In the Latin American context, countries such as Argentina, Brazil, El Salvador and Uruguay have established legal mechanisms to allow individual and groups that been systematically discriminated against, victimized, terrorized and in no few cases, murdered by acts or omissions of the State to be acknowledged in their historicity. Photo: UNDP
Today, 70 years ago the United Nations General Assembly adopted the Universal Declaration of Human Rights. The Declaration, a pioneering agreement, outlines the basic rights and fundamental freedoms to which all human beings are entitled.
Under international human rights principles, such as the Universal Declaration of Human Rights, the Charter of the United Nations, and the International Covenant on Civil and Political Rights, reparation forms part of the remedies to which victims of gross violations of human rights laws or serious violations of international humanitarian law are entitled. Reparation is intended as a mechanism for remedying the harm or damage caused by an unlawful act or omission which can be attributed to the State.
However, beyond legal definitions, reparation allows for individuals and groups that have been systematically discriminated against, victimized, terrorized and in no few cases, murdered by acts or omissions of the State to be acknowledged in their historicity, and becomes an opportunity to regain control of their own lives.
In the Latin American context, countries such as Argentina, Brazil, El Salvador and Uruguay have established legal mechanisms for procuring access to such restitution processes. Recently, the province of Santa Fe in Argentina, has modified Provincial Law 13298 —which establishes monetary compensation for persons detained during the former military dictatorship due to political ideas, being part of workers or students’ unions— to include those that had been incarcerated during that period due to their sexual orientation or gender identity.
Carolina Boetti, a transgender actress and hairdresser, became the first person to receive this monetary remedy from the Governor of the Santa Fe province, on May 17th, 2018, International Day Against Homophobia and Transphobia. Carolina had suffered multiple incarcerations, first of which occurred while she was still a minor, before seeking asylum in Europe.
Undersecretary of Sexual Diversity Policies, Esteban Paulón, said: «It is a late reparation, but one that has an impact far beyond what happens in Santa Fe because it symbolically raises the standard of protection of the human rights of trans people, not only in Santa Fe, but at a national level and in Latin America».
More recently, on October 18, 2018, Uruguay approved a Law for the Integration of Trans persons, which sets up a fund to pay reparations to transgender people who faced persecution when the country was under a military dictatorship from 1973 to 1985: “Trans people born before December 31, 1975 who have been victims of institutional violence or deprived of liberty because of their gender identity, will be entitled to compensation in cases of psychological, moral or physical harm, and also if they were subjected to discriminatory practices that resulted in limitations to the fulfillment of their human rights.”
The steps taken by Uruguay and Santa Fe province in Argentina are important measures towards social inclusion, historical reparation and recognition of trans people’s rights. To render justice, reparation needs to furthermore include restitution, rehabilitation, satisfaction and guarantees of non-repetition. Amongst others, States need to publicly disclose the truth of the events, issue an apology and establish mechanisms to ensure the right of non-repetition, putting in place safeguards against the repetition of the original human rights violations.
In November of this year UNDP brought together more than 50 activists, representatives from governments and international organizations from 12 countries in Latin American at a regional consultation “The Extra Mile: Going beyond Gender Identity Laws to advance social and economic inclusion of Transgender persons in Latin America”. In a south-to-south exchange participants shared information on strategies, successful practices and lessons learnt to broaden their perspective on realizing full rights of transgender people in the region.
These experiences and those that are bound to follow, provide a ray of hope for trans people throughout the region. Laws and policies that could lead to the better inclusion of trans people and the fulfillment of their individual and collective potentials.
International Human Rights Day presents States with an opportunity to not only acknowledge the persistent violations experienced by trans persons but it is also an opportunity for countries, collectively, to publicly acknowledge the resilience of trans persons throughout the history of the region.
Por: Karin Santi (Regional Team Leader HIV, Health and Development) & Juana Cooke(Law & HIV Specialist for UNDP in Latin America and the Caribbean)
