Ecuador: Transvestite Sex Workers Suffer Arbitrary Arrest, Forced HIV-Testing, and Other Indignities at Hands of Local

July 6, 2000 - Transvestite sex workers in Guayaquil, the provincial capital of Guayas in western Ecuador, have been arrested, reportedly under "assault against modesty" charges, and forced to undergo HIV-testing while in detainment. Those who tested positive for the HIV antibody then faced further discrimination, including forced segregation and hospitalization. Fundación Amigos por la Vida, a local AIDS organization that is monitoring the situation, and IGLHRC request that you act immediately by sending letters to the appropriate authorities, deploring the unconstitutional and degrading treatment of these detainees and demanding their immediate release.

ADDRESSES

Please send your letters to:

Ministro de Gobierno
Ab. Antonio Andreta
Benalcazar y Espejo s/n
Quito, Ecuador
Fax +(59 32) 58 00 67

And please send one copy of your letter to all of the following:

Gobernador del Guayas, Ab. Joaquín Martínez Amador
Fax (59 34) 534 26 21
E-mail: gober@gobernacionguayas.gov.ec
Intendente de Policía, Ab. Pedro Cruz Rodríguez
Fax (59 34) 534 26 21
E-mail: inten@gobernacionguayas.gov.ec
Fundación Amigos por la Vida
Pedro Carbo 1106 y Colón, 10mo. piso
Guayaquil Ecuador
Tel./Fax: +(59 34) 32 97 58
Email: famivida@yupimail.com

SAMPLE LETTER

Dear ,

I/we wish to request the immediate release of eight transvestite sex workers who were arbitrarily jailed, subjected to compulsory HIV-testing, and otherwise victimized by local law enforcement officials in Guayaquil on July 6, 2000. I/we implore you to conduct an immediate and thorough investigation into the wrongful arrest and forced HIV-testing and hospitalization imposed on these individuals and take appropriate legal measures against the perpetrators. In addition, I/we encourage you to investigate the arrest of three other individuals, arrested on the same day as the aforementioned eight, but who were released after having exorbitant bribes exacted from them.

The litany of abuses endured by these eleven transvestite sex workers is characterized by a profound disregard for basic human rights. Coercive measures such as enforced HIV testing, proven to have minimal public health benefit compared with the gross invasion of privacy and autonomy, are illegal in Ecuador. Differential treatment on the grounds of their HIV status similarly constitutes discriminatory behavior, as does their compulsory internment in both a hospital and a jail. You must respond to these egregious offenses committed under your jurisdiction.

Ecuador explicitly provides protection from discrimination on the basis of sexual orientation under Article 23 of its Constitution. Unique among Latin American countries in its extension of constitutional protection to sexual minorities, Ecuador thereby maintains that this is a legally binding principle to be upheld, not abused. We demand that you take legal action against transgressors of this constitutionally enshrined right. Article 7 of the National AIDS Law affords protections from discrimination based on HIV status. The government of Ecuador is responsible for preserving, not violating, this regulation, and officially sanctioned individuals who flaunt these laws must be called out and held appropriately accountable.

These eleven detainees are also protected from discrimination and invasions of privacy and bodily integrity through international human rights law, which puts forth standards for human treatment to which Ecuador, as a signatory to many of those treaties, has agreed. International human rights covenants such as the Universal Declaration of Human Rights (UDHR) articulate principles of non-discrimination and equality that the eleven detainees have a right to enjoy. The UDHR offers numerous protections that in this case have been severely compromised. Article 3, for example, provides for the right to life, liberty and security of person; Article 9 provides for the protection from arbitrary arrest and detention; Article 12 provides for protection against interference with one's privacy, and Article 8 provides for "effective remedy" from violations of legal and constitutional rights.

The International Covenant on Civil and Political Rights (ICCPR) similarly lays out basic human rights requirements, several of which have been grossly violated in the case of the eleven detained transvestites. Article 9 underscores the right to liberty and security of person, as well as the right to compensation for deprivation of that right. Article 10 provides for the right to be treated with humanity and respect for dignity while under arrest, and Article 12 ensures the right to freedom of movement. Article 2 ensures equal freedom for all under the principles set out in the Declarations.

The International Covenant on Economic, Social, and Cultural Rights (ICESCR), to which Ecuador is party, describes many inalienable rights that are also fundamental to the enjoyment of civil and political rights. The right to self-determination (Article 1), the right to the highest attainable standard of physical and mental health (Article 12), and others were flagrantly denied or curtailed during the arrest, detention, compulsory testing and discriminatory treatment of the eleven individuals.

In the UN HIV/AIDS and Human Rights International Guidelines, Guideline 5 emphasizes the need for States to "enact or strengthen anti-discrimination and other protective laws that protect vulnerable groups, people living with HIV/AIDS and people with disabilities from discrimination in both the public and private sectors,?c" Mandatory testing and testing without informed consent violate these values. We hope you will follow public health and human rights best practice and discourage any behavior that negates this guideline.

I/we have listed many clear and compelling principles and laws that I/we hope will inform your plan of action to redress the injustices suffered by eleven transvestite sex workers in Guayaquil in July.

Ecuador's National Human Rights Plan, Article 26, states that the government "shall verify that the State security machinery and agents do not persecute and harass individuals on account of their sexual options." Guayaquil police evidenced extreme gender- and AIDS-phobia in their arrest and subsequent treatment of the detainees, and publicly perpetuated stereotypes that serve only to exacerbate intolerance and promote vulnerability to HIV/AIDS in society at large. I/we expect you will commit the necessary time and resources to the investigation of criminal and degrading treatment experienced by eleven Ecuadorian citizens in Guayaquil.

We also recommend that you commit to prosecuting all AIDS- and trans-phobic crimes, implementing your laws fully and fairly, and upholding the right to equal protection for all (regardless of sexual orientation, gender identity, and HIV status). By exposing grave human rights violations against sexual minorities, you will ensure their ability to exercise the rights accorded them in national and international law.

Sincerely,

BACKGROUND

Guayaquil, Ecuador - Less than 2 weeks after 60 police used tear gas and harassment to disrupt a group of several hundred individuals from Guayaquil's gay, lesbian, bisexual, and transgender community who had peacefully assembled for their annual Pride March (June 28, 2000, see IGLHRC's action alert, http://www.iglhrc.org/world/southamerica/Ecuador2000Aug.html), eleven transvestite sex workers were jailed by local officials, reportedly under Article 604.35 of the Penal Code ("assault against modesty"). This charge carries either a fine or a jail term (minimum of 2 days, maximum of 4). Nearly one month later, eight remain in detention. Three individuals were released only after being forced to pay a bribe of 1,000,000 sucres (US$40, the equivalent of a monthly salary) to Guayaquil's Chief of Police (Intendente de Policía, Pedro Cruz Rodríguez.)

On July 7, the day after the arrest, Cruz Rodríguez communicated with the Instituto Nacional de Higiene (INH), requesting that HIV tests be performed on the eight remaining arrestees. On July 8, an INH representative informed Cruz Rodríguez that he was not legally authorized to request the tests. On July 12, Cruz Rodríguez contracted Centro Médico Núñez, a private clinic, to take the detainees' blood to test for the HIV antibody.

On July 19, Centro Médico sent the test results to Cruz Rodríguez, asserting that seven of the eight individuals tested HIV-positive. An official at Centro Médico suggested that Cruz Rodríguez confirm these test results by conducting Western Blot tests at the INH. This request was ignored. Cruz Rodríguez then instructed Centro Médico to send the bills (180,000 sucres/test) to the families of the arrested, and to Fundación Amigos por la Vida. These parties have refused to pay for the illegal tests.

On July 19, Cruz Rodriguez sent the seven HIV-positive arrestees to the Hospital de Infectología, where they were detained until July 22, when the Hospital returned them to the Centro Provisional de Detención, on the grounds that their condition (asymptomatic HIV-positive) did not warrant hospitalization.

Apparently, a similar sweep of areas known by the police to be frequented by gays has occurred in the nearby town of Duran. There, the Intendente de Policía is arresting "everyone who looks gay to him, and testing them for HIV," according to Neptalí Arias, president of the "Amigos por la Vida" group. In Guayaquil, it is reported that Cruz Rodríguez and other members of the police force have repeatedly entered the known gay bars, demanding patrons show identification. Local activists consider this a serious intimidation campaign.