In the midst of a pandemic that has exposed and exacerbated the structural violence suffered by transgender people globally, ILGA World (International Lesbian, Gay, Bisexual, Trans and Intersex Association)—a global federation created in 1978 that brings together more than 1,600 organizations—released its third Trans Legal Mapping Report . The research analyzes legal gender recognition as well as criminalization, and details the impact of laws and public policies on transgender people in 143 UN member states.

In Latin America, the mapping shows that more and more countries are enacting laws that allow for name and/or gender changes on official documents. However, other laws, while not specifically targeting the trans community, are used to criminalize and often imprison trans people.

Ways of criminalizing trans people

Of the 143 countries analyzed in the report, at least 13 explicitly criminalize transgender people . These are: Brunei, Gambia, Indonesia, Jordan, Kuwait, Lebanon, Malawi, Malaysia, Nigeria, Oman, South Sudan, Tonga, and the United Arab Emirates. None are in Latin America. “Only a small number of countries in the world explicitly criminalize the identity or behavior of transgender people, or those who perceive themselves as transgender and transgress gender norms. Often, through ‘cross-dressing laws,’ they explicitly prohibit ‘a male person from passing as a woman’ or vice versa. In these states, legal gender recognition is also unavailable, which puts transgender people, or those who perceive themselves as such, at risk of arrest or prosecution,” the report explains.

What about elsewhere? Although Latin American countries may not have such restrictive laws, the trans community is still criminalized, according to the report. Zhan Chiam, coordinator and co-author of the publication, warns that laws related to public nuisance, indecency, public decency, loitering, sex work-related offenses, and consensual same-sex sexual relations, among others, are used to systematically persecute trans people. These laws, which appear neutral, “are just as harmful as laws that explicitly criminalize gender expression .”

Which countries in Latin America have the most restrictive policies?

-In Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Guatemala, Haiti, Honduras, Jamaica, Nicaragua, Paraguay and Saint Lucia it is not possible to change the gender indicator on the birth certificate or identity document. 

-El Salvador does not allow the change of gender indicator, but in a few exceptional cases some trans people were able to do so, after having undergone genital surgery and the forensic test to "verify" the surgery. 

-According to lawyer Matilda González Gil, the most common laws used against trans people in the region are laws that prohibit consensual sexual relations between adults, laws that (directly or indirectly) criminalize sex work, for example, morality laws, public space regulations, drug laws and identity control laws applied by the police.

Drug laws are used to criminalize

-In Latin America, drug laws are used to criminalize trans people, for example, in Bolivia, Colombia, the Dominican Republic, and Ecuador. 

-In Bolivia, drug possession is frequently used as a reason, even with alleged false accusations, to harass and even imprison trans sex workers and their clients. 

In Colombia, 40% of LGBTI people and 30% of trans people who are incarcerated are imprisoned for drug-related offenses. Ecuador also reports high rates of trans people incarcerated for drug-related crimes.

-In Argentina, according to data analysis by Agencia Presentes , the percentage is even higher: 56% of trans people in prison are accused of drug-related crimes.

Public spaces and codes

Another way in which trans people are criminalized in Latin America, as reported in the report, is through codes of morality, good customs and coexistence, along with public space policies, especially in Chile, the Dominican Republic, El Salvador, Honduras, Peru and Venezuela.

In Cuba, police raids are used to “prevent” transgender women from being in areas considered prone to prostitution. They are detained, fined, and threatened not to “dress as women,” and can then be labeled as being in a “dangerous state due to antisocial behavior.”

Honduran police can arrest "street prostitutes" and anyone who displays behavior that "offends decency, good customs and public morals."

Argentina: with progress but still with laws that criminalize

Although Argentina is one of the most advanced countries in the region in terms of legal protections for the trans population, according to the ILGA World report, there are at least three laws that are used to criminalize them: the drug law, the article of the Penal Code on obscene displays, and the Human Trafficking Law. 

“According to reports from national civil society and international human rights organizations, transgender people are criminalized through a significant number of cases brought against them for drug possession and trafficking offenses. This occurs within the context of police prevention efforts, in which transgender people are subjected to insults, threats, and intimidation by the police. They are also subjected to forced searches and strip searches (carried out by male personnel) and ‘violence by third parties’ instigated by police officers,” the report explains.

In 2009, the Supreme Court ruled in the Arriola case that possession of narcotics for personal use cannot be criminalized when it does not pose a danger or harm to others. However, this is not reflected in reality. According to data from the Office of the Prosecutor for Drug-Related Crimes, even today a large percentage of incoming cases are for drug use: almost 4 out of every 10 cases were initiated in 2018 for possession for personal use, and almost all of these are initiated as a result of prevention efforts due to the prosecution of cases caught in the act by law enforcement.

The other law used to criminalize transgender people in Argentina is Law 26.842 on the Prevention and Punishment of Trafficking in Persons and Assistance to its Victims. This law prohibits any conduct that facilitates or promotes the prostitution of other people, whether adults or minors, regardless of whether the victim consents, and states that prostitution may only be practiced as a self-managed activity. 

“This law conflates trafficking with sex work and prevents sex workers from working collectively and in an organized manner, since all places where sex work can be practiced are criminalized. Furthermore, some municipal governments have implemented “relocation” policies to displace transgender sex workers following complaints from people living in the so-called “Red Light District,” the report warns.

Some advances at the global level

Among the main conclusions of this legal mapping, the progress of some countries stands out:

-In Europe, Belgium, France, Greece, Luxembourg and Portugal adopted laws that do not medicalize or pathologize the processes of changing gender markers.

-In Latin America, Brazil, Chile and Costa Rica have enabled the change in gender markers under the paradigm of self-determination. 

-Chile, Colombia and Uruguay have made progress regarding minors under 18 years of age

-In some jurisdictions in Australia (state of Victoria), Costa Rica and most of Canada, the option to completely remove gender markers was enabled.

“A turning point for the defense of trans people”

“ We are at a turning point in terms of organizing and advocating for trans people , and I hope that the overview provided by this report will encourage us to mobilize across regions, borders, and, above all, movements. There is an undeniable homogeneity in the obstacles our communities face, which means there could and should also be a way to formulate shared strategies,” explains Zhan Chiam, coordinator and co-author of the report.

And it concludes: “As this report is being finalized, we find ourselves in the midst of a global pandemic in which, around the world, trans movements face new challenges to survive and uphold our rights.”