Historic joint submission recommends stronger protection for LGBTI persons in detention

Friday, January 15, 2021

The APT has partnered with 16 national and local preventive mechanisms (NPMs/LPMs) to prepare a submission for the Inter-American Court of Human Rights that identifies practical measures to promote the safety and dignity of LGBTI persons deprived of liberty.

The historic submission – the first time the APT has worked on this type of document in collaboration with such a broad range of NPMs/LPMs – responds to the pervasive experience of discrimination and violence that LGBTI persons across Latin America face in daily life and which is exacerbated in places of detention.

In August 2020, the Inter-American Court of Human Rights called for written contributions on the request for an advisory opinion by the Inter-American Commission on Human Rights related to ‘Differentiated Approaches to Persons Deprived of Liberty’, which considers the inequality faced by groups in situations of vulnerability in detention, including LGBTI persons.

The joint submission coordinated by the APT includes information and analysis provided by NPMs/LPMs from Argentina, Brazil, Chile, Costa Rica, Ecuador, Guatemala, Honduras, Mexico, Panama, Paraguay, Peru, and Uruguay.

“Through their independent monitoring work, these oversight bodies document the experiences of different groups in detention and make recommendations for change,” said APT Senior Adviser, Vulnerabilities and Policy, Veronica Filippeschi.

“Our submission draws on this vast expertise to identify the risks faced by LGBTI persons deprived of liberty in the region, both from a legal and practical perspective.”

Ms Filippeschi noted that the Yogyakarta Principles provide an authoritative interpretation on how international human rights law applies to issues of sexual orientation and gender identity.

“While many of these Principles are relevant for LGBTI persons deprived of their liberty, there are currently no international or regional standards on detention that address the specific needs of LGBTI persons deprived of liberty,” she said.

“An advisory opinion from the Inter-American Court would significantly help to strengthen protection of the rights of LGBTI persons in prison, not only in the Americas but in other regions of the world too.”

Addressing the specific risks for LGBTI persons in prison

LGBTI persons in Latin America and the Caribbean have historically been victims of structural discrimination, stigma, various forms of violence and violations of their fundamental rights.

The joint submission notes that the prison environment in the region – with its strict division between the sexes based on a binary and heteronormative logic, as well as the structural problems such as overcrowding, corruption and self-governance – exposes LGBTI persons to a significant risk of discrimination and violence.

The submission identifies the discrimination, violence and ill-treatment faced by LGBTI persons in prison from the moment of admission and placement, including the risks related to body searches, isolation, lack of adequate health care, violence from prison authorities and other detainees.

Criminalisation, invisibility and gender recognition based on self-determination

“In our joint submission, we also analyse a range of contextual issues that have a direct impact on the protection – or lack of protection – of LGBTI persons in prison,” Ms Filippeschi said.

This submission considers:

  • how legislation and regulations that criminalise or discriminate against people on the basis of their sexual orientation, gender identity or expression and sexual characteristics have a direct impact on the rate of imprisonment of LGBTI persons and on their treatment and conditions of detention, calling for States to repeal such norms;
  • the importance of data collection on LGBTI persons in prison and of the recognition of gender-identity and expression based on self-determination, respecting the guiding principles of self-identification, privacy and informed consent, among others; and
  • the importance of recognition of gender identity based on self-determination as a fundamental premise to make the needs of LGBTI persons visible in the prison context, to ensure protection against violence, ill-treatment or torture, and to exercise other rights, such the right to health.

The joint submission features good practices from the region and recommends a range of practical measures that States should take to address the risks identified and more effectively protect the rights of LGBTI persons in prison.

“The strength of our submission is that it is grounded on a sound analysis of international, regional and national normative frameworks, as well as first-hand information gathered by NPMs and LPMs in their visits to prisons and their private interviews with persons deprived of liberty,” Ms Filippeschi said.

 

Staff members