UCTRANS advocates for legal identity recognition

Trans persons in the Caribbean are subjected to exclusion and poverty that make them more vulnerable to violence. This exclusion starts with the lack of legal recognition of gender identity and makes it difficult for them to have access to health care and the formal work market.

In the region, trans persons cannot get their gender identity recognised on their identification documents. They can change their names on some documents but not on the gender marker in Antigua, The Bahamas, Barbados, Belize, Guyana, Jamaica, Republic of Trinidad and Tobago and Suriname.  In the Dominican Republic and Haiti, they cannot modify their documents to include their preferred gender identity.

Legal gender identity recognition encompasses the components of name and gender mark, having just a name changed does not fulfil human rights obligations, it is necessary to get the gender marker changed in conjunction with the name to guarantee legal recognition of a trans person.

Gender is a fundamental element of a person’s identity, consequently, its recognition by the State is crucial to guarantee the full enjoyment of the human rights of trans persons, including protection against violence, torture, ill-treatment, right to health, education, employment, housing, access to social security, as well as the right to freedom of expression, and association.

Legal recognition of identity facilitates access to rights that should be enjoyed by all citizens, to the name, to the nationality, to the inscription in the civil registry, to the familiar relations, among other rights recognised at the national level. These rights are also included in international instruments such as the American Declaration of the Rights and Duties of Man and the Universal Declaration of Human Rights.

The lack of recognition of identity implies that the person does not have legal proof of their existence, hindering full access to their rights. Trans persons in the Caribbean cannot exercise all their rights openly and participate in the daily activities of society because they do not exist as who they are. Not having personal documentation that genuinely reflects your identity is a violation of human rights.

Trans rights are human rights, trans people do exist in the Caribbean, and they are entitled to have their gender identity recognised and to have access to health. It’s time for our States to take a step forward to equality. UC Trans urges our governments to fulfil the international human rights obligations and honour the diversity that characterises the Caribbean region, joining efforts to protect and recognise the rights of trans persons and grant gender identity recognition.

Act to change laws that discriminate: A Global Mandate and a Caribbean Response to Ending the AIDS Epidemic

The Joint United Nations Programme on HIV/AIDS (UNAIDS) draws our attention to the significance of Zero Discrimination Day. Its observance provides an opportunity to reflect on the seminal 1948 UN Universal Declaration of Human Rights that has enshrined the equal dignity and worth of every person. Appropriate too, is the call for actions worldwide to change discriminatory laws and practices which among others, are significant barriers to access to health and other services. They are in large measure, impediments to achieving many of the 2030 Sustainable Development Goals, which include reducing poverty, achieving gender equity, quality education and the end of the AIDS epidemic as part of integrated health and tackling the challenges of climate change as well as peace, security and social justice.

In a poignant statement, Michel Sidibe, Executive Director, UNAIDS, affirmed that “Human rights violations are happening all over the world because of discriminatory laws and practices”. He warned that “laws must protect, not cause harm” and that “all countries must carefully examine their laws and policies in order to ensure equality and protection for all people without exception”.   He also referred to a number of countries which in 2018 made landmark decisions to change discriminatory laws and bills. These include the Supreme Court of India that struck down Section 377 of the Penal Code which criminalized same-sex relations.

The Philippines lowered the age of voluntary HIV testing without the need to obtain consent from a parent or guardian to 15 years. Malawi removed the provisions from a draft bill that would have criminalized HIV non- disclosure, exposure and transmission.

What is more important, UNAIDS has identified a range of laws that are discriminatory and impede access to health and social service thereby restricting freedom of movement and violation of human rights. They include travel restrictions against people living with HIV, criminalization of same-sex relations and transgender people and the need for parental consent for adolescents and young people below 18 years to access HIV testing services.

All these are challenges faced by the Caribbean in its attempt to accelerate the response to HIV and AIDS and thereby fulfil the UN Mandate to which all countries are committed i.e. to end the AIDS epidemic by 2030.

The Caribbean Response 

The Pan Caribbean Partnership against HIV and AIDS (PANCAP), currently led by Dereck Springer, its Director, has been making a valiant effort to bring together relevant stakeholder groups to discuss what can be done to end AIDS-related stigma and discrimination. Its Justice for All (JFA) Programme has produced 15 actionable recommendations, most of which have been endorsed by its partners that include parliamentarians, religious organizations, youth leaders, development partners and representatives of the private sector, NGOs and key LGBTI populations who are most affected. Of the 15 actionable recommendations in the Justice for All Roadmap, three (3) have posed a challenge to implementation. They are (a) elimination of discriminatory laws and practices against same-sex relations; (b) access to sexual and reproductive health, especially by adolescents; and (c) adopting comprehensive age-appropriate sexual education through the Health and Family Life Education curriculum especially targeted to – ‘in’ and ‘out’ of school youth.

The Process toward the Elimination of Discriminatory Laws in the Caribbean

The legislative framework in the Caribbean is at odds with the inclusive rights approach for a successful public health response to HIV. Nine (9) CARICOM Countries have laws that criminalize consensual sex between same-sex adults; two (2) criminalize same-sex relations; three (3) have laws, which restrict entry of people who are HIV positive; thirteen (13) deem sex work illegal.

Ironic, in this regard, is that since 2012, the CARICOM Legal Affairs Committee comprising Attorneys General approved the implementation of the PANCAP Model Anti-discrimination Legislation consistent with the human rights approach. To date, its elements are implemented only in Suriname and The Bahamas.

PANCAP’s sensitization fora with national parliamentarian groups are supported by a grant through the 10th European Development Fund (EDF). These are follow-ups to a regional consultation of parliamentarians held in Jamaica in May 2017 on the theme: “what can parliamentarians contribute to ending AIDS by 2030”. Accordingly, the current round of national engagements have focused on the legislative, representative and oversight roles of parliamentarians and have identified various bipartisan parliamentary committees.

The parliamentarian consultations in Belize, Suriname and Trinidad and Tobago have all agreed to accelerate the PANCAP Model legislation that includes provision for prevention of discrimination in employment and other areas such as harassment, victimization and vilification, access to prevention and care and the establishment of an Anti-discrimination Commission to deal with complaints, investigation and conciliation. The decision of Jamaica to include Arlene Harrison Henry, the Public Defender in its Antidiscrimination Coordinating Group is a useful initiative.

However, while there is anecdotal evidence that homophobia in most of the Caribbean has reduced considerably over the past decade, there are major pockets of influential stakeholders that continue to advocate for the retention of discriminatory laws that mainly do not exclusively affect the LGBTI community. In the meantime, Governments of the region have been fairly silent in stating positions, arguably because of their fears of the electorates’ emotional response to the issue. In some countries, notably in Jamaica and Trinidad and Tobago, there have been articulated threats of votes being directed by some elements of the religious leadership against any political party or candidate who lends support to what is regarded as “the homosexual agenda”.  As a result, resolution of discrimination is increasingly being dealt with through litigation in the courts of law.

In August 2016, Chief Justice Kenneth Benjamin declared that Section 53 of the Criminal Code which criminalized “carnal intercourse against the order of nature, violated the rights of a gay man (Orosco) in the Belize Constitution.” He further ordered that that section should be read down so that it did not apply to consensual acts between adults in private.

In April 2018, Judge Devindra Rampersad said that sections of the Sexual Offences Act, which prohibit “buggery” and “serious indecency” between two men and criminalized consensual same-sex activity between adults, are unconstitutional. This decision has caused a polarization opinion among different segments of church leaders. Archbishop Jason Gordon stated that while the Roman Catholic Church does not support homosexuality, “buggery should not be criminalized at this time” [Trinidad and Tobago Guardian April 16, 2018]. This is in distinct conflict with the views of mainly the Evangelic and Muslim leadership.

Other decisions by the Caribbean Court of Justice, the highest appellate Court in CARICOM, are instructive. While ruling against Maurice Tomlinson’s challenge of the provisions of the Belize and Trinidad and Tobago immigration laws for impairing his right to hassle-free movement within the Community as a gay man, the CCJ “cautioned that [CARICOM] Member States should strive to ensure that national laws, subsidiary legislation and administrative practices are consistent with and transparent in support of, the right of free movement of all CARICOM nationals”.

In its November 2018 decision, The CCJ ruled that “a law [Section 153 of the Summary Jurisdiction Offences Act] in Guyana that makes it an offence for a man or woman to appear in a public place while dressed in clothing of the opposite sex for an “improper purpose” is unconstitutional” and should be struck from the laws of Guyana.

Most recently at the Parliamentarian Forum in Jamaica (February 2019) attention was paid to the recommendations from the Legal Environment Assessment from a cross-section of parliamentary, representational and outreach roles.  The most critical issue revolved around advocacy against the recommendation to introduce a law to criminalise wilfully, knowingly and recklessly transmitting HIV and other sexually transmitted infections to a partner.   Attention was also given to amending the Public Order Laws, advocating for increased access to sexual and reproductive health for youth, engaging the private sector in financing of projects for People Living with HIV (PLHIV) and Key Populations.

Taking Action to Change Discriminatory Laws  

The Lancet Commission Report Advancing Global Health and Strengthening the HIV Response in the Era of the Sustainable Development Goals: the International AIDS Society (July 2018) makes the argument for including the HIV response into the broader issues of global health and universal access to health.  However, it also identifies major barriers such as a deteriorating environment of human rights, sound governance and global cooperation together with growing official hostility toward civil society. Another major challenge it identified is the decrease in adherence to democratic norms that risk normalizing human rights violations and degrading human rights commitments. When compounded by discriminatory practices within the health and law enforcement systems, they result in a heavy toll on migrants and other disenfranchised and marginalized groups. For example, the experiences of the lesbian, gay, bisexual and transgender (LGBT) communities in the Caribbean were fully ventilated in the various PANCAP consultations.

Through its Justice For All (JFA) programme, PANCAP has bought together in national and regional consultations faith leaders, key populations, parliamentarians, faith leaders, parliamentarians, National AIDS Programme Coordinators with parliamentarians, faith leaders and key populations and CARICOM Youth Ambassadors and key populations youth leaders in the youth advocacy fora. These multi-stakeholder consultations have assisted in advancing respectful dialogue and accommodating diversity of views within the broad consensus of the JFA Roadmap. They have therefore provided a template for action.

In their Declaration following the Regional Faith Leaders Consultation (February 2017), it was agreed that the Regional Consultative Faith Leaders Steering Committee should include a representative of the LGBTI Community. In the Joint Faith Leaders and Key populations consultation in Suriname (February 2018), it was agreed that in pursuit of the goals to reduce stigma and discrimination, key populations would engage in respectful dialogue with faith leaders, recognizing that they are not a homogeneous group.

A composite view is provided by Lord Bishop Howard Gregory, Anglican Bishop of Jamaica and the Cayman Islands.  His sanguine advice is for faith leaders to advance a civil discussion without additional polarization within our region.  In his words: “I believe that the church’s role should be one of mediation and dialogue, rather than confrontation and polarization…It is through the exercise of such leadership and engagement that the Government and political leaders would be able to take meaningful decisions and citizens would have an intelligent and defensible understanding of the issues” [Jamaica Sunday Observer July 6, 2014].

These illustrations of activities in the Caribbean clearly demonstrate the value and the role of PANCAP in fostering functional cooperation. They are consistent with the Nassau Declaration (2001) by CARICOM Heads of Government:  “the health of the region is the wealth of the region”. They also portray the significant lessons that the accelerated approach to HIV provides toward Zero Discrimination. These are essential approaches in this era of the 2030 Sustainable Development Goals.

Experiences of Caribbean Transgender People Part 2

In this era where most of the world is becoming more tolerant, Trans people are still among the most marginalized of the LGBT community.

We face stigma and discrimination at alarming levels particularly for Trans people of color. We are excluded from being a part of our societies because of our gender identities.

As Admin and Outreach Officer for TransWave Jamaica, I am tasked with documenting human rights violations for members of the community. It is shocking the number of reports of discrimination and violence experienced by Trans people in Jamaica.

Trans people are human beings. Humans like myself, yourself, your mom, your dad, your sister, your brother, aunt, uncle, nephew or niece.

Trans people in Jamaica are at a disadvantage as they are sometimes prevented from completing school, due to instances of discrimination and violence. We clearly see where there is a pattern of forcing our Trans kids from their homes. Leaving them to fend for themselves, now homeless, neglected, unloved and in most cases violated and hurt. Adopting a nomadic lifestyle is sometimes the only way they can survive doing inhumane and morally deplorable things to make ends meet.

Not being able to gain meaningful employment means that they would be forced to turn to alternative means of sustaining themselves. Members of the community are faced with discrimination from all angles and seek access to resources through alternative means, which makes them vulnerable to HIV. Of course, I am speaking of sex work. We also see large numbers of incidents involving discrimination in this field as sex workers are normally said to be HIV positive. There is also an element of danger as Trans persons have to endure having sex without condoms for additional money.

Access to adequate healthcare is also an issue. Untrained healthcare providers find it hard to approach and deal with persons of Trans experience and identity. For us in Jamaica, we have done some amount of training with healthcare providers. Not at all exclusive but it helps never the less.

I can remember once participating in a conversation regarding sensitization training with doctors and healthcare providers. It was explicitly said by one of the senior doctors that he would not treat a member of the community.

In order to make progress on this issue, I think a standardized approach should be taken to ensure that policies are put in place to prevent doctors and other healthcare providers from discriminating.

Additionally, there is the issue of persons being counted as numbers. This I must add is a big problem for persons of the community. The fact that they are only seen when they are required to be counted in an organization’s ‘HIV response reach’ and ‘test targets’ has been an issue for the community for a long time.

What has worked for us is to build relationships, lasting relationships and ones that will not be solely based on testing and target needs. Overall, the work of NGOs, in my opinion, lacks the psychosocial support needed to communicate with Trans people on a level that will be beneficial to themselves and the operations of that organization.

Extensive training for staff is one main way that I believe can create a change as we find that most staff are sometimes not adequately trained. Simple mislabeling of genders in some cases affect the responses we receive from members of the Trans community. The use of preferred pronouns should be something that is stressed when dealing with Trans people.

I call on all stakeholders to implement policies that will have positive changes to the persons we serve. Health and well-being involve knowing your HIV status. Will we achieve the goal of the 90-90-90 Targets if we continue to neglect our Trans people? The simple answer is no. There is so much more that can be done to make Trans people feel and appreciate themselves.

Above all, there is a constant need for Trans persons to be included. They must be included in all aspects of life and not seen as taboo, repulsive or portrayed as criminals living on the streets and gullies or referred to “cross-dressers”. They must be portrayed as human beings and persons living and existing as who they are.

The inclusion of Trans persons would mean having gender recognition legislation in place to allow us to be able to have our genders legally recognized. We would also need Anti-discrimination legislation as well to provide adequate protection against discrimination.

At TransWave Jamaica, one of our core objectives is the mental health of Trans persons which forms a significant portion of our monthly support group sessions as well as our fitness brand. Additionally, we focus on creating spaces where people feel comfortable and appreciated.

It would also be important to have Trans people and our issues woven into programmes and policies to ensure that the community is fully integrated and represented at all levels.

We urge decision-makers to create policies that reflect full consideration for the humanity of Trans people; this means that Trans and gender non-conforming people are able to update their gender marker on legal documents, access gender-affirming healthcare and social support services without discrimination.

Read PART 1 of this series here.

Experiences of Caribbean Transgender People

Transgender People in the Caribbean experience gender-based violence throughout their lives, which impedes their access to services and contributes to poor health outcomes and quality of life. When visiting a health care facility, they are more often than not met with emotional abuse from the parking lot to the door. These abuses include gossiping, insults, and refusal to use their chosen name. Trans people continue to experience economic, physical, sexual violence, and other human rights violations based on their gender identity and expression. They suffer physically threats, assaults, harassment and are often denied services.

Access to Mental Health services is mostly nonexistent unless you have the financial means to access this service privately. In the Caribbean, Trans people are the lower priority and receive substandard care. Healthcare workers often blame Trans people for their health problems and deny them services. Service providers have not only failed to meet the specific needs of Trans people in the Caribbean but also discriminate against them when they seek services.

Although international and regional resolutions call for the legal protection of Transgender people, states do not meet these obligations. To respect, promote, and fulfill Trans women’s human rights, governments should enact and enforce anti-discrimination and gender-affirming laws and policies. Health care workers need to be sensitized to deliver gender-affirming services for Trans persons in the Caribbean.

As a human rights advocate, it is not uncommon for me to hear Caribbean Transgender people speak of negative experiences at healthcare institutions. Many persons often recount ordeals of dirty looks in the waiting room, being harassed by other patients, and even being subjected to on-the-spot preaching and judgmental reproach from nurses and doctors when it is revealed that they engage in sexual intimacy with persons of the same sex or both sexes.

The effect is often more felt by members of the Transgender and Intersex communities whose bodies and experiences are not fully understood by the public and often come under intrusive scrutiny.

In the case of Transgender persons, oftentimes the stigma inflicted by health care workers is rooted in the belief that one is “tampering with God’s creation” by transitioning to live as the sex or gender not assigned at birth. The resulting discomfort, which many Trans and Intersex people face, will result in a reluctance to seek medical attention unless it is absolutely unavoidable, such as in a life-or-death situation.

In some cases, persons would still try to avoid seeking medical attention under those circumstances. This sort of attitude even causes individuals to place their health care needs lower on the totem pole of priorities. They engage in risky behaviors for the sake of other priorities, for example, Transgender sex workers place their financial bottom line ahead of HIV and STI preventative or even post-exposure care or treatment.

We need to correct this harmful behaviour. We need our policymakers to stand by us.