In Latin America Trans Rights are Progressive, But Social Stigma Remains High

In collaboration with country-level civil society partners, OutRight Action International engaged on a research initiative to review the state of transgender rights in Latin America, more specifically in Chile, Colombia, and Costa Rica. The research resulted in the production of three briefing papers which highlight the overall human rights situation for trans individuals in each country, notably the state of legal gender recognition, and access to education, work, and health care. The briefing papers reveal a complex legal and social environment for trans people where progressive developments are taking place yet obstacles continue to persist. The purpose of the initiative is to expose country conditions and provide tangible recommendations for state authorities to ensure greater respect for the human rights of transgender citizens in law, policy, and practice.

Policies and Protection

The briefing papers document that all three countries have reasonably robust human rights frameworks and have ratified the main international human rights treaties and conventions. The countries also have key protections for human rights in their respective constitutions, though not all have specific mention of anti-discrimination based on gender identity. Colombia, sets the bar for inclusion and protection of the three countries. Through its jurisprudence, the Constitutional Court of Colombia has protected the interests of trans citizens by establishing gender identity as a prohibited ground of discrimination, and developing the right to the free development of personality and self-determination to choose one’s own gender identity.

The Chilean government is currently also supporting a more robust gender identity bill. This bill, if passed, will ensure gender identity is recognized and will help guarantee equality before the law for trans people, including the protection from discrimination. At the moment, a much more extensive process is necessary to obtain legal gender recognition, including psychological and psychiatric diagnoses and certificates attesting surgical or pharmacological treatments. In Costa Rica, the right to legal gender recognition is not yet recognized in law, policy, or practice. However, there have been some positive developments, including the ability of trans individuals to be photographed in their prefered gender for identification documents.

The briefing papers find that while all three governments engagement in gender identity issues are on a positive trajectory, the reality for trans people on the ground remains challenging and social discrimination is pervasive.

Discrimination in Education Persists

One arena where trans citizens face serious challenges is in the education system. Infringements to trans students’ rights in the education system includes the obligation to wear school uniforms and participate in school activities according to the individual’s assigned birth gender. Severe institutional and peer bullying, especially of trans women, forces many trans students to leave school. Furthermore, some educational institutions are unwelcoming of trans students, and students are being met with a lack of understanding and little will from the institution to combat harassment. As a consequence, many trans students feel a need to abandon their education, having long term impacts on their employment prospects and financial stability.

Despite these difficulties, there is progress. For example, a number of schools in Chile have been working towards implementing policies of inclusion, and measures have been taken by government entities in Colombia to improve conditions for trans people in the education system. This is also the case in Costa Rica where national guidelines have been developed aimed at preventing discrimination in schools. Generally, well-intentioned regulations are in place, but they must be effective and enforced to have impacts on the quality of life of trans students.

Difficulties in Securing Employment

Another area where trans individuals face barriers is in the employment sector, where there appears to be less protective policies for trans workers and not enough government will to influence change. The briefing paper finds that while Costa Rica’s Labor Code prohibits discrimination, gender identity is not specifically enumerated as a grounds of discrimination, and there are no policies for promoting employment for trans people. In Chile, neither public policies nor company owners do much to ensure access to work for trans individuals. In Colombia, trans people’s rights to decent and productive work is undermined by discrimination, and legal and administrative barriers to employment, such as the need to show documentation of military service, required of all Colombian males above the age of eighteen. Especially for trans women, finding work in Chile and Colombia is difficult due to negative social attitudes and stigma. Stigma coupled with barriers to education mean that trans individuals are forced into low-skilled or high-risk jobs such as hairdressing or sex work. Trans individuals who are able to enter the formal labor market are subject to inhospitable work environments, including harassment by colleagues and the need to alter their appearance and behavior to be accepted in the workplace. As a result of these conditions, many trans people are denied the opportunity to meaningfully contribute to the economy and develop their professional capacities.

Barriers to Accessing Services

The briefing papers also explore barriers to healthcare for trans individuals. Highlighting that official processes and policies are in place to advance and protect the right to health for trans people, but policies can be strengthened to improve the quality and access to services for trans citizens. In all three countries, trans patients continue to face prejudice in the medical system, especially when dealing with health personnel who are not sensitized to the needs of trans individuals. This leads healthcare workers to subject trans individuals to mistreatment and humiliation, such as wearing two pairs of gloves instead of one when examining trans patients. Many trans individuals also experience significant difficulty in accessing gender confirmation surgery and hormonal treatments due to long and strenuous approval processes and due to a lack of adequate financial resources. As a consequence, many trans people do not receive the services that are fundamental to their mental and physical health needs. Often due to these barriers, trans individuals acquire hormones and other medical needs through unmonitored channels and self-medicate, leading to potential complications and adverse health effects. Furthermore, the briefing papers find that in Chile and Costa Rica social conflation of trans individuals with the spread of the HIV/AIDS epidemic negatively impacts social perception and treatment of the trans community.

Recommendations

Overall, all three countries can improve the human rights and equality of trans citizens by enforcing existing policies and passing protective legislation, where they are lacking. OutRight concludes the briefing papers with recommendations to states with tangible actions to improve the human right situation for trans individuals. These include:

  1. Depathologize gender identity, and eliminate pathologization as a requirement to access transition and gender affirming procedures;
  2. Take all necessary legislative, administrative and other measures to eliminate and prohibit discrimination on the basis of gender identity in public and private employment, including in relation to vocational training, recruitment, promotion, dismissal, conditions of employment and remuneration;
  3. Ensure that laws and policies provide adequate protection for students, staff and teachers of different gender identities against all forms of social exclusion and violence within the school environment, including bullying and harassment; and
  4. Overcome the obstacles faced by trans men and trans women in terms of safe transitioning, by guaranteeing the necessary financial and human resources for access to gender reaffirming processes for this population. The State should also invest in training for healthcare professionals to ensure their capacity to deal with such processes.