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El Salvador Fails to Meet Deadline for Trans Rights Ruling

Legislative Assembly Should Urgently Create Gender Recognition Procedure

© 2022 John Holmes for Human Rights Watch

(New York) – El Salvador’s Legislative Assembly has brazenly ignored the one-year deadline that the Supreme Court gave it to create a legal gender recognition procedure that would prevent discrimination against transgender people, Human Rights Watch and COMCAVIS TRANS said today.

In February 2022, the constitutional chamber of El Salvador’s Supreme Court ruled that the constitution prohibits discrimination based on gender identity. It ordered the legislature to create a procedure within one year that allows trans people to change their names in identity documents. Human Rights Watch and COMCAVIS TRANS urged the Legislative Assembly to move to enact an existing bill that would comply with the ruling, as well as with international human rights standards requiring that trans people be allowed to modify both their names and gender markers in their documents, via a simple, efficient, and inexpensive administrative procedure.

“The Legislative Assembly’s failure to comply with the Supreme Court’s within the deadline is grave not only for its apparent disregard for the rights of trans people but also for democratic checks and balances and the rule of law, which have come under attack by President Nayib Bukele and his allies,” said Cristian González Cabrera, LGBT rights researcher at Human Rights Watch. “The legislature should urgently comply with the court’s patently clear ruling in favor of gender recognition, which will help to reduce the disadvantages that trans people experience in the fulfilment of their social, economic, and political rights.”

In July 2022, Human Rights Watch and COMCAVIS TRANS published a report exposing the pervasive discrimination that trans people experience due to a mismatch between their gender and their identity documents. Researchers focused on discrimination in health, employment, voting, and banking. They found that a lack of accurate documents, often in combination with anti-trans bias, leads to humiliations, harassment, and disparate treatment for trans people in these sectors.

In August 2021, lawmakers, in collaboration with trans organizations, introduced a draft Gender Identity Law that would create a legal gender recognition procedure, but the bill remains stalled in the Assembly’s Committee on Women and Gender Equality. In May 2021, legislators in that committee blocked a similar bill introduced in 2018, calling it “not in accordance with reality.” Trans activists sharply criticized the move.

The Legislative Assembly’s failure to implement the Supreme Court’s order for gender recognition reform and relevant legislative initiatives is part of a much broader pattern of weakening democratic institutions and judicial independence necessary for upholding human rights in El Salvador, Human Rights Watch and COMCAVIS TRANS said.

Since winning a supermajority in the legislative elections of February 2021, President Bukele’s party, New Ideas (Nuevas Ideas), and its allies have taken drastic steps to further undermine judicial independence and the rule of law.

On May 1, 2021, they summarily removed and replaced all five judges of the Constitutional Chamber of the Supreme Court for supposedly inhibiting the government’s pandemic response. The same night, legislators dismissed the attorney general, who had been investigating corruption allegations against high-level government officials and reports of a pact between President Bukele’s administration and gangs.

On June 30, 2021, the Assembly appointed five new judges to the Supreme Court, in violation of the process established in the constitution and the Assembly’s own internal rules. Salvadoran law allows each newly constituted legislative body to appoint five Supreme Court judges, but the Assembly has appointed 10 of a total 15.

In September 2021, lawmakers passed laws allowing the Supreme Court and the attorney general to dismiss judges and prosecutors over 60 years of age and expanding their authority to transfer judges and prosecutors to new posts.

In September 2022, President Bukele announced he will seek re-election in 2024, relying on a 2021 ruling by the new Constitutional Chamber that departed from longstanding jurisprudence interpreting the constitution as forbidding immediate re-election.

The cherry-picking of Supreme Court rulings with which to comply and the weakening of checks and balances is detrimental for the human rights of all Salvadorans. The apparent unwillingness of the executive and legislative branches to uphold the rights of lesbian, gay, bisexual, and transgender (LGBT) people makes them especially vulnerable, Human Rights Watch and COMCAVIS TRANS said.

Since President Nayib Bukele took office in 2019, several initiatives put in place under the previous government aimed at promoting LGBT inclusion have been downgraded or not implemented.  

In 2010, the government had established a Directorate of Sexual Diversity in the Secretariat of Social Inclusion charged with training government employees, including police officers, on gender identity and sexual orientation, and conducting research on national LGBT issues. In June 2019, President Bukele dissolved the secretariat and subsumed the sexual diversity directorate into an existing Gender Unit in the Ministry of Culture, renamed the Gender and Diversity Unit. LGBT activists criticized the move, protesting that few of their grave concerns regarding safety and discrimination could be adequately addressed under the ambit of culture.

In September 2021, President Bukele said that the government-backed constitutional reform would not legally recognize same-sex relationships.

In September 2022, El Salvador’s Education Ministry fired the director of the National Institute of Teacher Training and announced a “restructuring” of that institution because the Institute had approved a segment of a remote education television show initiated during the pandemic that explained the concept of sexual orientation. The ministry said the information was not “in adherence with [Salvadoran] reality.” This constituted a blow to comprehensive sexuality education in El Salvador, which can help foster understanding and reduce violence against sexual and gender minorities.

In December 2022, El Salvador suspended its membership from the UN LGBTI Core Group at the United Nations, a group of states whose stated goal is to work within the UN framework on ensuring universal respect for the human rights and fundamental freedoms for all, specifically LGBT and intersex persons, with a particular focus on protection from violence and discrimination.

LGBT people in El Salvador are in dire need of public policies that uphold their rights. In 2017, the Salvadoran government acknowledged that LGBT people face “torture, inhuman or degrading treatment, excessive use of force, illegal and arbitrary arrests and other forms of abuse, much of it committed even by public security agents.” A 2021 Human Rights Watch report confirmed the Salvadoran government’s assessment and found that LGBT people, and especially trans people, faced a high level of violence and economic marginalization, including due to a lack of legal gender recognition.

A growing number of countries in Latin America have created procedures for legal gender recognition, such as Argentina, Chile, Colombia, Costa Rica, Mexico, and Uruguay, providing for simple administrative processes based on self-declaration. The president of neighboring Honduras announced that country would make the necessary reforms to allow for this right, in compliance with a 2021 Inter-American Court of Human Rights landmark ruling in a case involving Honduras.

In 2017, the Inter-American Court, which is charged with interpreting the American Convention on Human Rights, affirmed in an advisory opinion that states must establish simple and efficient legal gender recognition procedures based on self-identification, without invasive and stigmatizing requirements. The United Nations Human Rights Committee, in charge of interpreting the International Covenant on Civil and Political Rights, has called on governments to guarantee the rights of transgender people, including the right to legal recognition of their gender.

“If the Legislative Assembly of El Salvador is committed to human rights and the rule of law, it should heed the Supreme Court ruling without delay and create a legal gender recognition procedure, which upholds our self-determination, dignity, and freedom,” said Bianka Rodríguez, executive director of COMCAVIS TRANS. “Trans people have been demanding this for years and until such a procedure is created, we will continue to be objects of violence and discrimination.”

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