Trans People in Limbo Amidst “Pico y Genero” (Gender-Based Lockdown) in Latin America

[Indrasish Majumder a third-year student pursuing B.A L.L. B (Hons) from National Law University Odisha, with a special interest in Humanitarian Law and Human Rights.]

Two police officers block a woman’s path as she approaches the entrance of a hospital on the crowded streets of Panama clutching her purse and phone. “You! What are you doing? Today only women can be outside,” the woman (anonymous) a transgender recalls an officer saying. The women tried explaining to the officers her urgent doctor’s appointment but were nonetheless denied entrance after interrogation. Upon trying to enter the hospital on a subsequent day, the same officer punched her in the face, reported the trans lady to a human rights group.
 

Hate-crime against the trans community has been on the rise since the International press announced on April 17^th the joint decision of the governments of Peru, Panama and Colombia to impose a “gender-based lockdown” restricting the movement of people out of their homes, to curtail the spread of COVID 19. The guidelines enforced by the Government of Panama on 1^st April, allowed women to venture out three days a week (Mondays, Tuesdays and Fridays) and men on Thursdays, Saturdays and Tuesdays. The policy was quashed by the Government of Peru after Peruvian activist groups reported at least 20 cases of violence and discrimination in the one week the policy was in place. In Panama however, even as the government started to mellow down on lockdown restrictions, the discriminatory measures remained ensconced.  The Government of Colombia after initially downplaying the reports of hate-crime and discrimination, dropped the restrictions in few states like Bogota on May 11^th after a video showing three trans women being humiliated at a police station in Lima went viral. However, the measures were extended in other cities namely: Cartenga until 31^st May. 

In Panama and Colombia authorities have been conferred the power to confirm a person’s gender identity-by scrutinizing their official documents to determine whether they are violating the lockdown guidelines. This has put trans people in Panama in limbo as they cannot legally change their sex unless they have undergone sex reassignment surgery. Human Rights organisations subsequently, manifested their resentment towards the status quo and citizens of Panama deemed the measures a violation of human rights. The decree implied trans people would be unable to come out in public on any days of the week. 

The policy implemented by the government distinctly lacked protocols to safeguard the trans community and fermented an atmosphere of panic and anxiety among the members. The members of the community were compelled to thrive without basic amenities amidst lockdown restrictions e.g. food and medicines. Human Rights advocacies from around the world have solicited support and mobilisation of resources to assist the trans community in this crisis.

REPERCUSSIONS OF A GENDERED LOCKDOWN ON THE NON-BINARY COMMUNITY OF LATIN AMERICA

The measures imposed by the government generated manifold problems for the transgender community. Since the outbreak of the novel coronavirus, the entire health sector has shifted its focus to battling the pandemic. However, in doing so other medical services particular to the community e.g. mental health, sexual counselling, has been neglected and the fear of HIV among immunocompromised transgender has sparked. It has been proposed by UNAIDS HIV positive patients should keep emergency supplies at hand in light of the COVID outbreak, as many countries suspend HIV testing. The WHO (World Health Organization) has recommended multi-month dispensing (three months or more) of HIV medication for people used to routine visits. However, a survey conducted by UNAIDS in Latin America noted that only one in ten people have pertained to the guidelines and kept a three-month supply of antiretroviral therapy. The pre-existing prejudices concerning HIV has added to the problems of the trans community in light of the gendered lockdown. Delayed access to medical care inadvertently renders a negative impact on the mental health of members of the community. As per statistics released by the Bogota trans community network and Panamian Association of trans people the gender-based lockdown has sowed the seeds of emotional distress among members of trans community.

The transgender community comprise a part of a country’s unorganized sector. In light of the pandemic and subsequent lockdown, their livelihood has been decimated. 90 % of the transgender people lack access to a formal job. The measures adopted by the government to rectify these drawbacks have been inadequate. Consequently, a lackadaisical attitude coupled with the gender-based lockdown has had a profound impact on the transgender community in Panama where the members of the community are not allowed to change their gender legally and are ineligible to receive relief aids which the cisgender unemployed are benefitted by for not comprising a part of the organized sector.

Instances of physical violence against members of the transgender community by the police and public have been on the rise, particularly in countries with the gender-based lockdown. They have been fined for coming out on the wrong day of the week, detained, subjected to unnecessary harassment and even stopped from purchasing essential commodities. Because the atrocities are perpetrated by government officials the victims are often nervous to report them, fuelling the already existing discriminatory practices.

 GENDER-BASED LOCKDOWN (A VIOLATION OF HUMAN RIGHTS)

After interviewing some of the victims of the gender-based lockdown from the transgender community Human Rights Watch concluded in a majority of cases, the trans individual encountered discrimination upon coming out of their homes on days, keeping with their self-identified gender. The survey additionally indicated the transgender community experienced gender-based discrimination irrespective of whether they carried a national identity of their gender or not. The prevalence of discrimination has been accosted by Panama Ombudsmen Office as well.

The Inter-American Court on Nov 24^th 2017 pronounced the “American Convention on Human Rights (ACHR)” obliges states to guarantee the right to alteration of public records— name, sex/gender marker, image—to reflect an individual’s self-perceived gender identity based wholly on the informed and free consent of the requestor, without mandating medical interventions, such as surgical or hormonal treatments “Article 1(1) and 24”. The requirement of undergoing sex reassignment surgery to change the legal gender on an official document in Panama is a volition of the above-mentioned convention to which Panama is a party. Mandating a sex reassignment surgery puts trans people in a dichotomy as many are unable to afford the treatment, while some simply lack the desire to undergo surgeries and medical interventions. It is important to approbate the protections under civil rights to all trans people irrespective of their medical history and dissociate legal and medical processes. The same contention has been pioneered by “United Nations Agencies”, “The World Medical Association” and “World Professional Association of Transgender Health”.

The “Siracusa Principles” on the “Limitation and Derogation Provisions” in the “International Covenant on Civil and Political Rights (ICCPR)” ratified on July 1^st 1984 aims to curb the arbitrary power in hands of the government to restrict the fundamental rights and freedoms of citizen during an illegal and unwarranted declaration of Martial Law or the State of Emergency. The convention ratified by all American states enumerates that restriction:

• “Must be provided by Law”
• “Must not be arbitrary, discriminatory or unreasonable”
• “Must respond to public or social need, pursue a legitimate aim and proportional to aim.”

The general comment of the Human Rights Committee on “Article 4 (states of emergency) of ICCPR” propounds; measures adopted during an emergency restricting human rights on grounds of public health and security should be lawful necessary and proportionate, and should not target minorities, or particular individuals under the guise of safeguarding health.

The gender-based lockdown measures inadvertently fail to meet the above-mentioned guidelines by discriminating against the non-binary populace.

GENDER-BASED LOCKDOWN (INEFFECTIVE IN CURBING COVID CONTAMINATION)

Despite governments allowing non-binary people to go out on assigned dates as per their self-identified gender in some states, statistics indicate gender-friendly measures are unsuccessful in preventing harassment. In Columbia, for instance, irrespective of the gender-based lockdown guidelines entailing trans-sensitive provisions allowing trans people to go out keeping with their self-identified gender,  Red Comunitaria Trans, a Colombia based trans organisation, reported numerous instances of hate crime against trans people by police officials.

While it is acceptable for the governments to adopt extraordinary measures in battling the Pandemic, the gender-based lockdown of Latin America policy should be scrapped not only because it violates rights of trans people rights but because it is ineffective in reducing the spread of the disease. Reports suggested because women were tasked with more domestic work than men, they were compelled to gather in larger numbers on their assigned days, risking contamination. Grocery stores were overwhelmed on “female days” because the women only went out to purchase food on “female days” and men did not.

“Article 1” of the “Convention on Elimination of All Forms of Discrimination against Women (CEDAW)” defines discrimination against women as: “any distinction, exclusion or restriction made based on sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their mental status, on a basis of equality of men and women of human rights and fundamental freedom in the political, economic, social, cultural, civil or any other field.” 

Article 12 requires that: “State parties shall take all appropriate measures to eliminate discrimination against women in the field of health care…”

The gender-based lockdown by the government of Panama violates the protections approbated to women concerning their health by inordinately subjecting them to a greater risk of contamination. As the regulations proved ineffectual in reducing the numbers of people on the streets, Peru announced on April 10^th, 8 days into the implementation of the quarantine policy its decision to scrap the gender-based lockdown

THE WAY AHEAD

Many police officers were testing COVID positive because they had to approach people to check their transit/work permits regularly. The gendered lockdown was ordained to ensure “easy to check at a distance” – the officer no longer needed to approach the person and check his/her identity documents. If *he* is a man, he can be outside on a certain day and if *she* is a woman she cannot. However, in enacting the decree the government failed to consider gender is *not* an objective criterion. Some people fall through the cracks. Besides, because of the deep-rooted and multifaceted gender inequality which exists world-wide as pointed above instead of saving (police) lives, the policy hurt public health by increasing the risk of contagion among women. Thereby violating trans rights and women’s rights.

There are alternative ways to reduce the number of people on street and spread of the disease e.g. assigning odd and even numbers of each day of the week when people can come out or simply a complete lockdown on some days of the week with only essential services being allowed e.g. police, medicines, media. These measures would reduce congestion on streets without causing emotional, psychological and mental distress to the trans population. The gender-based lockdown measures despite the alternatives available only serve to highlight the endemic nature of violence and deep-rooted discrimination prevalent in the social fabric.