executive summary - lgbt colombian human rights 2008-2009.doc

8/7/2019 EXECUTIVE SUMMARY - LGBT Colombian Human rights 2008-2009.doc

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EXECUTIVE SUMMARY

All the responsibilities, few rights.Human rights situation o lesbians, gay, bisexuals, and

Transgender in Colombia 2008 - 2009


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Executive Summary 2008 - 2003

EXECUTIVE SUMMARYIn order to comply with precise international obligations, Colombia has recognized, with important jurisprudence

that lesbian, bisexual, gay, and transgender persons are social individuals with ull human rights and responsibilities.

It has recognized that a persons sexual orientation cannot be the motive or discrimination and that equality has to

do with the access that all Colombians have, regardless o their sexual orientation, to their human rights. In addition,

it has also recognized that LGBT persons are a traditionally excluded and socially vulnerable group, and that sexual

orientation is a criteria suspect o discrimination

Concerning the 2008-2009 period, COLOMBIA DIVERSA ound that the social prejudices and discrimination due

to sexual orientation or gender identity continue to be the most requent motivations or the gravest human rights

violations o LGBT persons that have happened in the country.

The Organization detected six critical themes in the 2008-2009 period: Police abuse, violence due to prejudice,rights o same sex couples, prison situation, orced displacement and the armed conict, and the treatment o diver-

sity in the media.

POLICE ABUSEThe cases o police abuse were one o the most requent orms o violence against LGBT persons. Du-

ring the years o 2008 and 2009, at least 48 cases1 o police abuse2 occurred in the country. The increa-se compared to the 31 cases occurred in 2006-2007 may be due to the act that lesbians, gay, bisexualsand transgender women decided to denounce the incidents. The cities that registered the largest numbero reported cases, Bogot, Medelln, and Cali, concentrate in turn the largest part o the population andLGBT groups and organizations.

In 2009 and 2009, at least six lesbian women, seventeen gay men, and 36 transgender women were

victims o police abuse. In the lesbian cases, the police aggression corresponded many times with sexualviolence acts, in the case o gay men to the orced exit rom public spaces, and or transgender womento brie detention. The abuses involved many times violations to the human rights o personal reedom,personal integrity, and due process.

The most requent police abuses against lesbian women and gay men occurred due to public manies-tations o aection between same sex couples. In general, the authorities justifed these excessive andviolent reactions, arguing that these maniestations were attacks on public morality.

The majority o police abuse victims were transgender women. The cases o police abuse against themwere harassment, especially in public streets and during police operations meant or the control o publicspace. In most cases, these took place in zones where transgender women exercised prostitution.

Regardless o the gravity o the cases, the impunity when it comes to police abuse is total. In none othe 48 cases reported has a penal investigation been started, and the Procuradura General3 has not madeuse o preerential powers. In only one o the cases was a disciplinary sanction imposed, that, nonetheless,

is not frm because the lower courts decision was appealed.1 The number o reported cases does not correspond to the total number o victims: a single case can include two or more victimso police abuse.2 See annexed table.3 N. T. Colombias Procuradura Generalis the government agency in charge o enorcing judicial decisions and ensuring the eective-ness o human rights. Additionally, it has disciplinary authority over public ofcials. It has the powers o the criminal judicial police andis authorized to take any measures it considers necessary. The Procuradorexercises the ollowing unctions directly:1. Discharging rom ofce any public ofcials.2. Presenting government bills relating to matters under his jurisdiction.3. Lobbying the Congress to pass laws that ensure the promotion, exercise, and protection o human rights and demanding theircompliance by the competent authorities.4. Making proposals concerning the processes o constitutional control.5. Appointing and removing, in accordance with the law, ofcials and employees under his jurisdiction.


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The impunity in the case o police abuse is due in a large portion to the obstacles that the victims have in accessing

justice and the possibility o denouncing. Also very grave is the act there might also be the ear that the institution

might want to cover up the cases against LGBT persons beore recognizing and punishing the aults that some o its

members may incur.

The problem extends even to the defnition o the legal instruments that regulate police activity, whose aults crea-

te an environment that avors impunity and the inringement on the rights o LGBT persons.

In 2007, a sentence handed down by the Constitutional Court ordered Congress to emit a new National Police

Code with the purpose o updating the norms and adjust them to the reality o the country. To date, this task has not

been ulflled. The same dispositions inclined to the violation o LGBT rights are still in eect, and the criteria that

govern police activities are still not normalized. In this way, the discretion o ofcers is avored and the respect and

guarantee o the general population rights are put at risk.The regions have the possibility o regulating Police activity autonomously, o setting their own Police Codes, or to

conceive the Coexistence Manuals o the departments or capitals. Since this has to do with local (and very subjective)

viewpoints, this power implies the risk o causing discriminatory and prejudicial dispositions. As an example, one can

highlight the manuals o Barranquilla and Ccuta that reect clear prejudices in the matter o sexual orientation, and

thereore oment police violence and the rejection o LGBT persons, in addition to grave human rights violations.

The police directives 058 o 2009 and 006 o 2010 are key instruments that establish measures that tend to gua-

rantee the respect and special protection o LGBT persons, but they are insufcient, as they do not contemplate a

defnite and orceul will to eliminate, or at least diminish, Police discriminatory practices.

Another source, not only o impunity, but also o violence in the case o police abuse, is the lack o unifed inorma-

tion systems that allow the ollow up o processes, the identifcation o vulnerabilities, and the application o preventi-

ve actions. Not even the Police, or in general the state entities produce statistics that contemplate the sexual orien-tation or gender identity o the victims, and the little inormation available is generally inconsistent and contradictory.

Number %

Total reported cases 48 100%Disciplinary investigations in the internal control ofces o the National Police 7 15%

Disciplinary investigations beore the Procuradura General in exercise o preerential power 0 0

Penal investigations 0 0

Full knowledge o the authorities, but without known investigation4 31 65%

Without inormation on whether an investigation exists 10 21%

Sanctions5 1 0

Total investigations 7 15%

Table 1

State of investigations for police abuse 2008-2009

Sources: Accusations o social organizations when presented with the answers that COLOMBIA DIVERSA was given by theNational Police, local ombudsmen, Personeras6, and the Procuradura General, in national and local level.

4 Included in this category are those cases in which some authority or LGBT organization has inormed some competent authority,but this authority gives no notice o the existence o an investigation.5 As it was mentioned, in the case o Nathalia, there was a disciplinary sanction.6 N. T. The municipal and district Personeras are the entities in charge o exercising administrative control o the Municipality. Theyexercise unctions o the Public Ministry conerred by the Political Constitution and the law, as well as those delegated by the NationsProcuradura General. They are responsible or the deense and promotion o human rights, the protection o public interest, andthe oversight o the conduct o those individuals in public ofce.


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Among other data, it could be established that in over 44% o the cases there are no current penal investigations.

In addition, that 25 o the 55 cases (56%) o which there is knowledge o the existence o penal processes are still in

the investigation stage and the responsible parties have still not been identifed.

In what concerns the archived cases, aults were detected in the investigation process o the corresponding autho-

rities. One o these cases, among others, was archived fve months ater the homicide was committed8, a very shortinvestigation time. Prejudicial appreciations on the crime were ound in the conclusions o some o the other archived

cases, as well as the absence o clear elements that should be part o a specialized investigation. In these cases, the

authorities took into account the sexual orientation or the gender identity o the victims, but only to disqualiy their

way o lie and in some way make them responsible or their own deaths.

In what concerns the years 2008 y 2009, COLOMBIA DIVERSA registered the homicide o 127 LGBT persons: 74

violent deaths, 46 crimes due to prejudice, and seven homicides not motivated by prejudice.

Table 3

Homicides of LGBT persons, 2008-2009 periods

Sources: Press inormation, incident reports rom social organizations, reports rom Personeras, ombudsmenand local prosecutors conronted with the answers given to COLOMBIA DIVERSA by the local directors o theAttorney Generals ofces at a national level and with the reports and answers rom Forensic Medicine.

Categoras de anlisis 2008 2009 Total Homicidios

Muertes violentas 46 28 74

Crmenes por prejuicio 31 15 46

Otros mviles 4 3 7

Total homicidios 81 46 127

8 The homicide happened in March 2007, in the department o Cesar, and was archived in August 2007. Answer given to COLOMBIADIVERSA by the Attorneys ofce 14, Valledupar District. August 2010.

Graph 1

Homicides of LGBT persons according to sexual orientation or gender identity 2008 - 2009

30

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26

24 11

5

27

2008

2009

Sources: Press inormation, incident reports rom social organizations, reports rom Personeras, ombudsmen

and local prosecutors conronted with the answers given to COLOMBIA DIVERSA by the local directors o theAttorney Generals ofces at a national level and with the reports and answers rom Forensic Medicine.

With respect to the sexual orientation o the victims, the inormation provided rom Forensic Medicine is conusing:

in the category homosexual it includes transgender women as well as gay men. Nonetheless, it could be determined

that among the homicides o LGBT persons during 2008 and 2009, 57 were gay men, 31 o the homosexual cate-

gory, our lesbians, and 35 transgender. Antioquia registered the highest rate o homicides (51), ollowed by Valle del

Cauca (19), Bogot (14) and Risaralda (13).

Transgender

Lesbians

Homosexual

gay


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18

8

6

41 1

44

50

31

Table 4

Homicides of LGBT persons during 2008 2009 by department

Departamento 2008 2009 Total

Antioquia 32 19 51Atlntico 2 2 4

Bogot 9 5 14

Boyac 1 3 4

Caldas 1 0 1

Caquet 1 0 1

Casanare 1 0 1

Cauca 2 0 2

Crdoba 1 0 1

Guaviare 1 0 1

La Guajira 1 0 1Magdalena 1 2 3

Meta 1 0 1

Norte de Santander 5 0 5

Risaralda 8 5 13

Santander 3 1 4

Valle del Cauca 11 8 19

Total 81 46 127

Sources: Press inormation, incident reports rom social organizations, reports rom Personeras , ombudsmenand local prosecutors conronted with the answers given to COLOMBIA DIVERSA by the local directors o the

Attorney Generals ofces at a national level and with the reports and answers rom Forensic Medicine.

Increases in this type o homicide were registered in some cities, apparently because in them there is a larger

presence o organizations and LGBT activists, and because o the appearance o specialized reports rom government

organizations such as the Personera de Medelln. The case o Risaralda is interesting, because it went rom reporting

zero homicides in 2006-2007 to registering thirteen cases in the period o 2008 - 2009.

Graph 2

Status of judiciary processes 2008 -2009 (Update 2010)

Sources: Press inormation, incident reports rom social organizations, reports rom Personeras, ombudsmenand local prosecutors conronted with the answers given to COLOMBIA DIVERSA by the local directors o the At-torney Generals ofces at a national level and with the reports and answers rom Forensic Medicine.

2008

2009

Questioning Trial DismessedConviction No dataavaliable

CriminalInvestigation


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o the jurisprudence o the Constitutional Court in what respects to LGBT rights.

I beore cases o same sex couples, judges start rom their prejudices, they can incur in violations o the rights o

due process and the correct valuation o evidence. The declaration o the de-acto marital union between same sex

couples, or example and this is evidenced by several cases that have been presented until now in Colombia-, went

rom being one more evidentiary element to become an obligation or prerequisite that the judges demand o thesecouples in the legal proceedings to claim their rights. The heterosexual couples, however, have more possibilities o

choosing whether they want or not to do a declaration o their de-acto marital union to demonstrate the existence

o their union.

Another impediment that COLOMBIA DIVERSA has observed in the legal claim processes o the rights o same sex

couples in the country has to do with the difculty o proving the union through witnesses, especially in the cases whe-

re couples have chosen to pretend to be heterosexual in ront o their amilies and their community. The Organization

knows o a case in which the judge even disallowed the witnesses because they were homosexual.

In what pertains to the cases o the claim to the rights o survivor pension, COLOMBIA DIVERSA has been able to

detect, on top o the additional difculties imposed on same sex couples at the time o demonstrating their union,

others that end with the denial o benefts. The most important o them has to do with the limited temporal eects o

the sentence C-336 o 2008.Even i in Colombia same sex amilies are not considered as such, the case is that they exist, that they are a reality,

and that they have concrete needs that cannot be solved without the laws that in this country pertain only to amilies

constituted by heterosexual couples. The impossibility o same sex couples to adopt minors jointly has caused a pro-

ound inequality in the access to rights among same sex amilies and the amilies o heterosexual couples. While the

children o the latter enjoy all the rights derived rom their mother and ather, the children o the ormer have only the

rights derived rom one o their parents, mother or ather, not both.

The boys and girls o a amily constituted by same sex couples cannot inherit rom the partner o the legal mother

or ather; the partner o their legal mother or ather cannot authorize medical treatments in case o an emergency or

interact ofcially with the school they attend; in case o divorce, the partner o the legal mother or ather cannot ask

or custody or visitation rights, and may not be compelled to continue providing economic help to the amily; i the

legal mother or ather dies, the underage children may not go under the custody o the partner o their legal motheror ather.

SITUATION OF THE LGBT PRISON POPULATIONIn the years 2008-2009, COLOMBIA DIVERSA also noticed that the LGBT persons interned in Colombian jails must

ace special situations o violations to their human rights because o their sexual orientation or gender identity.

Derived rom a joint eort with the Coordination o the Commission or Human Rights and Audiences o the Se-

nate o the Republic (Coordinacin de la Comisin de Derechos Humanos y Audiencias del Senado de la Repblica),

COLOMBIA DIVERSA participated in a commission charged with investigating the situation in the main jails o Bogot9,

and to advise as to the rights o LGBT persons10 in a series o visits to other jails in dierent cities o the country. In

that way, the Organization was able to get closer to the problem and detect in the clearest way the rights violations

that these persons suer in jail. The most requent and grave have to do with sexual violence and the restrictionsto the identity construction o LGBT persons. It was also ound that the main victims in both cases are gay men and

transgender women.

Following up on the reports rom interned persons, the human rights team at COLOMBIA DIVERSA could ascertain

that sexual violence against LGBT persons is requent and has high impunity levels. In the ollow up and support o

9 Between the months o March and April, the human rights team o COLOMBIA DIVERSA accompanied the visits to the Reclusoriode Mujeres del Buen Pastor (Buen Pastor Womens Jail), the Establecimiento Penitenciario y Carcelario Modelo (Modelo Penitentiaryand Jail) and the Establecimiento Penitenciario de Alta y Mediana Seguridad y Carcelario de Alta Seguridad la Picota (La Picota Highand Medium security Penitentiary and High Security Jail)10 Some questions and relevant subjects to be taken into account about LGBT persons incarcerated in dierent jails in the countrywere discussed with Diana Novoa, coordinator o the Human Rights Commission and Audiences o the Senate o the Republic (Comi-sin de Derechos Humanos y Audiencias del Senado de la Repblica).


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concrete cases o sexual violence in jails, it could be observed, among other problems, the absence o investigations

that intend to fnd the authors o the sexual violence and the lack o interest o the penitentiary system to individualize

those who commit these kind o acts.

The transgender women interned in the jails are requent victims o psychological and physical violence, whichincludes cases o sexual violence. Many o the restrictions imposed against the identity construction o Trans women

come rom the authorities and the personnel in charge o jails. They are orbidden to use emale clothing, make-up,

and long hair among other things. The haircut, specifcally, is seen by the persons in charge o jails, as a routine clean-

liness control to a male person and not as an attack on the emininity o a transgender woman.

Another requent complaint registered by COLOMBIA DIVERSA has to do with the transportation o transgender

women to the courthouse to carry out the obligations o their respective criminal processes. According to complaints,

the guards orce them to strip down in ront o them and their jail companions or the search11, ignoring their modesty

and their emale identity. They also point out requent cases in which in this situation they are victims o mockery and

oenses rom the guards.

The reports o the violations o human rights o LGBT persons in the Buen Pastor Womens Jail (Reclusorio de Mu-

jeres el Buen Pastor), specifcally, pointed out that the violence and discrimination in this place were directed againsttransgender men, and that the main aggressions sought to aect the aective links between the transgender men12

and the interns, restrict their identity construction, limit the duration o the conjugal visits, and exert a verbal and

physical violence that derivate even into cruel, inhumane, and degrading treatment.

In what pertains to the situation o lesbian women interned in Colombian jails, COLOMBIA DIVERSA ound cases

in which they had been confned in punishment cells or making evident their sexual orientation and or having an

aective relationship with another woman. The repression o the aection expressions was questioned by the Cons-

titutional Court in 200813 in response to a complaint o the discriminatory and cruel treatment o the lesbian women

in the Valledupar Jail: a couple remained confned in punishment cells during eighteen months until one o them

committed suicide.

Another case, in the Bogot District Jail at the end o 2009: a lesbian woman was punished with thirty days in

solitary confnement because she was seen through a saety visor, kissing her jail companion14.

FORCED DISPLACEMENTThe defnition o the condition o displacement, according to Colombian norms, specifes the ollowing causes o

orced ight: internal armed conict, internal disturbances and tensions, generalized violence, massive violations to

Human Rights, inractions to International Human Rights, and other circumstances that can alter or drastically alter

public order.15

About displaced LGBT in displacement situation, a seldom studied and almost unknown problem, COLOMBIA DIVERSA

has been able to detect that many o the victims have been displaced mainly by generalized violence against LGBT

persons, and even due to institutional violence such as police abuse.

Concerning the period 2008-2009, COLOMBIA DIVERSA reported violence and discrimination acts rom armed

subjects against LGBT populations. The collective threats o social cleansing and the actions committed presumablyby paramilitaries or groups o disarmed ex paramilitaries stand out.

Especially in the year 2009, there was in the country a generalized phenomenon o threats and intimidation with

pamphlets against groups o persons, among them the LGBT population. According to inormation rom the High

Commissioner o the United Nations or Human Rights, a standard ormat o threatening pamphlet circulated.

Between February and March in at least twenty our o the 32 departments in the country,

14 COLOMBIA DIVERSA ound out about this case in 2010. At present this case is beore the Constitutional Court in the revision cham-ber, with presentation o magistrate Nilson Pinilla. File number T2252507.15 Congress o the Republic, article 1, law 387 o 1997.


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Returning to the defnition o a displaced person according to Colombian norms, the social or amily discrimination

is not contemplated. This orm o discrimination is probably the most requent cause o displacement o LGBT per-

sons. The State has the responsibility to deal with and prevent the situations that cause the grave violations o human

rights o the LGBT population.

The lack o inormation both ofcial and rom non-governmental organizations- about the LGBT persons in displa-cement defnes a frst group o challenges to race. I we do know some cases, these have not been included in the

system and have not had any ollow up.

A second group o challenges in the matter o displacement and human rights has to do with the institutional and

non-government players related to the phenomenon. Even i the fght or the recognition o the rights o the LGBT

population has ound a space in the national debate about human rights, the subject o orced displacement o LGBT

persons continues to be a practically unexplored problem. The lack o state interest, the absence o the subject in the

agenda o the displaced person organizations, the lack o actions o the LGBT organizations regarding the phenome-

non, and the organizational weakness o the LGBT population in the places o expulsion and reception are actors that

prooundly aect the capacity o investigation, the activism, and the conception o public policy to prevent and deal

with the LGBT population in a displacement situation.

The third group o challenges derives rom the difculties to ask about the causes, eects, and relationshipsbetween sexual orientation, gender identity, and orced displacement. The problems to detect the LGBT victims o

displacement, as well as to obtain inormation about their situation, are varied and o dierent order. The frst is the

ear o the LGBT persons to reveal their sexual orientation. This ear is increased by the threats and violence o the

armed groups. Second, it is common that LGBT persons do not count with social networks that support them, and

even more common that the people closest to them are unaware o their sexual orientation, or in the case that they

do know it, that they are embarrassed by it and reject it.

The lack o inormation that exists about sexual orientation in some regions, especially the rural ones, hinders their

correct defnition and making the problem visible. Another obstacle is the absence o research about LGBT persons

as victims o orms o violence due to intolerance, like the case o the ill-named social cleansing16. Also the inorma-

tion about the armed conict and its relationship to the violation o the human rights o LGBT persons is really scarce.

Colombia can count on some regulatory advances in the attention to LGBT population in displacement situations.However, the authorities responsible or this attention place little importance on this regulation. Some measures

could be considered to begin the work o classiying this population and making their situation visible; or example,

contemplating the possibility o asking about sexual orientation or gender identity o the victims o displacement at

the moment o declaration and registration, taking into account, o course, certain special needs or security and

confdentiality o this inormation.

16 COLOMBIA DIVERSA recognizes that the content o this denomination o violence is itsel discriminatory, and that it tends to justiythe actions against marginalized communities. We keep it, however, because it is the way it is currently known and how it is reportedby several reports, denouncements, and news about it.


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DIVERSITY IN THE MEDIAEspecially since the sentence handed down by the Constitutional Court in February 2007 that produced the

legal birth o the same sex couple in Colombia, the mass media started to spread inormation about the situations,

problems, and interests o this community that less than a decade ago was almost totally ignored by newspapers,

magazines, television, and radio.COLOMBIA DIVERSA has conducted constant analysis and internal discussion about the course o events that the

media reects. A routine was developed to observe the coverage o subjects related to the LGBT community and its

rights done by the main 67 mass printed press outlets in the country during 2008 and 2009.

In this period, in general terms, about 3,000 journalistic works were published in the 67 press outlets observed.

2,938 articles were directly about the subject o the community or the LGBT persons, and another 64 made an indirect

mention o it. The 3,000 works used 219 sources o inormation the texts mention them- that were cited more than

4,000 times.

While in 2005 the most addressed themes by the media corresponded to international news (54%) about marriage

o same sex couples (35%) and, in general, about discrimination (14%), the years 2008-2009 those same articles were

about the subject in the country (64%): about the new laws related to (12.5%), LGBT sexuality (8.2%), discrimination

and homophobia (6.75%), LGBT victims o crimes (6.73%), marriage o same sex couples (6.36%), amilies with samesex parents (1.76 %), and health (1.86%).

The most cited sources on LGBT subjects continue to be those rom the Government-State. While in 2005, 64%

o journalistic works cited this source, this percentage in 2008-2009 was 22.4%. Among other frsthand sources that

can be highlighted is the high participation o LGBT persons (8.4%) and their social organizations (4.6%), generally

through declarations given in interviews or direct consultation. 2.8 % o the sources o journalistic works correspon-

ded to these organizations. COLOMBIA DIVERSA was registered as a source in 5.2% o all observed articles. 67.7% o

all journalistic works cite no sources.


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