(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
International and regional law
Venezuela is a signatory to international human rights treaties and the Yogyakarta Principles, obliging it to protect the rights of LGBTI persons. In their 2011 report to the UN, the civil society organisation DIVERLEX (Diversity and Equality through Law) accentuates a ruling of the Venezuelan Supreme Court stipulating the immediate enforceability of the human rights recognised in Venezuela, 'irrespective of whether those rights are recognized in any law' (translation by the Inter-American Commission of Human Rights IACHR).
Moreover, Venezuela is a member of the Organisation of American States OAS. In 2012, the OAS General Assembly passed AG/RES. 2721 Human Rights, Sexual Orientation and Gender Identity, obliging member states to 'condemn acts of violence and human rights violations committed against persons by reason of their sexual orientation and gender identity; and to urge states to strengthen their national institutions with a view to preventing and investigating these acts'.
The 1999 Constitution of the Bolivarian Republic of Venezuela stipulates equality before the law in Art. 21, but does not explicitly refer to sexual orientation or gender identity:
Art. 21: 'All persons are equal before the law, and consequently, no discrimination based on race, sex, creed or social standing shall be permitted, nor, in general, any discrimination with the intent or effect of nullifying or encroaching upon the recognition, enjoyment or exercise, on equal terms, of the rights and liberties of every individual'.
In response to pressures from Venezuelan LGBTI organisations, the 2008 ruling of the Venezuelan Supreme Court interpreted Art. 21 as explicitly prohibiting discrimination on grounds of sexual orientation. However, it fails to explicitly rule out discrimination based on gender identity or expression.
Discriminatory national laws and regulations
The protective international and national legal framework rarely finds expression in Venezuela's organic law. In their 2011 report to the UN, DIVERLEX denounces that 'Venezuela: (i) does not have laws to effectively combat homo-lesbo-transphobia, violence and discrimination against the LGBTTI community and the consequences, (ii) does not have public policies promoting inclusiveness and requiring that equal services be provided to the LGBTTI community and (iii) has a number of sub-legal provisions, ordinances, and the like still in effect that draw distinctions based on sexual orientation or gender identity' (IACHR translation). In their 2013 Report to the IACHR, the NGO Acción Ciudadana Contra el SIDA (ACCSI) similarly emphasises that 'there are no laws or other legal instruments specifically for LGBTI persons, due to the lack of political will on the part of the Venezuelan state authorities' (translation mine).
Venezuela's 1982 Civil Code illegalises same-sex marriage:
Art. 44: 'Marriage may only be entered into by one man and one woman… which is the sole marriage to produce legal effects, both with respect to individuals and to property'.
Numerous LGBTI civil society groups in Venezuela have been pressuring the National Assembly to legalise same-sex marriage. The 2013 legal proposal urges the National Assembly to change the definition of marriage in Art. 44 to 'the union of two people without gender distinction'. The activists emphasise that both the Constitution (see above) and the Homeland Plan 2013-19 aim to combat gender and sexuality-based discrimination, and the laws should be adjusted accordingly, as described in this Venezuelanalysis.com article. The proposal is backed by 21.000 signatures, 300 activists and 47 organisations. However, the campaign is strongly opposed by the Catholic Church, and to date there have been no positive legislative changes.
In contrast, as noted by DIVERLEX in their 2011 report to the UN, the Law on the Protection of Children and Adolescents (Ley Orgánica de Protección de Niños, Niñas y Adolescentes) was reformed in 2007 to include that joint adoption is only possible when the persons are married or in a stable union 'between a man and a woman'. This stipulation did not exist before 2007 and seeks to exclude adoption by same-sex couples. In the same report, DIVERLEX underlines that the National Assembly, the Executive and the Judiciary constantly block initiatives seeking equality.
A 2014 Supreme Court decision establishes that public protests need official permits and endorses repressive measures against those who violate the provisions of the judgement. This undermines the right to protest of LGBTI people, because government officials are enabled to deny the permit.
Progressive (but ineffective) laws in the Civil Code
There are a few laws promoting freedom from discrimination based on sexual orientation or gender identity, but they lack effective bodies to ensure their implementation. These laws and their shortcomings are recorded by DIVERLEX in their 2011 report to the UN and by ACCSI in their 2013 Report to the IACHR.
Chronological list of laws (ordered by date):
- Civil Register Law 2009 (Ley Orgánica de Registro Civil): Section enabling trans persons to change their name, but not their sex. This law has not been applied in practice.
- Law of Popular Power 2010 (Ley Orgánica del Poder Popular), Art. 4: Expression of the 2008 Supreme Court ruling, adding gender identity.
- Banking Sector Law 2010 (Ley Instituciones del Sector Bancario), Art. 173
- Labour Law (Ley Orgánica del Trabajo), Art. 21: Protection against labour discrimination based on sexual orientation (not gender expression). This was never applied in any concrete judicial decision, as emphasised by DIVERLEX.
- Guarantees regarding the rights of women and the gender diverse to Gender Equality in the Corps of the Bolivarian National Police and other bodies of the State and Municipal Police 2010, Art. 3: Mandate against discrimination based on sexual orientation, gender identity or gender expression. But high levels of police violence persist in Venezuela (see PUBLIC ATTITUDES AND/OR STATE'S CAPACITY TO PROTECT).
- Law for the Regulation and Control of Housing Leases 2011 (Ley para la Regularización y Control de los Arrendamientos de Vivienda), Art. 14 and Resolution 185
The Venezuelan citizen Paredes petitioned the U.S. Court of Appeals for a review of the Board of Immigration Appeals' affirmance of the Immigration Judge's decision against asylum and withholding of removal. Paredes' asylum application was based upon his fear of future persecution in Venezuela due to his status as a HIV-positive homosexual man (constituting membership in a particular social group). The Court of Appeals affirms the veracity of Paredes' claims regarding the discrimination and disadvantages he faces in Venezuela, but judges that 'it does not rise to the level of persecution necessary for the grant of asylum'. Consequently, the petition was denied.
The Venezuelan citizen Ayala petitioned the U.S. Court of Appeals for a review of the Immigration Judge's and the Board of Immigration Appeals' decision to deny asylum and withholding of removal. Ayala's application was based on persecution due to his political opinion, namely opposition to President Hugo Chavez, and membership in a particular social group, namely HIV-positive homosexual men in Venezuela. The Immigration Judge confirmed the credibility of Ayala's status as a HIV-positive homosexual man, but judged that Ayala had failed to establish past persecution on account of a protected ground or a well-founded fear of future persecution. The Board affirmed the decision. The Court of Appeals found that 'the decision of the Board is riddled with error', and consequently decided to grant the petition for review, vacate the decision of the Board and remand for further proceedings.
PUBLIC ATTITUDES AND/OR STATE'S CAPACITY TO PROTECT
The LGBTI rights situation in Venezuela is considerably worse than in other parts of Latin America: LGBTI face significant levels of discrimination, and the more progressive elements of the law are rarely implemented. This is emphasised by the International LGBTI Association ILGA in their 2013 Report on State-Sponsored Homophobia worldwide.
Discrimination emanating from public institutions
There are no official state statistics covering homo-lesbo-transphobic violence, because public institutions do not recognise hate crimes against LGBTI. However, reports by LGBTI civil society organisations regularly and reliably report anti-LGBTI violence. They demonstrate that state institutions generally and the Venezuelan police forces specifically are a significant source of physical, verbal and other forms of aggression against LGBTI people.
This is emphasised by the NGO ACCSI in their report on Sexual orientation-, gender identity- and gender expression-based hate crimes between 2009 and 2013: 55% of aggressions originate from the police, and another 23% from state officials and political representatives. In ACCSI's 2008 Report on Homophobia, Violence and Impunity against LGBTI persons, 50% of interviewees indicate negative experiences with the police, consisting of both verbal and physical aggressions. ACCSI's 2003 Report on the Human Rights of LGBTI shows the transgender community to be particularly affected, as 100% of transgender persons interviewed report negative experiences with the police.
This analysis is corroborated by the 2012 Annual Report of the IACHR: For Venezuela, the IACHR received 'disturbing reports concerning murders, other acts of violence and discrimination … including … incidents involving public officials'. The same report indicates that police abuse particularly affects trans women.
Accordingly, the 2014 Communiqué of the Venezuelan LGBTI movement demands an end to human rights violations at the hands of the Venezuelan state. The statement denounces limitations of the right to protest, state repression in demonstrations using arms, excessive use of force against protesters, detainment of journalists, censorship of the media, arbitrary detention without charge or proof, and torture of detainees. They emphasise 'instances of anal violations with military weapons', denouncing them as 'homophobic acts of torture, inhuman and degrading treatment' (my translation). The information is corroborated in Venezuela Diversa's article on police violence against LGBTI.
In May 2014, the march against homophobia and transphobia in Caracas was prohibited by municipal governments, based on the 2014 Supreme Court ruling (cf. LEGAL INFORMATION) introducing the need for permits for public protests. This undermines the constitutional right to peaceful protest, as emphasised by the civil society organisations Venezuela Diversa and ACCSI.
Anti-LGBTI attitudes emanating from Venezuelan state authorities are also manifest in homophobic terminology used to attack political opponents. One instance is exposed in this video, in which the Venezuelan LGBTI community responds to the homophobic expressions used by MP Pedro Carreño in August 2013, also covered by CNN. Secondly, this IACHR press release condemns the pejorative terms used by Foreign Minister Nicolás Maduro during a public broadcast.
In their report on Sexual orientation-, gender identity- and gender expression-based hate crimes between 2009 and 2013, the NGO Acción Ciudadana Contra el SIDA (ACCSI) emphasises the invisibility of lesbian and trans persons specifically: They are not acknowledged as social groups in state decisions and mechanisms regarding health, work, education, family and social life. For example, there is no data specifically on lesbians or trans people in state reports on HIV/AIDS. In the health sector, medical treatment operates based on the binary distinction between men and women. Consequently, women are categorised as heterosexual, and trans women as men.
Nevertheless, the IACHR also notes positive developments in their 2012 Annual Report, highlighting that the Ombudsperson's Office (Defensoría del Pueblo) in Venezuela increasingly campaigns for the rights of LGBTI persons, prompting positive responses from civil society organisations. However, in their 2013 Report to the IACHR the NGO ACCSI undermines these optimistic observations: 'The Ombudsperson has made a few actions on sexual diversity, but unfortunately without achievements or significant impact to ensure the human rights of LGBTI people in the country… LGBTI persons in Venezuela find themselves totally unprotected and abandoned by Venezuelan public institutions' (translation mine).
Incidents of violence and abuse against LGBTI persons
In their report on Sexual orientation-, gender identity- and gender expression-based hate crimes, the NGO ACCSI reviews data from media and civil society organisations from January 2009 to August 2013. In this time period, ACCSI recorded 99 anti-LGBTI hate crimes, composed of 46 murders and 53 other types of aggression (torture, inhuman and degrading treatment, arbitrary detention, physical, verbal and psychological aggression, political onslaught, and power abuse, inter alia). The analysis depicts an upward tendency: the number of recorded hate crimes increased from 5 in 2009 to 14 in the first half of 2013. ACCSI report highlights that the assassinations evince the 'hatred and contempt' (translation mine) of the perpetrators against LGBTI persons.
The International Gay and Lesbian Human Rights Commission IGLHRC equally reports numerous incidents of violence and abuse against LGBTI persons. This article condemns arbitrary arrests of LGBTI in Caracas in 2009, accentuating that 'police harass and abuse people whose sexual orientation and/or gender identity differs from social norms'. A second article calls to protest against assassinations of trans women: transwoman Xiomora Duran was murdered in May 2009 in Caracas, only a few months after three more trans persons had been assassinated through stabbing and shooting. Furthermore, trans activist Yhajaira Marcano Bravo was forced to leave Venezuela as a result of repeated police harassment.
Particularly vulnerable groups: trans persons and sex workers
ACCSI included an analysis of the victims' background where data was available, diagnosing that young trans persons and sex workers are the most frequent targets of lethal attacks: In the 2013 report on Sexual orientation-, gender identity- and gender expression-based hate crimes, approximately 50% of murder victims are between 14 and 25 years old, 71.7% of the recorded murders are committed against trans people, and 39% of murder victims were sex workers. The specific vulnerability of trans people is constant over time: ACCSI's 2008 Report on Homophobia, Violence and Impunity against LGBTI persons equally denotes that the trans community is most affected by the violence. This information is corroborated by REDLACTRANS' report on violence against trans women in Latin America, counting 65 assassinations of trans persons between 2008 and 2011.
The 2012 Annual Report of the IACHR contains a list of serious cases of physical and verbal abuse, again indicating the trans community as particularly vulnerable. The following review refers to trans persons with their self-identified name. In January 2012, trans person Brilli Olivera was shot with seven bullets in San Félix. In March 2012, Daniela Pantoja was assassinated by a shot in the left eye in Ocumare del Tuy. In June 2012, trans woman and sex worker Lulú (self-identified name) García was killed by several shots in Caracas. In July, the police verbally and physically attacked 4 trans sex workers in Caracas. Their denunciation of the incident was answered with further threats on the part of the police, which Venezuela Diversa's article denounces as part of a systematic practice of aggression against trans persons at the hands of the Chacao police. In September 2012, the dead body of the trans woman Juana Paola was found with the throat cut, signs of blows and a bullet wound. In the same month, trans woman Ivonne was killed with a cement block. In October 2012, more than 20 trans women were arrested by the CICPC (Scientific, Criminal and Forensic Investigation Corps). They were subjected to mistreatment and torture, including electric shocks and verbal insults denigrating their gender non-conformity. In the same month, the gay man Angello Prado was set on fire and suffered third-degree burns.
In response, the IACHR 'urges Venezuela to take measures to prevent and respond to these human rights abuses, including through the adoption of laws, public policies and campaigns to stop discrimination based on sexual orientation, gender identity and gender expression' (2012 Annual Report). The 2011 and the 2010 Annual Report of the IACHR include almost identical recommendations.
The civil society organisation DIVERLEX denominates trans persons 'excluded and undocumented pariahs in their own country' (my translation) in their 2011 report to the UN. The report accentuates that trans persons face the strongest discrimination, especially in the areas of health, security, identity, housing, work and education, combined with the strongest exposition to HIV/AIDS. Regarding health, most trans persons avoid going to health centres in order to evade secondary victimisation. Regarding education, numerous trans persons quit the school system due to bullying. Afterwards, trans persons face high levels of labour discrimination. According to DIVERLEX, this vulnerability pushes trans persons into situations of quasi-slavery, human trafficking and prostitution.
Accordingly, Dr. Tamara Adrian, co- author of the DIVERLEX report, Professor of Law and representative of the Venezuelan LGBTI Network emphasises the vulnerability and exploitability of trans persons in particular: 'There are no public policies for them. As a rule, these are people who engage in prostitution because they have no alternative' (IACHR translation of a Reportero article). Thus, trans discrimination is co-constitutive with economic vulnerability.
Venezuelan NGOs and international organisations both problematize impunity: Firstly, impunity impedes access to justice for victims of discrimination. Secondly, impunity hinders the reduction of discrimination emanating from public and private actors. This is emphasised in an IACHR press-release, stating that 'the ineffectiveness of the justice system fosters high rates impunity, which in turn lead to the chronic repetition of such crimes, leaving the victims and their families in a state of absolute defencelessness'.
ACCSI's report on Sexual orientation-, gender identity- and gender expression-based hate crimes between 2009 and 2013 counts 9 assassinations in 2012 and 14 assassinations in the first half of 2013, but no arrests of perpetrators. Moreover, the report indicates that between 2009 and 2013 only 4 cases have been resolved, whereas in 91% of assassinations the status of cases is unknown. Consequently, ACCSI concludes that 'the Venezuelan state has failed to fulfil its obligation … to bring the perpetrators of hate crimes based on sexual orientation, gender identity and gender expression to justice'.
An underlying reason for impunity is the low reporting rate of assaults. Lesbians have the lowest reporting rate of assaults (8%), compared to gays (10%), bisexuals (13%) and trans persons (18%), as indicated in ACCSI's 2008 Report on Homophobia, Violence and Impunity against LGBTI persons. Moreover, the report underlines that only 15% of these reported cases have been resolved.
The low reporting rate, in turn, is based on negative experiences and lack of trust in public institutions and the judicial system, as indicated by DIVERLEX in their 2011 report to the UN. The report shows that, in cases of labour market discrimination, LGBTI persons 'invariably prefer trying to get another job instead of seeking compensation through a legal case' due to 'fear and distrust'.
Further reasons for impunity are shame felt by the victims and/or their families, criminalisation, secondary victimisation and the normalisation of violence against LGBTI, as indicated in ACCSI's 2003 Report on Impunity. The report accentuates that 'for impunity to exist around human rights violations against LGBTI persons, there must be a highly discriminatory society, which views member of the LGBTI community with prejudices and hate… These crimes and human rights violations are committed in the belief that they constitute a service to society'.
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
No NGOs working with LGBTI populations are listed here, but we welcome suggestions.
COUNTRY OF ORIGIN SPECIALISTS
Dr Tamara Adrián Hernandez
Email: adrianjurisgmail [dot] com
Dr. Tamara Adrián Hernandez is a practicing lawyer and Professor of Law at the Universidad Católica Andrés Bello, the Universidad Central de Venezuela and the Universidad Metropolitana. She is a well-known LGBTI activist and a member of numerous LGBTI organisations. Currently, she acts as a representative of the Venezuelan LGBTI network and as the national coordinator of the Venezuelan Committee for Vulnerable Groups and Sexual Diversity. Furthermore, she is the Chair of IDAHO-T and the World Trans Secretary of ILGA. Her attempts to have her gender and name legally recognized have been unsuccessful so far.
Researched by: Vera Wriedt
email: vera [dot] wriedtgmail [dot] com