RIGHTS IN MEXICO

a refugee-producing country.10 However, every year, tens of thousands of Mexican asylum seekers apply for refugee status abroad, and the numbers are rising. In 2014 alone, nearly 9,000 Mexicans applied for asylum in the United States.11

Canada has recognized that Mexico is a refugee-producing country, despite its safe country labeling. As demonstrated by the chart below, a significant proportion of Mexico’s claimants who manage to get to Canada and make a refugee claim are accepted as Convention refugees, despite the visa requirement imposed on Mexican nationals in 2009 and the subsequent designation of Mexico as “safe.” Between 2010 and 2014, the Canadian refugee determination system found 2,539 refugee claimants met the international definition of “refugee” set out in the 1951 Convention Relating to the Status of Refugees (“Refugee Convention”). In 2015, 41.7% of claimants from Mexico were found to be Convention refugees.12 Furthermore, in apparent contradiction to the “safe” label, Global Affairs Canada (formerly the Department of Foreign Affairs, Trade and Development Canada [DFATD]) has issued near-continuous travel warnings for Canadians traveling to Mexico, advising them to “exercise a high degree of caution” in parts of Mexico due to violence, high levels of criminal activity and a deteriorating security situation.13

Table 1: Mexican Refugee Claims Made in Canada 2005–201414 (see Appendix A, Table 1, for full statistics)

Accepted Rejected Abandoned Withdrawn & other

2014 94 188 10 34 2013 182 683 65 83 2012 568 2144 112 198 2011 1042 4184 284 600

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Drug cartels and the culture of violence

To live in certain areas of Mexico is to be exposed and the enforcement of drug laws by military and to an epidemic of organized crime.15 As high- police forces are assassinated or forcibly disap- lighted by the UN High Commissioner for Human peared by perpetrators who are “frequently state Rights following his October 2015 visit to Mexico, authorities, state security forces, drug cartels and 98% of all crimes in Mexico remain unsolved. The paramilitary groups many of whom have links Commission found that Mexican society remains to the Government and/or security services.”18 “wracked by high levels of insecurity, disappear- Because of collusion between police and drug ances and killings, continuing harassment of cartels, a research director at the National Institute human rights defenders and journalists, violence for Public Health in Cuernavaca, Mexico, told the against women, and terrible abuses of migrants IHRP that many human rights violations against and refugees transiting the country on their way to marginalized populations in Mexico occur with the United States.”16 In November 2014, Mexican impunity.19 National and international monitor- President Peña Nieto proposed a series of police ing bodies, including the United Nations Human reforms in order to combat years of insecurity — Rights Council in their most recent Universal Peri- including centralizing control of each state’s local odic Review, have echoed these concerns about police — but implementation is seriously lacking.17 impunity.20 Violence has increased on the national level. Jour- nalists attempting to report on drug cartel activity

2. Access to Health and HIV Treatment as a Human Right

The protection of human rights is an essential pillar of a nation’s successful HIV prevention and reduction strategy. Studies show that people living with HIV or those at heightened risk of becoming infected with HIV will not seek testing, treatment or support if they believe they will face discrimination, a lack of confidentiality or other violations of their human rights and dignity.21 According to the UN’s International Guidelines on HIV/AIDS and Human Rights, there is international consensus that broad, inclusive and rights-based responses to HIV are crucial features of a successful HIV program.22

HIV treatment is paramount to ensuring health: When HIV has severely weakened an individual’s immune system, a person is at high risk for certain life-threatening infections known as “opportunistic infections.”23 There is currently no cure for HIV and no vaccine to prevent it, but early diagnosis and proper treatment enable people living with HIV to live healthy lives with a life-expectancy similar to uninfected individuals. There are dozens of anti-HIV drug treatment options, known as anti-retroviral therapies (ART) (consisting of combinations of anti-retroviral drugs [ARVs]). Treatment is also essential to maintaining healthy communities. A lower viral load in an individual living with HIV results in lower risk of transmission to sexual partners.24 As HIV treatment becomes more readily available and immune system functions improve through ART, opportunistic infections and transmission of HIV become less common. However, late HIV diagnosis or lack of consistent HIV treatment can increase the risk of both life-threatening infections for the individual and onward transmission for those in the community.25 8 HUMAN RIGHTS IN MEXICO

In September 2015, the World Health Organization (WHO) released a set of comprehensive guidelines for initiating ART.26 According to the guidelines, anyone infected with HIV should begin ART as soon as possible following diagnosis, in order to reduce the effects of HIV on the health and well-being of the person. The recommendation applies to all populations and age groups living with HIV.27

The guidelines also recommend daily pre-exposure prophylaxis (PrEP) — the use of ARVs by HIV-negative persons to reduce their risk of becoming infected with HIV — as a prevention measure for individuals at “substantial” risk.28 This group includes gay men and other men who have sex with men (MSM), people who inject drugs, sex workers, transgender people, and people in prisons and other closed settings.29 According to WHO, these guidelines could help avert more than 21 million deaths and 28 million new infections by 2030.30

Mexico

The HIV context in Mexico is one of deceiving numbers. Within the entire population, Mexico’s HIV-prevalence rate is relatively low, at 0.2% of the overall population.31 The government maintains the epidemic is receding, but Ricardo Hernandez, Director of Health, Sexuality and HIV at the Comisión Nacional de los Derechos Humanos (CNDH), or National Human Rights Commission, told the IHRP that the numbers tell a different story.32

The virus disproportionately affects specific populations, such as LGBTI individuals, women and girls, sex workers, and people who inject drugs. For example, 15.5% of transgender women who engage in sex work are reported to be living with HIV, and prevalence is increasing among women, who represent more than 25% of new infections in certain regions of Mexico, such as Chiapas.33

The epidemic also varies dramatically by region. In the state of Yucatán, for example, there were 427 reported new cases of HIV in 2014, while the state of Mexico (whose population is more than 13,000,000 greater than Yucatán’s), reported only 237 new cases.34

According to the CNDH, Mexico ranks twenty-third among prevalence rates in the Americas.35 However, by population size, Mexico has the third-highest number of individuals living with HIV in the Americas, behind only the United States and Brazil. In 2013, out of a population of just under 124 million people living in Mexico, approximately 190,000 were living with HIV.36

Legal framework

Mexico has a clear obligation to provide effective healthcare and access to treatment for people living with HIV. International law recognizes that the right to health encompasses the right to effective and quality healthcare, without disparities in treatment.37

The Universal Declaration of Human Rights (the “Declaration”) states that everyone has the right to life, liberty and security of the person, as well as the right to medical care to maintain a standard of living adequate for their health 9 HUMAN RIGHTS IN MEXICO

and well-being.38 The Declaration also includes the right to equal protection of the law, the right to work and access education, the right to privacy and the right to an effective remedy for violations of human rights.39 In adopting the Declaration, Mexico commits to ensuring these rights without “distinction of any kind,” including along lines of race, sex or other status, such as HIV status.40

Mexico has an obligation to provide HIV prevention and education programs, as well as access to treatment, in order to achieve fulfillment of the right to health as set out in the International Covenant on Economic, Social, and Cultural Rights (ICESCR), ratified by Mexico in 1981.41 Access to healthcare as a basic right is set out in article 12 of the Covenant, ratified by Mexico in 1981. It explicitly recognizes “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”42 Article 12.2(c) specifies that the full realization of the right to health requires the government to take measures for the “prevention, treatment and control of epidemic, endemic, occupational and other diseases.”43

Mexico also has an obligation to provide equal access, not just by making healthcare available, but by making it accessible to everyone. The ICESCR prohibits discrimination in access to health by virtue of article 2: “the rights enunciated in the present Covenant will be exercised without discrimination of any kind.”44 Discrimination includes barriers to healthcare based on numerous grounds, such as HIV/AIDS status or sexual orientation, but also includes inaccessibility to healthcare as a result of inappropriate health-resource allocation.45 Mexico ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which includes the obligation to take “all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.”46

In 2003, the Mexican government restructured its health system by legislating free access to healthcare for all citizens through a public insurance scheme, Seguro Popular (Peoples’ Insurance).47 Seguro Popular was created as a public insurance program for universal and comprehensive healthcare coverage for those individuals who were not covered by employer-based insurance.48 Lauded by many as a successful reform, Seguro Popular has provided healthcare to many Mexicans who had previously been unable to access services.49 In 2000, the Supreme Court of Mexico ruled that access to health includes access to all treatment and medication.50 As such, Seguro Popular is legislated to include all medication, including ART for HIV. In 2012, Seguro Popular covered 55.6 million people and the CNDH estimates that approximately 59.4% of Mexico’s population is now covered by the program.51

Healthcare

The IHRP found that, despite Mexico’s legislated provision of universal, free and quality access to healthcare, many people in Mexico living with HIV or at high risk of infection are unable to access Seguro Popular. For those who do have access to healthcare, many face discrimination and receive sub-par and inconsistent treatment that seriously jeopardizes their health.

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In order to access Seguro Popular, individuals must present valid Mexican identification.52 For many vulnerable populations, this requirement effectively disqualifies them from accessing services that the state is legislated to provide for free. This is particularly detrimental for transgender people, sex workers, migrants, people who inject drugs, Indigenous people and street-involved individuals, who, for many reasons explored below, may not have identification.53

Under Seguro Popular, health supplies are limited, and what is available is discretionary, varying from state to state.54 HIV treatment in Mexico is administered through various Ambulatory Centres for the Prevention of and Attention to HIV/AIDS and Other Sexually Transmitted Infections (CAPASITS) throughout the country.55 CAPASITS, located in Mexican state capitals and funded by the government, are staffed with health practitioners trained in providing care for HIV and other sexually transmitted infections.56 In a 2013 study, health providers in Tijuana reported an insufficient availability of ART medications in some CAPASITS in57 Mexico. The IHRP was told that some health centres delay providing HIV treatment until a patient is showing visible signs of the illness in order to preserve their limited supplies.58 Such delayed treatment can have a disastrous impact on the long-term health of the individual and HIV prevention efforts.59 Moreover, the government does not cover any PrEP drugs, such as the combination product tenofovir/emtricitabine (marketed under the brand name Truvada).60

An additional flaw with Seguro Popular is the non-availability of treatment for secondary health issues, such as tuberculosis, when one is already receiving treatment for HIV.61 Patients are forced to choose between interrupting their HIV treatment or neglecting opportunistic diseases, to which they are more vulnerable because of a weakened immune system. Either choice could have fatal repercussions.62 As the life expectancy of individuals living with HIV increases, such issues of singular treatment, not in keeping with good clinical practice, become increasingly problematic.63

In addition to concerns about supply and quality of care, Seguro Popular remains inaccessible to many because of stigma.64 Marginalized groups are not aware that they have the right to free healthcare or do not know how to access it. There are many segments of the population in Mexico — including LGBTI individuals, sex workers, women and girls, and people who inject drugs — that cannot access consistent HIV treatment.65 More troubling, however, is the fact that some healthcare authorities seem unaware that Seguro Popular is available to all.66

The Director of Clinica Condesa, the leading HIV/AIDS clinic and the only publicly funded free clinic with expertise in serving transgender clients, told the IHRP that individuals living with HIV seeking healthcare are routinely denied assistance at health centres.67 In a 2013 report surveying healthcare providers’ perspectives on access to HIV treatment, a Tijuana provider relayed that they encounter patients who have been sent away from hospitals because “the doctors or dentist refuse to see anyone who is HIV-positive.”68 Members of marginalized populations often rely on an advocate to accompany them in order to access care; without one, healthcare providers do not treat them in a professional manner. Even then, the IHRP learned that health authorities often behave as if they are providing charity, as opposed to acknowledging healthcare as a human right.69

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Programa Frontera Sur and its Impact on HIV Prevention 70

In July 2014, the Mexican government announced individuals perceived to be connected to sex work: the launch of the Programa Frontera Sur (South from third parties associated with sex workers to Border Program) (hereinafter, the “Plan”). The Plan people possessing condoms.73 Those providing has the stated objective of providing care and condoms or implementing HIV-prevention programs protection to migrants and ensuring strict respect for now run the risk of being labeled “traffickers”74 human rights for a prosperous, secure and controlled under the Plan. One migrant shelter director and border region.71 However, in reality, human rights HIV-prevention advocate used to give out condoms advocates told the IHRP that the Plan has increased in bars in the southern city of Tapachula, but detention, criminalization and danger for migrants, authorities are now criminally charging bar owners sex workers and human rights defenders along the in the city for allowing condoms to be distributed.75 border and throughout the country.72 In addition to dismantling interventions for the Central to the Plan is a hard stance on human prevention of HIV, sex workers are more likely to be trafficking, allegedly to protect migrants and deterred from accessing health services for fear of stem irregular movement across the border. HIV- being identified and arrested, undercutting years prevention advocates, however, lament the Plan’s of advocacy work to recognize sex work as work.76 impact on HIV-prevention services throughout the The National Institute of Public Health in Mexico country. By restricting HIV-prevention activities for is currently trying to help highlight the differences sex workers under the guise of combating human between sex work and trafficking, so that there trafficking, the Plan has put already-vulnerable is not a complete deterioration of HIV-prevention populations at higher risk of HIV infection. The efforts, but health experts told the IHRP that this is adverse effects are not isolated to non-citizens. an uphill battle.77 The authorities are indiscriminately targeting all

B. Human Rights Abuses against Key Populations in Mexico

A 2014 UNAIDS report identified populations who are more at risk of HIV. In Mexico, the populations disproportionately affected by HIV include LGBTI individuals, women and girls, sex workers and people who inject drugs.78 Because of social, economic and legal exclusion, such populations generally do not have equal access to healthcare and live in more precarious situations, heightening their risks for HIV. These populations, marginalized by the state and unable to enjoy adequate human rights protections, are disempowered from seeking support to prevent and treat HIV.79 As the International Guidelines on HIV/AIDS and Human Rights note, the violation of human rights, including discrimination against specific populations “creates and sustains conditions leading to societal vulnerability to infection by HIV, including lack of access to an enabling environment that will promote behavioural change and enable people to cope with HIV.”80 12 HUMAN RIGHTS IN MEXICO

Discrimination against those with HIV

Despite positive legislation ensuring the right to health and the prohibition of discrimination based on health conditions, people in Mexico living with HIV remain vulnerable to human rights abuses, stigma and discrimination in all realms of life.81 In terms of education, employment, and access to healthcare, individuals living with HIV face substantial discrimination.82

Stigma against individuals with HIV remains a reality in Mexico. The President of the Council for the Prevention and Elimination of Discrimination in Mexico City (COPRED) told the IHRP of individuals being refused service in restaurants, even in urban areas including Mexico City, simply because they were suspected of living with HIV.83 In many places, individuals are scared to disclose their status, and fear accessing testing, treatment or support. The consequences of disclosure could be dire. According to an international health service organization, assailants in a small town in Chiapas marked homes with spray-paint to indicate that people living with HIV resided there, so that other residents could avoid and ostracize them.84

In 2015, in Tijuana, in the Mexican state of Baja California, a judge refused to marry Rosario Padilla and her partner because Rosario was living with HIV. In many Mexican states, HIV tests are mandatory to obtain marriage licences, and the judge performing the marriage has access to the results.85

Mexican labour law prohibits employers from demanding HIV tests for employment, but staff at an international health-service organization told the IHRP that individuals are commonly barred from employment because of their HIV status, or their employment is terminated when their status is disclosed or discovered.86

Access to treatment, despite progressive legislation, remains difficult for many. A recurring problem is that many health professionals outside of CAPASITS refuse to treat individuals living with HIV, due to a misguided fear of exposure to the virus.87 Because all HIV knowledge, training and protocols are centered on care providers at CAPASITS, staff doctors from the Clinica Condesa told the IHRP that other healthcare providers throughout Mexico are often ignorant when it comes to HIV treatment and prevention.88

CAPASITS only operate in the capitals of Mexico’s 31 states and in Mexico City and, as a result, many individuals living with HIV are unable to travel to the Centres for every health concern or monthly checkups.89 When they attend other general medical clinics, they face stigma and discrimination, and are sometimes rejected outright from receiving care.90 According to the Executive Director of the women’s rights organization, Balance, persons living with HIV are often last to be seen, and forced to wait in a separate room, essentially quarantined from the other patients. In many cases, patients are required to come with their own medical supplies so as not to “contaminate” the clinics’ instruments.91 Such discrimination jeopardizes lives because healthcare practitioners sometimes refuse to perform surgery or regular checkups, such as pap smears, on individuals living with HIV, because of ignorance on how HIV is transmitted.92

In fact, according to staff doctors at Clinica Condesa, CAPASITS staff themselves often display ignorance and insensitivity toward patients living HIV, who rarely seek recourse because they consider they have no choice or rights.93 According to submissions from stakeholders to the United Nations’ most recent Universal Periodic Review of 13 HUMAN RIGHTS IN MEXICO

Mexico, there are no policies in place on comprehensive healthcare for LGBTI individuals and existing healthcare is particularly insufficient for LGBTI individuals living with HIV or other STIs.94

Alejandro Brito, the Executive Director of Letra S, a non-profit organization dedicated to the dissemination of human rights information about sexuality, health and society in Mexico, told the IHRP about a young man he was assisting who was in prison in Mexico City. When prison authorities refused to provide the young man with HIV treatment, Alejandro Brito intervened and was able to arrange a visit to a CAPASITS. However, the doctor at the CAPASITS told the young man that “when he was sent to prison he lost his right to treatment.”95 He now needs urgent medical attention because of an associated skin disease; it is only because his mother provided the necessary medication that he has survived.96

This case is particularly worrisome because it demonstrates the existence of discrimination at both the prison and the CAPASITS in Mexico City, where access to healthcare and health rights are ostensibly more respected.97 “How many of these cases are occurring without anyone’s knowledge?” Brito queried.98 Only one prison in Mexico City provides HIV treatment to prisoners: Santa Martha. This fact represents a stunning denial of the right to health and essential treatment.99

Stigma traumatizes many people living with HIV. As the Executive Director of Balance told the IHRP, “an HIV diagnosis is often seen as a death sentence because of insufficient or misinformed counselling and education.”100

Medical Healthcare Exemption in Canadian Refugee Law

Subsection 97(1)(b)(iv) of Canada’s Immigration Depending on the facts of a particular case, and Refugee Protection Act contains a medical a refugee claimant could show they face a exemption from refugee protection, which excludes personalized risk to their life as a result of Mexico’s consideration of the risk posed to a refugee claimant unwillingness to provide them with adequate when caused by “the inability of that country [of medical care for persecutory reasons, i.e., a denial origin] to provide adequate health or medical care.” of HIV treatment based on their sexual minority status, or because they were in prison. Despite The Federal Court of Appeal has held that: “If it Mexico’s clear commitment to offer “universal can be proved that there is an illegitimate reason healthcare” (Seguro Popular), the reality that some for denying the care, however, such as persecutory minority populations are denied healthcare could reasons, that may suffice to avoid the operation of support a positive refugee determination.102 the exclusion.”101

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1. LGBTI

The stigma and discrimination faced by the LGBTI community in Mexico renders them more vulnerable to HIV.103 Despite the country’s recently enacted laws and regulations to protect LGBTI rights, including a 2011 amendment to the Constitution to “prohibit discrimination on the basis of sexual preference,” such legislation has not translated into meaningful protection of the LGBTI population in Mexico. There are more than 70 federal and state laws in Mexico that explicitly reference discrimination, human dignity and equal protection.104 But, as one transgender activist told the IHRP, “the laws exist and everyone is waving the diversity flag but no one is implementing them, no one is practising anti-discrimination.”105

In April 2014, the Special Rapporteur on extrajudicial, summary or arbitrary executions reported an “alarming pattern of grotesque homicides of lesbian, gay, bisexual, and transgender (LGBT) individuals.”106 The Special Rapporteur highlighted the problem of broad impunity, coupled with “suspected complicity of investigative authorities” as a result of either a “total failure to investigate” or investigations misguided by “stereotypes and prejudice.”107 According to the Special Rapporteur, between 2005 and 2013, 555 homicides targeting individuals because of their sexual orientation or gender identity were reported. The CNDH learned of several cases in which police officers have been involved in homophobic attacks.108 The Special Rapporteur reported that Mexican authorities will often choose not to prosecute hate crime cases, labeling them as “crimes of passion”.109 The Special Rapporteur concluded that homophobic and transphobic violence is not isolated, but is instead “emblematic of patterns of conduct of some members of society and recurrent actions of certain public servants, including prejudices, dislikes and rejections, reflecting the existence of a serious problem of intolerance.”110 A 2010 national study compiled by Global Rights, International Human Rights Clinic at Harvard, the International Gay and Lesbian Human Rights Commission, and the Colectivo Binni Laanu indicated that 76.4% of LGBTI people in Mexico have experienced physical violence as a result of their sexual orientation or gender identity.111 According to the same study, 53.3% of LGBTI people report being assaulted in public spaces.112

Discrimination against LGBTI youth is also of concern. According to the Director of an LGBTI community centre in Mexico City, school administrators and staff stigmatize LGBTI students, sometimes leading to the students dropping out of school.113 While school-dropout is a widespread problem across Mexico, it is especially detrimental to LGBTI youth, and transgender youth in particular, who are more likely to self-isolate, remain unaware of their rights or how to exercise them, and face severe discrimination in employment.114

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Media Reflection of LGBTI Reality in Mexico

The Mexican media’s portrayal of the reality Commercial media underplays homophobia and for LGBTI people in Mexico is problematic and hate crimes and twists the discourse on human misleading, according to Alejandro Brito, the rights protection for LGBTI people.118 According Executive Director of Letra S. Journalists refer to Human Rights Watch, journalists often self- to murders of LGBTI individuals as “crimes of censor their reporting of all violence because of passion,” when in reality they are hate crimes.115 attacks against them by government officials and Murders of transgender women receive especially organized criminal groups. Similarly, journalists are scant media coverage.116 The media publishes likely to underplay criticisms of the criminal justice graphic images of victims’ bodies, which some have system because of the government’s continued suggested may desensitize the public to scenes of financial influence over the media.119 horrific violence against the gay community.117

Transgender Women120

The majority of experts the IHRP interviewed identified transgender women as the population in Mexico most vulnerable to physical, emotional and health risks, including HIV. A staff member at an international health-service organization told the IHRP the life expectancy of transgender women in Mexico is significantly lower than the life expectancy for cisgender women in Mexico, which is 79 years.121 Transgender women are especially vulnerable if they are also migrants, sex workers, homeless or street-involved.

Despite some legislative victories, such as laws implemented to remove administrative obstacles for transgender individuals changing their gender on identity documents, the transgender community faces a hostile and dangerous environment throughout Mexico. This is particularly true for transgender women.122 There are a significant number of unsolved murders of transgender women in Mexico, a phenomenon activist Ricardo Roman identified as the “maximum expression of the rejection of the transgender identity.”123 Access to justice is virtually non-existent for transgender women, and crimes against them are almost always committed with impunity.124

Beyond hate crimes, transgender women face daily discrimination in Mexico. Stigma against transgender women, especially in the realm of employment, remains real.125 Several activists and journalists told the IHRP that the only employment options for transgender women are: sex worker, hair stylist, or “night-time entertainer.”126 Mexico City offers no respite, as even in that so-called “progressive oasis,” the private sector is opposed to hiring transgender women. The cycle of vulnerability continues in Mexico City because the only way transgender women can support themselves is on the fringes of society, where they are criminalized, incarcerated and vulnerable to abuse.127 As staff at the Program for Human Rights in Mexico City stressed, there is still a likelihood that certain individuals are

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arbitrarily arrested because of how they look.128 Such treatment is compounded by family and community rejection, commonplace in Mexico’s largely traditional, Catholic society.129

Transgender women and access to healthcare

The 2014 UNAIDS Gap Report — investigating people left behind by global HIV-prevention strategies — highlights the fact that due to a lack of identity documents, increased risk of violence, and exclusion from education, employment, and healthcare, transgender individuals face an increased vulnerability to HIV.130 Transgender women have a much higher HIV-prevalence rate of between 16% and 17% compared with 0.2% for the general population.131 In a 2012 study of transgender women in Mexico City, public health researchers found a “very worrisome combination” of factors, including “very high HIV prevalence, low demand of HIV testing and low awareness of HIV status, as well as sexual risk behaviour with multiple partners.”132

Access to healthcare is an ongoing difficulty for transgender populations in Mexico, particularly for transgender women. Because of profound discrimination in the healthcare system, transgender women are more likely not to receive treatment for their HIV until it has already developed into AIDS, which imperils their health.133 Seguro Popular is inaccessible to most transgender women, largely because most do not have identification. In most cases, transgender women lack identification because they do not want to be associated with their past identities or they have lost their identification while incarcerated. In general, because of the vulnerabilities associated with being transgender in Mexico and the high likelihood of police involvement, the expectation that a transgender woman will retain identification is unrealistic.134 According to the Executive Director of Clinica Condesa, Dr. Andrea Gonzalez, her clinic has never treated a transgender woman from Mexico or from elsewhere in Central America who has her identity documents.135 While transgender women might carry one piece of identification, they almost never have sufficient records to meet requirements to access Seguro Popular.136 Moreover, the IHRP learned that even when transgender women do have the requisite identification, health providers at health centres treat and refer to them as the gender indicated on their birth certificate or other identification, rather than their self-identified gender.137

In 2012, Mexico City enacted the Law for the Prevention and Comprehensive Care of HIV/AIDS of the Federal District, guaranteeing the elimination of barriers to equal healthcare for individuals living with HIV and for populations at heightened risk of infection, including transgender people.138 However, there are no protocols about how this law should be enforced or details concerning how transgender individuals might access HIV treatment.139 Across the country, transgender women experience the greatest difficulties of any other group in accessing treatment and healthcare, and they continue to face discrimination from health authorities.140

Crimes affecting the dignity and security of transgender people are rampant in health centres.141 Because of their often- fraught relationship with law enforcement, many transgender people in need of healthcare are reluctant to enter hospitals because of police officers posted at facility entrances.142 As two transgender activists told the IHRP, sexual minorities are harassed or abused by police and so avoid them, even to the detriment of their health, because of a fear they will be targeted and expelled from the hospital, or arrested.143 Police have been known to send transgender women away from hospitals, but even if they manage to enter, they face discrimination from authorities and others at the hospital.144 17 HUMAN RIGHTS IN MEXICO

Gay Men and Other Men Who Have Sex with Men

Despite improvements, gay men and other men who have sex with men (MSM) in Mexico are disproportionately affected by HIV and continue to encounter obstacles accessing consistent and quality healthcare.145

Gay men and MSM are still victims of homophobia and violent hate crimes in Mexico. In September 2015, in what was attributed by some as retaliation for the Supreme Court’s June 2015 decision to legalize gay marriage, emergency room doctors in Mexico City reported treating an increase of gay male patients suffering physical abuse.146

Gay men and men who have sex with men and access to healthcare

Among LGBTI populations, gay men and MSM generally have the least difficulty accessing healthcare in Mexico.147 Nonetheless, as seen below, there are also worrying trends within these communities.

MSM in Mexico have an HIV-prevalence rate of 17.3%,148 but they have the lowest rate of testing.149 This disparity has much to do with a lack of education targeting MSM who do not identify as gay. MSM can include a wide variety of individuals including men who are gay or bisexual, transgender men, and men who identify as heterosexual.150 The Director of HIV programs of CNDH told the IHRP that most HIV campaigns are targeted at gay men, neglecting MSM.151 Stigma, social exclusion, violence and discrimination remain rampant in Mexico, and MSM are therefore more likely to engage in unsafe and illicit sex and are at higher risk of infection.152

Several experts interviewed by the IHRP highlighted a worrying decrease in HIV testing and in the use of prevention methods among both young gay men and young MSM.153 These statistics may reflect, in part, a belief among many members of the younger generation that the HIV epidemic only affects older men. 154 Many in Mexico have not seen anyone die of AIDS as more people living with HIV have longer and healthier lives.155 However, the belief that HIV can be “fixed” through treatment neglects the fact that HIV — left untreated — can be a deadly disease, putting individuals at risk for a host of other health problems, including dementia, kidney disease and diabetes.156

2. Women and Girls

Women and girls remain vulnerable to human rights abuses in Mexico despite the Mexican government’s strides in improving laws to protect women’s rights.157 Implementation of these protections is lacking and, as a result, women experience poorer health, are more economically insecure and face higher rates of violence than men.158 Women are less likely than men to be formally educated and they face greater inequality and discrimination in the workplace.159 Women, for example, are still fired from their jobs for pregnancy.160 In fact, this practice is the source of the highest number of human rights complaints in Mexico City.161

According to CNDH, violence against women is a persistent problem in Mexico.162 Human Rights Watch reports that Mexican laws do not provide adequate protection for women and girls who are vulnerable to domestic and sexual 1816 HUMAN RIGHTS IN MEXICO

violence. As a result, victims will generally not report abuses or if they do, they will encounter “suspicion, apathy and disrespect.”163 The UN Special Rapporteur on extrajudicial, summary and arbitrary executions reported in April 2014 on the persistence of often fatal violence against women and the impunity for perpetrators, despite progressive legislation concerning violence against women in Mexico.164 There are few services, such as counselling and support groups, to address violence against women outside of Mexico City, and no specific services geared toward violence against lesbian, bisexual or transgender women victims of violence.165

The Committee against Torture and the Committee on the Elimination of Discrimination against Women (CEDAW) have both highlighted concerns that women “continue to be the victims of gender-based murders and disappearances” despite the establishment of legal means of protection.166 According to both Committees, impunity persists with respect to the “investigation, prosecution and punishment of perpetrators of acts of violence against women across the country.”167

According to the 2012 CEDAW report, prepared for the UN’s Universal Periodic Review of Mexico, violence against women, including rape, femicide and enforced disappearance, is prevalent in Mexico, especially in regions where the army or law enforcement are conducting operations against organized crime. These cases are rarely reported to authorities because of fear of retaliation and a lack of standardized procedures for responding to complaints, conditions which, according to CEDAW and the Inter-American Court of Human Rights, “hamper the right of victims to access to justice and leave a high proportion of cases unpunished.”168 Between 2006 and 2012, six femicides occurred every day in Mexico, but between 2012 and 2013, only 24% of the murders were investigated by authorities and only 1.6% of those cases led to conviction and sentencing.169

Women living with HIV are particularly susceptible to human rights abuses in Mexico. The IHRP heard reports that healthcare officials forcibly sterilize women living with HIV.170 Among Nicaragua, El Salvador, Honduras, Guatemala and Mexico, a 2012–2013 study found that Mexico has the worst rate of forced sterilization for women living with HIV, with 28% of respondents reporting that health authorities had pressured them to get sterilized.171 The Ethical Committee of Puebla’s State General Hospital has an unwritten rule that all women living with HIV who seek medical care must be sterilized to prevent vertical transmission (parent-to-child HIV transmission) in the event of pregnancy.172 In the state of Morelos, healthcare workers fabricated a fake consent for a caesarian section for a woman living with HIV, while she was under the effects of anesthesia, by taking an unauthorized imprint of the woman’s fingerprint. She had not provided her consent and woke to find her thumb stained with ink.173 As seen in countries like Canada, where vertical transmission is almost non-existent, proven scientific measures exist — for example, anti-retroviral treatment regimens — that do not involve such serious violation of a patient’s human rights.174

Women and girls and access to healthcare

Machismo culture is prevalent in Mexico and sexism permeates society, especially concerning access to healthcare.175 There has been some progress in the sphere of maternal health, but stark differences persist throughout the country. According to a report on maternal health in Mexico, maternal mortality rates are high among “less educated, poor, rural, and Indigenous women,” reflecting “on-going inequalities in access to affordable, quality, and culturally appropriate maternal health services.”176 19 HUMAN RIGHTS IN MEXICO

Discrimination in healthcare for women is exacerbated by stigma against people living with HIV for those more than 31,000 women living with HIV in Mexico. This number currently represents 18% of the epidemic, with 80% of women infected through heterosexual sex, most with a regular partner.177

Women living with HIV in Mexico are a vulnerable population because they often have less formal education than men and are contending with high discrimination and stigma.178 Forty-five percent of women living with HIV reported that healthcare personnel violated the confidentiality of their HIV diagnosis.179 The Director of Balance told the IHRP of many women who indicated that health personnel disclosed their HIV status to their husbands or the men in their family before disclosing it to them. This type of breach, embedded deeply in a culture of gender discrimination, has far-reaching consequences for women’s health, security and sense of self.180

Almost 60% of women living with HIV in Mexico do not have any medical insurance and therefore must rely on Seguro Popular.181 As Dr. Jeremy Cruz, psychologist at Clinica Condesa in Mexico City told the IHRP, health services for women in Mexico are limited and providers are ill-equipped to provide women with the necessary mental health and gender-sensitive care, alongside their HIV treatment.182 The provision of HIV treatment for women must take into account stigma in communities and homes, and the risk of gender-based violence as a result of diagnosis. In fact, 44.1% of women in Mexico experience gender-based violence connected to their HIV status, which affects their adherence to treatment and their physical and mental well-being.183

Government efforts to educate Mexicans about sexual and reproductive health are seriously lacking.184 In particular, women’s sexual health needs have largely gone unheeded because of sexism within the healthcare system.185 The lack of education on sexual and reproductive health is significant; according to Eugenia Lopez, the Executive Director of Balance, a survey of female community leaders showed that a majority of respondents thought condom- use caused pregnancies.186

Healthcare providers reportedly do not provide their patients living with HIV with necessary information about maintaining a healthy sexual life.187 According to a 2015 report by UNAIDS, the Inter-American Commission of Women (CIM) and the Organization of American States (OAS), only 14.2% of surveyed women living with HIV reported receiving counselling on their reproductive choices (compared to, for example 54.9% in Honduras).188 As a result, many women, in some cases traumatized by the way their healthcare provider has treated them, believe that their diagnosis is the end of their sexual and romantic lives.189 Without appropriate counselling from a doctor, they self- isolate and sometimes leave their jobs and families.190

Healthcare providers have denied birth control options to women living with HIV.191 Instead of informing their patients about how to avoid HIV transmission in child-bearing, healthcare professionals have instructed their patients to practise abstinence. As the Executive Director of Balance told the IHRP, “the worst thing a woman living with HIV can do in the eyes of healthcare practitioners in Mexico is have sex and reproduce.”192

Mexico is failing to link sexual and reproductive health with HIV, and hence contributing to increased transmission. Because women are perceived as low risk, HIV testing is not always offered during prenatal care, which means that 20 HUMAN RIGHTS IN MEXICO

many women are not diagnosed, remaining invisible to healthcare providers and policymakers.193 As of 2015, only 58% of pregnant women were tested for HIV in Mexico — far below other countries in the region, such as El Salvador, Guatemala and Honduras, where the testing figures are 80% and higher.194

Lesbian and bisexual women face the same obstacles in accessing rights-based comprehensive care as the larger population of cisgender women in Mexico; however, these obstacles are exacerbated by their sexual minority status. Human rights have improved for lesbians and bisexual women in Mexico over the last few decades, but they remain an outsider group, vulnerable to marginalization. This status in turn makes them less able to access HIV treatment and care.195 Ongoing discrimination and a lack of training for healthcare professionals result in services that are blind to the particular needs of the lesbian and bisexual population. In research undertaken by the women’s rights organization Balance, among 20 lesbian women, many reported being refused a pap smear because they identified as lesbians. This type of ignorance jeopardizes women’s lives, overlooks medical issues that are crucial to lesbian and bisexual health, and also makes women from sexual minorities feel excluded from the healthcare system.196

3. Sex workers

Sex workers are particularly vulnerable to abuse and violence from many segments of Mexican society, both state and non-state actors.197 The hierarchy of power and control over sex workers globally means that human rights violations against sex workers are almost always perpetrated with impunity.198

Sex workers and access to healthcare

As sex workers in Mexico face increasing criminalization as a result of the Programa Frontera Sur (the “Plan”), their ability to access quality healthcare has diminished.199 Federal law has officially decriminalized the sex trade, but most local governments have not reformed their policies accordingly.200 Moreover, with the Plan, sex work nationwide has become associated with human trafficking, putting sex workers and those assisting them at risk of being criminalized.201 Activists from Mexico City told the IHRP that the Plan goes directly against what civil society and aid groups have been striving to achieve for years, which is recognition of sex work as legitimate work.202

Rights advocates told the IHRP that sex workers have limited access to the healthcare system in Mexico; they are not provided with any reproductive or health education.203 Knowing they will receive inadequate care, and fearing identification and arrest, sex workers tend to avoid healthcare services.204

Etty, a leader in the sex worker community for over 30 years and the matron of Casa Xochiquezal, a home for elderly sex workers in Mexico City, told the IHRP how she recently enlisted help from priests to bring a young and very ill sex worker to the hospital. When Etty followed up hours later, she found the hospital had refused to admit the girl. It was only after hours of challenging the hospital administration and proving that she had connections to the police that the hospital finally agreed to let Etty into the emergency room, where she found the young girl unattended and nearly unconscious on the floor. Even then, Etty had to speak to several doctors before convincing one of them to care for the girl.205 21 HUMAN RIGHTS IN MEXICO

Cisgender female sex workers in Mexico have an HIV-prevalence rate of 0.67%, almost three times the national average for the general population.206 Male sex workers in Mexico have a prevalence rate of 24.1%.207 Because of discrimination and stigma, they may be conducting their work in precarious circumstances, leading to unsafe sexual encounters, diminished access to healthcare, STI prevention education and services, and increased vulnerability to HIV.208

Many sex workers are also homeless or street involved, which limits their access to healthcare and treatment, consequently increasing their risk of HIV transmission.209 Street-involved and homeless populations are largely invisible in Mexico. There are no public policies in place to support or assist these populations and no data about their numbers or their needs.210 As far as the government is concerned, they do not exist because they do not have identification or a residence.211

The impact of the Plan on HIV-prevalence rates among sex workers has not yet been documented, but it is expected to be significant. The Plan has jeopardized all HIV-prevention services for sex workers, especially along the Guatemala–Mexico border.212 Those who attempt to implement HIV-prevention programs for sex workers face the danger of being labeled “traffickers” and facing criminal charges.213 There is substantial evidence that the criminalization of sex work, whether official or perceived, increases vulnerability to HIV by impeding HIV prevention and response.214

Migrants and Access to Healthcare215

Migrants in Mexico are extremely vulnerable to forced many tens of thousands are escaping violence disappearances, police brutality, “transactional sex, and persecution in their countries of origin. Despite survival sex and non-consensual sex,” and destitution, being a signatory to the Refugee Convention making them vulnerable to HIV infection.216 According and the 1967 Additional Protocol on the Status to the Inter-American Commission on Human Rights of Refugees (1967 Protocol), Mexico fails to offer (IACHR), “the extreme vulnerability to which migrants asylum to those in need of protection because of and other persons fall victim in the context of human a broken asylum system, and Mexican policies mobility in Mexico is one of the worst human tragedies such as the Programa Frontera Sur increase the in the region today.”217 vulnerability of these would-be refugees by forcing them to transit through Mexico along dangerous According to estimates, about 300,000 people routes, in order to claim asylum elsewhere.219 migrate to Mexico annually.218 Of these migrants,

22 HUMAN RIGHTS IN MEXICO

Migrants and Access to Healthcare (continued)

Migrants face abuse from the local population Even Mexican migrants in the northern border and authorities alike. According to the IACHR, region have poor access to healthcare. A 2015 the Mexican State’s response to migrant abuse study of HIV monitoring of Mexican migrant flows has been “patently inadequate” and detention traveling across the Mexico–United States border has become the rule rather than the exception.220 indicated “unacceptably low” HIV-testing rates and In 2014, Mexican authorities detained 107,814 an urgent need for “vigorous efforts to improve HIV migrants, a 35% increase from the previous year.221 diagnosis and engagement in HIV care among Mexican migrants.”223 Despite a national law that guarantees migrants access to healthcare regardless of their status, the reality is that migrants are unable to access healthcare in Mexico.222

4. People who Inject Drugs

Intravenous (IV) drug use has become a significant problem in recent years in Mexico, and it is especially concentrated along the northern border.224 According to the Director of an NGO that provides harm reduction services in Tijuana, many drug users in the region were deportees from the United States who had decided to stay to make money before attempting to cross the border again. As a result of minimal work opportunities, however, many of these deportees end up living on the streets, and are susceptible to depression and heroin addiction.225 Without access to harm reduction services such as sterile needle and syringe distribution programs, IV drug use increases their risk of HIV infection. In many cases, access to healthcare remains elusive.226

Simultaneous vulnerabilities of sex work, homelessness or street-involvement, and migration combine to make people who inject drugs particularly susceptible to human rights violations, against which they have minimal recourse to justice.

According to the NGO INSPIRA, a community organization with a decade’s experience of working with LGBTI people, people living with HIV and people who inject drugs, “it’s a fact that drug users are accosted by police.”227 Typically, people who inject drugs are picked up by the police, thereby losing their money and possessions (including any identification they may have).228

In a rare public effort to bring police to account for their treatment of people who inject drugs, the harm reduction network, Redumex, filed a complaint with the National Commission against Discrimination concerning the Tijuana police in March 2015.229 The complaint included 37 pages of testimonials of human rights violations.230 By order of the Tijuana mayor, who was planning to run for governor, local authorities forcibly displaced a population of drug users from the banks of a canal to so-called “rehab” centres (where there was no guarantee of food or rehabilitation) or to their city of origin.231 As of publication, there has been no official response to the complaint.232

23 HUMAN RIGHTS IN MEXICO

People who inject drugs and access to healthcare

As the number of people who inject drugs has risen, so has the HIV-prevalence rate among them. Recent statistics provided to the IHRP in June 2015 by the Director of HIV programs with CNDH indicate that the HIV- prevalence rate among people who inject drugs is 2.5% and rising.233 However, because people who inject drugs do not have consistent access to healthcare, it is likely this statistic is not representative.234

People who inject drugs face substantial barriers in accessing healthcare in Mexico. Most do not have identification, in many cases because the identification has been confiscated or lost, or intentionally discarded, to avoid association with their past identity or criminal record.235 In addition, police presence at hospitals tends to dissuade people who inject drugs who need healthcare from attempting to access it.

Often, as with other vulnerable groups, people who inject drugs need to be accompanied by an advocate in order to access healthcare.236 However, even if they get access, discrimination by hospital authorities results in people who inject drugs not remaining in care or failing to receive the comprehensive attention to which they have the right.237 There are numerous reports that hospitals lack respect and sensitivity toward, as well as protocols geared to, people who inject drugs. This includes failing to provide pregnant women or their newborn babies with methadone treatment during labour.238

In 2009, Mexico’s federal government passed a law to divert individuals arrested for possession of small amounts of drugs from the penal system to addiction treatment. However, there has not been meaningful implementation of the intended scale-up of addiction treatment access. According to a 2011 National Household Survey, only 18% of drug-dependent individuals were in treatment.239

The Mexican government also does not provide sufficient harm reduction services, HIV/STI prevention or sexual and reproductive health education. Coverage is improving thanks to funders such as the Global Fund to Fight AIDS, Tuberculosis and Malaria, which provides 77.6% of all syringes distributed to people who inject drugs in Mexico. Government syringe programs remain “under-resourced and insufficient” and access to these programs is hampered by drug laws that continue to criminalize individuals possessing small amounts of drugs.240 In particular, the paucity of harm reduction services, such as needle and syringe programs, increases the possibility of HIV and hepatitis C virus (HCV) transmission through needle sharing.241 More broadly, the criminalization and vulnerability of people who use drugs makes adherence to HIV treatment (when accessible) very difficult. The IHRP was told of incidents where police have raided sleeping areas used by people who use drugs and discarded their HIV medication.242

24 HUMAN RIGHTS IN MEXICO

Indigenous Populations and Access to Health

Indigenous populations are marginalized in Access to healthcare is a significant problem Mexico and have difficulty accessing even for Indigenous populations.247 According to the basic medical care, not to mention reliable Program of Human Rights for Mexico City, which HIV treatment.243 According to the 2013 United tracks compliance with government mandates, the Nations Universal Periodic Review on Mexico, government has failed to target or reach Indigenous 70.9% of Indigenous people live in poverty, populations for HIV-prevention efforts.248 In fact, affecting every aspect of daily life.244 Indigenous groups face substantial barriers in accessing any kind of healthcare.249 The health There is widespread discrimination against centres that purport to serve the Indigenous Indigenous populations throughout Mexico. A population are not geographically proximate to 2013 poll concerning discrimination in Mexico City them.250 Moreover, health centres in these areas revealed that most people consider the Indigenous lack infrastructure and experienced staff.251 population as the most discriminated group in the city.245 The government tends to overlook Indigenous peoples and considers them important only when they live on profitable, resource-rich lands.246

25 26 CANADIAN ASYLUM POLICIES AND DESIGNATED COUNTRIES OF ORIGIN III. CANADIAN ASYLUM POLICIES AND DESIGNATED COUNTRIES OF ORIGIN

A. Canada’s International Legal Obligations

Canada is a signatory to the Refugee Convention, and the 1967 Protocol.252 Under the Refugee Convention, Canada has a duty to recognize as a refugee any individual residing outside his or her country of nationality, who is unable or unwilling to return because of a “well-founded fear of persecution on account of race, religion, nationality, membership in a political social group, or political opinion.”253 Once recognized, refugees are entitled to legal status and protection in Canada.

A cornerstone of international refugee law and one of the most fundamental articles of the Refugee Convention is the principle of non-refoulement.254 Non-refoulement is the right to not be returned to experience persecution or danger based on one of the five Convention reasons, above.255

In addition to the obligation to recognize refugees and the prohibition against non-refoulement, as signatory to the Refugee Convention, Canada has a duty not to discriminate against refugee claimants by reason of “race, religion or country of origin.”256

B. Designated Countries of Origin

Canada’s previous federal government circumvented its legal obligations to refugees. In December 2012, Bill C-31: Protecting Canada’s Immigration System Act substantially changed Canada’s refugee determination system.257

Bill C-31 gave the Minister of Citizenship and Immigration the power to identify certain countries he considered presumptively safe as “Designated Countries of Origin” (DCOs) for the purpose of deciding asylum claims.258 Canada added Mexico to the DCO “safe” list in February 2013.259 As of April 2016, there were 42 countries on the DCO list.260

Until July 2015, refugee claimants from DCO countries were barred from access to appeal a negative refugee determination to the newly created Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB). It was also possible to deport failed DCO claimants from Canada immediately after a negative decision on their refugee claim; they did not have a right to an automatic suspension of deportation when they pursued review of a negative decision at the Federal Court.261 The lack of access to the RAD had far-reaching consequences: an August 2015 Osgoode Legal Studies Research Paper reported that over 25% of failed refugees succeed on appeal at the RAD, indicating a high number of flawed decisions at the IRB.262

In Y.Z., the Honourable Justice Boswell found that the RAD bar for claimants from DCO countries contravenes section 15 of the Canadian Charter of Rights and Freedoms (the right to equality and non-discrimination).263 The decision results in failed claimants from DCO countries being able to file an appeal to the RAD, which includes a suspension of

28 CANADIAN ASYLUM POLICIES AND DESIGNATED COUNTRIES OF ORIGIN

deportation from Canada while seeking this appeal.264 While the government launched an appeal of Justice Boswell’s decision to the Federal Court of Appeal, following the fall 2015 election, the new Liberal government discontinued that appeal, leaving Justice Boswell’s decision, and its positive implications for DCO claimants, intact.265

DCO refugee claimants were also denied access to publicly funded healthcare under the Interim Federal Health Program (IFHP), with the exception of care required to treat a medical condition deemed to pose a risk to public health. This “public health and public safety” coverage included anti-retroviral medications and other HIV-related care.266

As of April 1, 2016, the Liberal government has reinstated full IFHP coverage for all refugees. This means that claimants from DCO countries will have the same level of healthcare as all other refugee claimants.267

Finally, the Liberal government has promised to institute an “expert human rights panel” to determine DCO designations.268 As of April 2016, the specifics of such a panel’s composition and the process for DCO designation (and de-designation) have not been announced. With or without input from such a panel, the government of Canada has the authority to remove Mexico from the DCO list.

C. Impact of Designated Country of Origin

In a 2012 report, the United Nations High Commissioner for Refugees (UNHCR) submitted that designating a country as “safe” for the purposes of expediting asylum applications is not prima facie problematic.269 However, such a designation would need to be used only in “carefully circumscribed situations” and be based on “reliable, objective and up-to-date information from a range of sources,” including compliance with human rights instruments and openness to human rights monitoring.270 Importantly, UNHCR highlighted that a designation of a country as safe cannot establish a guarantee of safety for all residents of that country.271

While the appointment of an expert human rights panel may reduce concerns about DCO designations being arbitrary or made without proper consideration, the DCO system remains problematic, particularly for its impact on claimants who are living with or vulnerable to HIV infection. Despite DCO claimants now having access to the RAD and healthcare through the IFHP, other obstacles to full access to justice and procedural fairness exist for claimants from designated “safe” countries.

A country that may be safe for the majority of the population may be unsafe for certain minority groups.272 The success rate of sexual orientation claims for countries that do not otherwise produce a great number of Convention Refugees is illustrative of this fact (see Appendix A, Table II). A country that appears politically progressive — i.e., has legislated protection for human rights and has ratified international instruments — may not have protocols or resources to ensure enforcement and protection of these rights.

This is particularly true for populations that have traditionally been marginalized, such as populations living with HIV and those from groups at high risk of infection. This includes populations that, for reasons of their gender, sexuality, 29 CANADIAN ASYLUM POLICIES AND DESIGNATED COUNTRIES OF ORIGIN

citizenship status, or social class, are made all the more vulnerable by their HIV status and are not adequately protected by the government. Such populations tend to be stigmatized, criminalized and discriminated against, and are often rendered invisible in statistics purportedly representative of a larger population.273

Refugee claimants with fears based on their sexual orientation or gender identity face legal obstacles that can be compounded by coming from a DCO country and living with or being vulnerable to HIV.274 A claimant from a DCO country has half the time to prepare for their refugee hearing after filing their Basis of Claim form — that is, 30 days as opposed to 60 days for all other claimants.275 Because of the sensitive nature of claims based on sexual orientation, sexual minority status or gender-based violence, there are many factors that contribute to challenges in presenting these claims within the shortened time frame set out in the DCO regime. After what may be years of hiding their identity or being silent about gender-based or sexual abuse, many do not feel safe enough immediately upon arrival to share such information or acquire documentary evidence from their countries while seeking legal representation and navigating a new country.276 Many experts note that claimants may not make important disclosures to their lawyers in one meeting; often it takes months to establish trust.277 This is particularly true for claimants who have experienced trauma or who are not comfortable disclosing previous sexual violence, their sexual orientation or HIV status.

An additional factor is that some claimants may only discover their HIV status when they complete the required Immigration Medical Exam (IME).278 Claimants must then cope with their diagnosis and disclose this status to their counsel in an extremely short time frame. The shortened time frame for DCO claimants raises the risk that claimants living with HIV will not have the time to disclose their status to their lawyer, resulting in their health status not being pursued as a ground of risk at their refugee hearing.

Another impact of designation is that failed claimants from DCOs cannot apply for a Pre-Removal Risk Assessment (PRRA) for 36 months after their refugee claim is denied, compared with the 12-month bar on PRRAs for other claimants.279 The PRRA presents an opportunity for failed refugee claimants to show that they face a risk in their country based on new evidence arising after their refugee claim was refused. The risk assessment is of particular importance for claimants who may not have been able to disclose their HIV status, past sexual or gender-based violence, or sexual orientation in their initial refugee claim, and fear persecution if returned to their country.

D. Mexico’s Designation

The designation of “safe” signals to the IRB member the Minister’s opinion about refugee claims from Mexico, which could affect a claimant’s chance of success at having their claim accepted in Canada.280 As Justice Boswell stated in the Y.Z. decision, the distinction between DCO and non-DCO claimants is “discriminatory on its face,” serves to “marginalize, prejudice, and stereotype” DCO claimants and perpetuates a stereotype that they are “somehow queue-jumpers” or “bogus,” that they only came here to take advantage of Canada’s refugee system and its generosity.281

30 CANADIAN ASYLUM POLICIES AND DESIGNATED COUNTRIES OF ORIGIN

Under the current designation scheme, “safe” countries are supposed to recognize “basic democratic rights and freedoms” and provide “mechanisms for redress if those rights or freedoms are infringed,” in order to be reviewed for possible designation.282 As discussed throughout this report, the IHRP’s research has found that progressive and inclusive Mexican laws confirming basic democratic rights and freedoms do not translate into access to those rights or access to redress for violations of those rights for people living with HIV or those at heightened risk of infection.

31 32 RECOMMENDATIONS IV. RECOMMENDATIONS

To the Canadian government and lawmakers:

Human Rights for Vulnerable Groups in Mexico

1. If the Canadian government retains a Designated Country of Origin list, it should immediately remove Mexico from the list.

2. Canada should urge Mexico to ensure full, prompt, effective, impartial and diligent investigation and prosecution of homicides perpetrated against women, migrants, journalists, human rights defenders, children, inmates and detainees, people who use drugs, and LGBTI people, to end the impunity for perpetrators.

3. Canada should offer support to Mexico to implement training for all police, prosecutors, border control and judicial authorities on HIV, gender identity, sexual orientation, gender-based violence, sex work, drug use and harm reduction. (Canada has some relevant experience and resources on some of these issues, but should also enhance such training domestically for its own police, prosecutors and other authorities on these issues, where it is absent or inadequate.)

4. Canada should actively participate in regional and global initiatives that work to amplify the voices of LGBTI activists in Mexico, just as it should support such initiatives around the world.

5. Canada should offer assistance to Mexico for LGBTI movement-building, including core and program support to organizations working in areas such as health, community development, and engagement of religious leaders and institutions, to assist in mobilizing key constituencies speaking out in support of human rights for LGBTI people.

6. Canada should ensure that LGBTI rights are systematically integrated into other international development and human rights funding programs in Mexico, such as those to alleviate poverty, protect against discrimination, promote civil liberties, address gender-based violence, and/or promote health (including HIV prevention, treatment and support, and sexual and reproductive health more broadly).

Access to HIV Health Services in Mexico

7. Canada should urge Mexico to stop criminalizing HIV-prevention work under the Programa Frontera Sur. Condom distribution can save lives; treating healthcare activists as traffickers undermines the health and human rights of all Mexicans.

8. Canada should urge Mexico to take steps to address discrimination in healthcare services, and to ensure access to ARVs for persons living with HIV. Canada should offer assistance to Mexico in

34 RECOMMENDATIONS

developing protocols for healthcare professionals to ensure equal and consistent access to Seguro Popular, with particular emphasis on the rights of sexual minorities, women and girls, sex workers, people who use drugs, migrant communities, Indigenous communities, people in prison and other forms of detention, and persons living with HIV.

9. Canada should urge Mexico to live up to its international obligations to ensure widespread availability of adequate HIV-prevention and care information, quality HIV-prevention measures and services, and safe and effective medication at an affordable price for all Mexicans, particularly marginalized populations.

10. Canada should encourage Mexico to provide access to HIV treatment for persons living with HIV in prisons throughout the country, pointing to Mexico’s obligations under international law and international guidelines on prison health.

11. Canada should offer assistance to Mexico to create more harm reduction programs for people who use drugs.

12. Canada should offer assistance to Mexico to create specialized healthcare services for transgender people throughout Mexico.

13. Canada should urge Mexico to expand HIV testing during prenatal care, ensuring that any such testing is voluntary and carried out with women’s informed consent as well as pre- and post-test counselling, consistent with international guidelines on HIV testing.

14. Canada should urge Mexico to prohibit the use of forced sterilization of women, including women living with HIV, as a profound human rights violation, denounced by numerous international human rights bodies and contrary to international human rights law.

15. Canada should work with the government of Mexico and international organizations to address the urgent need for information and educational resources concerning sexual and reproductive health for all Mexicans.

16. Canada should work with the government of Mexico and international organizations to address the urgent need for HIV-prevention education initiatives for populations living with HIV and at risk of infection, as well as education initiatives to promote awareness of human rights, including the right to medical treatment and the right to voluntary and confidential HIV testing with pre- and post-counselling.

17. Canada should urge Mexico to implement legal support services that will educate people living with and affected by HIV about their rights, and provide free or affordable legal services to enforce those rights.

35 36 APPENDIX A: TABLES V. APPENDIX A: TABLES

Table 1: Mexican Refugee Claims Made in Canada 2005–2014283

Claims Accepted Rejected Abandoned Withdrawn Claims Pending found eligible & other finalized for a refugee hearing284

2014 86 94 188 10 34 326 205 2013 110 182 683 65 83 1013 450 2012 382 568 2144 112 198 3022 1372 2011 763 1042 4184 284 600 6110 3997 2010 1299 653 3437 331 1406 5827 9322 2009 9296 516 3382 419 1748 6065 13873 2008 8069 606 3368 353 1327 5654 10681 2007285 7028 378 2132 262 842 3614 8243 2006 4948 931 1693 153 506 3283 4827 2005 3541 697 2286 225 471 3679 3174

Table II: Sexual Orientation versus All Claim Types, Selected Countries 2004—2007286

Country Claim Type Accepted Rejected Recognition Rejection Rate Rate

Sexual Orientation 24 8 75.0 29.4 India All Claims 697 1,321 34.5 74.4

Sexual Orientation 38 18 67.9 34.5 Jamaica All Claims 134 481 21.8 80.9

Sexual Orientation 21 10 67.7 36.4 St. Lucia All Claims 122 389 23.9 79.0

38 APPENDIX B: METHODOLOGY VI: APPENDIX B: METHODOLOGY

For sixteen days in June/July 2015, the IHRP conducted field research in Mexico to assess whether Canada’s 2013 declaration that Mexico is a “Designated Country of Origin” — a safe country — was valid for those living with or vulnerable to HIV. The IHRP conducted a total of 34 interviews with 50 doctors, academics, journalists, activists, and human rights defenders throughout Mexico to investigate possible human rights violations against individuals living with HIV and those who have experienced discrimination as a result of their marginalized or criminalized status, rendering them vulnerable to HIV infection.

In addition, the IHRP conducted four interviews in Canada with researchers and advocates to highlight the impact of Canada’s policies on vulnerable groups.

All interviews adhered to strict confidentiality principles and were conducted using an open-ended questionnaire. The interviewees were fully informed about the nature and purpose of the report, and the manner in which their information would be used. They were also explicitly provided the option of not participating or remaining anonymous in the final report. The interviewees were not provided incentive in exchange for participation. The interviews were conducted in person with the exception of approximately six interviews, which were conducted either by Skype, phone or e-mail.

The IHRP provided for review an advance copy of the report and recommendations to our Advisory Committee:

Canadian HIV/AIDS Legal Network / Réseau juridique canadien VIH/sida Canadian Doctors for Refugee Care (former) HIV & AIDS Legal Clinic Ontario (HALCO) Refugee Law Office, Legal Aid Ontario (LAO)

40 ACKNOWLEDGMENTS ACKNOWLEDGMENTS

The IHRP would like to express our gratitude to the academics, journalists, human rights defenders, doctors and activists in Mexico who spoke to us for this report. We would also like to recognize the research contributions made by our interviewees in Canada, including Dr. Janet Cleveland, Maureen Silcoff, Professor Sean Rehaag, William Payne, Michael Battista, Adrienne Smith and Dr. Alexander Caudarella.

We would also like to recognize the exceptional work of our interpreters and guides, Enrique Torre Molina and Jaime Horatio Cinta Cruz.

We would like to thank our advisory committee for providing research guidance and feedback on drafts of the report: Sandra Ka Hon Chu, Stéphanie Claivaz-Loranger and Richard Elliott, of the Canadian HIV/AIDS Legal Network; Dr. Meb Rashid and Dr. Philip Berger, of the former Canadian Doctors for Refugee Care; Meagan Johnston, of HALCO; and John Norquay and Andrew Brouwer of the Refugee Law Office at Legal Aid Ontario.

This report was researched and written by Maia Rotman, IHRP Health and Human Rights Fellow, and Kristin Marshall, project supervising lawyer at the IHRP. Extensive research and writing support was provided by Petra Molnar, IHRP Health and Human Rights Fellow. Vajdon Sohaili copy edited the report. Michelle Hayman proofread and fact-checked the report, and Kaitlin Owens and Amy Tang conducted preliminary international research. Kara Norrington provided administrative support. The report was reviewed by Samer Muscati, IHRP Director; and Renu Mandhane, former IHRP Director.

The IHRP gratefully acknowledges the generous financial support of the Elton John AIDS Foundation.

We would like to extend special thanks to University of Ottawa Professor, Nicole LaViolette, who passed away in May 2015. She was a prolific writer on immigration and refugee law and a fierce defender of LGBTI rights. She advanced the Canadian conversation on sexual minorities in refugee determination and we are deeply grateful for her inspiration and significant contribution to the field.

42 ENDNOTES

1 Political Constitution of the United Mexican States, 1917, as amended by decree published on 10 June 2011 art 1, online: Tribunal Electoral del Poder Judicial de la Federación [Constitution]. 2 Ley Federal Para Prevenir y Eliminar la Discriminación [Anti-discrimination Law], as amended, Diario Oficial de la Federación [DO] (Mex.), 3 March 2014, art 1, 2 and 4, online: . Through that same law, the National Council for the Prevention of Discrimination (CONAPRED) was established within the Mexican Secretariat of the Interior to combat discrimination. Letra S et al., Human Rights Violations Against Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) People in Mexico: A Shadow Report (July 2014) [Letra S Report], online: OHCHR . 3 Ibid at 8. 4 International Human Rights Program in-person interview of Professor Gloria Careaga, UNAM, Mexico City (4 July 2015) [Interview of Gloria Careaga]. 5 Human Rights Watch, World Report 2015 (2015) at 380, online: Human Rights Watch [Human Rights Watch 2015]. 6 Interview of Gloria Careaga, supra note 4; “Mexico is No. 2 for homophobic crimes”, Mexico News Daily (18 May 2015), online: Mexico News Daily ; Patricia Mayorga, “Asesinan a transexual y cubrensucuerpo con la banderanacional” (Transgender woman murdered and body covered with national flag),Proceso , (24 June 2015), online: Proceso ; Eric Rosswood, “Trans person murdered, beaten and shot four times – 100 mourners attend vigil and protest”, The New Civil Rights Movement, (26 June 2015), online: . 7 Duncan Tucker, “Mexico’s gay rights movement gaining ground”, Al Jazeera (28 January 2014), online: Al Jazeera, . 8 Consejo Nacional para Prevenir la Discriminación (CONAPRED) [National Council for the Prevention of Discrimination], El Combate a la Homofobia: Entre Avances y Desafíos [Fighting Homophobia: From Advances to Challenges], (2012) at 2, online: CONAPRED . 9 Forced or enforced disappearance is defined as “the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State.” United Nation’s International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, UN Doc A/RES/61/177 art 2 (entry into force 23 December 2010), online: United Nations Office of the High Commissioner, < http://www.ohchr.org/EN/HRBodies/CED/Pages/ConventionCED. aspx>; International Human Rights Program in person Interview of Antonio Medina, Journalist and Professor, Mexico City, 06.25.15; International Human Rights Program in person Interview of Lupita Gonzalez, LGBT Community Centre Director, Mexico City (23 June 2015) [Interview of Lupita Gonzalez]; International Human Rights Program in person interview of Rocio Suarez, Coordinator, Center of Support for Trans Identity, Mexico City (3 July 2015) [Interview of Rocio Suarez]; International Human Rights Program in person interview of Eugenia Lopez, Executive Director, Balance, Mexico City (26 June 2015) [Interview of Eugenia Lopez]. See also, Amnesty International, Report 2014/2015: The State of the World’s Human Rights (2015) at 249, online: Amnesty International . 10 “Migration is often analysed in terms of the “push-pull model”, which looks at the push factors, which drive people to leave their country (such as economic, social, or political problems) and the pull factors attracting them to the country of destination.” International Organization for Migration, Key Migration Terms (2011), online: International Organization for Migration . 11 United States Department of Justice, Asylum Statistics FY 2010-2014 (2014), online: U.S. Department of Justice . 12 Sean Rehaag, “2015 Refugee Claim Data and IRB Member Recognition Rates” (30 March 2016), online: CCR . 13 Government of Canada, Mexico Advisories, online: Government of Canada . 14 Immigration and Refugee Board, “Country Reports” (Obtained through Access to Information and Privacy Requests made to Citizenship and Immigration Canada by IHRP, 5 May 2015, A-2015-00130 / JSJ; A-2015-00132 / JSJ; A-2015-00133 / JSJ) [ATIP Requests]; YZ v Canada (Minister of Citizenship and Immigration), 2015 FC 892, [2015] FCJ No 880, Appeal Record, Affidavit of Sean Rehaag [YZ v Canada, Affidavit of Sean Rehaag]. 15 International Human Rights Program in person interview of an International Health Service Organization staff person who wished to remain anonymous, Mexico City (1 July 2015) [Interview of International Health Service Organization]. 16 United Nations Human Rights Office of the High Commissioner, Statement of the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, on his visit to Mexico, October 7th, 2015 (7 October 2015), online: OHCHR . 17 William Neuman, “As Drug Kingpins Fall in Mexico, Cartels Fracture and Violence Surges”, The New York Times (12 Aug 2015), online: NY Times [Neuman, “As Drug Kingpins Fall”]; Human Rights Watch 2015, supra note 5 at 377. 18 Human Rights Council Working Group on the Universal Periodic Review, Summary prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 15 (b) of the annex to Human Rights Council resolution 5/1 and paragraph 5 of the annex to Council resolution 16/21 Mexico, HRC, Seventeenth Session, A/HRC/WG.6/17/MEX/3 (2013) at para 67 [HRC Summary Mexico]; See also Cara Gibbons and Beth Spratt, Corruption, Impunity, Silence: The War on Mexico’s Journalists (Toronto: PEN Canada and the International Human Rights Program, 2011), online: IHRP [Gibbons and Spratt, Corruption, Impunity Silence]; Neuman, “As Drug Kingpins Fall”, supra note 17; Freedom House, 43 ENDNOTES

“Mexico: Freedom of the Press 2015” (2015), online: Freedom House ; Nina Lakhani “Journalists are being slaughtered’ – Mexico’s problem with press freedom” The Guardian (4 August 2015), online: The Guardian ; Interview of Gloria Careaga, supra note 4. 19 International Human Rights Program in person interview of Dr. Rene Levya, Director of Health Management and Research, National Institute of Public Health, Cuernavaca (24 June 2015) [Interview of Dr. Rene Levya]. 20 Human Rights Council Working Group on the Universal Periodic Review, Compilation prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 15(b) of the annex to Human Rights Council resolution 5/1 and paragraph 5 of the annex to Council resolution 16/21, HRC, Seventeenth Session, A/HRC/WG.6/17/MEX/2 (2013) [HRC Compilation Mexico]. 21 Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS,International Guidelines on HIV/AIDS and Human Rights, Second International Consultation on HIV/AIDS and Human Rights, (2006) [HIV/AIDS Guidelines] at para 96, online: OHCHR . 22 Ibid at para 98. 23 Some of the more common life-threatening infections include lung infections, eye infections, brain infection and generalized infections. In some cases of life-threatening infections, HIV has developed into AIDS. AIDS stands for acquired immunodeficiency syndrome. AIDS-defining illnesses are limited to serious life-threatening infections, fungal infections or cancers. See Derek Thaczuk, Managing Your Health: a Guide for People Living with HIV at ss 2, 12, online: CATIE, . 24 UNAIDS, The Gap Report (16 July 2014) [UNAIDS Gap Report] at 126, online: UNAIDS < http://www.unaids.org/sites/default/files/media_asset/ UNAIDS_Gap_report_en.pdf >. 25 Thaczuk, supra note 23. 26 WHO, Guideline on when to start antiretroviral therapy and on pre-exposure prophylaxis for HIV (September 2015), online: World Health Organization [WHO Guideline]; WHO is also planning to release a comprehensive update of its consolidated ARV guidelines, the current set of ARV guidelines from 2013 can be found here: WHO, Consolidated Guidelines on the Use of Antriretroviral Drugs for Treating and Preventing HIV Infections (30 June 2013), online: World Health Organization . 27 WHO, Press Release, “Treat all people living with HIV, offer antiretrovirals as additional prevention choice for people at “substantial” risk” (30 September 2015) online: World Health Organization, [WHO, “Treat all people”]. 28 “Substantial risk of HIV infection is defined by an incidence of HIV infection in the absence of PrEP that is sufficiently high (>3% incidence) to make offering PrEP potentially cost-saving (or cost-effective). Offering PrEP to people at substantial risk of HIV infection maximizes the benefits relative to the risks and costs. People at substantial risk of HIV infection are present in most countries, including some (but not all) people identified with key and vulnerable populations and some people not so identified.” WHO Guideline, supra note 26 at 8. 29 WHO Guideline, supra note 26 at 42. 30 WHO, “Treat all people”, supra note 27. 31 International Human Rights Program in person interview of Ricardo Hernandez, Director of HIV Programs, CNDH, Mexico City (22 June 2015) [Interview of Ricardo Hernandez]; Powerpoint presentation, “VIH y derechos humanos: Actualizacion de datos”, presented to the IHRP by Ricardo Hernandez, Director of HIV Programs, CNDH, Mexico City (22 June 2015) [CNDH Powerpoint Presentation]; “Mexico”, UNAIDS, online: UNAIDS [UNAIDS, Mexico]. 32 Interview of Ricardo Hernandez, supra note 31; CNDH Powerpoint Presentation, supra note 31. 33 Vigilancia Epidemiológica de casos de VIH/SIDA en México Registro Nacional de Casos de SIDA Actualización al cierre de 2014 (2014) [CENSIDA Update 2014], online: CENSIDA ; Interview of Ricardo Hernandez, supra note 31; CNDH Powerpoint Presentation, supra note 31; An HIV epidemic is defined by the prevalence in a given population. In a concentrated epidemic, “HIV has spread rapidly in one or more populations but is not well established in the general population. Typically, the prevalence is over 5% in subpopulations while remaining under 1% in the general population”. In a generalized epidemic, HIV-prevalence is 1% or more in the general population. UNAIDS, Terminology Guidelines (October 2011) at 8, online: UNAIDS . 34 CENSIDA Update 2014, supra note 33; Interview of Ricardo Hernandez, supra note 31; CNDH Powerpoint Presentation, supra note 31; See, for example, a video series about HIV in Tijuana: Jennifer Davies, “New Video Series Chronicles AIDS Epidemic in Tijuana”, US San Diego News Center (5 October 2015), online: US San Diego News Center . 35 Interview of Ricardo Hernandez, supra note 31; CNDH Powerpoint Presentation, supra note 31. 36 UNAIDS, Mexico, supra note 31; CNDH Powerpoint Presentation, supra note 31. 37 See also Alicia Ely Yamin, “The Right to Health Under International Law and Its Relevance to the United States” (2005) 95(7) Am J Public Health 1156; Committee on Economic, Social and Cultural Rights, General Comment 14, The right to the highest attainable standard of health (Twenty- second session, 2000), UN Doc E/C.12/2000/4 (2000), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev 6 at 85 (2003) at para 16, [General Comment 14]. 38 Universal Declaration of Human Rights, GA Res 217A (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) 71 arts 3, 25, online: UN . 39 Ibid at arts 7, 8, 12, 23, 26. 40 Ibid at art 2.

44 ENDNOTES

41 UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976), online: UN [ICESCR]; General Comment 14, supra note 37. 42 ICESCR, supra note 41 at art 12.1. 43 Ibid at art 12.2c. 44 Ibid at art 2. 45 Grounds include: “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation and civil, political, social or other status, which has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to health”. General Comment 14, supra note 37 at paras 18-19. 46 Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, 1249 UNTS 13 art 12.1 (entered into force 3 September 1981). 47 “Seguro Popular: Health Coverage For All in Mexico”, The World Bank (26 February 2015) [World Bank], online: The World Bank [World Bank]. 48 Julio Frenk, Octavio Gomez-Dantes, Felicia Maria Knaul, “The democratization of health in Mexico: financial innovations for universal coverage”, Bulletin of the World Health Organization (May 2009), online: WHO . 49 World Bank, supra note 47. 50 Interview of Ricardo Hernandez, supra note 31; “Semanario Judicial de la Federación”, Suprema Corte de Justicia de la Nacion (March 2002), online: SCJN . 51 World Bank, supra note 47; Interview of Ricardo Hernandez, supra note 31; CNDH Powerpoint Presentation, supra note 31. 52 Interview of Ricardo Hernandez, supra note 31; CNDH Powerpoint Presentation, supra note 31; International Human Rights Program in person interview of Executive Director of Clinica Condesa, Dr. Andrea Gonzalez, Mexico City (25 June 2015) [Interview of Dr. Andrea Gonzalez]. 53 ‘Street involved’ refers to individuals who are precariously housed and/or have residential instability. For instance, see: Elizabeth McCay, “Experience of Emotional Stress and Resilience in Street-Involved Youth: The Need for Early Mental Health Intervention” (2011) 14:2 Healthcare Quarterly 64, online: Longwoods . 54 Interview of Eugenia Lopez, supra note 9. 55 Alexandra McAnarney, “Efforts to Provide HIV-AIDS and Other Health Services to Migrants Face Major Obstacles” CIP Americas Program (9 February 2013), online: Cipamericas . 56 Interview of Eugenia Lopez, supra note 9. 57 Argentina E. Servin, Fatima A. Munoz and Maria Luisa Zuniga, “Healthcare provider perspectives on barriers to HIV-care access and utilization among Latinos living of HIV in the US-Mexico border” 16: 5 Culture, Health & Sexuality 587 at 591 [Servin et al.]. 58 International Human Rights Program in person interview of Rosember Lopez, Director, Una Mano Amiga, Tapachula (30 June 2015) [Interview of Rosember Lopez]; Interview of Eugenia Lopez, supra note 9. 59 Thaczuk, supra note 23 at s 2; Servin et al., supra note 57. 60 Interview of Dr. Andrea Gonzalez, supra note 52; Jon Coen, “High Risk of HIV Infection Faced by Transgender Women in Tijuana” The Pulitzer Center on Crisis Reporting (July 22, 2015), online: The Pulitzer Center [Coen, “High Risk”]. 61 Interview of Ricardo Hernandez, supra note 31; CNDH Powerpoint Presentation, supra note 31. 62 Interview of International Health Service Organization, supra note 15; Interview of Eugenia Lopez, supra note 9. 63 Diseases like cancer, for which individuals living with HIV are particularly susceptible, will become an increasing problem. According to Ricardo Hernandez of CNDH, in eight states in Mexico there is an outbreak of tuberculosis (TB), often associated with HIV because of its connection to the immune system. People living with HIV are more likely to get tuberculosis, and because they are unable to treat it without putting their health in danger by stopping their HIV medications, they are more likely to spread the outbreak. Globally, tuberculosis remains the principal cause of death for persons living with HIV, with 320,000 deaths as a result of infection in 2012. Interview of Ricardo Hernandez, supra note 31; CNDH Powerpoint Presentation, supra note 31; Interview of International Health Service Organization, supra note 15. 64 International Human Rights Program in person interview of staff at Clinica Condesa: Dr. Andrea Gonzalez Rodriguez, Executive Director; David Kelvin Santos, Coordinator Letra S; Dr. Steven Diaz, Deputy Director of Prevention; Dr. Jeremy Cruz, Psychologist; Luis Manuel Arellano Delgado, Subdirector of Integration and Communication; Dr. Florentino Badial Hernandez, Executive Director – associated Iztapalapa HIV Clinic, Mexico City (25 June 2015) [Interview of staff at Clinica Condesa]; Servin et al., supra note 57. 65 Interview of staff at Clinica Condesa, supra note 64; International Human Rights Program in person interview of Etty,‘matron’, Casa Xochiquetzal, home for elderly sex workers, Mexico City (2 July 2015) [Interview of Etty, Casa Xochiquetzal]; Interview of Rosember Lopez, supra note 58; International Human Rights Program in person interview of Julio Campos, Coordinator, Migrantes LGBT, Mexico City (25 June 2015) [Interview of Julio Campos]. 66 Interview of staff at Clinica Condesa, supra note 64; Interview of International Health Service Organization, supra note 15. 67 Interview of staff at Clinica Condesa, supra note 64. 68 Servin et al., supra note 57 at 592. 69 Interview of Etty, Casa Xochiquetzal, supra note 65; International Human Rights Program in person interview of Karla Silvia Meza Soto, Coordinator, and Gilda Maribel Alvarez, social worker at Sin Fronteras, Mexico City (1 July 2015) [Interview of Sin Fronteras]; Interview of Rosember Lopez, supra note 58; Interview of Julio Campos, supra note 65. 70 Despite its name, the Plan reaches far beyond the southern border region. There have been reports of increasing security measures and police 45 ENDNOTES

and military presence as far north as Puebla, Mexico. Enhanced checkpoints are so commonplace on highways that one advocate described the situation as if there were international borders inland, like an airport; Interview of Sin Fronteras, supra note 69; International Human Rights Program in person interview of Luis Eliud Tapia Olivares and Yeny Santiago Alcaraz of Centro Prodh, Mexico City (22 June 2015); International Human Rights Program interview of Salva Lacruz, Coordinator, Centro de Derechos Humanos Fray Matias de Cordova, Tapachula, (29 June 2015) [Interview of Salva Lacruz]. 71 Mexico President of the Republic, “Pone enmarcha el Presidente Enrique Peña Nieto el Programa Frontera Sur” (“President Enrique Peña Nieto starts the Southern Border Program”) (7 July 2014), online: Presidencia . 72 Interview of Rosember Lopez, supra note 58; Interview of Salva Lacruz, supra note 70; Interview of Sin Fronteras, supra note 69. 73 Interview of Rocio Suarez, supra note 9. 74 Interview of Dr. Rene Levya, supra note 19. 75 Interview of Rosember Lopez, supra note 58. In 2014, Alejandra Gil, director of the organization APROASE that offers sliding-scale health services to street-based sex workers in Mexico City, was arrested for human trafficking because she was taking money from sex workers in exchange for healthcare. “Alejandra Gil” NSWP: Global Network of Sex Work Projects (2014), online: NSWP ; International Human Rights Program telephone interview of Rosario Padilla, Director Centro SER health service centre Tijuana, (8 July 2015) [Interview of Rosario Padilla]. 76 Interview of Rocio Suarez, supra note 9. 77 Interview of Dr. Rene Levya, supra note 19. 78 UNAIDS Gap Report, supra note 24 at 118-119. 79 HIV/AIDS Guidelines, supra note 21 at para 98. 80 Ibid. 81 Constitution, supra note 1 at art 1; See also, Global Rights et al., The Violations of the Rights of Lesbian, Gay, Bisexual and Transgender Persons in MEXICO (March 2010) [Outright International Mexico], online: Outright International . 82 Interview of Eugenia Lopez, supra note 9; Interview of Rosario Padilla, supra note 75. 83 International Human Rights Program in person interview of Jacqueline L’Hoist, President – COPRED (Mexico City Council to Prevent Discrimination), Mexico City (22 June 2015) [Interview of Jacqueline L’Hoist]. 84 Interview of International Health Service Organization, supra note 15. 85 Interview of Rosario Padilla, supra note 75; Regarding Canadians seeking to marry in Mexico states requirement: “A physician’s certificate stating that according to the blood tests and x-rays taken in Mexico, neither applicant suffers from any contagious disease”. Embajada de Mexico en Canada, Marriage requirements in Mexico, online: Mexico Gobierno de la Republica . 86 Interview of International Health Service Organization, supra note 15; Outright International Mexico, supra note 81 at 4; Servin et al., supra note 57 at 594. 87 Interview of staff at Clinica Condesa, supra note 64. 88 Ibid. 89 Interview of Eugenia Lopez, supra note 9. 90 International Human Rights Program in person interview of Alejandro Brito, Letra S, Mexico City (1 July 2015) [Interview of Alejandro Brito]. 91 Interview of Eugenia Lopez, supra note 9. 92 Ibid. 93 Interview of Eugenia Lopez, supra note 9; Interview of staff at Clinica Condesa, supra note 64. 94 HRC Summary Mexico, supra note 18 at para 79. 95 Interview of Alejandro Brito, supra note 90. 96 Ibid. 97 Interview of International Health Service Organization, supra note 15. 98 Interview of Alejandro Brito, supra note 90. 99 M. Aranxta Colchero et al., “HIV prevalence, socio demographic characteristics, and sexual behaviors among transwomen in Mexico City” (2015) 57: Supp 2 Salud Pública Méx 99 at s102 [Colchero et al]. 100 Interview of Eugenia Lopez, supra note 9. 101 Covarrubias v Canada 2006 FCA 365, [2007] 3 FCR 169 at para 41. 102 Ibid. 103 International Human Rights Program in person interview of Ricardo Roman, INSPIRA, Mexico City, (2 July 2015) [Interview of Ricardo Roman]. 104 Interview of Lupita Gonzalez, supra note 9; See e.g.: Constitution, supra note 1 at art 1; Anti-Discrimination Law, supra note 2 at art 1, 2, 4 (Federal Law to Prevent and Eliminate Discrimination - 2003: prohibits public and private sector discrimination based on various characteristics including “sexual preference,” & includes homophobia as a form of discrimination); Decretopor el que se declara 17 de mayo, Día Nacional de la Lucha contra la Homofobia., Diario Oficial de la Federacion, 21 March 2014, online: Diario Oficial (National Day for the Fight Against Homophobia - May 17th. Signed by presidential decree (Pena Nieto administration) on March 21 2014); Ley Para Prevenir y Eliminar La Discriminación del Distrito Federal, [Federal District Anti-Discrimination Law], as amended, art 1, 5, Gaceta Oficial del Distrito Federal, 24 February 2011, (Mex.), online: Gaceta Oficial del Distrito Federal . (Mexico City antidiscrimination legislation prohibiting public and private sector discrimination on the basis of gender identity, as well as on the basis of sexual orientation); Código Penal Para el Distrito Federal [Federal District Criminal Code], as amended, art 206, Gaceta Oficial Del Distrito Federal. 24 February 2014, online: ALDF (Mexico City Criminal Code includes crimes committed on basis of sexual orientation/gender identity as hate crimes);

46 ENDNOTES

Acuerdo A/007/2012 del Procurador General de Justicia del Distrito Federal Mediante el Cual se Emite el Protocolo de Actuación Para la Atención a las Personas de la Comunidad LGBTTI [Federal District Attorney General Directive Establishing Protocol for LGBTTI Community Affairs], Diario Oficial de La Federación (1 June 2012), online: CDMX (Mexico City 2012, the Federal District Attorney General issued a directive that provides instructions on effectively processing cases of crimes committed on the basis of the victim’s sexual orientation and gender identity). 105 Interview of Rocio Suarez, supra note 9. 106 Human Rights Council, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, Mission to Mexico, Twenty-sixth session, A/HRC/26/36/Add 1 (2014) at para 85, online: OHCHR [Special Rapporteur on extrajudicial, summary or arbitrary executions]. 107 Ibid at paras 85-86. 108 Ibid at para 85. 109 Ibid at para 86. 110 Ibid. 111 Outright International Mexico, supra note 81 at 4. 112 Ibid. 113 Ibid at 8. 114 Ibid at 6-8. 115 Interview of Rosember Lopez, supra note 58. 116 Interview of Alejandro Brito, supra note 90. Many factors contribute to the censorship and self-censorship of the media in Mexico generally, including corruption, cartel violence, fear and stigma, see Gibbons and Spratt, Corruption, Impunity Silence, supra note 18. 117 International Human Rights Program in person interview of Benjamin Alfaro, journalist, Tapachula (30 June 2015). 118 Interview of Gloria Careaga, supra note 4. 119 Human Rights Watch 2015, supra note 5 at 381. 120 The term ‘transgender women’ refers to individuals who were assigned male at birth but identify and live as women. A transgender identity is not dependent on medical procedures, but some individuals may undergo surgery or take hormones. For the purposes of this report, transgender will include all whose gender identity or expression differs from what is traditionally associated with the sex they were assigned at birth. For more information, see: “GLAAD Media Reference Guide – Transgender Issues”, online: GLAAD . 121 Interview of International Health Service Organization, supra note 15; The World Bank, “Life expectancy at birth, female (years)” (2015), online: Data World Bank . 122 Gaceta Oficial Del Distrito Federal, Código Civil Para el Distrito Federal (Federal District Civil Code), as amended, art 135, 5 April 2014, online: . 123 Interview of Ricardo Roman, supra note 103. 124 Ibid; Interview of Eugenia Lopez, supra note 9; Interview of Alejandro Brito, supra note 90; Letra S Report, supra note 2 at 5-6. 125 Outright International Mexico, supra note 81 at 5-6. 126 Interview of Ricardo Roman, supra note 103; Interview of Alejandro Brito, supra note 90; Interview of Rosember Lopez, supra note 58. See also: Coen, “High Risk,” supra note 60. 127 Interview of Ricardo Roman, supra note 103. 128 International Human Rights Program in person interview of Itzel Checa, Claudia Ochoa and Armando Palacios Sommer, staff at the Program for Human Rights in Mexico City (2 July 2015) [Interview of staff at the Program for Human Rights in Mexico City]. 129 Juan Carlos Donoso, “On religion, Mexicans are more Catholic and often more traditional than Mexican Americans” Fact Tank, online: Pew Research Centre . 130 UNAIDS Gap Report, supra note 24 at 217; Outright International Mexico, supra note 81 at 5-6. 131 Interview of Ricardo Hernandez, supra note 31; CNDH Powerpoint Presentation, supra note 31. Some reports indicate this rate is even higher: a recent study of 585 transgender women in Mexico City found the prevalence rate to be 19.8 per cent among trans-women surveyed at common meeting places, Colchero et al, supra note 99 at s99. 132 Ibid at s105. 133 According to activists, despite the high prevalence of HIV in the transgender community, the main physical challenge transgender women face is accessing safe hormonal therapy. Recent reports have indicated that once transgender women go through the often-grueling process of coming to terms with their identity, they feel like they need the physical change to happen quickly. But few clinics other than Clinica Condesa have the capacity or expertise to provide hormone therapy. As a result, transgender women outside of Mexico City and those who were not able to get into Clinica Condesa, are faced with extremely limited options for hormone therapy. Because Clinica Condesa is the only public hormone therapy provider in Mexico, there is not enough supply for the demand. Moreover, some transgender individuals are reticent about associating with Clinica Condesa because of the stigma it attaches to them as an HIV clinic. The IHRP was told of many reports of transgender girls and women fatally using homemade concoctions, like petroleum, as breast injections. According to transgender rights activist Rocio Suarez, if transgender individuals could be more visible, accepted into the system and guided through their transition with open and safe access to hormonal therapy, as opposed to being withdrawn to the margins of Mexican society, HIV cases would inevitably decrease. Interview of Rocio Suarez, supra note 9. 134 Interview of Ricardo Roman, supra note 103. 135 Interview of staff at Clinica Condesa, supra note 64. 136 Ibid. 137 Interview of Eugenia Lopez, supra note 9. 138 Legislative Assembly of the Federal District, VI Legislature Ley para la prevención y atención integral del vih/sida del distrito federal (Law for the

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Prevention and Comprehensive Care of HIV/AIDS of the Federal District. Mexico) art 17, online: ALDF . 139 Interview of Rocio Suarez, supra note 9. 140 Interview of Eugenia Lopez, supra note 9. 141 Interview of International Health Service Organization, supra note 15. 142 Interview of staff at Clinica Condesa, supra note 64. 143 Interview of Rocio Suarez, supra note 9; Interview of Eugenia Lopez, supra note 9. 144 International Human Rights Program in person interview of Dr. Jeremy Cruz, psychologist at Clinica Condesa, Mexico City (25 June 2015) [Interview of Dr. Jeremy Cruz] who told IHRP that transgender women face harassment by other patients in the hospital, for example, being yelled at to leave the women’s bathroom. 145 International Human Rights Program in person Interview of Ricardo Baruch, National Institute of Public Health, Cuernavaca (24 June 2015) [Interview of Ricardo Baruch]. 146 Interview of Gloria Careaga, supra note 4; Claudia Solera, “Por homofobia llenan las salas de urgencias” (“Homophobia fills emergency rooms”) Excelsior (08 September 2015), online: Excelsior . 147 Interview of Ricardo Baruch, supra note 145; Interview of Eugenia Lopez, supra note 9. 148 Interview of Ricardo Hernandez, supra note 31; CNDH Powerpoint Presentation, supra note 31. 149 Interview of Ricardo Baruch, supra note 145. 150 United Nations Population Fund, Implementing Comprehensive HIV and STI Programmes with Men Who Have Sex with Men (2015) at xvii, online: UNFPA . 151 Interview of Ricardo Hernandez, supra note 31. 152 Interview of staff at the Program for Human Rights in Mexico City, supra note 128. Prevalence rates available for men who have sex with men in Mexico are not available because respondents are less likely to be candid about their sexual orientation. Email correspondence with Ricardo Baruch, National Institute of Public Health, Cuernavaca (29 September 2015). 153 Interview of International Health Service Organization, supra note 15; Interview of Ricardo Hernandez, supra note 31; CNDH Powerpoint Presentation, supra note 31; Interview of Ricardo Baruch, supra note 145. 154 Interview of Ricardo Hernandez, supra note 31. 155 Interview of International Health Service Organization, supra note 15. 156 Interview of Ricardo Hernandez, supra note 31; Opportunistic Infections (16 November 2010), online: AIDS.gov . 157 Human Rights Watch 2015, supra note 5 at 381. 158 See e.g. Amnesty International, Press Release, “State of Women’s Rights in Mexico ‘Alarming,’ Authorities Urged to Stop Escalating Violence against Women” (12 July 2012), online: Amnesty USA [Amnesty, “Women’s Rights in Mexico”]; See also HRC Summary Mexico, supra note 18 at para 47. 159 30% of HIV+ women in Mexico only have a primary school education. Interview of Ricardo Hernandez, supra note 31; CNDH Powerpoint Presentation, supra note 31. 160 Interview of Jacqueline L’Hoist, supra note 83. In Mexico’s 2013 UPR, the HR Committee expressed concern about discrimination against women in the maquiladora industry, where pregnancy tests are required. HRC Compilation Mexico, supra note 20 at 75. 161 Interview of Jacqueline L’Hoist, supra note 83. 162 HRC Summary Mexico, supra note 18 at para 12; Interview of Dr. Jeremy Cruz, supra note 144. See e.g. Amnesty, “Women’s Rights in Mexico”, supra note 158. 163 Human Rights Watch 2015, supra note 5 at 381. 164 Special Rapporteur on extrajudicial, summary or arbitrary executions, supra note 106 at 71-72. 165 Interview of Eugenia Lopez, supra note 9; Interview of Lupita Gonzalez, supra note 9. 166 Committee Against Torture, “Concluding observations on the combined fifth and sixth periodic reports of Mexico as adopted by the Committee at its forty-ninth session (29 October -23 November), United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, CAT/C/MEX/CO-5-6 (11 December 2012) at para 3. 167 Committee on the Elimination of Discrimination against Women, “Concluding observations of the Committee on the Elimination of Discrimination against Woment” (9-27 July 2012), 52nd Session, CEDAW/C/MEX/CO/7-8, at 18(d). 168 Ibid at 18(c). See also HRC Compilation Mexico, supra note 20 at 45. 169 Judith Matloff, “Six women murdered each day as femicide in Mexico nears a pandemic”Al Jazeera America (4 January 2015), online: Al Jazeera America ; “Feminicidios alcanzan nivel de “crisis” en Mexico: Informe de premios Nobel”, Observatorio Ciudadano Nacional del Feminicidio (13 March 2014), online: . 170 Interview of Eugenia Lopez, supra note 9. See also UNAIDS and CIM/OAS, Human Rights of Women Living with HIV in the Americas (2015) at 40- 41, online: OAS < http://www.oas.org/es/cim/docs/VIH-DDHH-ENG.pdf?utm_source=Campaign+Created+2016%2F03%2F02%2C+12%3A49+P M&utm_campaign=+Human+Rights+of+Women+Living+with+HIV+in+the+Americas+CIM+and+UNAIDS&utm_medium=email> [Human Rights of Women Living with HIV in the Americas] (Forced sterilization or coercive sterilization violates several internationally protected rights, including: Article 5 of the American Convention on Human Rights; Article 7 of the International Covenant on Civil and Political Rights; Article 16(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 6 of the Inter-American Convention to Prevent and Punish Torture). 171 Tamil Kendall and Claire Albert, “Experiences of coercion to sterilize and forced sterilization among women living with HIV in Latin America” (2015) Journal of International AIDS Society, online: [Kendall & Alberta,

48 ENDNOTES

“Experiences of Coercion”]. 172 Interview of Eugenia Lopez, supra note 9. 173 Kendall & Alberta, “Experiences of Coercion”, supra note 171; Interview of Eugenia Lopez, supra note 9. 174 Sheryl Ubelacker, “HIV transmission from mother to child nearly eliminated in Canada” CBC News (22 July 2015), online: CBC News ; World Health Organization, “Mother-to- child transmission of HIV”, online: WHO ; World Health Organization, “Consolidated guidelines on the use of antiretroviral drugs for treating and preventing HIV infection” (2013), online: AVERT . 175 Interview of Gloria Careaga, supra note 4. See e.g. Nina Lakhani, “Mexico’s machismo culture has forced me to change the way I dress”, The Guardian (1 August 2014), online: . 176 Evidence and Lessons from Latin American (ELLA), Observatory of Maternal Mortality in Mexico: A Civil Society-Led Initiative (2013) at 2, online: ELLA . 177 Interview of Ricardo Hernandez, supra note 31; CNDH Powerpoint Presentation, supra note 31. 178 30% of HIV+ women in Mexico only have a primary school education. Interview of Ricardo Hernandez, supra note 31; CNDH Powerpoint Presentation, supra note 31. 179 Interview of Ricardo Hernandez, supra note 31; CNDH Powerpoint Presentation, supra note 31; Estudio técnico-jurídico de las violacionesa los derechos reproductivos de mujeres con VIH en Mesoamérica [Technical-legal study of violations of the reproductive rights of women with HIV in four countries of Mesoamerica] reported that one-third of women respondents felt the confidentiality of their diagnosis had not been respected. Avalos Capín J, Balance, 2013 as quoted in: Human Rights of Women Living with HIV in the Americas, supra note 170 at 43. 180 Interview of Eugenia Lopez, supra note 9. 181 Interview of Ricardo Hernandez, supra note 31; CNDH Powerpoint Presentation, supra note 31. 182 Interview of Dr. Jeremy Cruz, supra note 144. 183 Interview of Ricardo Hernandez, supra note 31; CNDH Powerpoint Presentation, supra note 31; Interview of Dr. Jeremy Cruz, supra note 144. 184 Interview of Eugenia Lopez, supra note 9. 185 Ibid. 186 Women’s reproductive rights are also not respected. According to Human Rights Watch, abortion rights in Mexico are inconsistent and confusing and women are forced to contend with information from officials that is inaccurate and intimidating. In 2009, the Supreme Court of Mexico made abortion legal and recommended every state enact its own legislation. While Mexico City has had legal abortion since 2007, it remains the only city where it is available despite the ruling. Women and girls face significant barriers to accessing safe abortions, including imprisonment even when they suffer miscarriages. Human Rights Watch 2015, supra note 5 at 383; Interview of Eugenia Lopez, supra note 9; Interview of Ricardo Baruch, supra note 145; Allyn Gaestel and Allison Shelley, “Mexican women pay high price for country’s rigid abortion laws: Mexico has some of the strictest abortion laws in the world, and women can find themselves criminalised even after miscarriage”, The Guardian (1 October 2014), online: http://www.theguardian.com/global-development/2014/oct/01/mexican-women-high-price-abortion-laws; Anayeli Garcia Martinez, “Porabortar, sentencian a 127 mujeres en los últimos cinco años” Proceso (22 April 2013), online: Proceso ; For an unofficial English translation, see “In Mexico, 127 Women Have Been Sent to Jail for Having an Abortion in the Last 5 Years” (26 April 2013), translated by Cecilia Ayala, online: Mexico Voices (Between 2007 and 2012, 127 women went to trial in Mexico for abortion). 187 Interview of Eugenia Lopez, supra note 9. 188 Human Rights of Women Living with HIV in the Americas, supra note 170 at 51. 189 Interview of Eugenia Lopez, supra note 9. 190 Ibid. 191 Interview of International Health Service Organization, supra note 15. 192 Ironically, in addition to being dissuaded or forcibly stopped from having a child, HIV positive women do not have access to abortion. They are disqualified by their HIV status. Interview of Eugenia Lopez, supra note 9. 193 Tamil Kendall and Eugenia Lopez-Uribe, “Improving the HIV Response for Women in Latin America: Barriers to Integrated Advocacy for Sexual and Reproductive Health and Rights” (Fall 2010) VI: 1 Global Health Governance 1 at 5, online: http://ghgj.org/Kendall%20and%20Lopez_final.pdf 194 In 2001, the United Nations committed to reaching 80% of pregnant women with interventions to avoid vertical transmission by encouraging countries to include reduction strategies in their national HIV and reproductive health plans. Interview of Eugenia Lopez, supra note 9. 195 Many older lesbians told IHRP how their rights and protection have improved over the past years in Mexico. Lesbians and bisexual women report feeling comfortable holding hands and kissing in public in parts of Mexico City, for example, where once even that was unimaginable. Interview of Gloria Careaga, supra note 4. 196 Lesbian and bisexual women are also reportedly excluded from assisted reproduction services. There are few public assisted reproduction services, but they are exclusively for heterosexuals According to Eugenia Lopez, in terms of assisted reproduction for lesbian or bisexuals, you are only entitled to the rights you can afford to buy. Interview of Eugenia Lopez, supra note 9. 197 The IHRP was informed of an incident in Tijuana in 2015 in which young female sex workers who had been deported back to Mexico from the United States were misled by the Casa del Migrantes (a migrant shelter), where they were staying. They were told by a staff member of the shelter that a friend from the United States had arranged for their transport back across the border. Instead of taking them across the border, however, they were put in vans that brought to a hotel where they were forced to perform sex work until they made sufficient money to pay for their escape. Interview of Rosario Padilla, supra note 75; See also June S. Biettel, “Mexico: Organized Crime and Drug Trafficking Organizations” (2015) Congressional Research Service at 29, online: ; Global Network of Sex work projects: Promoting 49 ENDNOTES

Health and Human rights, “Addressing Violence Against Sex Workers” (December 2012), online: . 198 Michele R Decker et al., “Human rights violations against sex workers: burden and effect on HIV”, The Lancet HIV and sex workers series, (July 2014) online: ; Interview of Etty, Casa Xochiquetzal, supra note 65. 199 Interview of Rosember Lopez, supra note 58. 200 Interview of Ricardo Roman, supra note 103. 201 Ibid. 202 Interview of Rocio Suarez, supra note 9. 203 Interview of Eugenia Lopez, supra note 9. 204 Interview of Rocio Suarez, supra note 9. 205 Interview of Etty, Casa Xochiquetzal, supra note 65. 206 Interview of Ricardo Hernandez, supra note 31; CNDH Powerpoint Presentation, supra note 31. 207 Interview of Ricardo Hernandez, supra note 31. 208 Interview of International Health Service Organization, supra note 15. 209 Ibid; UNAIDS Gap Report, supra note 24 at 189. 210 The Program of Human Rights Mexico City is currently spearheading a census project for this population but they are still processing the data. International Human Rights Program in person interview of Program of Human Rights Mexico City (2 July 2015). 211 Interview of International Health Service Organization, supra note 15. 212 International Human Rights Program in person interview of Darwyn Pereyra, Network for Same Rights for Same Names, in Chiapas (26 June 2015); Interview of Dr. Rene Levya, supra note 19. 213 Ibid. 214 UNAIDS Gap Report, supra note 24 at 193. 215 While migrants in Mexico will not be affected by the DCO determination because they are not Mexican, and thus beyond the scope of this study, the extent of human rights abuses against migrants within Mexico disclosed to the IHRP is illuminating, when assessing the validity of the country’s ‘safe’ designation. The poor treatment of migrants in Mexico illustrates another way that progressive legislation and rights-based rhetoric does not reflect on the ground reality. The illusion of safety comes at enormous cost to human lives. See Human Rights Watch, “Mexico: Asylum Elusive for Migrant Children” (31 March 2016), online: HRW ; Sonia Nazario, “The Refugees at Our Door”, New York Times (10 October 2015), online: . 216 Mario Bronfman et al., “Mobile populations and HIV/AIDS in Central America and Mexico” (2002) 16:Suppl 3 AIDS s 42 at s45, online: BVS SIDA . 217 Inter-American Commission on Human Rights, Human Rights of Migrants and Other Persons in the Context of Human Mobility in Mexico (30 December 2013) OEA/Ser L/V/II/Doc 47/13 at para 5, online: Organization of American States [Human Mobility in Mexico]. 218 International Human Rights Program Skype interview of Medecins Sans Frontieres (MSF) staff: Juan Antonio Vega, humanitarian affairs officer and Dora Nely Morales, psychologist, Mexico City (3 July 2015); International Organization of Migration, Missions of the Region: Mexico, online: IOM . 219 Interview of Salva Lacruz, supra note 70; Axel Garcia, “International Refugee Law in Mexico” 31 Forced Migration Review 71, online: FMReview . 220 Human Mobility in Mexico, supra note 217 at 307, 416. 221 Clay Boggs, “Mexico’s Southern Border Plan: More deportations and widespread human rights violations” (19 March 2015), online: WOLA . 222 Interview of Sin Fronteras, supra note 69; Mexico: Ley de 2010 de Refugiados y Protección Complementaria (Law on Refugees and Complementary Protection) (28 January 2011) (Mexico), Título sexto, capítulo I, artículo 44, II (“Recibir servicios de salud”) at 8-9 online: Refworld ; Interview of Dr. Rene Levya, supra note 19; Interview of staff at Clinica Condesa, supra note 64; Interview of Rosember Lopez, supra note 58; Interview of Julio Campos, supra note 65. 223 Ana P. Martinez-Donate et al., “Migrants in Transit: The Importance of Monitoring HIV Risk Among Migrant Flows at the Mexico-US Border” (2015) 105:3 American Journal of Public Health 497 at 505-506. 224 Interview of Ricardo Hernandez, supra note 31; Interview of Ricardo Roman, supra note 103. 225 Interview of Rosario Padilla, supra note 75. 226 Coen, “High Risk,” supra note 60. 227 Interview of Ricardo Roman, supra note 103. 228 Ibid. 229 See: “Violentaron derechos de personas en ‘El Bordo’” (“They violated rights of people in ‘El Bordo’”) AFN (5 May 2015), online: AFN [“Violentaron derechos de personas en ‘El Bordo’”]. 230 Interview of Rosario Padilla, supra note 75. 231 Interview of Ricardo Roman, supra note 103. 232 Ibid. See also: “Violentaron derechos de personas en ‘El Bordo’”, supra note 229. 233 Interview of Ricardo Hernandez, supra note 31; CNDH Powerpoint Presentation, supra note 31. 234 Interview of International Health Service Organization, supra note 15. 235 Interview of Ricardo Roman, supra note 103.

50 ENDNOTES

236 Interview of Rosario Padilla, supra note 75. 237 Interview of Ricardo Roman, supra note 103. 238 Ibid. 239 Dan Werb, “Mexico’s drug policy reform: Cutting edge success or crisis in the making?” (2014) 25 International Journal of Drug Policy 823. See also: D. Werb et al, “Police Bribery and access to methadone maintenance therapy within the context of drug policy reform in Tijuana, Mexico” (2015) Drug Alcohol Depend 221, online: . A recent Canadian study on drug users in British Columbia found individuals not prescribed methadone were nearly four times more likely to become infected with HIV. Keith Ahmad, “Effect of low-threshold methadone maintenance therapy for people who inject drugs on HIV incidence in Vancouver, BC, Canada: an observational cohort study” (2015) 2:10 The Lancet HIV e445. 240 Harm Reduction International, “The Global State of Harm Reduction 2014” (2014) at 80-81, online: . 241 Interview of staff at the Program for Human Rights in Mexico City, supra note 128. 242 Interview of Rosario Padilla, supra note 75. 243 International Human Rights Program in person interview of Itzel Silva, FUNDAR, Mexico City (1 July 2015) [Interview of Itzel Silva]. 244 HRC Compilation Mexico, supra note 20 at 79. 245 Interview of Jacqueline L’Hoist, supra note 83. 246 FUNDAR told the IHRP that the government’s actions have shown that the government prioritizes profit over Indigenous rights. The IHRP was told of reports of Indigenous people with identification being stopped and detained in Mexico, along with irregular migrants. Interview of Itzel Silva, supra note 243. 247 Interview of Dr. Rene Levya, supra note 19. 248 Interview of staff at the Program for Human Rights in Mexico City, supra note 128. 249 HRC Compilation Mexico, supra note 20 at 82. 250 Interview of Itzel Silva, supra note 243. 251 The case of Irene is representative of the problems Indigenous people face in accessing quality health care. Irene, an Indigenous woman, has been in a coma for 15 years due to medical malpractice. A complaint was made but there has been no justice. The case reflects racism and classism in the health system. People who can afford to pay can access quality health care, but there is severe stigma in the provision of health services in Mexico based on class, race, HIV status and gender. Interview of Itzel Silva, supra note 243; Interview of Eugenia Lopez, supra note 9. 252 Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 137, online: United Nations Treaty Collection [Refugee Convention]; Protocol Relating to the Status of Refugees, 31 January 1967, 606 UNTS 267, online: United Nations Treaty Collection . 253 Refugee Convention, supra note 252 at art 1. 254 UNHCR, UNHCR Note on the Principle of Non-Refoulement (November 1997), online: Refworld . 255 Refugee Convention, supra note 252 at art 33. 256 Ibid at Article 3. 257 Bill C-31, Protecting Canada’s Immigration System Act, SC 2012, c 17, online: Parliament of Canada [Bill C-31]. 258 The category of DCOs was originally introduced by the Canadian government by the Balanced Refugee Reform Act [BRRA] of 2010 as amendments to the Immigration and Refugee Protection Act [IRPA]. The original amendments, however, never came into force. Bill C-31 modified the BRRA (s. 109.1). Ibid. 259 Immigration and Citizenship Canada, Designated Countries of Origin, online: Government of Canada http://www.cic.gc.ca/english/refugees/ reform-safe.asp. 260 Ibid. (The countries are: Andorra; Australia; Austria; Belgium; Chile; Croatia; Cyprus; Czech Republic; Denmark; Estonia; Finland; France; Germany; Greece; Hungary; Iceland; Ireland; Israel (excludes Gaza and the West Bank); Italy; Japan; Latvia; Liechtenstein; Lithuania; Luxembourg; Malta; Mexico; Monaco; Netherlands; New Zealand; Norway; Poland; Portugal; Romania; San Marino; Slovak Republic; Slovenia; South Korea; Spain; Switzerland; United Kingdom; United States of America). 261 Immigration and Refugee Protection Act, SC 2001, c27 at s 49(2)(c), online: Justice Laws < http://laws.justice.gc.ca/eng/acts/i-2.5/page-10. html#h-28> [IRPA]; Immigration and Refugee Protection Regulations, SOR/2002-227 at s 231, online: Justice Laws < http://laws-lois.justice.gc.ca/ eng/regulations/sor-2002-227/page-49.html#h-137> [IRPR]. 262 Sean Rehaag & Angus Gavin Grant, “Unappealing: An Assessment of the Limits on Appeal Rights in Canada’s New Refugee Determination System” (2015) 49:1 UBC L Rev 203. 263 YZ v Canada (Minister of Citizenship and Immigration), 2015 FC 892, [2015] FCJ No 880 [YZ v Canada]. 264 IPRA, supra note 261 at ss 49(1)(c), (2)(c). 265 Government of Canada, “The government discontinues its appeal in the Y.Z Litigation” (7 January 2016), online: Government of Canada . 266 See Order Respecting the Interim Federal Health Program, OC 2012/433, as amended by OC 2012/945, online: Justice Laws ; Canadian Doctors for Refugee Care, The Issue, online: Canadian Doctors for Refugee Care < http://www.doctorsforrefugeecare.ca/the-issue.html>. 267 Government of Canada, Press Release, “Restoring Fairness to the Interim Federal Health Program”, (18 February 2016), online: Government of Canada ; 268 Minister of Immigration, Refugees and Citizenship Mandate Letter (November 2015), online: Prime Minister of Canada Justin Trudeau . 51 ENDNOTES

269 UNHCR, UNHCR Submission on Bill C-31: Protecting Canada’s Immigration System Act (May 2012) at para 31, online: UNHCR [UNHCR Submissions on Bill C-31]; Prima facie is a Latin expression that literally reads as “at first face” and is used in legal terms to refer to its first appearance, subject to further information. See Cornell University Law School, “Prima Facie”, online: Legal Information Institute . 270 UNHCR Submission on Bill C-31, supra note 269 at paras 31,32. 271 Ibid at para 31. 272 Ibid; Canadian Association Of Refugee Lawyers (CARL), Press Release, “Designated Country Of Origin Scheme Is Arbitrary, Unfair, And Unconstitutional” (14 December 2012), online: CARL . 273 The quantitative criteria neglect entire subsets of claimants. A country that is safe for most claimants will have a low acceptance rate, but it may have a high recognition for subsets of the population. This is most often the case with gender and sexual orientation based claims. Statistics have shown that these claimants tend to come from countries with overall low recognition rates, for example, Jamaica, yet when their claims are isolated it is clear that they have generally higher recognition rates than other claimants. The result is that claims from subsets of the population are subject to DCO rules, even though their claims are likely well-founded. YZ v Canada, Affidavit of Sean Rehaag, supra note 14 at paras 31-42. See Appendix A, Table IV for example. 274 For a compilation of appellate decisions reviewing rejected refugee claims based on sexual orientation and gender identity, many of the appeals profiled involved claims made by Mexican nationals, see Nicole Laviolette,Canadian Appellate Level Decisions Dealing with Refugee Claims Based on Sexual Orientation and Gender Identity - Listed According to the Definition of a Convention Refugee (2015), online: SSRN . 275 IRPA, supra note 261 at s 111.1(2); IRPR, supra note 261, s 159.9; See Immigration and Refugee Board of Canada, Claimant’s Guide, online: Immigration and Refugee Board of Canada . 276 International Human Rights Program Interview of Adrienne Smith (by email), (15 October 2015); YZ v Canada, supra note 263 at para 60; Sean Rehaag, “Patrolling the Borders of Sexual Orientation: Bisexual Refugee Claims in Canada” (2008) 53 McGill LJ 59; Envisioning Global LGBT Human Rights, Envisioning LGBT Refugee Rights in Canada: Is Canada a Safe Haven?, September 2015, online: York University < http://yfile.news. yorku.ca/files/2015/09/Is-Canada-A-Safe-Haven-Report-2015.pdf>; Nicholas Hersh, “Challenges to Assessing Same-Sex Relationships Under Refugee Law in Canada” (2015) 60:3 McGill LJ 527. 277 YZ v Canada, supra note 263 at paras 59,63,65. 278 Immigration and Citizenship Canada, Who must submit to an immigration medical examination?, online: Government of Canada . 279 IRPA, supra note 261 at ss113(a), 112(2)(b.1). 280 Audrey Macklin, “A safe country to emulate? Canada and the European refugee” in Helene Lambert et al, eds, The Global Reach of European Refugee Law (Cambridge: Cambridge University Press, 2013) 99 at 103. 281 YZ v Canada, supra note 263 at para 124. Refugee claims that fail the refugee determination process, moreover, should not be understood to be fraudulent. With a highly technical and restrictive refugee definition, many individuals who genuinely fear persecution are unable to meet the Refugee Convention criteria. Labeling these individuals with derogatory terms is harmful to the entire refugee system. Canadian Council for Refugees, Concerns about changes to the refugee determination system (December 2012), online: CCR . 282 Government of Canada, “Backgrounder-Designated Countries of Origin” (1 Feb 2013), online: CIC . 283 ATIP Requests, supra note 14. 284 The number of cases found eligible to be referred to the IRB in a given year may be fewer than the number accepted in a given year because under the previous system, refugee claims are often not heard in the same year that they were found eligible/referred to the IRB. 285 Because of a page missing from the Access to Information and Privacy (ATIP) Requests received from Citizenship and Immigration Canada, the statistics from 2007 included in this report are YZ v Canada, Affidavit of Sean Rehaag, supra note 14. 286 YZ v Canada, Affidavit of Sean Rehaag, supra note 14 at para 40.

TAB 11 6/17/2020 Targeting the Roots of HIV/AIDS Stigma in Mexico | The Borgen Project

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As of 2018, approximately 230,000 people in Mexico [https://www.unaids.org/en/regionscountries/countries/mexico] were living with HIV. About 75 percent of people with HIV in Mexico were aware of their status and about 70 percent were accessing antiretroviral therapy (ART). While ART does not cure HIV, it is a combination of drugs that is able to suppress the virus [https://www.who.int/hiv/topics/treatment/en/] and signicantly reduce Search transmission rates. HIV is highly prevalent in certain populations in Mexico including sex workers (specically in the Tijuana red light zone), prisoners, gay men and the transgender community. As a result, there is a signicant HIV/AIDS stigma in Mexico. TAKE ACTION Since 2003, The Universal Access to ART Program has guaranteed access Call Congress to ART in Mexico through the national health system. Additionally, this policy ensures the availability of HIV tests for individuals without social Email Congress

security. These governmental actions are signicant steps towards Donate reducing HIV prevalence, but 30 percent of individuals living with HIV in 30 Ways to Help https://borgenproject.org/hiv-aids-stigma-in-mexico/ 1/3 6/17/2020 Targeting the Roots of HIV/AIDS Stigma in Mexico | The Borgen Project

Mexico are still not accessing treatment. This is in part due to stigma and Volunteer Ops fear surrounding the social implications of receiving testing or treatment. Internships

Implications of the Stigma Surrounding HIV

The social stigma around HIV and discrimination based on sexual orientation [https://www.bbc.com/worklife/article/20170302-these- workers-face-discrimination-despite-protective-laws] in Mexico is one of the issues that discourage many people from getting tested. Tradition and religion, especially in rural and poorer areas, are major obstacles to destigmatizing HIV. At the root of this issue are the “machismo” culture and anti-gay beliefs.

As a result of this stigma, people have associated getting tested for HIV with being gay or promiscuous. Consequently, many people are unaware of their HIV status and are not receiving treatment out of fear of discrimination. About 20 percent of patients who are undergoing treatment for HIV do not keep up with their treatment plans [https://www.excelsior.com.mx/nacional/incredulidad-y-estigma- mantienen-epidemia-del-vih-en-mexico/1291448] or their follow-ups which is also in part due to stigma and discrimination.

Mexico should prioritize the addressing of HIV/AIDS stigma. There is no point in putting resources into treatments and facilities without rst ensuring that people obtaining testing or complying with their treatment plans. The quality of the treatment and health care is crucial but will not matter without patient cooperation.

Recent Progress

UNAIDS set forth the 90-90-90 goal [https://www.unaids.org/en/resources/909090] for HIV treatment in 2015. This target mobilized efforts globally to test 90 percent of people living with HIV, to provide 90 percent of those people with HIV treatment, and to achieve viral suppression for 90 percent of those by 2020. Mexico has made signicant progress towards this goal but has yet to achieve it.

Recent policies have addressed the HIV/AIDS stigma in Mexico, such as the code of conduct [https://www.unaids.org/en/resources/presscentre/featurestories/2017/august/20 from the ministry of health, which includes training to prevent discriminatory behavior and promote respect and patient condentiality for HIV cases. This code of conduct aims to reduce stigma and discrimination based on gender and sexual orientation in health centers throughout Mexico. https://borgenproject.org/hiv-aids-stigma-in-mexico/ 2/3 6/17/2020 Targeting the Roots of HIV/AIDS Stigma in Mexico | The Borgen Project A study in 2016 that examined the prevalence of HIV among men who have sex with men (MSM) in Tijuana, Mexico concluded that there is an urgent need [https://bmjopen.bmj.com/content/bmjopen/6/2/e010388.full.pdf] for new testing methods. These interventions include non-stigmatizing, condential testing for younger and less educated MSM, as well as timely referral to HIV treatment. Condential HIV testing will not necessarily reduce stigma, but it has the potential to increase the number of people who are willing to obtain testing and have access to ARTs. In addition to these testing methods, Mexico could implement community-based HIV awareness programs that educate and destigmatize HIV to target HIV/AIDS stigma in Mexico and encourage testing.

Overall, Mexico has made signicant progress to decrease the prevalence of HIV/AIDS in Mexico. The country has been making great strides to overcome various obstacles, including socioeconomic inequality and HIV/AIDS stigma in order to increase the number of people receiving testing and treatment.

– Maia Cullen

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APRIL 7, 2020

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TAB 12 6/16/2020 2nd Mexican state allows conscience objection for doctors

2nd Mexican state allows conscience objection for doctors October 22, 2019

MEXICO CITY (AP) — Rights officials expressed concern Tuesday after a second state congress in Mexico passed a “conscience objection” law that would allow medical personnel to refuse to perform procedures that violate their religious or ethical convictions.

The Council to Prevent Discrimination said a new law passed in the northern state of Nuevo Leon threatened people’s access to health care.

“Conscience objection should not any under circumstances lead to Nuevo Leon failing to provide health services to the public, above all if the motivation for that objection were based on acts that the law considers discriminatory,” the council said in a statement.

The governmental National Human Rights Commission has filed a Supreme Court appeal against the first law, approved in the central state of Morelos in August.

The commission argues that law is unconstitutional because it could restrict access to health care for women who seek an abortion. But it also noted the state rules could also impact people who are gay or HIV-positive.

“Medical personnel and nurses could deny services based on health reasons, including HIV and AIDS, or based on gender or sexual preferences,” the commission warned.

The court has yet to rule on that appeal.

Another state in northern Mexico passed a similar law Oct. 15. The Nuevo Leon state law, like the one in Morelos, says objections cannot apply in medical emergencies or https://apnews.com/2d827fc502db4fb28efe71edac6d5151 1/2 6/16/2020 2nd Mexican state allows conscience objection for doctors when a patient’s life is in danger.

https://apnews.com/2d827fc502db4fb28efe71edac6d5151 2/2

TAB 13 6/17/2020 Thousands feared at risk after Mexico reforms HIV+ regime - Reuters

BIG STORY 10 APRIL 17, 2019 / 8:21 AM / A YEAR AGO

Thousands feared at risk after Mexico reforms HIV+ regime

Oscar Lopez

MEXICO CITY (Thomson Reuters Foundation) - Thousands of Mexicans living with HIV or at risk of infection could be left without life-saving servi changed the way it funds treatment, according to public health experts and LGBT+ rights advocates.

Reforms announced last month to centralize drug procurement risk sparking shortages, they say, while the government counters that it has ample su changes will save money and cut corruption in the drugs chain.

“There is a crisis,” said Ricardo Baruch, a public health expert and LGBT+ rights advocate. “Suddenly everything has happened together.”

In February, the government also said that it would no longer fund civil society organizations, leaving more than 200 groups ﬁghting the disease with activities, such as HIV testing.

Baruch said the knot of changes had created a perfect storm that would hurt marginalized HIV+ communities the most.

“You’re going to see a lot of people like sex workers, drug users and gay men left without basic services for prevention and detection,” Baruch said. “I many other sources of funding.”

Jorge Diaz is a case in point.

On a recent Friday, 33-year-old Diaz arrived before dawn at a public health clinic in the Condesa neighborhood of Mexico City to reﬁll his monthly an

One of just a handful of government clinics - in a city of some 21 million people - that caters speciﬁcally to people living with HIV, the Condesa facilit who is HIV+, knows to arrive before 6 a.m. to see a doctor.

“Accessing medicines for people with chronic diseases in Mexico is... an emotional and physical process,” he told the Thomson Reuters Foundation.

On this particular March morning, the experience was made worse by a labor dispute that had shut out many employees. Despite waiting nearly two h away empty handed and told to come back the following month.

“That’s always the problem with this chronic illness,” he said. “What kills you is the process. What makes you sick is the bureaucracy.”

Diaz had enough medication to last until his next appointment, and a few days later, the clinic was again running.

But for him, and many others living with HIV in Mexico City, the struggle is emblematic of a more serious public health issue following the reforms o Manuel Lopez Obrador.

FUNDING GAP

Lopez Obrador took oﬃce in December and announced a clutch of reforms, some of which could have a serious impact on patients living with HIV. https://www.reuters.com/article/us-mexico-health-aids/thousands-feared-at-risk-after-mexico-reforms-hiv-regime-idUSKCN1RT1FC 1/3 6/17/2020 Thousands feared at risk after Mexico reforms HIV+ regime - Reuters Along with halting funding for some NGOs, the administration changed the way it buys medicines in bulk from drug companies.

In previous years, the National Centre for the Prevention and Control of HIV/AIDS (Censida), had been in charge of purchasing all HIV medicines fo on the country’s “Popular Insurance” health program.

The agency provides universal access to antiretroviral therapy via the public health system, and currently treats more than 95,000 people living with H

But in March, the administration said the Finance Ministry would now be in charge of overseeing its drug buying.

In a statement sent to government HIV clinics last week and obtained by the Thomson Reuters Foundation, Censida said that due to these changes, “ suﬀered delays”.

Censida advised healthcare workers to “only give out treatments for a month”, rather than the customary three months, while stocks were replenishe

AIDS experts say government clinics could run out of certain antiretrovirals, leaving thousands who depend on the public health program untreated f months.

“There’s a break in the supply chain,” said Luis Adrian Quiroz, from the advocacy group Beneﬁciaries of the Mexican Social Security Institute Living w

“The damage caused...will be immeasurable.”

But Carlos Magis, director of comprehensive care at Censida, said that while some medications were scheduled to run out as soon as May, these woul month.

And because patients have diﬀerent medicine regimens, a mass shortage was unlikely.

“It’s not something apocalyptic, where suddenly there is nothing for anybody,” Magis said.

Lopez Obrador has defended both reforms as part of his wider policy to root out corruption. His logic - that by centralizing government spending, th money going astray.

“It’s not about leaving (patients) without protection. On the contrary, it’s about treating them better and ensuring that there’s no lack of medicines, Thomson Reuters Foundation. “What we want is to end corruption, in general, because that’s the cancer destroying Mexico.”

HIV ERADICATION

But in a country where HIV remains a serious public health issue, advocates say the reforms could have drastic fallout.

According to the government, although overall HIV incidence fell by 15 percent between 2005 and 2016, there are still 12,000 new cases diagnosed a infections every day.

Meanwhile, according to the United Nations, of the 220,000 people in Mexico living with the disease in 2016, only 60 percent were on antiretroviral m

U.N. data also shows that gay men and transgender people are among the groups most at risk, with an HIV prevalence above 17 percent, followed by prevalence of 7 percent.

All three risk discrimination at government agencies and are therefore more likely to attend NGOs, according to advocates.

https://www.reuters.com/article/us-mexico-health-aids/thousands-feared-at-risk-after-mexico-reforms-hiv-regime-idUSKCN1RT1FC 2/3 6/17/2020 Thousands feared at risk after Mexico reforms HIV+ regime - Reuters “That’s why these organizations work in prevention,” said Patricia Mercado, an opposition senator. “They can get close to these vulnerable communi population, sex workers... For the government, that’s impossible.”

However, Magis at Censida said the break in funding for civil society was only temporary while the government sets up a more transparent system.

“There is no plan in any way for the state to replace the work that civil society can do,” he said.

But organizations are meanwhile running out of money.

If the HIV+ lack access to medication, even for a few weeks, rights groups say they face serious health risks themselves and have a greater chance of p

“It’s a domino eﬀect,” said Leonardo Espinosa, president of Codise, a local organization that oﬀers HIV testing.

“The strategy for HIV is a combined prevention strategy. The whole plan depends on several joint actions.”

The Mexican health ministry said recently on Twitter that its clinics had “enough supply of antiretroviral treatment for people living with HIV”.

But health workers, patients and activists remain concerned.

Yasmin, a doctor who works at an HIV clinic outside Mexico City, said she has recently been denied medications that she had requested from Censid alternatives.

“They can’t tell me some cock-and-bull story that they’re ﬁghting corruption and ‘sorry for the inconvenience’,” she said, asking that her surname be fallout at work. “These aren’t inconveniences; these are lives that could be lost.”

Reporting by Oscar Lopez @oscarlopezgib; Editing by Lyndsay Griﬃths. Please credit the Thomson Reuters Foundation, the charitable arm of Thomson Reuters that co women's and LGBT+ rights, human traﬃcking, property rights, and climate change. Visit http://news.trust.org Our Standards: The Thomson Reuters Trust Principles.

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All quotes delayed a minimum of 15 minutes. See here for a complete list of exchanges and delays.

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TAB 14 6/17/2020 Incredulidad y estigma mantienen viva epidemia del VIH en México | Excélsior

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Incredulidad y estigma mantienen epidemia del VIH en México De acuerdo con el titular de la Clínica Especializada Condesa en Iztapalapa, Florentino Badial, destaca que adolescentes son los más vulnerables; 1 de cada 3 personas infectadas no sabe que vive con el virus 20/01/2019 10:17 NOTIMEX

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Alrededor de 20 por ciento de las personas que viven con VIH en la CDMX es mujer. Foto archivo: Cuartoscuro

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l panorama de la epidemia del VIH es más complejo que solo realizar la prueba y darle el tratamiento a las personas diagnosticadas con el virus, E las poblaciones tienen poca percepción del riesgo, como hombres que tienen sexo con hombres y mujeres que tienen parejas estables.

De acuerdo con el director de la Clínica Especializada Condesa en Iztapalapa, Florentino Badial Hernández, hoy en día se podría detener la infección por completo, ya que si todas las personas que viven con VIH recibieran tratamiento (la prueba y el tratamiento son gratuitos en México), garantizaría que las personas con VIH no desarrollaran el Sida porque mantienen un buen nivel de defensas https://www.excelsior.com.mx/nacional/incredulidad-y-estigma-mantienen-epidemia-del-vih-en-mexico/1291448 1/9 6/17/2020 Incredulidad y estigma mantienen viva epidemia del VIH en México | Excélsior con VIH no desarrollaran el Sida, porque mantienen un buen nivel de defensas. Mientras que el tratamiento antirretroviral detiene la Te puede interesar: transmisión del virus, una persona que recibe VIH/Sida, la epidemia tratamiento y que controla la infección ya no lo silenciosa que transmite. Entonces, por qué se tienen casos nuevos amenaza a México todos los días, se cuestionó el especialista.

Lo anterior, explicó, obedece a que la situación multicausal es compleja, en parte por las poblaciones que tienen poca percepción del riesgo, por ejemplo, entre 70 y 80 por ciento de todas las mujeres que viven con VIH, la adquirieron con su pareja única, la percepción de riesgo que tienen es muy baja, no tienen conciencia sobre hacerse la prueba porque solo tienen una pareja sexual.

En México 1 de cada 3 personas infectadas, desconoce que vive con el virus. Imagen: Excélsior

MUJERES, ENTRE LOS GRUPOS VULNERABLES En entrevista con Notimex, señaló que las mujeres, son una población que requiere más acceso a dichas pruebas de diagnóstico, así como a información. En cambio, hay otras poblaciones como hombres que realizan trabajo sexual que, si tienen conciencia del VIH, pero debido a su condición de pobreza, aceptan tener relaciones sexuales sin condón por dinero extra. Otro factor, es que de cada tres personas que viven con VIH en el país, una no lo sabe, o no se ha realizado una prueba de diagnóstico que le permita conocer su condición y buscar atención. Refirió que en la Ciudad de México por cada 10 personas que se diagnostican, nueve son hombres y una es mujer, sin embargo, en el país la proporción es diferente, alrededor de 20 por ciento de las personas que viven con VIH son mujeres y la concentración se observa en estados con mayor pobreza como https://www.excelsior.com.mx/nacional/incredulidad-y-estigma-mantienen-epidemia-del-vih-en-mexico/1291448 2/9 6/17/2020 Incredulidad y estigma mantienen viva epidemia del VIH en México | Excélsior mujeres, y la concentración se observa en estados con mayor pobreza como Chiapas, Oaxaca y Guerrero, donde cerca de la tercera parte de las personas que viven con VIH son mujeres. Asimismo, resaltó que una de cada cinco mujeres trans que acuden hacerse una prueba de VIH sale con un resultado positivo; la segunda población más afectada, son hombres que tienen sexo con otros hombres (HCH), uno de cada seis hombres que se hacen la prueba está infectado.

VIH/ SIDA: síntomas, prevención y mortalidad

Estos son grupos denominados de alto riesgo, por lo cual es importante que los programas de VIH no solo tengan el componente de “consulta médica”, sino que estén dirigidos a las poblaciones que tienen más riesgo, las poblaciones clave de la epidemia. Al respecto, destacó que la Clínica Especializada Condesa tiene programas para esas poblaciones, ya que hay personas con mayor vulnerabilidad, como situación de calle, migrantes, trabajadores sexuales que vienen de otros estados y que carecen de documentos, como acta de nacimiento, comprobante de domicilio.

Además, se les segrega por su orientación sexual, identidad de género, trabajo sexual o el mismo VIH, y quienes en ocasiones son objeto de discriminación y estigma. En el caso de las mujeres con VIH tienen un programa de apoyo a transporte, estas tienen condiciones de pobreza de estado socioeconómico mucho más bajo que los hombres con VIH y que las mujeres de la población general, tienen situaciones de violencia, de estigma muy graves y requieren de apoyos complementarios y no solo el tratamiento, apuntó.

PORCENTAJE DE POBLACIÓN INFECTADA Badial Hernández mencionó que la estimación aproximada que se tiene de personas infectadas con VIH en la Ciudad de México es de alrededor de 40 mil, y quizás sea un poco más entre 40 o 50 mil, porque la estimación para el país es de 220 y 230 mil respectivamente. En tanto, la estimación de personas diagnosticadas, es de 60 por ciento de personas que viven con VIH. Precisó que 17 por ciento de la población que se diagnostica no se incorpora de inmediato al tratamiento, es decir dentro de los primeros tres meses, por eso son importantes los programas de alcance dirigidos a poblaciones vulnerables, así como tener otros de salud mental dentro de las clínicas.

Por ello, trabajan de manera conjunta con psiquiatras y psicólogos de la clínica, instituciones que ofrecen terapias y grupos de apoyo, porque una de las principales barreras para incorporarse es el estigma, una persona que se sabe con VIH enfrenta negación por el miedo a la discriminación y al estigma en su trabajo, familia o con su pareja. Se debe vivir un proceso de aceptación del diagnóstico, es importante para las personas y otro reto es el primer año de inicio del tratamiento; en general alrededor de 20 por ciento los suspenden o pierden su seguimiento, ya sea por migración, discriminación, estigma, cambio de institución y en el peor de los b d d l t t i t https://www.excelsior.com.mx/nacional/incredulidad-y-estigma-mantienen-epidemia-del-vih-en-mexico/1291448 3/9 6/17/2020 Incredulidad y estigma mantienen viva epidemia del VIH en México | Excélsior casos, por abandono del tratamiento. Por ello, se han implementado estrategias de Te puede interesar: acompañamiento con personas que viven con VIH y Reporta Censida mil profesionistas de la salud mental, quienes acompañan en 883 casos de los primeros meses a personas recién diagnosticadas con VIH/Sida en el país el virus, con apoyo, entrevistas, se les invita a retenerse en la atención. Refirió que, en esta parte, es donde hay que incidir para que se cumplan las metas de la Organización Mundial de la Salud (OMS) que es 90 por ciento con VIH estén diagnosticadas, de las cuales 90 por ciento esté en tratamiento, y de estas, 90 por ciento controlen la infección, es decir la carga viral indetectable. La meta denominada 90 90 90, es el continuo que 72 por ciento de las personas con VIH estarán en control de su infección, pero no es suficiente, porque deja a 28 por ciento fuera a personas que no están diagnosticadas, no reciben tratamiento y no controlan la infección. Sin embargo, es una primera meta a alcanzar, una vez que México alcance esas metas tiene que ponerse otras más altas para incluir a las personas que estarían fuera de este control, consideró. Distribución de la epidemia del VIH/Sida

De acuerdo con los más recientes estudios, la Ciudad de México, Veracruz y el Edomex son las entidades con más casos de Sida y seropositivo a VIH.

+ –

Casos reportados 2.000 4.000 6.000 8.000 10.000

Fuente: Informe Vigilancia Epidemiológica de casos de VIH/Sida en México Registro Nacional de Casos de Sida, de la Ssa y el Censida, 2017. Fuente: Excélsior • Created with Datawrapper

MAYORÍA DE INFECCIONES POR VIH, OCURREN EN ADOLESCENTES El directivo de Clínica Especializada Condesa en Iztapalapa resaltó que la mayoría de las infecciones ocurren en edades muy tempranas, ya que la tercera parte de las personas diagnosticadas son menores de 25 años, otra tercera parte está entre 25 y 33 años y otra tercera son mayores de 33. Lo anterior, obliga a las instituciones a realizar estrategias tanto de diagnóstico, como de prevención en la población adolescente. Estos últimos adquieren la infección en esa etapa, son hombres (las mujeres que adquieren la infección lo hacen en edades más avanzadas y en una relación estable), en este grupo de adolescentes se ha visto que los de mayor riesgo para infectarse son hijos de madres que los tuvieron en la adolescencia. También, padecieron algún tipo de abuso, iniciaron su Te puede vida sexual con hombres 10 años mayores que ellos; interesar: Diariamen estas son condiciones de vulnerabilidad que los pone en te, 41 personas se riesgo de adquirir la infección, este tipo de población infectan de VIH en requiere estrategias específicas. México Otro dato, es que la totalidad de adolescentes que adquieren el VIH han tenido relaciones con otros hombres, lo cual no quiere decir que sean homosexuales, pero si es un hecho en todos los casos de chicos tan jóvenes. https://www.excelsior.com.mx/nacional/incredulidad-y-estigma-mantienen-epidemia-del-vih-en-mexico/1291448 4/9 6/17/2020 Incredulidad y estigma mantienen viva epidemia del VIH en México | Excélsior

En el caso de hombres de mayor edad es más diverso, han tenido relaciones con otros hombres, sin ser homosexuales; son heterosexuales que han tenido relaciones con ambos sexos y hombres que solo han tenido relaciones con mujeres.

PROFILAXIS PRE-EXPOSICIÓN, UN MÉTODO PREVENTIVO La profilaxis preexposición (PrEP) consiste es que las personas con prácticas de riesgo tengan acceso a un medicamento (son dos medicamentos combinados en una sola pastilla), que reduce el riesgo de adquirir la infección por VIH, incluso hay reportes que este riesgo se reduce hasta 90 por ciento si se toma de manera adecuada. Explicó que las personas que tienen relaciones de muy alto riesgo, en específico sexo anal sin protección, si toman este medicamento de forma cotidiana, reduce el riesgo de adquirir la infección. Este método no se ofrece todavía por ningún gobierno en México, ni federal ni local, sin embargo es una recomendación de la Organización Mundial de la Salud como estrategia de prevención, que ya se implemente en los países. Desde julio de este año, la Clínica Especializada Condesa en ambas clínicas ofrecen profilaxis de pre exposición para hombres que tienen sexo con hombres, mujeres trans y personas que tiene parejas cero discordantes, es decir que son positivas e indetectables. Explicó que este protocolo de implementación, es con medicamentos donados por la industria farmacéutica, y se trata de demostrar que la estrategia tiene sentido, funciona y es efectiva en la población de la Ciudad de México.

El drama de vivir con VIH/Sida

PRUEBA DE VIH, DEBE REALIZARSE CADA AÑO Asimismo, recomendó para todas las personas que tienen vida sexual activa (incluyendo las que tienen parejas estables) realizarse una prueba de VIH una vez al año, debe ser un monitoreo rutinario, como ir al gineco, lo para realizarse el papanicolaou o ir al dentista.

Ello, porque, aunque la persona solo tenga una pareja, ésta puede estar con otras personas, aunque no lo diga, por eso es importante. La prueba debe hacerse en pareja, hay que quitarles el Te puede estigma a las pruebas de VIH, no se deben sacar interesar: Con deducciones que una persona que vive con VIH tiene una tratamientos vida sexual promiscua o tiene relaciones hombres con expectativa de vida hombres, es una prueba general. con VIH asciende a 40 años Y en caso de ser positivos, permite hacer una diagnóstico rápido y sencillo de incorporar a un tratamiento antirretroviral, sin esperar que la infección llegue a otras dimensiones y se trasmita a otras personas. https://www.excelsior.com.mx/nacional/incredulidad-y-estigma-mantienen-epidemia-del-vih-en-mexico/1291448 5/9 6/17/2020 Incredulidad y estigma mantienen viva epidemia del VIH en México | Excélsior

*jci

La ley de derechos de autor prohíbe estrictamente copiar completa o parcialmente los materiales de Excélsior sin haber obtenido previamente permiso por escrito y sin incluir el link al texto original.

TAGS: VIH/Sida Sexualidad Salud Estados Estadísticas

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PUBLICIDAD https://www.excelsior.com.mx/nacional/incredulidad-y-estigma-mantienen-epidemia-del-vih-en-mexico/1291448 6/9 Source: Exelsior Spanish to English translation of the article “Incredulidad y stigma mantienen epidemia del VIH en México”.

Disbelief and Stigma Maintains the HIV Epidemic in Mexico Original author: NOTIMEX January 20, 2019

According to the headline of the Clinica Especializada Condesa in Iztapalapa, Florentino Badial, highlights that adolescents are the most vulnerable; 1 of every 3 persons infected do not know that they live with the virus.

[CAPTION] [CAPTION]

[IMAGE]

MEXICO CITY The panorama of the HIV epidemic is more complex than just realizing the test and giving the treatment to the people diagnosed with the virus, the populations have little understanding of the risk, like men who have sex with men and women that have stable partners.

According to the director of the Clinica Especializada Condesa in Iztapalapa, [BOX] Florentina Badial Hernandez, today the infection could be stopped completely, given that if all the people that live with HIV received treatment (the test and treatment are free in Mexico), it will guarantee that the persons with HIV will not develop AIDS, since they maintain a good defense levels.

While the antiretroviral treatment stops the transmission of the virus, a person that received treatment and that controls the infection does not transmit it anymore. Then, why are there new cases every day, the specialist asked herself.

The prior, she explained, arises since the multicausal relationship is complex, in part because the populations that have low understanding of the risk, for example, among 70 and 80 percent of all the women that live with HIV, acquired it with their sole partner, the perception of risk that they have is extremely low, they do not have awareness about getting the test because they only have one sexual partner.

[DIAGRAM IMAGE]

WOMEN, AMONG THE VULNERABLE GROUPS

In interview with Notimex, she pointed out that women, are a population that require more access to said diagnostic tests, as well as to information. However, there are other populations

1. like men that do sexual work that, do have awareness of HIV, but due to poverty, they accept having sexual relations without a condom for extra money.

Another factor, is that of every 3 persons that live with HIV in the country, one does not know it, or has not had a diagnostic test that will permit her know her condition and look for assistance.

She mentioned that in Mexico City for every 10 persons that are diagnosed, nine are men and one is a woman, however, in the country the proportion is different, around 20 percent of the people living with HIV are women, and the concentration is observed in states with the most poverty like Chiapas, Oaxaca y Guerrero, where around a third of the persons that live with HIV are women.

Likewise, she emphasized that one out of every five trans women that go get an HIV test done come out with a positive result; the second most affected population, are men that have sex with other men (MSM), one of every six men that get the test done are infected.

[VIDEO]

These are groups called as high risk, which is why it is important that the HIV programs not only have the “medical consultation” components, but also that they are directed towards populations that have more risk, the key populations of the epidemic.

On that subject, she highlighted that the Clinica Especializada Condesa has programs for those populations, given that there are still people with greater vulnerability, like street situation, migrants, sexual workers that come from other states and that lack documentation, such as birth certificate, proof of residence.

Furthermore, they are segregated because of their sexual orientation, gender identity, sexual work or the same HIV, and those who on occasions are target of discrimination and stigma.

In the case of women with HIV they have a support program on the go, these have poverty conditions of socioeconomic state much more lower than men with HIV and women of the general population, have situations of violence, very grave of stigma and which require complementary support and not only the treatment, she stated.

PERCENTAGE OF INFECTED POPULATION Badial Hernandez mentioned that the approximate estimation that there is of infected people with HIV in Mexico City is around 40 thousand and could even be a little more between 40 to 50 thousand, because the estimation for the country is of 220 and 230 thousand respectively. Whereas, the estimate for diagnosed persons, is of 60 percent of people that live with HIV.

She emphasized that 17 percent of the population diagnosed do not immediately sign themselves up to the treatment, that is within the first three months, therefore the accessible programs directed to vulnerable populations are important, just as having other of mental health in the clinics.

2. Given this, they work together with psychiatrists and psychologists of the clinic, institutions that offer therapies and support groups, since one of the principal barriers for joining is stigma, a person that is known to have HIV faces denial through the discrimination and the stigma in his or her workplace, family or with his or her partner.

[BOX] An acceptance process of the diagnostic must be experienced, it is important for people and another challenge is the first year of starting the treatment; generally, around 20 percent suspend or lose their treatment, either due to migration, discrimination, stigma, change of institution and, in the worst case scenario, by abandonment of the treatment.

Therefore, accompaniment strategies have been implemented with persons that live with HIV and mental health professionals, who in the first months accompany the recently diagnosed persons with the virus, with support, interviews, they are invited to retain themselves to the attention.

She pointed out that, in this part, is where you need to have influence so the goals of the Wold Health Organization (WHO) are met, which is 90 percent with HIV will be diagnosed, of which 90 percent will be in treatment, and of those, 90 percent will control the infection, that is the undetectable viral burden.

The goal named 90 90 90, is the the continuation that 72 percent of the persons with HIV will be in control of their infection, but that is not enough, because that leaves 28 percent out person that are not diagnosed, do not received treatment and do not control the infection.

Nevertheless, it is a first goal to reach, once Mexico reaches those goals, it has to put other higher up to include persons that would be out of this control, she considered.

[DIAGRAM IMAGE]

MAJORITY OF INFECTIONS DUE TO HIV, OCCUR IN ADOLESCENTS The directive of Clinica Especializada Condesa en Iztapalapa highlighted that the majority of infections occur in very early ages, since a third of the diagnosed persons are younger than 25 years old, another third are between 25 and 33 years old and another third are older than 33.

The prior reasons, forces institutions to create strategies both of diagnostic, as well as of prevention in the adolescent population. [BOX] The latter get the infection in this stage, are men (the women that acquire the infection do so in older ages and in a stable relationship), in this group of adolescents it has been observed that children of mothers who had them during their adolescent years are at a higher risk to infect themselves.

Also, they suffered some type of abuse, began their sexual life with men 10 years older than them; these are vulnerable conditions that put them at risk of getting the infection, this type of population requires specific strategies.

3. Another piece of information is that the totality of adolescents that get HIV have had relationships with other men, which it does not mean that they are homosexuals, but it is a fact in all of the cases of boys too young.

In the case of adult men it is more diverse, they have had relationships with other men, without being homosexuals; they are heterosexuals that have had relationships with both sexes and men that only have had relationships with women.

PRE-EXPOSURE PROPHYLAXIS, A PREVENTIVE METHOD The pre-exposure prophylaxis (PrEp) consists is that the persons with at-risk practiceshave access to a medication (they are 2 medications combined in a single pill), which reduces the risk of getting the infection for HIV, there are even reports that this risk is reduced up to 90 percent if it is taken in the appropriate manner.

She explained that the persosn that have relationships of very high risk, specifically anal sex without protection, if they take this medication daily, it reduces the risk of getting the infection.

This method is not offered yet by any government in Mexico, neither federal norlocal, however it is a recommendation by the World Health Organization as a preventive strategy, that it should already be implemented in the countries.

Since July of this year, the Clinica Especializada Condesa in both clinics they offer pre-exposure prophylaxis for men that have sex with men, trans women and people that have partners that are not conflicting, that is that are positive and undetectable.

She explained that this implementation protocol, is with medication donated by the pharmaceutical industry, and it tries to demonstrate that the strategy makes sense, works and is effective in the Mexico City population.

[VIDEO]

THE HIV TEST, SHOULD BE DONE EVERY YEAR Likewise, she recommended to all persons that have an active sexual life [BOX] (including those that have stable partners) to have the HIV test done once a year, it should be routine monitoring, like going to the gyn, to get the Papanicolaou, or go to the dentist.

This, because, even though the person only has one partner, this one could be with other people, even though he or she does not say it, that is why it is important.

The test should be done as a couple, the stigma towards HIV tests should be removed, should not create an assumption that a person living with HIV has a promiscuous sexual life or has men with other men relationships, it is just a typical test.

4. And in the case of being positive, allows for a fast and simple diagnostic to be made to sign up for an antiretroviral treatment , without having to wait that the infection reaches other dimensions and it be transmitted to other persons.

*jci

Author rights law strictly prohibits the complete or partial replication of Excelsior materials without having previously obtained written permission and without including the original text.

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____Spanish_____ into English, and certify that the translation of ____Article:

“Incredulidad y stigma mantienen epidemia del VIH en México” (Name of

Document)____ is true and accurate to the best of my abilities.

______Natalie Nicole Trinidad Lira__ (signature of translator) (typed/printed name of translator)

__594 Dean Street, Brooklyn, NY 11238____ (address of translator)

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TAB 15 6/17/2020 Mexico: Mexican Network of Organisations against HIV criminalisation calls on Veracruz State Congress to stop proposed criminalisation legislation | …

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NEWS CURATED FROM OTHER SOURCES Mexico: Mexican Network of Organisations against HIV criminalisation calls on Veracruz State Congress to stop proposed criminalisation legislation

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When considering the criminalisation of COVID-19, lessons from HIV should be retained Marginalised communities will not get justice from criminalising 23 July 2019 Covid-19 transmission Mexico Law and policy reform Campaigns June 17, 2020

New research analyses approaches taken NGOs call local deputy to stop proposal that by 49 dating and hook-up platforms criminalizes people with HIV https://www.hivjustice.net/news-from-other-sources/mexico-mexican-network-of-organisations-against-hiv-criminalisation-calls-on-veracruz-state-congress-to-stop-p… 1/4 6/17/2020 Mexico: Mexican Network of Organisations against HIV criminalisation calls on Veracruz State Congress to stop proposed criminalisation legislation | … Source: Diario de Xalapa in designing for HIV disclosure Google translation, scroll down for Spanish article Surveillance, Stigma & On April 30, 2018, the Supreme Court of Justice of the Nation Sociotechnical Design for HIV ruled in favour of the Unconstitutionality Action 139/2015 June 17, 2020 promoted by the National Human Rights Commission

US: The Mexican Network of Organizations Against HIV Interdisciplinary Criminalization, called upon the deputy chairwoman of the working group Administration and Budget Commission of the Veracruz State issues Congress, Jessica Ramírez Cisneros, to stop the legislative recommendations process of her proposal to reform articles 157 and 158 of the to better inform research while Criminal Code of the State , where it is intended to impose from serving the six months to ve years in prison and a ne of up to 50 Units of interests of Measurement and Update (UMA) who, fraudulently, endangers individuals aected of “contagion” of a serious illness to another person by HIV Addressing In this, it is considered among these serious ethical challenges in US- and communicable diseases to “syphilis, gonorrhea, hepatitis B based HIV and C, herpes, HIV, tuberculosis” , which contradicts the phylogenetic historical ruling of the SCJN that invalidates the modication of research the annulment of article 158. June 17, 2020

Through a letter addressed to the legislator to channel their Launch of GNP+ eorts for human rights and encourage the repeal of article 158 PLHIV Stigma of the Criminal Code for the Free and Sovereign State of Index Advocacy Toolkit Veracruz of Ignacio de la Llave. PLHIV Stigma Index Advocacy Remember that on April 30, 2018, the Supreme Court of Justice Toolkit – People of the Nation ruled in favor of the Unconstitutionality Action Living with HIV 139/2015 promoted by the National Human Rights Commission , Stigma Index at the request of the Multisectoral Group on HIV / AIDS and STIs June 12, 2020 of the State of Veracruz, against the amendment to article 158 of UK: Scotland Police the Criminal Code for the Free and Sovereign State of Veracruz ends practice of of Ignacio de la Llave, in whose content the penalty for the marking people oense of alleged “contagion” (transmission should be said) was with HIV as added to who has sexually transmitted infections, specifying HIV. 'contagious' in intelligence database ONGs llaman a diputada local parar propuesta que Police Scotland criminaliza a personas con VIH to stop recording HIV El 30 de abril de 2018, la Suprema Corte de Justicia de la status in database Nación falló a favor de la Acción de Inconstitucionalidad June 12, 2020 https://www.hivjustice.net/news-from-other-sources/mexico-mexican-network-of-organisations-against-hiv-criminalisation-calls-on-veracruz-state-congress-to-stop-p… 2/4 6/17/2020 Mexico: Mexican Network of Organisations against HIV criminalisation calls on Veracruz State Congress to stop proposed criminalisation legislation | … 139/2015 promovida por la Comisión Nacional de los Derechos Humanos

La Red Mexicana de Organizaciones contra la Criminalización del News by the HIV Justice VIH, hizo un exhorto a la diputada presidenta de la Comisión de Network Administración y Presupuesto del Congreso del Estado de Veracruz, Jessica Ramírez Cisneros, detener el proceso New Francophone legislativo de su propuesta para reformar los artículos 157 y Africa HIV criminalisation 158 del Código Penal del Estado, en donde se pretende advocacy factsheet imponer de seis meses a cinco años de prisión y multa de hasta published today 50 Unidades de Medida y Actualización (UMA) a quien, June 12, 2020 dolosamente, ponga en peligro de “contagio” de una enfermedad grave a otra persona. Beyond Blame: Challenging En esta, se considera entre dichas enfermedades graves Criminalisation for HIV JUSTICE y transmisibles a la “sílis, gonorrea, hepatitis B y C, herpes, WORLDWIDE @ VIH, tuberculosis”, misma que contradice el fallo histórico de la HIV2020 Online SCJN que invalida la modicación del anula el artículo 158. June 5, 2020

A través de una carta dirigida a la legisladora canalizar sus HIV JUSTICE esfuerzos en pro de los derechos humanos y fomente la WORLDWIDE derogación del artículo 158 del Código Penal para el Estado COVID-19 Libre y Soberano de Veracruz de Ignacio de la Llave. criminalisation statement now Recuerdan que el 30 de abril de 2018, la Suprema Corte de available in Arabic May 29, 2020 Justicia de la Nación, falló a favor de la Acción de

Inconstitucionalidad 139/2015 promovida por la Comisión Canadian study Nacional de los Derechos Humanos, a solicitud del Grupo provides damning Multisectorial en VIH/sida e ITS del Estado de Veracruz, en evidence of the contra de la reforma al artículo 158 del Código Penal para el “dramatic overrepresentation” Estado Libre y Soberano de Veracruz de Ignacio de la Llave, en of Black men in HIV cuyo contenido se agregó la sanción por delito de presunto criminalisation “contagio” (debería decirse transmisión) a quien presente news reporting infecciones de transmisión sexual, especicando VIH. May 22, 2020

Global HIV Criminalisation Database launched today on the new HIV Justice Network website May 15, 2020

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Disclaimer This website operates as a global hub, consolidating a wide range of resources on HIV criminalisation for advocates working to abolish criminal and similar laws, policies and practices that regulate, control and punish people living with HIV based on their HIV-positive status. While we endeavour to ensure that all information is correct and up-to-date, we cannot guarantee the accuracy of laws or cases. The information contained on this site is not a substitute for legal advice. Anyone seeking clarication of the law in particular circumstances should seek legal advice. Read more

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The HIV Justice Network is supported by a grant from the Robert Carr Fund provided to the HIV Justice Global Consortium. The HIV Justice Network is also grateful to The Monument Trust for its generous support between 2012-15.

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NEWS CURATED FROM OTHER SOURCES Mexico: The Network against the Criminalisation of HIV report that 30 out of 32 states criminalise "exposure to infection" in Mexico

News curated from other sources

When considering the criminalisation of COVID-19, lessons from HIV should be retained Marginalised communities will not get justice from criminalising Covid-19 transmission June 17, 2020 7 November 2017

Mexico Advocacy Articles Punitive laws and policies New research Laws and policies analyses approaches taken by 49 dating and hook-up platforms

https://www.hivjustice.net/news-from-other-sources/mexico-the-network-against-the-criminalisation-of-hiv-report-that-30-out-of-32-states-criminalise-exposure-to-in… 1/5 6/17/2020 Mexico: The Network against the Criminalisation of HIV report that 30 out of 32 states criminalise "exposure to infection" in Mexico | HIV Justice Net… Source: http://desastre.mx/portada/en-mexico-30- in designing for estados-criminalizan-el-vih-como-delito-de-peligro-de- HIV disclosure contagio/ Surveillance, Stigma & In Mexico 30 states criminalize HIV as “a crime of exposure Sociotechnical Design for HIV to infection” (Google translation. For article in Spanish, please June 17, 2020 scroll down)

US: The Network against the Criminalisation of HIV, a coalition Interdisciplinary formed by 29 associations in favour of human rights in Mexico, working group reported that 30 of the 32 states that make up the Mexican issues Republic include in their Penal Codes the category “Crime of recommendations exposure to infection”, which punishes people who transmit or to better inform research while can transmit a “non-curable disease” to another person. serving the interests of “The aim of the network is not to start a witch hunt, because it individuals aected was surprising that in the last two years this law has been by HIV discussed in three dierent state congresses,” he explained to Addressing Leonardo Bastida, member of the association, Letra S. ethical challenges in US- According to the organisations, this legal statute endangers based HIV phylogenetic people with HIV, as it criminalizes and undermines strategies research aimed at combating the epidemic. Specically, laws sanction the June 17, 2020 possibility of transmitting an illness, even if it happens involuntarily. Launch of GNP+ PLHIV Stigma According to Bastida, since the year 200 have registered 39 Index Advocacy criminal proceedings for this cause, of which 15 are located in Toolkit Veracruz, nine in Sonora, ve in Tamaulipas, ve more in the PLHIV Stigma Index Advocacy State of Mexico, three in Chihuahua, one in Mexico City and one Toolkit – People more in Nuevo León. Living with HIV Stigma Index According to the activists, these criminalizing laws emerged in June 12, 2020 the rst half of the 20th century and focused mainly on penalizing the “contagion” of syphilis, but over the years they UK: Scotland Police were modied and included various diseases. ends practice of marking people Only Aguascalientes and San Luis Potosí do not have with HIV as 'contagious' in this legalstatute in their penal codes, while in Sonora the law intelligence could be toughened, since there is currently a proposal that is database being analyzed to establish sentences of up to 15 years in Police Scotland prison. Activists and the State Human Rights Commission seek to stop to repeal Article 113 of the Criminal Code, which includes this recording HIV status in criminal category. database June 12, 2020 https://www.hivjustice.net/news-from-other-sources/mexico-the-network-against-the-criminalisation-of-hiv-report-that-30-out-of-32-states-criminalise-exposure-to-in… 2/5 6/17/2020 Mexico: The Network against the Criminalisation of HIV report that 30 out of 32 states criminalise "exposure to infection" in Mexico | HIV Justice Net… The network detailed that in the case of Veracruz, legislators approved in 2015 an amendment to the local penal code to add to the “crime of contagion” the term “sexually transmitted infections. In addition, with the amendment of article 158, News by the HIV Justice sentences of 6 months to 5 years in prison were established. Network

Faced with this situation, a group of social organizations New Francophone presented an appeal of unconstitutionality to the Supreme Court Africa HIV criminalisation of Justice of the Nation. The activists trust that the SCJN will rule advocacy factsheet in favor of the lawsuit. published today June 12, 2020 Members of the Network against Criminalization warned that these types of laws do not help to combat the increase in HIV Beyond Blame: cases and only contribute to stigmatization and make it dicult Challenging for strategies focused on combating HIV transmission to meet Criminalisation for HIV JUSTICE their goals. WORLDWIDE @ HIV2020 Online With information from EFE. June 5, 2020

— — — — — — — — — — — — — — — — — - HIV JUSTICE WORLDWIDE COVID-19 En México 30 estados criminalisation statement now available in Arabic criminalizan el VIH como May 29, 2020

“delito de peligro de Canadian study provides damning evidence of the contagio” “dramatic overrepresentation” La Red contra la Criminalización del VIH, una coalición of Black men in HIV conformada por 29 asociaciones a favor de los derechos criminalisation news reporting humanos en México, informaron que 30 de los 32 estados que May 22, 2020 conforman la república mexicana contemplan en sus Códigos Penales la categoría “Delito de peligro de contagio”, la cual Global HIV castiga a las personas que transmitan o puedan transmitir una Criminalisation “enfermedad no curable” a otra persona. Database launched today “El objetivo de la red es que no empiece una cacería de brujas, on the new HIV Justice Network porque fue sorprendente que en los últimos dos años se haya website discutido en tres congresos estatales diferentes esta ley”, explicó May 15, 2020 a Leonardo Bastida, integrante de la asociación, Letra S.

https://www.hivjustice.net/news-from-other-sources/mexico-the-network-against-the-criminalisation-of-hiv-report-that-30-out-of-32-states-criminalise-exposure-to-in… 3/5 6/17/2020 Mexico: The Network against the Criminalisation of HIV report that 30 out of 32 states criminalise "exposure to infection" in Mexico | HIV Justice Net… De acuerdo con las organizaciones, dicha gura penal pone en peligro a las personas con VIH, ya que las criminaliza y resta fuerza a las estrategias enfocadas a combatir la epidemia. Especícamente, las leyes sancionan la posibilidad de transmitir alguna enfermedad, aunque suceda de forma involuntaria.

De acuerdo con Bastida, desde el año 200 se han registrado 39 procesos penales por esta causa, de los cuales 15 se ubican en Veracruz, nueve en Sonora, cinco en Tamaulipas, cinco más en el Estado de México, tres en Chihuahua, uno en la Ciudad de México y uno más en Nuevo León.

Según explicaron los activistas, estas leyes criminalizadoras surgieron en la primera mitad del siglo XX y se enfocaban principalmente a penalizar el “contagio” de la sílis, pero con el pasar de los años se fueron modicando e incluyeron diversas enfermedades.

Sólo Aguascalientes y San Luis Potosí no cuentan con esta gura en sus códigos penales, mientras que en Sonora se podría endurecer la ley, ya que actualmente existe una propuesta que está siendo analizada para establecer penas con hasta 15 años de prisión. Los activistas y la Comisión de Derechos Humanos del Estado buscan derogar el artículo 113 del Código Penal, el cual incluye esta categoría penal.

La red detalló que en el caso de Veracruz, los legisladores aprobaron en 2015 modicar el código penal local para agregar al “delito del contagio” el término “infecciones de transmisión sexual. Además con la modicación del artículo 158 se establecieron penas de 6 meses a 5 años de cárcel.

Ante este panorama, un grupo de organizaciones sociales presentaron un recurso de inconstitucionalidad a la Suprema Corte de Justicia de la Nación. Los activistas confían en que la SCJN falle a favor de la demanda.

Los integrantes de la Red contra la Criminalización alertaron que este tipo de leyes no ayudan a combatir el aumento de casos de VIH y sólo contribuyen a la estigmatización y dicultan que las estrategias enfocadas a combatir la transmisión del VIH cumplan sus metas.

Con información de EFE.

Registered oce: Stichting HIV Justice (HIV Justice Foundation), Eerste Helmersstraat 17 B 3, 1054 CX Amsterdam, The Netherlands

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