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Trans and Gender- Diverse Persons and Their Economic, Social, Cultural, and Environmental Rights

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Trans and Gender- Diverse Persons and Their Economic, Social, Cultural, and Environmental Rights Report on Trans and Gender- Diverse Persons and Their Economic, Social, Cultural, and Environmental Rights OEA/Ser.L/V/II. Doc. 239 7 August 2020 Original: Spanish INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Report on Trans and Gender- Diverse Persons and Their Economic, Social, Cultural, and Environmental Rights 2020 ichr.org OAS Cataloging-in Publication Data Inter-American Commission on Human Rights. Special Rapporteurship on Unit Economic, Social, Cultural and Environmental Rights. Report on trans and gender-diverse persons and their economic, social, cultural and environmental rights : approved by the Inter-American Commission on Human Rights on August 7, 2020. v. ; cm. (OAS. Official records ; OEA/Ser.L/V/II) ISBN 978-0-8270-7113-1 1. Human rights. 2. Gays rights. 3. Transsexuals. 4. Sexual minorities-- Civil rights. I. Title. II. Series. OEA/Ser.L/V/II Doc.239/20 INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Members Joel Hernández García Antonia Urrejola Flávia Piovesan Esmeralda Arosemena Bernal de Troitiño Margarette May Macaulay Julissa Mantilla Falcón Edgar Stuardo Ralón Orellana* Executive Secretary Paulo Abrão Chief of Staff of the Executive Secretariat of the IACHR Fernanda Dos Anjos Assistant Executive Secretary for Monitoring, Promotion and Technical Cooperation María Claudia Pulido Assistant Executive Secretary for Cases and Petitions Marisol Blanchard Vera In collaboration with: Soledad García Muñoz, Special Rapporteur on Economic, Social, Cultural, and Environmental Rights (ESCER) ∗ Commissioner Edgar Stuardo Ralón Orellana dissented from the approval of this report Approved by the Inter-American Commission on Human Rights on August 7, 2020 TABLE CONTENTS INTRODUCTION AND METHODOLOGY 9 CHAPTER 1 | HUMAN RIGHTS AND GENDER IDENTITY IN THE AMERICAS 19 A. Right to Recognition of Gender Identity 19 1. The Right to Recognition of Gender Identity in the Inter-American System 20 2. Legal Standards on Recognition of Gender Identity 22 a. Correction of Registries 22 b. Adequate Remedy 23 c. Admissible Requirements 24 d. Dignified Treatment in accordance with Self-Perceived Gender Identity 25 e. Recognition of Gender Identity as a Requirement to Enjoy Other Rights 26 B. The Right to Gender Expression 27 1. Gender Expression in the Inter-American Human Rights System 29 2. Gender Expression as a Prohibited Basis for Discrimination 30 C. An Overview of Diverse Gender Identities in the Americas 32 1. Trans, Travesti, Transsexual, and Transgender Identities 33 a. Feminine Trans Identities 35 b. Masculine Trans Identities 36 c. Non-Binary/Genderqueer Persons 38 2. Ancestral Identities 40 D. Diverse Identities and Expressions as They Intersect with Other Groups 42 1. Children and Adolescents 42 2. Older Persons 44 3. Afro-Descendant Persons 46 4. Migrant and Internally Displaced Persons and Asylum Applicants 47 E. Data Collection 48 CHAPTER 2 | ECONOMIC, SOCIAL, CULTURAL, AND ENVIRONMENTAL RIGHTS IN THE INTER-AMERICAN HUMAN RIGHTS SYSTEM 55 A. Regional Instruments and Their Approach to ESCER 56 B. Development of ESCER in the Inter-American Human Rights System 59 C. ESCER in the Framework of the Sustainable Development Goals 63 CHAPTER 3 | RIGHT TO EDUCATION AND CULTURE 67 A. Human Right to Education 67 B. The Enjoyment to the Right to Education by Trans and Gender-Diverse Persons 70 1. Forced to Leave Home and Situation of Poverty 71 2. Lack of Recognition of Gender Identity 72 3. Cisnormative School Rules 76 4. School Bullying 77 C. Toward an Inclusive Education 79 1. Measures of Affirmative Action 80 2. Education as a Tool for Eradicating Prejudice 82 3. Comprehensive Sexuality Education 84 4. Human Rights Education 87 5. Education as a Tool for Emerging from Poverty 89 D. The Human Right to Culture 91 1. The Right of Trans and Gender-Diverse Persons to Culture 93 E. Toward more Inclusive Education and a Culture that Respects Gender Identity and Expression 94 CHAPTER 4 | RIGHT TO WORK AND ITS JUST, EQUITABLE, AND SATISFACTORY CONDITIONS 99 A. The Human Right to Work and Its Just, Equitable, and Satisfactory Conditions 99 B. Exclusion of Trans and Gender-Diverse Persons from Work 101 1. Barriers to Entering the Labor Market 102 a. Failure to Recognize Gender Identity 102 b. Prejudice and Discrimination 103 c. Criminal Records 105 2. Workplace Discrimination and Harassment 107 3. Options for Survival 109 a. Self-employment and Trades 109 b. Trans Labor Networks and Cooperatives 109 c. Sex Work 110 4. Exclusion from the Right to Social Security 112 C. Inclusion of Trans and Gender-Diverse Persons in the Workforce 113 1. Antidiscrimination Labor Regulations 114 2. Public Policies on Entry to the Labor Market 116 a. Coordination with Companies and the Private Sector 117 b. Coordination with Unions 120 c. Measures of Affirmative Action 121 CHAPTER 5 | RIGHT TO HEALTH 127 A. The Human Right to Health 127 B. Exclusion of Trans and Gender-Diverse Persons 131 1. Pathologizing Diverse Gender Identities and Expressions 131 2. Discrimination and Violence in Health 133 3. Failure of Health Systems to Recognize Gender Identity 135 4. Body Modifications without Medical Supervision 137 5. Exposure to HIV 140 6. Mental health 142 C. Toward the Provision of Comprehensive and Inclusive Health Services 143 1. Antidiscrimination Laws and Regulations 144 2. Depathologizing Diverse Gender Identities and Expressions 144 3. Public Health Policies that are Inclusive and Do Not Discriminate 146 4. Medical services related to body modification 152 CHAPTER 6 | EFFECTS OF THE COVID-19 PANDEMIC ON THE ESCER OF TRANS AND GENDER-DIVERSE PERSONS 157 A. The IACHR Response to the Pandemic 157 B. LGBTI Persons during the Pandemic 158 1. The Persistence of Acts of Violence and Discrimination Based on Gender Identity/Expression 158 2. Intensification of Social Exclusion and Poverty Affecting Trans and Gender-Diverse Persons 159 CHAPTER 7 | CONCLUSIONS AND RECOMMENDATIONS 163 RECOMMENDATIONS 167 A. Recommendations on Matters that Impact Trans and Gender-Diverse Persons’ Enjoyment of ESCER 168 B. General Recommendations on Respecting and Guaranteeing the ESCER of Trans and Gender-Diverse Persons 170 C. Right to Education 171 D. Right to Culture 172 E. Right to Health 172 F. Right to Work 173 Introduction and Methodology | 9 INTRODUCTION AND METHODOLOGY 1. For more than a decade, the Inter-American Commission on Human Rights (hereinafter the "IACHR," the "Inter-American Commission," or the "Commission") has received abundant information on criminalization, violence, prejudice, and discrimination based on sexual orientation, gender identity, gender expression, and sex characteristics in the Americas.1 The information also reveals the situation of extreme vulnerability that LGBTI persons face2 throughout the continent, as the violation of their human rights is widespread and present—to a greater or lesser extent—in all Member States of the Organization of American States (hereinafter, the "OAS"). 2. These practices are based on a perpetrator’s desire to "punish" identities, expressions, behaviors, or bodies that differ from traditional gender norms and roles or that run contrary to the man/woman binary system.3 They include violations of the right to life, including extrajudicial executions committed by State actors or with the acquiescence thereof, as well as murders committed by non-State actors; sexual violence; and acts of discrimination and prejudice that hinder or block the exercise of their rights to identity, to justice, to health and education, among others. 3. In this context, it has been repeatedly observed that, within the universe of LGBTI persons, trans and gender-diverse persons4 are exposed to greater vulnerability and 1 IACHR, Violence against LGBTI Persons in the Americas", November 12, 2015. Also see: IACHR, Press Release No. 54/13: “IACHR Condemns Recent Wave of Violence against LGTBI Persons in Haiti,” June 30, 2013; IACHR, Press Release 60/13: “IACHR eXpresses concern about violence and discrimination against LGTBI persons, particularly youth, in the Americas,” August 15, 2013; IACHR,Press Release 79/13: “IACHR EXpresses Concern about Mob Attacks, Police Abuse and other Forms of Violence against LGTBI Persons,” October 24, 2013; IACHR, Press Release 92/13: “The IACHR is concerned about violence and discrimination against LGBTI persons in the conteXt of education and family settings. ” November 22, 2013; IACHR, Press Release 23/14: “IACHR Expresses Concern about Attacks against LGBTI Persons and other Forms of Violence and Restrictions against LGBTI Organizations in the Americas,” February 27, 2014; IACHR, Press Release 153/14: “IACHR EXpresses Concern over Pervasiveness of Violence against LGBTI Persons and Lack of Data Collection by OAS Member States. ” December 16, 2014; IACHR, Press Release 49/15: “Discriminated and Made Vulnerable: Young LGBT and InterseX People Need Recognition and Protection of their Rights,” May 13, 2015. 2 Although in naming its Rapporteurship, the Commission has adopted an acronym that is easily recognizable, it is important to note that the Rapporteurship on the Rights of LGBTI Persons deals with human rights issues related to seXual orientation, gender identity and expression, and seX characteristics. The Commission also recognizes each individual’s self identification as the guiding principle. Therefore, it is possible that some individuals who are included in the focus of the Rapporteurship’s work are not identified as belonging to the categories implied by the acronym “LGBTI." 3 IACHR, Violence against LGBTI Persons
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