Gender Expression, Hate Speech
The Commissioner for Protection of Equality v. AA
Closed Expands Expression
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The Inter-American Court of Human Rights declared the State of Honduras responsible for the violation of Vicky Hernández’s right to freedom of expression, under article 13 of the American Convention on Human Rights. The Court found there was enough evidence to consider that Hernández was murdered because of her gender identity as a trans woman and because she was a sex worker. Similarly, the Tribunal asserted that the State failed to conduct a proper investigation into her murder, without prejudices, that took into account her work as a human rights’ defender of the LGBTI community. The Court argued that identity and its manifestation were protected under article 13 of the American Convention, thus in light of the events surrounding the death of Hernández, Honduras breached her right to freedom of expression, along with other rights.
On June 28th, 2009, a coup d’ état took place in Honduras. The events of this case happened in a context of this coup and the rise of violence against LGBTI people, especially against trans women. Between June 28th, 2009 and January 27th, 2010, “at least 15 trans women and 14 gay men died in a violent way” [para. 32].
Alongside this context of discrimination, the coup d’ état of 2009 “aggravated violence in general, and violations to human rights” [para. 36]. Social protests were repressed through excessive use of letal and non-letal force, “and there were several arbitrary or illegal detentions against those who expressed their support of President Zelaya. The Truth Commission found that during confrontations between public forces and protesters, 9 people died” [para. 38].
During the night of the coup d’ état, a curfew was declared between 9:00 PM and 6:00 AM. That night, the LGBT rights activist, Vicky Hernández went to a friend’s house. Vicky Hernández was a trans woman, “a sex worker and a well-known activist” [para. 40] working in favor of the rights of the trans community. At the time of the events, Hernández was also HIV positive. Hernández’s colleagues saw her for the last time walking through the red-light district, working, and then running away after being spotted by a police patrol.
On June 29, “at 7:30 AM, agents from the National Direction of Criminal Investigation (DNIC) received notice of a lifeless body in the 3 Street 7 and 8, Colonia Ruiz from San Pedro Sula Avenue” [para. 42]. The body was later identified as that of Vicky Hernández.
The body recovery report stated that Hernández had an irregular wound in her left eye and in the left frontal region. The cause of death was a “brain laceration due to a gunshot perforation” [para. 45]. A used condom was also found at the scene. She was listed as a male in the report.
Two months before her murder, Hernández was victim of a man’s aggression who attacked her in the head with a machete. When Hernández “went to the police, the agents told her ‘she might as well die’” [para. 41].
The investigation of the case “was registered in the Public Prosecutor’s Office as a case against unknown people for the crime of the murder of Vicky Hernández. Forensic authorities refused to conduct an autopsy of Hernández’s body under the assumption she was HIV positive” [para. 48].
On October 17th, 2013, the lawyer acting on behalf of Hernández’s family requested a copy of the investigation file. On October 28th, 2013, the Prosecutor for Crimes Against Life denied the request, arguing that that could jeopardize the investigation. On November 20th, 2013, after another request, the Public Prosecutor’s Office acknowledged that Vicky Hernández’s mother had the right to “obtain a copy of the investigation file” [para. 58].
On March 12th, 2015, the lawyer of Hernández’s relatives, “issued a communication to the Special Prosecutor for Crimes against Life, pointing out that the investigation had not advanced since October and several key documents were not included in the file” [para. 59].
The Inter-American Commission of Human Rights (IACHR) submitted to the Inter-American Court of Human Rights (IACtHR) the case of Vicky Hernández and family v. Honduras. For the Commission, the State of Honduras was responsible for the death of Hernández, “taking into consideration the fact that the streets were under total control of the public forces” [para. 1]. Likewise, the IACHR argued that the State failed to investigate, in a diligent manner, the case of Hernández, which remains unpunished. The Commission concluded that Honduras breached articles 4.1 (right to life), 5.1 (right to humane treatment), 11 (right to privacy), 13 (freedom of thought and expression) and 24 (right to equal protection) of the American Convention on Human Rights (ACHR).
The Inter-American Court of Human Rights analyzed if the State of Honduras violated international provisions regarding the protection of Human Rights. In matters related to freedom of expression, the main issue before the Court was whether the death of Vicky Hernández, and the subsequent context of impunity, breached her right to freedom of expression.
The Inter-American Commission argued that “what happened to Vicky Hernández was an act of violence based on prejudice on her gender identity and expression […] that seeks to punish identities, expressions or bodies that differ from traditional gender roles and norms or go against a non-binary system” [para. 61].
The State of Honduras accepted, partially its international responsibility in the violations of articles 8.1 (right to a fair trial) and 25 (right to judicial protection) of the ACHR, “thus acknowledging that in the moment in which the unfortunate events happened, [the State] didn’t conduct a proper investigation for the crime of Vicky Hernández” [para. 14], in order to clarify the circumstances of her death.
Nonetheless, the State argued that Hernández had the opportunity to develop and express her gender identity as a trans person, without discrimination or limitations. The State pointed out that the measures adopted after the coup were issued to prevent violence and “to protect human beings from the risks of demonstrations” [para. 79]. Lastly, the State argued that there’s no proof that the murder of Hernández was undertaken by members of the public forces.
The IACtHR began its considerations by affirming that “States must refrain from actions that directly or indirectly create situations of de iure or de facto discrimination” [para. 64], as it was argued in the case of Montesinos Mejía v. Ecuador.
The Court also noted, following its own precedent in the case of Atala Riffo and children v. Chile, that the LGBTI community has been “victim, historically, of structural discrimination, stigmatization, and different forms of violence, and violations of its human rights” [para. 67]. As it was laid out in the case of Perozo and others v. Venezuela, The Court also acknowledged that violence against members of the LGBTI community have a symbolic purpose, in which “the intention is to communicate a message of exclusion and discrimination” [para. 70] that seeks to impede or annul the exercise of human rights and essential freedoms.
When analyzing the specific case, the IACtHR recognized “although it is not possible to determine with full certainty that police agents participated in the events of the case, there’s evidence that points to the participation of state agents in these events, that add to a context of violence against LGBTI people, especially against trans women sex workers” [para. 100], which in turn signals the State responsibility for violating the right to life of Vicky Hernández. Thus, the Court observed that: Hernández was murdered during a curfew with strong police and military presence, in a context of general violence against LGBTI people, trans women, and sex workers; near the date in which Hernández was murdered, an alarming increase of killings associated to gender expression and identity was recorded; Hernández was previously assaulted by police members when working; there’s testimony indicating that Hernández was seen fleeing from the police; there’s a general context of impunity in cases of violence against trans women and, the investigation for the murder of Hernández was inadequate to clarify the circumstances of her murder or the perpetrators of it.
The Court also noted that the acts of violence against Hernández, and the subsequent lack of a proper investigation, were motivated by her gender expression or gender identity. Some specific elements that support this are: “the context of discrimination against LGBT community in Honduras; the existence of an apparently used condom next to Vicky’s body; the exposition of her lifeless body in the street, dressed with her sex worker outfit; her status as an activist for the rights of LGBTI people” [para. 112].
The Court found that the State recognized its failure in the investigation and thus must be liable for the violation of Hernández’s rights to judicial guarantees and protection. In the context of the investigations, Honduran authorities a) didn’t investigate the relationship between the crime and Vicky Hernández’s role as an activist in the trans collective “Colectivo Unidad Color Rosa” (Pink Color Unit Collective); b) in spite of the existence of a context gender-based violence, the investigation didn’t explore this angle; c) registered the murder as a crime of passion; d) didn’t perform the necessary studies to verify whether Vicky Hernández was a victim of sexual violence, and e) registered Vicky Hernández as male in the sex/gender box of the record” [para. 113].
For the IACtHR, in line with the Advisory Opinion OC-24/17, identity and its expression, are protected under article 13 of the ACHR. Thus any “arbitrary interference with the expression of the different attributes of personality can breach [freedom of expression]” [para. 117]. Taking into consideration, the fact Hernández’s murder was ostensibly motivated by her gender expression, and that the criminal investigation was based on prejudices against the trans community, the Court concluded that the State of Honduras violated the right to freedom of expression of Vicky Hernández.
For reparations, the IACtHR ordered Honduras, in a reasonable time, to promote and continue the necessary investigations to clarify Hernández’s crime and convict the people responsible for it. “The investigation must inquire if the crime was an act of gender-based violence and whether her work as a defender of the rights of the LGBTI people, and as a sex worker, were related to the murder” [para. 152]. Likewise, the investigation must clarify if Hernández was a victim of sexual violence.
The State of Honduras must publicly acknowledge its international responsibility related to the events of this case, making explicit reference to the human rights’ violations declared in this ruling.
The Court also ordered to the State, “to create and implement, within two years, a permanent training plan for State security agents to a) sensitize members of the State security forces to show respect for sexual orientation and gender expression in their interventions with civilians; b) train them on due diligence standards in the investigations of acts of violence against LGBTI people; c) insist on the discriminatory nature of sexual orientation and gender expression stereotypes, and the negative impact that their use has on the LGBTI community, and d) instruct them on the rights of those who develop activities related to sex work, human rights defense of the LGBTI population, and people living with HIV, as well as on how to carry out their duties in relation to these same people. This training plan should be incorporated into the regular training course for police forces” [para. 168].
The State of Honduras must adopt, within two years, a procedure for the recognition of gender identity. “This procedure should allow people to update their identity data in their documents and public registries, so they conform to their self-perceived gender identity” [para. 172].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This ruling by the IACtHR expands freedom of expression by considering that Gender Identity is a form of expression in itself, that deserves protection against discriminatory interferences. In doing so, it widens the scope of protection of freedom of expression, as an instrumental right for the articulation of identity. Through this the Court also provides robust protection to the rights of the LGBTI community, in cases of discrimination and violence.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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