Increased State persecution of LGBTQ persons during COVID-19
The global health systems have been stretched by the COVID-19 pandemic, revealing the faults that have come from defunding public health care due to neoliberal ideology that values efficiency and profits over human lives. When evaluating States responses to COVID-19, this global health emergency throws into sharp relief the pre-existing legal frameworks and domestic institutions across the globe that actively discriminate against LGBTQ people. The UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity expert warned that the pandemic is being used in some countries as an excuse for persecution: “Some States have enacted measures which intentionally target LGBTQ persons and communities under the guise of public health, including proposing legislation to deny trans- and gender-diverse persons of their legal recognition.”
During the COVID-19 pandemic, some important phrases have become a constant refrain worldwide. “Social distancing” (or perhaps more accurately “physical distancing”) has been encouraged globally, to ensure a physical space among individuals to decrease infection rates. Many different methods with different names from “isolations”, “quarantines” and “lockdowns” have been employed. Violations of these and other measures have often come with criminal penalties, a development that has been discussed in some detail.
In the name of containing infections, we have witnessed enactments of emergency laws and orders. We believe that these extraordinary measures have been misused, in part, to perpetuate persecution of the LGBTQ people. We see measures that are obviously discriminatory: in South America, and its enforcement, in the Philippines. In certain countries we see emergency laws being abused to reinforce and entrench homophobia and transphobia, e.g., in Uganda, Poland, Hungary.
Policing identities and violence in public spaces
To curb transmission by decreasing the number of people in the streets, certain countries have used lockdown measures and separation by sex, when allowing movement in public spaces. For example, in Peru and in Bogota, Colombia, where men were required to leave their homes on odd numbered days, while women left their homes on even numbered days, and in Panama, the reverse applied.
These gender-based lockdown policies created “women’s days” and “men’s days”, restricting movement on the street to those navigating public life with cis-gendered bodies and perceptions of gender identities, and of what it is to be a “woman” and a “man” steeped in gender stereotypes and binary normalcy. These strict employments of sex and gender binary policies have dangerous consequences: those who fall outside stipulated gender norms risk being exposed, becoming visible, feeling unsafe, and being harmed as a result. And, indeed, shocking reports of abuse and humiliation of transgender and non-binary people have emerged from South America during the enforcement of these sex-based lockdown policies.
Transwomen who have gone out on days deemed “women’s days” in Panama, have faced harassment when shopping in supermarkets, and when buying medicine, were told they were not “women”. In Bogotá, Colombia, as many as 20 targeted acts of violence have been reported against transwomen who were out on “women’s days” shopping for groceries. Similarly, despite the fact it was forbidden, there were cases where transwomen were requested their national identification document (“cédula”) to prove their sex and be able to access services.
In Peru, the lockdown measures culminated in reports of ill-treatment against transwomen by the police. A video of a transwoman forced to do squats and repeat the phrase “I want to be a man” was widely circulated. In the same vein, there were complaints that, without any legitimate justification, police asked transwomen to provide identification documents, and arrested, some of them again for no apparent legitimate reason. These measures are no longer in force in Peru and in Bogota, and lockdowns in Panama are no longer conducted in a ‘gendered’ manner. However, the impacts on the LGBTQ community and their bodies are permanent. The Inter-American Commission on Human Rights (IACHR) raised their concerns on these gender-based measures and about the fact that they placed the LGBTQ community at great risk of a multitude of human rights violations.
Reports of abuses against LGBTQ persons are not exclusively confined to countries where gender-based lockdown rules have been enforced, in fact, there are examples of LGBTQ people being subjected to cruel, overzealous methods of punishment for allegedly breaking curfews, and they also have faced disproportionate actions on the pretext of protecting public health in many countries.
In Pampanga in the Philippines, three LGBTQ people who went out at night to run errands for their grandmothers were subjected to a series of cruel, disciplinary tactics by the barangay (ward) captain for breaking curfew. The three were singled out because of their perceived sexual orientation, gender identity/expression, were ordered to dance provocatively and to kiss each other on the lips. The trio were then subjected to further humiliation when these acts were streamed live on the barangay captain’s Facebook account.
Dangerous, discriminatory policies
Long before the COVID-19 pandemic, many countries around the world relied on the promotion of anti-LGBTQ identities, framing them as political threats to heteronormative identities, penalizing LGBTQ human rights defenders and fear-mongering. These policies either excluded LGBTQ people from mainstream policymaking or painted them as a threat to “national security”, “family life”. In this context, homosexuality has often been depicted as being, for example, against “Asian values” or “unAfrican”. This occurs despite the fact that many are former colonies, where the colonial powers previously imposed gender binaries, established anti-buggery laws, and paved the way for Christian missionaries. Combined these colonial practices repressed and distorted understanding and continuity of indigenous expressions and acceptance of diverse gender and sexual formations.
Today and in many of these former colonial spaces, it is a crime to have consensual same-sex relations and where gender diverse people are criminalized, and criminal laws often employ vague terms, such as “acts against nature”, “indecency”, or “immoral acts”, leaving the courts and police freedom to arbitrarily interpret these words to use these laws as a device to harass, detain and persecute LGBTQ people. Even in countries where these laws are no longer enforced, COVID-19 responses have been seen as opportune moments for authoritarian States to employ populist narratives that ride on anti-LGBTQ sentiments, in the name of the protection of public health — including in so-called liberal democracies in the global north. For instance, Poland, as part of its purported COVID-19 response, amended its criminal code to increase penalties for HIV exposure. The law increases penalties for HIV exposure from a three year to an eight year maximum prison sentence. This law also levies a heavy penalty for exposure to other sexually transmitted infections and/or infectious diseases, from a fine or one year prison sentence to 6 year imprisonment. It also imposes an ‘aggravated’ sentence, a harsh prison term for up to 10 years if more than two people are exposed.
These are both an antiquated and counter-intuitive response, with the effect of entrenching stigma against people living with HIV or vulnerable to HIV, and more generally against LGBTQ persons, and will further diminish access to treatment, testing and prevention of HIV. Related stigma will also have an effect on the lives of LGBTQ people who may be seeking treatment for COVID-19 related symptoms.
Even more egregious, and along with its extraordinary emergency powers part of its respond to the pandemic, the government of Hungary passed a law that prohibits transgender people from changing their gender markers on identity documents. The Prime Minister has the authority to rule by decree. Such government by fiat has far-reaching consequences for transgender and non-binary people, and society as a whole.
Uganda too has put in place emergency measures to counter COVID-19 transmissions, including lockdowns and physical distancing rules. These emergency measures have been misused as a tool to raid, arrest and detain homeless LGBTQ people. On 29 March 2020, local authorities in Kyengera raided a LGBTQ shelter. They did so allegedly on health grounds, claiming that the shelter’s inhabitants were in violation of physical distancing regulations. This raid was condemned around the world, and UN human rights experts cited this case as a key example of authorities using “emergency powers for different purposes”. A total of 19 LGBTQ people, 13 gay men, 2 bisexual men and 4 transgender women were jailed for almost 50 days, for alleged violations of social distancing rules. These 19 people were only recently released thanks to a court order.
Did international law forget queer bodies?
In the wake of a global pandemic, national governments have accrued more executive control as the socio-political sphere shrank. Lock downs, curfews and military deployment were the order of the day. OpinioJuris.org has highlighted how LGBTQ people across the world becoming more precarious. In a time of global mourning for lost lives, it is pertinent to assess COVID-19 responses from governments and their adherence to international human rights law obligations. Governments’ responses should be measured against their preparedness to provide support to the most vulnerable people within societies. Allegations of violence and abuse committed against LGBTQ people during the pandemic must be promptly and immediately investigated by States, without reprisals and backlash against complainants and their communities.
While countries around the world will be phasing out COVID-19 measures, national governments continue to have a positive duty to protect people from discrimination, including discrimination on the grounds of their real or imputed sexual orientation and gender identity or expression. Robust measures must be taken by States to tackle crimes perpetrated against LGBTQ persons seriously, to provide protection to LGBTQ people in public spaces and to ensure laws and policies created to combat COVID-19 do not discriminate against LGBTQ persons. These measures asides from raising awareness on these issues, must also include abolishing laws that criminalize LGBTQ identities, stigmatize queer human rights defenders, and restrict public participation.
In the 1994 case of Toonen v Australia, the UN Human Rights Committee decided that Tasmania’s law criminalizing consensual same-sex sexual relations were in violation of Article 17 and 26, the privacy and non-discrimination articles of the International Covenant on Civil and Political Rights. UN Treaty Bodies, including the Human Rights Committee, have continued to call for the decriminalization of consensual same-sex sexual relations.
In a global health emergency, it is not uncommon for LGBTQ people to be blamed for disasters, both “manmade and natural”. These narratives steeped in homophobia are not valid excuses for States to enact discriminatory legislation devoid of any rational basis in the protection of public health. COVID-19 measures that are implemented in a manner that is not strictly necessary, proportionate and evidence based are abusive and violate human rights guarantees.
Amidst the many gains the queer community has won through decades of resistance, resilience and activism, many of these gains and lives have been lost during COVID-19, as the pandemic has exposed many inequalities and fault-lines within society. As the world slowly returns to a not-so-normal new normal, social, financial assistance and access to safe, secure homes and the right to housing for LGBTQ persons will remain illusive. Without protection from discriminatory application of laws, lockdown and COVID-19 related measures, LGBTQ persons will continue to be disproportionately targeted by police under purviews of new emergency criminal law and other even more nefarious reasons.
The increase in executive control shifts state power towards authoritarianism in many places, and this does not auger well for human rights protections that we took for granted especially the hard won victories for LGBTQ people.
Pride Month reminds us that queer resistance is not only about parades and rainbow flags. Pride is reimagining and reconfiguring itself in the digital age and in the face of a global health emergency. International human rights law requires States to put into place requisite protective legislation and mechanisms. The international legal framework must also quicken its pace to catch up with the ever-evolving landscape of queer activism and bodies.
This is the time for extreme vigilance, collective action and organizing to make sure that states are unable to roll back international human rights guarantees and be held accountable for not providing the conditions under which economic social and cultural rights can be realized.
A version of this essay first appeared on the OpinioJuris Blog.
Sarah Suhail and Michelle Yesudas are Legal Advisers at the International Commission of Jurists, Asia & the Pacific Programme. The International Commission of Jurists has carried out in-depth research into the “unnatural offences” laws in India and Myanmar and SOGIE rights violations in Housing, Work and Public Spaces in India.