Historical Moments: The LGBT Community in El Salvador, Part III

Solidarity from the North: A Ground-breaking Human Rights Report and a Pro-Bono LGBT Legal Clinic in El Salvador

Part III of a series profiling historical moments for the sexual diversity community in El Salvador, from 2009-present. See Part I, and Part II.

San Salvador.
August 2012.

In February of 2011, the University of California-Berkeley Law School sent a fact-finding mission to El Salvador to examine the reality for Salvadoran LGBT individuals and people living with HIV/AIDS (PLWHA.) What they uncovered was so powerful that the Berkeley representatives returned home knowing that they had to do something. They had spent many hours interviewing people whose dignity had been violated time and time again; this dearth of justice ached to be righted, and the victims shouldn't have to do it alone.

One year earlier, the lead professor from the Berkeley group, Allison Davenport, had met a Salvadoran-American lawyer who lives in San Francisco, Ana Montano. The two discussed Montano’s dream of starting a pro-bono legal clinic in El Salvador to support the LGBT community and PLWHA, which Montano had been slowly making a reality alongside the Salvadoran organization Entre Amigos since the early 2000’s. Montano accompanied the fact-finding mission to provide logistical support. Upon returning, her drive to support the community was ever-stronger; and the pro-bono legal clinic began to take concrete shape. It took the name ALDES (Oficina de Asistencia Legal para la Diversidad Sexual de El Salvador, or the Anti-Homophobia Legal Clinic, in English,) established an office in San Salvador and began to receive young volunteer lawyers from the US. Shortly thereafter, Davenport’s Berkeley team released the report they’d been painstakingly assembling for a year.

Both initiatives are extremely important steps in the struggle for equality for LGBT and PLWHA. The report is well-worth the read in its entirety, but you can find some highlights below. It identifies many systemic issues that lead to violence against LGBTQ individuals in El Salvador—corruption, impunity, abuse of authority, a privatized security system, public offices that operate on discriminative beliefs and deny citizens the service they are due—and which are also the roots of the difficult daily reality that the general population faces. These issues are very important to identify and understand.  

To learn more about the legal clinic, which exists to begin to address the many serious problems that the report highlights, you can visit the link above or write ALDESelsalvador@gmail.com. 

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The Context of Generalized Violence and Impunity

-          “The civil war which ravaged the country from 1980-1992 claimed the lives of an estimated 75,000 Salvadorans. In the subsequent nineteen years, another 74,000 Salvadorans have been murdered. In 2009, El Salvador’s murder rate was seven times that of the World Health Organization’s definition of an epidemic.

-          Another important aspect of the violence plaguing El Salvador is that the country has one of the highest rates of murder against women (some­times referred to as femicide or gender-motivated killings) in the world. Violence against women has been identified as the leading cause of death among Salvadoran women between the ages of fifteen and forty-four. Despite the high murder rates of women, only ten percent of reported cases result in a conviction.

-          In this context of epidemic violence, impunity is the norm. In the majority of the country’s 4,300 homicide cases in 2009, no one was arrested or convicted. The Attorney General’s office esti­mated that among those cases that are prosecuted there is a 7.4 percent conviction rate. Negligence, resource constraints, and corruption exacerbate the problem of impunity. Government officials have publicly acknowledged the perception among Sal­vadorans that offenses typically go unpunished by the justice system.

Violence Against the Community

-          Asoci­ación Entre Amigos, the leading LGBT advocacy organization in the country, reported eleven murders of LGBT individuals in 2008, twenty-three in 2009, and ten in 2010.

-          Case Study: Bloody June.  -- In June 2009, El Salvador experienced an unprecedented wave of targeted violence against the LGBT community.

On June 9, Tania and Katerina, two transgen­der women and sex workers were kidnapped in San Salvador.The next morning, Katerina’s body was found face down in a muddy ditch; she had been strangled and beaten. Tania was still missing. When friends called Tania’s cell phone an unknown voice threatened: “She is going to die, it is what she deserves.” Seven days later her partially dismembered body was found. She was seventeen years old.

Also that summer, the body of a twenty-five year old gay man was found in a plastic bag, his hands had been dismembered and his body bore other signs of torture. On June 30, an eighteen year old gay man was found shot, evidence indi­cated that he had been held captive and tortured for several hours before being killed. A transgen­der woman, Betzayda, was found in July at the bottom of a ravine; authorities say the cause of death was a gunshot wound.

This series of murders has come to be known as ‘Bloody June’ and followed a heated politi­cal debate in the Legislative Assembly regard­ing a constitutional ban of same-sex marriage.

Conservative parties had presented a bill pro­posing an amendment to the Constitution to preemptively ban marriage between same-sex partners and prohibit same-sex couples from adopting children. The bill ultimately failed, in part due to opposition led by civil society groups, but the backlash appears to have been directed against the LGBT community.

No one has been convicted of any of the murders from Bloody June.

Discrimination in Health Care

-          Discrimination in the health care system often begins at the door of a clinic or hospital. LGBT individuals reported discriminatory practices by security guards at the entrance of both public and private health institutions. Far outnumber­ing the ranks of the national police force, an esti­mated 21,959 to 40,000  private security guards employed by some 274 private security companies currently operate in El Salvador. This largely unregulated, economically powerful, armed private sector wields enormous control over day-to-day life in the country while being largely exempt from government oversight.

These private security guards, many of whom have received minimal training, are heavily armed. One LGBT advocacy group reported that security guards routinely harassed and intimidated patients from the LGBT community, particularly people who are transgender. Guards denied some individuals access to health care facilities and the harassment made others reluctant to seek medical treatment. As one transgender woman reported: “I do not even want to go to the hospital because I am discriminated against from the entrance.” Tired of the harassment by the security guards, she began to enter the hospital through the staff entrance in order to avoid the guards at the public entrance.

Discrimination in Education and Job Opportunities

-          The LGBT individuals most vulnerable to dis­crimination during the course of university study are those who are perceived as LGBT. Activists indicated that those individuals who are unable or unwilling “to pass” as straight or as someone with a traditional gender identity face the most egregious forms of discrimination and abuses. For example, one transgender woman reported being told by the dean of a school that she could only attend if she cut her hair and dressed in a masculine manner because the school refused to “make exceptions” for anyone. Another activist reported that lesbian women, particularly those who are more masculine in appearance, suffer from similar forms of exclu­sion and discrimination.

-          The options for legal recourse available to those who have faced workplace discrimination on the basis of sexual orientation and gender identity are limited. This is primarily due to the lack of anti-discrimination laws and constitutional protec­tions specifically aimed at LGBT individuals. The Public Defender’s Office (Procuraduría General de la República, also referred to as PGR) provides free legal representation to criminal defendants as well as to low-income and vulnerable individuals in a variety of legal matters, including labor discrimina­tion cases in both the private and public sector. However, Deputy Ombudsman of Labor, Property, and Personal Rights of the PGR reported that the office had never pursued an employment discrimi­nation claim based on sexual orientation or gender identity in court. Furthermore, cases with the PGR can take anywhere from two months to two years to reach a resolution. Given the lack of legal protections and the institutional barriers, LGBT individuals have little recourse when facing private sector workplace discrimination.

Report Recommendations to the Salvadoran Government and Functionaries

To the President and the Legislative Assembly:

»»Amend Article 3 of the Constitution to include LGBT individuals as a protected class on the grounds of gender identity and sexual orientation

To the National Civilian Police (PNC) and the Office of the Attorney General:

»»Immediately open an investigation of the targeted murders of members of the LGBT community, including the homicides of the summer of 2009;

»Institute a zero tolerance policy for members of law enforcement who commit physical or sexual assault and harass or discriminate against LGBT individuals and where violations occur impose severe sanctions

To the Ministry of Health:

»»Ensure that private security guards are appropriately trained on non-discrimina­tion and sanctioned for restricting access to care, harassing patients, or violating confidentiality standards

The Future

-          In 2010 President Funes issued Presiden­tial Decree 56, which prohibits discrimination against members of the LGBT community by public employees. The Decree also created the National Directorate for Sexual Diversity within the office of the Secretary of Social Inclusion, with the goal of eradicating discrimination against LGBT individuals, promoting inclusive public policies, ensuring equal treatment in the provision of services, and increasing awareness and sensi­tivity about the LGBT community. According to its first Director, the office serves as a vehicle within government to promote rights protections for LGBT individuals.

-          While certain initiatives, such as Presiden­tial Decree 56, represent a step toward recognizing the human rights of LGBT individuals, more work remains to achieve full and meaningful implemen­tation of these protections. Where legal protec­tions are absent, legislative reform, institutional action, and education and training are imperative to bring El Salvador into compliance with its inter­national human rights obligations…. El Salvador stands at the brink of opportunity to solidify the human rights of LGBT individuals, thus strengthening all of its institutions and dis­tinguishing itself as a model in the region.