“Today, in France, we still cannot live and love freely just as we are,” said Joël Deumier, president of the association SOS Homophobie. In its annual report published May 10, 2017, the organization stated it received 1,575 testimonies of anti-LGBT acts in 2016, an increase of nearly 20% compared with the previous year. It’s possible that the increase in reported incidents reflects a greater willingness of victims to speak out. Still, SOS Homophobie believes that many victims of anti-LGBT acts do not dare come forward.

Demonstration in support of same-sex marriage in Paris, 16 December 2012.

© 2012 Olivier Hoffschir

In 2016, SOS Homophobie received 26 reports from people who said they had a homophobic, biphobic, or transphobic encounter with justice or law enforcement officials. By this is meant that an officer refused to characterize an assault as homophobic in a complaint or to even file a complaint, or that a law enforcement officer himself discriminated against LGBT people.

While these incidents remain thankfully limited, they are no less unacceptable. France should take measures to determine how widespread these attitudes are among public officials, and to prevent subversion of their duties because of this attitude.

SOS Homophobie’s report also shows a correlation between debates over equal rights and the increase of anti-LGBT acts. The organization recorded a spike in reported incidents in 2013, the year France legalized same-sex marriage. In 2016, France adopted a law waiving the requirement for transgender people to provide proof of medical treatment to amend their legal gender. That same year saw a 76% spike in reported transphobic incidents.

While a majority of the French population is in favor of allowing same-sex couples to get married and adopt children, opponents of LGBT rights are a “vocal minority,” and are especially active on social media, where prosecution for homophobic statements remains difficult to carry out.

Several candidates for the 2017 presidential election expressed their intention to “rewrite the Taubira law” on same-sex marriage and adoption. One candidate even received the support of Sens commun, an organization openly opposed to the rights of LGBT people. When political figures take stands that are hostile to equal rights, they may “rekindle hate.”

It is high time to end discrimination against LGBT people and the French authorities have a key responsibility and role to turn this into reality.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

This week Poland’s parliament has the chance to improve the lives of transgender people by passing a law that simplifies the legal gender recognition procedure.

Recognition before the law in your preferred gender is a vital aspect of ensuring respect for the human rights of transgender people. For example, it allows transgender people to access services on an equal footing with their peers.

Transgender activists march in the 2015 Warsaw Pride holding a banner that reads "YES to Gender Accordance Act.”

© 2015 Trans-Fuzja

Momentum on this matter is building. Earlier this year, the Parliamentary Assembly of the Council of Europe issued a resolution noting “the emergence of a right to gender identity”, while raising concerns that “transgender people face widespread discrimination in Europe.”

Members of Poland’s parliament will consider the country’s Act on Gender Recognition this Friday. Parliament already passed the draft legislation over the summer, although the president vetoed it last week.

The act proposes some important advances.

First, it defines gender identity as a “settled and intense experience of one’s own gender,” which may or may not correspond with one's sex assigned at birth.

Second, it eliminates the requirement for physical interventions before gender can be legally recognized, and instead makes the process a court procedure.

Third, it spells out the various documents on which applicants are legally entitled to change their gender – including education certificates, work qualifications, and health records – and allows the possibility for young transgender people, once they reach age 16, to change their name.

Access to documents in your preferred gender and name is a key element in ensuring respect for an individual’s right to personal and private life, and also allows transgender people better access to healthcare, education, and employment.

In a recent survey, 78 percent of Polish transgender people said quicker and easier legal gender recognition procedures would allow them to live more comfortably.

There’s no doubt President Andrzej Duda’s recent veto of the act was a setback. But if parliament does vote in majority support of the legislation, Poland will take a huge step forward and transform the lives of many.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Graeme Reid, director of the Lesbian, Gay, Bisexual and Transgender Rights Program, is an expert on LGBT rights. He has conducted research, taught and published extensively on gender, sexuality, LGBT issues, and HIV/AIDS.

Before joining Human Rights Watch in 2011, Reid was the founding director of the Gay and Lesbian Archives of South Africa, a researcher at the Wits Institute for Social and Economic Research and a lecturer in Lesbian, Gay, Bisexual, and Transgender Studies at Yale University. An anthropologist by training, Reid received an master’s from the University of the Witwatersrand, Johannesburg, and a PhD from the University of Amsterdam.

Posted: January 1, 1970, 12:00 am

Summary

This submission focuses on child marriage, marital rape, the situation of transgender persons, domestic workers, and education. It relates to Articles 1, 2, 6, 10, 11, 12, 15, and 16 of the Convention on the Elimination of All Forms of Discrimination against Women (the “Convention”), and proposes issues and questions that Committee members may wish to raise with the government.

Gender Identity and Sexual Orientation (Articles 1, 2, 10, 11, 12)

Criminalization of Transgender Identities

Malaysia is one of few countries in which transgender people can be arrested simply for wearing clothing deemed not to pertain to their assigned sex. Under state Sharia (Islamic law) enactments, all 13 states and the Federal Territory prohibit “a man posing as a woman,” while three states prohibit “a woman posing as a man.” Four states have given legal authority to fatwas against “pengkid,” a colloquial term for trans masculine identity.[1]

The Court of Appeal ruled in November 2014 that one such law, section 66 of Negeri Sembilan’s state Sharia enactment, violates the constitutionally protected rights to life and personal liberty, equality, freedom from gender discrimination, freedom of movement, and freedom of speech, assembly, and association. But the Federal Court, the country’s highest court, struck down that decision in October 2015 on technical grounds that the plaintiffs had failed to get judicial permission before initiating a constitutional challenge.[2] 

Dozens of transgender women have been convicted under these laws. In June 2014, Islamic Religious Department officials arrested 16 transgender women and one child at a wedding in Negeri Sembilan, sentencing the women to seven days in prison.[3] In June 2015, Religious Department officials in Kelantan arrested nine transgender women at a private birthday party; they were later sentenced to fines or prison time for wearing women’s clothing.[4] In some cases, Religious Department officials or police have beaten transgender women or sought to extort money and sex from them during arrests.[5]

Violence, Discrimination, and HIV

Transphobic violence is often carried out with impunity. In February 2017, Sameera, a transgender woman, was murdered in Kuantan, the capital city of Pahang state.[6] Police arrested five men for the crime in early April. They were released on bail and have not yet been tried.[7] Police and transgender groups believe Sameera’s murder is connected to an ongoing court case against two men who were accused of kidnapping, raping, and torturing her in February 2015.[8] In September 2015, two men wielding iron bars brutally beat transgender activist Nisha Ayub outside her apartment building. Police have not identified any suspects.[9]

No law in Malaysia prohibits discrimination on the grounds of gender identity. Discrimination against transgender women in education, employment, and health care is common.[10] Criminalization combined with discrimination causes transgender women to avoid public health facilities, inhibiting the HIV response in a country in which HIV prevalence among transgender people is estimated at 5.6 percent, compared to 0.4 percent among the general population.[11] The Islamic Religious Department’s “HIV and Islam” manual, published in partnership with the Ministry of Health, claims transgender people are lacking in “religious comprehension” and need “counseling in sexuality and moral values.”  Its prevention advice includes: “Never commit to wrongful sexual acts like adultery, sodomy and lesbianism. The best way to protect yourself from sexually transmitted diseases like HIV is by avoiding adultery and sin.”[12]

Legal Gender Recognition

There is no legal procedure in Malaysia for transgender people to change their names and gender markers on their identity cards. Transgender people who have approached the National Registration Department to request such changes have been rejected. In July 2016, a Kuala Lumpur High Court instructed the National Registration Department to change a transgender man’s documents, finding that the right to life includes the plaintiff’s “right to live with dignity as a male and be legally accorded judicial recognition as a male,” but the National Registration Department successfully appealed the ruling.[13]

Criminalization of Same-Sex Conduct

Both federal criminal law and state Sharia enactments criminalize adult consensual same-sex conduct, discriminating against lesbian and bisexual women.[14] A recent JAKIM (Islamic Religious Department) report indicates that 13 women were arrested for musahaqah (sex between women) between 2009 and 2012, and two women were arrested in September 2014 in Johor, though it is not known whether they were convicted.[15] JAKIM has promoted so-called conversion therapy, a discredited approach to “changing” a person’s sexual orientation or gender identity through psychological treatment, faith-based methods, or counseling.[16]

Human Rights Watch recommends the Committee ask the government of Malaysia:

  • Will state Religious Departments end the practice of conducting raids targeting transgender people, and repeal provisions of state Sharia enactments that criminalize transgender people?
  • What steps has the government taken to discourage violence by private citizens against transgender women and other members of sexual and gender minority groups, and to ensure accountability for hate crimes?
  • Will the government establish a rights-based procedure to allow transgender people to change their name and sex marker on their identity documents?
  • Will Malaysia pass comprehensive anti-discrimination legislation that prohibits discrimination based on gender identity, gender expression, and sexual orientation, among other grounds?
  • What steps will the government take to reduce HIV prevalence among transgender women and other key populations?

Human Rights Watch recommends to the Committee that it call upon the government of Malaysia to:

  • Repeal state Sharia provisions that prohibit “cross-dressing.”
  • Halt all state Religious Department raids targeting transgender people.
  • Repeal laws that prohibit consensual same-sex conduct.
  • Prohibit discrimination on the grounds of gender identity, gender expression, and sexual orientation, through comprehensive anti-discrimination legislation.
  • Establish a legal gender recognition procedure that allows transgender people to change their names and the gender markers on their identity cards, based on self-declaration, without requiring medical or psychiatric intervention.
  • Ensure that HIV prevention efforts targeting transgender people and other key populations are inclusive and non-judgmental.
  • Prohibit government use or endorsement of conversion therapy to try to change the gender identity or sexual orientation of LGBT people.

Child marriage, rape, and marital rape (Articles 2, 15, 16)

Child marriage is associated with many harmful consequences, including health dangers associated with early pregnancy, lower educational achievement for girls who marry earlier, a higher incidence of domestic violence, and an increased likelihood of poverty.[17]

Malaysia has a reservation to article 16(1)(a) of the Convention regarding woman having the same right to enter into marriage.[18] Malaysia has a dual legal system, with civil law and Sharia law. Civil law sets the minimum age of marriage at 18 for non-Muslims, but girls aged 16 and older can marry with the permission of their state’s chief minister.[19] For Muslims, Islamic law sets a 16-year minimum age for girls and permits even earlier marriages, with no apparent minimum, with the permission of a Sharia court.[20]

While it is difficult to find reliable data on the rate of child marriage in Malaysia, in May 2016 the Women, Family and Community Development Ministry reported that 9,061 child marriages were recorded during the previous five years.[21]

After visiting Malaysia in 2014, the UN special rapporteur on the right to health expressed concern about the prevalence of child marriage, noting that he was “very worried about information received indicating that, in an attempt to reduce the incidence of premarital sex, children born out of wedlock, and child abandonment, certain authorities are encouraging underage marriage.”[22]

In 2016, Malaysia amended the 2001 Child Act to include increased measures for the care and protection of children, such as a registry for perpetrators who committed crimes against children, a National Council for Children, and a provision for legal representation to be appointed for a child who is charged with an offense if the child is incapable of appointing counsel. However, it did not ban all forms of marriage by girls and boys under 18, as called for by some politicians, the National Human Rights Commission, Suhakam, and rights activists.[23] The amendments came into force in January 2017.[24]

In April 2017 Member of Parliament (MP) Teo Nie Cheng from the opposition Democratic Action Party proposed an amendment to the Sexual Offences Against Children bill to include a ban on child marriage. The proposal was defeated.[25]

Local organizations have long documented cases in which men raped girls and successfully evaded criminal charges by marrying their victims.[26] Some government officials, such as Sarawak's minister of welfare, women and community well-being, Fatimah Abdullah, and the minister of women, family and community development, Datuk Seri Rohani Abdul Karim, have condemned cases where rapists have sought to evade prosecution through marriage.[27] Men who marry their victim can be prosecuted for rape committed before marriage, which has happened in a few high-profile cases.[28]

Marital rape is not criminalized in Malaysia. Between 2004 and 2006, a government-opposition Special Committee (established to review marital rape laws in the context of amendments to the Penal Code) decided that marital rape was not a crime. In May 2015, Nancy Shukri, minister in the Prime Minister's Department, announced that the government had no plans to include marital rape in rape laws.[29]

In April 2017, the Domestic Violence (Amendment) Bill 2017 was introduced. The bill, which included amendments to strengthen protection and to expand the definition of domestic violence, among others, had the support of women’s groups. They called for effective enforcement and said the law required further improvement.[30] The amended bill does not include marital rape in the definition of domestic violence. The Women’s Aid Organisation alleged that the government excluded marital rape from the original Domestic Violence Act, passed in 1996, because the act is “attached to the Penal Code, which specifies that a woman does not have the right to abstain from sexual relations unless she is divorced, judicially separated, or has obtained a restraining order on her husband.[31]

In March 2017, Democratic Action Party MP Teresa Kok, a member of the Select Committee on the Review of the Penal Code and Criminal Procedure Code, stated that it was difficult to include marital rape in the law because of the difficulty of proving marital rape and problems with the term “marital rape,” including translating the term and explaining it to mullahs, those trained in Muslim law and doctrine. Instead, the Penal Code criminalizes a “husband causing hurt in order to have sexual intercourse.”[32] Under article 375a, “Any man who during the subsistence of a valid marriage causes hurt or fear of death or hurt to his wife or any other person in order to have sexual intercourse with his wife shall be punished with imprisonment for a term which may extend to five years.”[33]

The Committee’s General Recommendation No. 19 includes marital rape as a form of domestic violence, stating, “Within family relationships women of all ages are subjected to violence of all kinds, including battering, rape, other forms of sexual assault, mental and other forms of violence, which are perpetuated by traditional attitudes.”[34]

Human Rights Watch recommends to the Committee that it ask the government of Malaysia:

  • Does the government plan to reform the law to make the legal age of marriage 18 for both women and men of all faiths?
  • Does the government have plans to reform the law to ban all marriage under the age of 18, or to limit marriages under age 18 to those permissible under international law only (in exceptional circumstances, with judicial approval, after the age of 16)?
  • What plans has the government made to end all child marriage by 2030 as set out by Sustainable Development Goal target 5.3?
  • Does the government intend to develop a National Action Plan to end child marriage?
  • How many cases of child marriage have been documented since 2006?
  • How many cases of have been documented since 2006 in which girls were married to the man who previously raped them?

Human Rights Watch asks the Committee to call upon the government of Malaysia to:

  • Raise the minimum legal age of marriage to 18 for all men and women.
  • Investigate all complaints of child marriage promptly, intervene to prevent child marriage wherever possible, and prosecute anyone who has facilitated or arranged a child marriage in violation of the law.
  • Create and implement a comprehensive National Action Plan to end child marriage by 2030, with the participation of women’s and children’s rights groups, health professionals, educators, law enforcement, and local government.
  • Make marital rape a criminal offense.

Domestic Workers (Articles 2, 6, 11)

The vast majority of domestic workers in Malaysia are women. Malaysia’s labor laws exclude domestic workers from several key employment protections.  The 1955 Employment Act excludes domestic workers from legal protections set out in provisions on rest days, limits to hours of work, public holidays, annual leave, sick leave, and maternity protections. Malaysia’s 1952 Workman’s Compensation Act also excludes domestic workers.

Malaysia’s immigration law ties a foreign domestic worker’s residency to her employer, so the employer can terminate her contract at will and refuse permission to transfer jobs, causing her to become undocumented and liable to immediate deportation. These policies make it difficult for domestic workers to make complaints for fear of retaliation, and to change employers, even in cases of abuse.

Many employers deduct part or all of their domestic worker’s salary for six or more months to recoup their recruitment costs, putting intense financial pressure on domestic workers who must repay their own debts (often for recruitment brokers’ fees in the sending country), and are expected to send money to support their families at home.

The governments of Indonesia and Cambodia have previously suspended sending domestic workers to Malaysia because of their concerns about abuse suffered by their nationals. Disagreements between those countries and Malaysia have surfaced while negotiating Memorandums of Understanding (MOUs) to oversee migration of domestic workers. These MOUs have extended weaker protections to domestic workers than those available to other workers under labor laws, and do not contain effective enforcement mechanisms. According to local organizations, the number of Indonesian domestic workers in Malaysia has dropped significantly, while cases of abuse of Cambodian domestic workers continue to surface regularly.

In our 2011 report “They Deceived Us at Every Step”: Abuse of Cambodian Domestic Workers Migrating to Malaysia, Human Rights Watch documented cases in which the combination of deception and indebtedness during recruitment, forced confinement, unpaid wages, and threats of retaliation for escaping or failing to pay debts amounted to forced labor, including trafficking and debt bondage.[35]

Malaysia has made some efforts to strengthen its trafficking law, conducted a few trainings, and held some public awareness campaigns. However, trafficking victims face many barriers to obtaining redress, and prosecutions for trafficking into forced labor remain rare.

Human Rights Watch recommends to the Committee that it ask the government of Malaysia:

  • What are Malaysia’s plans to guarantee the right to non-discrimination in the workplace for domestic workers in Malaysia, regardless of their nationality?
  • What remedies are available to domestic workers in Malaysia who face labor abuses, gender-based violence, or forced labor including trafficking?
  • What specific steps has government taken to identify trafficking victims among individuals detained for immigration violations?

Human Rights Watch asks the Committee to call upon the government of Malaysia to:

  • Provide full labor rights protections for foreign and national domestic workers in Malaysia in line with the International Labour Organization (ILO) Domestic Workers Convention and other relevant ILO conventions.
  • Strengthen regulations governing recruitment and employment agencies, with clear mechanisms to monitor and enforce these standards.
  • Prohibit the practice of salary deductions by employers, recruitment brokers, and agents.
  • Investigate rigorously allegations of human trafficking, forced labor, food deprivation, sexual abuse, physical abuse, and forced confinement of domestic workers, and appropriately prosecute those found responsible.

Education (Article 10)

Malaysia in June 2015 endorsed the Safe Schools Declaration, which outlines various common-sense actions that countries can take to reduce the negative consequences of armed conflict on education.[36]  Malaysia also chaired the working group on children and armed conflict during its membership of the UN Security Council in 2015 and 2016, and led the unanimous adoption of Resolution 2225 (2015) during its presidency of the Council.

A key element of both the Safe Schools Declaration and Resolution 2225 is that governments take concrete measures to deter the military use of schools. In this respect, Malaysia’s 1983 Military Manoeuvres Act prohibits the entry or interference with any school or ground attached to any school in the course of conducting military operations.[37]

Malaysian troops who participate in UN peacekeeping operations are also obliged by UN regulations to not use schools in their operations.[38]

Human Rights Watch recommends to the Committee that it ask the government of Malaysia:

  • What steps has Malaysia taken in line with Security Council Resolution 2225 (2015), to take concrete measures to deter the military use of schools?
  • What steps has Malaysia taken to implement the commitments in the Safe Schools Declaration?

Human Rights Watch asks the Committee to call upon the government of Malaysia to:

  • Take concrete measures to deter the military use of schools, including by bringing the Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict into domestic military policy and operational frameworks, as per the commitment made in the Safe Schools Declaration. 

 

 

[1] Human Rights Watch, “I’m Scared to Be a Woman”: Human Rights Abuses Against Transgender People in Malaysia, September 2014, https://www.hrw.org/report/2014/09/24/im-scared-be-woman/human-rights-abuses-against-transgender-people-malaysia, p.11.

[2] “Malaysia: Court Ruling Sets Back Transgender Rights,” Human Rights Watch news release, October 8, 2015, https://www.hrw.org/news/2015/10/08/malaysia-court-ruling-sets-back-tran....

[3] “Malaysia: End Arrests of Transgender Women,” Human Rights Watch news release, June 23, 2014, https://www.hrw.org/news/2014/06/23/malaysia-end-arrests-transgender-women.

[4] “Malaysia: Court Convicts 9 Transgender Women,” Human Rights Watch news release, June 22, 2015, https://www.hrw.org/news/2015/06/22/malaysia-court-convicts-9-transgender-women.

[5] Human Rights Watch, “I’m Scared to Be a Woman,” pp. 27-30.

[6] Justice for Sisters, “Justice for Sameera – Ensure Thorough Investigation & Hold Perpetrators Accountable,” March 3, 2017, https://justiceforsisters.wordpress.com/2017/03/03/justice-for-sameera-ensure-thorough-investigation-hold-perpetrators-accountable/ (accessed April 28, 2017).

[8] “Murder Believed to be Linked to a Kidnapping”, The Star, February 25, 2017, http://www.thestar.com.my/news/nation/2017/02/25/murder-believed-to-be-linked-to-a-kidnapping-sameera-was-main-witness-in-abduction-case/, (accessed May 1, 2017).

[9] Boo Su-Lyn, “Battered and bruised, award-winning transgender activist fears assault complaint may be ignored,” The Malay Mail Online, September 15, 2015, http://www.themalaymailonline.com/malaysia/article/battered-and-bruised-award-winning-transgender-activist-fears-assault-compl (accessed April 28, 2017).

[10] Human Rights Watch,“I’m Scared to Be a Woman,” pp. 44-53.

[11] Ibid., pp. 47-48. One transgender woman told Human Rights Watch she was arrested while distributing condoms as part of her HIV prevention work.  Ibid., p. 22.

[12] JAKIM, Manual on HIV/AIDS in Islam, 2010, on file with Human Rights Watch, pp. 5, 42.

[13] Shaila Koshy, “Court overturns decision in trans man’s case,” The Star, January 17, 2017, http://www.thestar.com.my/news/nation/2017/01/06/court-overturns-decisio... (accessed May 12, 2017). Courts in previous cases have issued conflicting opinions as to whether individuals who have undergone SRS can be administratively recognized according to their chosen gender. See “I’m Scared to Be a Woman,” pp. 55-57.

[14] Human Rights Watch, I’m Scared to Be a Woman, p. 74.

[15] Email communication with Justice for Sisters, May 12, 2017.

[16] Rachel Roberts, “Malaysian government openly endorses gay conversion therapy,” The Independent, February 14, 2017, http://www.independent.co.uk/news/world/malaysia-gay-conversion-therapy-endorses-lgbt-rights-islam-a7578666.html (accessed May 12, 2017) .

[17] Joint general recommendation No. 31 of the Committee on the Elimination of Discrimination against Women and general comment No. 18 of the Committee on the Rights of the Child on harmful practices (2014), CEDAW/C/GC/31-CRC/C/GC/18, https://documents-dds-ny.un.org/doc/UNDOC/GEN/N14/627/78/PDF/N1462778.pdf?OpenElement (accessed April 25, 2017), paras. 20-23.

[18] “States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: (a) The same right to enter into marriage,” Convention on the Elimination of All Forms of Discrimination against Women, art. 16(1).

[19] Law Reform (Marriage and Divorce) Act 1976, as amended January 2006, art. 10.

[20] Islamic Family Law (Federal Territory) Act 1984, as amended 2005, Act 303, art. 8.

[21] Martin Carvalho, “Fewer child marriage cases now, says ministry,” The Nation, May 19, 2016, http://www.thestar.com.my/news/nation/2016/05/19/fewer-child-marriage-cases-now-says-ministry/ (accessed April 25, 2017).

[22] Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Dainius Pūras, Visit to Malaysia (19 November–2 December 2014), A/HRC/29/33/Add.1, May 2015, http://www.ohchr.org/EN/Issues/Health/Pages/CountryVisits.aspx (accessed April 25, 2017), para. 43.

[23] Suhakam welcomes Child Act amendments, but wants legal marrying age raised to 18,” The Nation¸ April 18, 2016, http://www.thestar.com.my/news/nation/2016/04/18/suhakam-welcomes-amendments-to-child-act/ (accessed May 11, 2017); Heather Barr and Linda Lakhdhir (Human Rights Watch), “Time to Ban Child Marriage in Malaysia,” commentary Malaysiakini, April 29, 2016, https://www.hrw.org/news/2016/04/29/time-ban-child-marriage-malaysia; A Bill Entitled An Act to amend the Child Act 2001, https://www.cljlaw.com/files/bills/pdf/2015/MY_FS_BIL_2015_39.pdf (accessed May 11, 2017).

[24] “It is time to abolish corporal punishment,” Malaysiakini, http://www.malaysiakini.com/letters/380981 (accessed May 2, 2017).

[25] “Malaysia passes child sex crimes law, does not ban child marriage,” Reuters, April 5, 2017, http://www.reuters.com/article/us-malaysia-sexcrimes-law-idUSKBN1770ZH (accessed May 2, 2017).

[26] “Malaysia's child brides: Men accused of rape are marrying their alleged victims in order to avoid prosecution,” Al Jazeera, August 12, 2016, http://www.aljazeera.com/indepth/features/2016/08/malaysia-child-brides-160810123204474.html; “Malaysia passes child sex crimes law, does not ban child marriage,” Reuters, April 5, 2017, http://www.reuters.com/article/us-malaysia-sexcrimes-law-idUSKBN1770ZH (both accessed April 25, 2017).

[27] “Outcry over man discharged of statutory rape,” Borneo Post, July 29, 2016, http://www.theborneopost.com/2016/07/29/outcry-over-man-discharged-of-st... “Government will intervene in cases of rapists marrying underage victims,” Astro Go Read, August 4, 2016, http://astrogoread.astro.com.my/topics/article/b_1637-s_1688-8853572 (both accessed May 11, 2017).

[28] Heather Barr, “Marrying Your Rapist in Malaysia, Men Try to Avoid Rape Charges Through Forced Child Marriage,” January 26, 2017, https://www.hrw.org/news/2017/01/26/marrying-your-rapist-malaysia.

[29] “Govt maintains marital rape not criminal,” Nation, June 10, 2015, http://www.thestar.com.my/news/nation/2015/06/10/govt-maintains-marital-rape-not-crime/ (accessed April 25, 2017).

[30] Joint Action Group for Gender Equality, “Proposed changes to domestic violence law are good,” April 5, 2017, http://www.malaysiakini.com/news/378090 (accessed April 25, 2017).

[31] Women’s Aid Organisation, “Domestic Violence,” undated, http://www.wao.org.my/Domestic+Violence_37_5_1.htm (accessed April 25, 2017).

[32] Sheith Khidhir Bin Abu Bakar, “Why it’s hard to make marital rape a crime,” Free Malaysia Today, March 12, 2017, http://www.freemalaysiatoday.com/category/nation/2017/03/12/why-its-hard-to-make-marital-rape-a-crime/ (accessed April 25, 2017).

[33] Malaysia Penal Code, Act 574, as at January 1, 2015, art. 375a.

[34] Committee on the Elimination of Discrimination against Women, “General Recommendation No. 19: Violence against women,” 1992, http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/1_Global/INT_CEDAW_GEC_3731_E.pdf (accessed April 25, 2017).

[35] Human Rights Watch, “They Deceived Us at Every Step”: Abuse of Cambodian Domestic Workers Migrating to Malaysia, October 2011, https://www.hrw.org/report/2011/10/31/they-deceived-us-every-step/abuse-....

[36] Safe Schools Declaration, https://www.regjeringen.no/globalassets/departementene/ud/vedlegg/utvikl... (accessed April 10, 2017).

[37] Military Manoeuvres Act, December 28, 1983, art. 7.

[38] UN Infantry Battalion Manual, 2012, section 2.13, “Schools shall not be used by the military in their operations.”

Posted: January 1, 1970, 12:00 am

Two Indonesian men walk into a cell prior to their trials at a shariah court in Banda Aceh on May 17, 2017. 

© 2017 Getty Images

(New York, May 20, 2017) – Indonesia’s President Joko “Jokowi” Widodo should immediately intervene to prevent the scheduled May 23, 2017 public flogging of two young men convicted of same-sex sexual relations, Human Rights Watch said today. The men were prosecuted under Aceh province’s abusive Sharia regulations and sentenced to 85 lashes with a cane, which constitutes torture under international law.

On March 28, unidentified vigilantes forcibly entered an apartment in Banda Aceh, the provincial capital, and took two men in their twenties to the police for allegedly having same-sex relations. A Sharia (Islamic law) court convicted them of sodomy on May 17. While Aceh’s Sharia courts have enforced public flogging before, this is the first time that Sharia courts have sentenced people to flogging for homosexual acts.

“President Jokowi has spoken out in support of the rights of lesbian, gay, bisexual, and transgender people in Indonesia, so the imminent public flogging of two young men for same-sex relations is a crucial moment to act,” said Phelim Kine, deputy Asia director at Human Rights Watch. “Jokowi needs to be clear to Aceh’s authorities that flogging is torture for which they will be held to account.”

Aceh’s Sharia ordinances empower members of the public as well as the special Sharia police to publicly identify and detain anyone suspected of violating its rules. Cell phone video footage of the raid apparently shot by a vigilante shows one of the two men visibly distressed as he calls for help on his cellphone.

Under Aceh’s Islamic Criminal Code (Qanun Jinayah), the men faced up to 100 lashes in public as punishment for same-sex behavior. The prosecutor recommended 80 lashes because the men were young and reportedly admitted their guilt.

“The court’s less-than-maximum sentence of 85 lashes is no act of compassion. It does not change the reality that flogging is a grotesque display of medieval torture,” Kine said.

Local government officials in Aceh have long stoked discrimination against LGBT people, Human Rights Watch said. In 2012 then-Banda Aceh Deputy Mayor Illiza Sa’aduddin Djamal advocated harsh punishments for homosexuality, telling the media: “Even if one case of homosexuality [is] found, it’s already a problem.” In 2013, after Djamal was elected mayor of Banda Aceh, she told reporters that “homosexuals are encroaching on our city.” In February 2016, she announced she would create a “special team” to make the public more aware of the “threat of LGBT” and to “train” LGBT people to “return to a normal life” while posting an image of herself to Instagram holding a handgun and vowing to flush LGBT people out of Aceh.

Aceh’s Sharia police have previously detained LGBT people. In October 2015, Sharia police arrested two women, ages 18 and 19, on suspicion of being lesbians for embracing in public and detained them for three nights at a Sharia police facility in Banda Aceh. Sharia police repeatedly attempted to compel the two women to identify other suspected LGBT people in Aceh by showing them photographs of individuals taken from social media accounts – sparking fears among LGBT people in Aceh that the Sharia police could target them in the future.

In April 2016, four United Nations special rapporteurs wrote to the Indonesian government expressing concerns about the abusive enforcement of Sharia against LGBT people in Aceh. In October 2016, Jokowi broke his long silence on escalating anti-LGBT rhetoric by defending the rights of the country’s LGBT community, saying that “there should be no discrimination against anyone.”

“The clock is ticking for Jokowi to demonstrate that his support of equal rights for all is not empty rhetoric. He needs to start by protecting these two young men from torture,” Kine said.
 

Posted: January 1, 1970, 12:00 am

Chelsea Manning is free – finally.

On his last day in office, President Obama commuted Manning’s absurdly disproportionate 35-year sentence for passing classified documents to Wikileaks in 2010. The documents included the Collateral Murder video and the Afghan War Logs, which revealed the grim reality of US war efforts in Iraq and Afghanistan.

Manning has served 7 years and 120 days, and the law that enabled her draconian sentence remains unchanged and ready for use on the next leaker who may be a whistleblower. The law is the Espionage Act of 1917, which US authorities increasingly rely on to punish people who leak classified information to the media, and not to foreign governments as it was originally intended.

Those prosecuted under this law still cannot argue their actions were motivated by the public interest in their defense. Nor does the Espionage Act require prosecutors to prove national security was harmed as a result of the leak, much less that the harm outweighed the benefit of the public’s right to know.

Allowing for a public interest defense is necessary in any democratic society where government activity is often shrouded in secrecy. It is the only way to combat wrongdoing in the parts of the government subject to the least amount of oversight. The UN’s specialist on freedom of expression and access to information, David Kaye, has slammed the Espionage Act, calling it “antiquated, ill-suited to contemporary national security issues, a relic of the wartime hysteria of a century ago subject to government overreach and abuse.”

Cracking down on leaks – and potentially on whistleblowers as well – is unfortunately in fashion. The United Kingdom’s Law Commission recently recommended whistleblower protections be weakened  in the 1989 Official Secrets Act, potentially criminalizing the reporting of leaked information that could be obtained through a Freedom of Information Act request. The UK government has since distanced itself from the report, and the Law Commission, suffering heavy criticism, reopened the consultation period.

The application of the Espionage Act in Manning’s case was unjust, but its impact was exacerbated by the lack of protection for transgender people in US prisons.

Today is the International Day Against Homophobia, Transphobia & Biphobia, a good time to reflect on the maltreatment Manning suffered as a transgender woman in a military prison for men. Human Rights Watch has reported on abuses that transgender women face in US immigration detention and called on the US Congress to bar Immigration and Customs Enforcement from holding transgender women in men’s detention facilities. We should also not forget the other challenges she will face in accessing health care as a trans person.

Manning’s story should serve as a wakeup call for governments to reform whistleblower protections and fulfill their human rights obligations toward incarcerated transgender people.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

People drive a motorcycle past a banner put up by the hardline Islamic Defenders Front calling for gay people to leave Bandung, Indonesia West Java province, January 27, 2016.  The banner reads, "Lesbian and Gay banned in our area."

© 2016 Reuters

His neighbors had been watching him for weeks.

Twenty-year-old Muhammad (a pseudonym) rented a room in Banda Aceh, the capital of Indonesia’s Aceh province. On March 28, 23-year-old Hanif (also a pseudonym) arrived at his flat. They didn’t know they were being watched. Three hours later, the neighbors barged into the flat, filming the naked men with their camera phones. These vigilantes called the young men “dogs,” and phoned the local Sharia (Islamic law) police. The authorities arrived, arrested, and detained the pair—young men who, if the prosecutor gets his way, will be the first Indonesians ever to receive public flogging for homosexuality.

The prosecutor this week recommended 80 lashes, 20 shy of the maximum the law permits because the men were young and admitted their guilt. This is not a compassionate sentence—but a grotesque reflection of how the enforcement of Aceh’s laws ruin lives.

Everything—from the snooping, to the Sharia squad tip-off, to the flogging sentence—is in accordance with the law in Aceh.  Aceh is a devoutly Islamic province in the world’s largest Muslim country, that likes to proclaim itself moderate. It is led by a president who touts diversity and pluralism, but who has failed to back that rhetoric with protection for the rights of beleaguered minorities.

Aceh’s position within the republic is unique. A 30-year separatist conflict seeded deep distrust between Acehnese and the national government. The 2004 Boxing Day tsunami led to a ceasefire that soon ended the war but wrought unprecedented devastation from which the province has not recovered. The 2005 peace agreement ensured Aceh’s “special status,” making it the only one of Indonesia’s 34 provinces that can legally adopt bylaws derived from Sharia (though such provisions, modeled on Aceh’s, are spreading nationwide).

Over the past decade, Aceh’s parliament has gradually adopted Sharia-inspired ordinances that criminalize everything from non-hijab-wearing women, to drinking alcohol, to gambling, to extramarital sexual relations. The province’s 2014 Criminal Code bars both male and female same-sex behavior. Under its Sharia ordinances, Aceh imposed cane lashing against 339 people in 2016; a punishment recognized under international law as torture.

To make matters worse, local government officials have aggressively stoked homophobia. In 2012, then-Banda Aceh deputy mayor Illiza Saaduddin advocated harsh punishments for homosexuality, telling the media: “If we ignore it, it will be like an iceberg…Even if one case of homosexuality [is] found, it’s already a problem.” The following year, after Illiza was elected mayor, she told reporters that “homosexuals are encroaching on our city.” In February 2016, she announced she would create a “special team” to make the public more aware of the “threat of LGBT” and to “train” LGBT people to “return to a normal life” while posting an image of herself to Instagram holding a handgun and vowing to flush gays out of Aceh.

In October 2015, Sharia police arrested two women, ages 18 and 19, on suspicion of being lesbians for embracing in public, and detained them for three nights at a Sharia police facility in Banda Aceh before sending them to a week of religious rehab. Officers repeatedly attempted to compel the two women to identify other suspected LGBT people in Aceh by showing them photographs of individuals taken from social media accounts.

Despite Aceh’s odious anti-LGBT ordinances, Indonesia has historically been a unique beacon of tolerance for LGBT peoplein Southeast Asia. The country has never—including when it was a Dutch colony until 1945—criminalized adult consensual same-sex behavior. LGBT organizations first opened their doors in the 1980s and operated in a relatively placid environment for decades.

But that tolerance has proven fragile in the face of government-fueled animus. Anti-LGBT incidents across Indonesia have significantly increased since January 2016—in synch with broader rising intolerance of religious minorities. Last year’s LGBT crisis started with vitriolic anti-LGBT rhetoric from officials and politicians and included police raids on suspected gatherings of gay men, and attacks on LGBT activists.

In October, President Joko “Jokowi” Widodo broke his long silence on escalating anti-LGBT rhetoric by saying that “the police must act” against actions by bigoted groups or individuals to harm LGBT people or deny them their rights, and that “there should be no discrimination against anyone.”

In the case of Muhammad and Hanif in Aceh, Jokowi a faces a test of Indonesia’s core national values—what he has often proudly touted as “Islam and democracy going hand in hand.” These young men are two Indonesians who wanted nothing more than to live their lives and have their privacy respected.  Now they await a public flogging. A pluralist president like Jokowi should recognize the right thing to do here is to spare these two the rod.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

May 10, 2017

60th Ordinary Session of the African Commission on Human & Peoples’ Rights

Niamey, Niger

Agenda Item 3: Human Rights Situation in Africa

 

Madame Chairperson, Commissioners and Heads of Government Delegations:                                                                                                  

Human Rights Watch welcomes this opportunity to address the African Commission under this Agenda Item. First, we commend the African Commission for adopting Guidelines for the Policing of Assemblies by Law Enforcement Officers and the General Comment on the Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment during the 21st Extra-Ordinary session. Human Rights Watch is of the view that such norm development provides essential guidance to states parties.

Madame Chairperson, the general human rights situation in much of Africa remains worrying, but for the purposes of this statement, Human Rights Watch will focus on urgent human rights concerns in Uganda and Zimbabwe.

Uganda

We remain deeply concerned by unaddressed killings by the Ugandan military and police during joint operations in Kasese, western Uganda on November 26-27, 2016.  On the bloodiest day, scores of people, including at least 15 children, were killed during a military assault on the palace compound of the region’s cultural institution. Human Rights Watch found the death toll to be at least 55 people, including at least 14 police, killed on November 26, and more than 100 people during the attack on the palace compound on November 27. The killings warrant an independent, impartial fact-finding mission with international expertise. The government has arrested and charged more than 180 people, including the cultural institution’s king, known as the Omusinga, with murder, treason, and terrorism, among other charges for the killing of the members of the security forces. But none of the 180 are members of the police or military and no one has been charged for the killing of civilians, including children.

  • The African Commission and the African Committee of Experts on the Rights and Welfare of the Child are urged to undertake a joint investigative mission to Uganda and support a broader independent and impartial investigation.
  • We further respectfully urge the Commission to maintain a strong demand for accountability, including calling for an independent and impartial investigation with support from international experts. If given unfettered access to witnesses and forensic evidence, independent experts with a fact-finding mission could determine if the massacre on November 27 should be characterized as a crime against humanity.

Zimbabwe

Madame Chairperson, Human Rights Watch published a report in January 2017 documenting violations of property and inheritance rights of widows in Zimbabwe. The report focuses on abuses related to property-grabbing from widows, predominantly older women. Based on interviews with widows from all 10 provinces of Zimbabwe we know that many older women have few other economic options when their property is stolen by in-laws when their husbands die.

In 2013, Zimbabwe adopted a new constitution that provides for equal rights for women, including for inheritance and property. In practice, however, existing laws only apply to widows in officially registered marriages. Estimates are that most marriages in Zimbabwe are conducted under customary law and are not registered, so, in effect, these laws afford no protection from property-grabbing relatives. Many widows told Human Rights Watch that they face insurmountable obstacles defending their property or taking legal steps to reclaim it. Once in court, widows said they were at a disadvantage without an official record of their marriage if it was a customary union. According to the 2012 census, Zimbabwe is home to about 587,000 widows, and most women 60 and over are widowed. The UN’s Food and Agriculture Organization estimates that at least 70 percent of women in rural areas are in unregistered customary unions and are living under customary law.

Madame Chairperson, with the rapid growth of older populations worldwide, there is an increasing need to understand how discrimination, ageism, neglect, and abuse affect older people and what steps governments should take to protect their rights. By 2050, an estimated two billion people – almost a quarter of the world’s population – will be over age 60. The majority will be women. We respectfully request the African Commission to urge the government of Zimbabwe to:

  • Introduce a system that ensures all existing and new marriages, including customary unions, are officially registered.
  • Allow the posthumous recognition of marriages and customary unions.  
  • Engage in public awareness campaigns to end unlawful property-grabbing and inform widows of their inheritance rights.
  • Ensure widows have meaningful access to legal remedies to protect their rights to property and other related rights in cases of unlawful property or inheritance grabbing.

Thank you 

Posted: January 1, 1970, 12:00 am

Supporters of contraception rally before Zubik v. Burwell, an appeal brought by Christian groups demanding full exemption from the requirement to provide insurance covering contraception under the Affordable Care Act, is heard by the U.S. Supreme Court in Washington DC., March 23, 2016. 

© 2016 Reuters

(Washington, DC) – An executive order issued by President Donald Trump on May 4, 2017, opens the way to overriding regulations that protect women’s health, Human Rights Watch said today. While media attention has largely focused on the order’s efforts to roll back limits on political speech by religious leaders, its other and less sensational provisions could harm the rights of millions of women.

President Trump described the executive order on promoting free speech and religious liberty as an effort “to defend the freedom of religion and speech in America.” Its signing was timed to coincide with the National Day of Prayer. But the order also invites agencies to issue regulations that would allow the “conscience-based objections” of employers and insurers to override regulations that protect women’s health.

“It’s shameful to target life-saving women’s health services and call it an act of ‘conscience,’” said Amanda Klasing, senior women’s rights researcher at Human Rights Watch. “This order will take away many women’s access to affordable family planning options.”

It’s shameful to target life-saving women’s health services and call it an act of ‘conscience.' This order will take away many women’s access to affordable family planning options.

Amanda Klasing

Senior women’s rights researcher

The Executive Order Promoting Free Speech and Religious Liberty invites the secretaries of the treasury, labor, and health and human services departments to consider issuing amended regulations to address conscience-based objections to the preventive-care mandate as it pertains to women – and women only.

The mandate was introduced as part of the Affordable Care Act. It states that: “A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for…with respect to women, such additional preventive care and screenings not described in paragraph (1).”

World Report 2017: United States

World Report 2017: United States

Many US laws and practices, particularly in the areas of criminal and juvenile justice, immigration, and national security, violate internationally recognized human rights.

Preventive care and screenings under this provision currently include breast cancer screening for average-risk women; breastfeeding services and supplies; contraception; screening for cervical cancer, gestational diabetes, HIV, and interpersonal and domestic violence; counseling for sexually transmitted infections; and visits to health facilities for preventive care, known as well women visits. Religious employers are already exempted from the contraceptive mandate while religious non-profits and certain closely held corporations have also been extended accommodations to address religious objections to contraception. Yet, Health and Human Services Secretary Tom Price quickly responded to the order by welcoming the opportunity to re-examine the contraception mandate, promising swift action.

The order also instructs the attorney general to issue guidance to all agencies interpreting religious liberty protections in federal law. This vague provision seems to invite new interpretations of existing law that recognize new religious exemptions, which is deeply alarming given that both President Trump and Vice President Mike Pence have signaled support in public statements for broad religious exemptions aimed at facilitating discrimination.

As the governor of Indiana, Vice President Pence signed a religious exemption law that drew widespread criticism from the LGBT community. On the campaign trail, President Trump repeatedly indicated he would sign the First Amendment Defense Act, a bill that would prohibit the federal government from taking action against those who discriminate or refuse service based on their opposition to same-sex marriage or sex outside of marriage. In South Dakota and Alabama, state governments have recently enacted religious exemptions that facilitate discrimination against LGBT people in adoption and foster care.

“This order attacks the rights of women using religion as a pretext,” Klasing said. “Even as the House guts health care, the President struck a real and immediate blow with this order, giving free reign to restrict the contraceptive mandate that benefits millions of women in the US.” 

Posted: January 1, 1970, 12:00 am

Revellers hold a giant pride flag during the "WorldPride" gay pride Parade in Toronto, June 29, 2014.

© 2014 Reuters

For the first time, Canada’s Immigration and Refugee Board (IRB) published guidelines on screening asylum seekers who fled their countries for reasons involving sexual orientation, gender identity, and gender expression. The guidelines, released this week, stress respecting the specific vulnerabilities and cultural variability among sexual and gender minorities seeking asylum. They should help ensure that lesbian, gay, bisexual, transgender, and intersex (LGBTI) refugees and asylum seekers will not be unfairly denied protection in Canada – or re-traumatized in the process of seeking it.

While Canada at times presents itself as a beacon of hope for LGBTI refugees – last year, Prime Minister Justin Trudeau marched in Toronto’s pride parade alongside a gay Syrian refugee – civil society groups have criticized the government’s approach to recognizing LGBT asylum claims. In a 2015 report based on interviews with 92 LGBT asylum seekers who arrived under Canada’s previous government, the nongovernmental organization Envisioning found that LGBT asylum seekers are “required to provide documentation not only of persecution but also ‘proof’ of their sexual orientation and/or gender identity,” and accused immigration officials of relying on “stereotypical, uninformed…conceptions of LGBT identity.”

In 2012, the United Nations Refugee Agency (UNHCR), stated that LGBTI individuals frequently keep “parts of their lives secret” and advised people who decided someone’s refugee status that “self-denial, anguish, shame, isolation and even self-hatred which may accrue in response an inability to be open about one’s sexuality or gender identity are factors to consider.”

Canada’s new guidelines remind IRB staff that questions around gender and sexuality should be asked sensitively, that corroborating evidence about someone’s sexual orientation or gender identity may not be available from typical sources such as family members, and that stereotyping LGBTI people – such as assuming they’re not religious, or have never had heterosexual sex – is inappropriate.

Perhaps most importantly, the guidelines provide a compassionate and realistic framework for evaluating LGBTI asylum claims. They acknowledge that an individual’s self-acceptance of their sexual orientation or gender identity be “a gradual or non-linear process.” They remind officials judging asylum claims that, because of intense social stigma and threats of violence at home, some LGBTI asylum seekers will have only their own testimony to attest to their identity.

The guidelines – particularly timely and appropriate as Canada grapples with a wave of anti-gay pogroms in Chechnya – should serve as a model for other countries. 

Author: Human Rights Watch, Human Rights Watch
Posted: January 1, 1970, 12:00 am

Indonesian government officials made a series of anti-LGBT comments, resulting in proposals of laws which pose a serious threat to the rights and safety of LGBT Indonesians.

(New York, May 5, 2017) – An Indonesian police raid targeting gay men in Surabaya, Indonesia, on April 30, 2017, threatens the rights of the country’s already beleaguered lesbian, gay, bisexual, and transgender (LGBT) community, Human Rights Watch said today. The police ordered 14 men to undergo HIV tests and arrested eight of those men on charges of violating the country’s draconian and discriminatory anti-pornography law.

The police, acting on tip-offs from neighbors, carried out a midnight raid on the 14 men, who had gathered in two rooms of a hotel in central Surabaya, Indonesia’s second largest city, according to local activists and media reports. Police detained the group while confiscating condoms, mobile phones, and a flash drive that allegedly contained pornographic videos, among other items.

On May 1, police informed the media that all 14 men underwent tests for sexually transmitted infection, including a rapid test for HIV, and that five had tested HIV positive. The police indicated that eight of the men were detained on Law on Pornography charges, and that two of them would be charged with organizing the event and providing pornography – offenses carrying prison terms of up to 15 years.

“Indonesian police are again violating the basic rights of LGBT people by invading their privacy,” said Phelim Kine, deputy Asia director at Human Rights Watch. “The Surabaya raid subjected these gay men to traumatic humiliation, puts two at risk of long prison terms, and threatens the privacy rights of all Indonesians.”

Mandatory HIV testing is contrary to the ethical and human rights principles of privacy, autonomy, and informed consent. Under the World Health Organization’s 2015 Guidelines on HIV Testing and Counseling, “Mandatory, compulsory or coercive HIV testing is never appropriate.”

The two men who allegedly organized the party face charges of violating the Law on Pornography, which prohibits sex parties and the use of pornography, and the Electronics Information and Transaction Law, which prohibits making accessible electronic content that contains “indecent” material. Indonesia’s Law on Pornography defines “deviant sexual acts” to include: sex with corpses, sex with animals, oral sex, anal sex, lesbian sex, and male homosexual sex.

The arrests in Surabaya follow an unprecedented anti-LGBT campaign in 2016 that featured a series of biased and false statements about LGBT people from government officials and politicians. The anti-LGBT onslaught led to harassment and violence against LGBT Indonesians and death threats by militant Islamists. Government institutions, including the National Broadcasting Commission and the National Child Protection Commission, issued censorship directives banning information and broadcasts that portrayed the lives of LGBT people as “normal,” as well as so-called “propaganda” about LGBT lives.

Despite President Joko “Jokowi” Widodo’s rhetorical support for the basic human rights of Indonesia’s LGBT community, the authorities target the vulnerable minority with impunity, Human Rights Watch said. In April, authorities in Aceh province arrested two men for allegedly having consensual sex in the privacy of their home. The men face a public flogging sentence – which violates international legal prohibitions against torture – under the province’s Sharia (Islamic law) ordinances.

Privacy rights are a fundamental protection that underlie everyone’s physical autonomy and identity, Human Rights Watch said. The United Nations Human Rights Committee, the independent body of experts that interprets the International Covenant on Civil and Political Rights (ICCPR), to which Indonesia is party, has stated: “it is undisputed that adult consensual sexual activity in private is covered by the concept of ‘privacy.’”

In 2013 Indonesia co-sponsored a UN Human Rights Council resolution on the right to privacy. In the report on that resolution, the UN High Commissioner for Human Rights reminded governments that privacy rights (enshrined in ICCPR article 17) should be upheld jointly with the right to nondiscrimination (ICCPR article 26).

“So long as the government permits police raids on private gatherings under a discriminatory law, it will fail to curb anti-LGBT harassment and intimidation.” Kine said. “President Jokowi should make good on his commitments to protect privacy rights and put an end to state-sanctioned discrimination.”
 

Posted: January 1, 1970, 12:00 am

At an evaluation of Tunisia’s human rights record before the United Nations Human Rights Council on May 2, the government was taken to task for criminalizing consensual sex between adults of the same sex and forcing people accused of homosexuality to undergo anal examinations.

As other states pointed out during Tunisia’s Universal Periodic Review (UPR), the country has made great strides since ousting the authoritarian president, Zine el-Abidine Ben Ali, in 2011—ratifying human rights treaties and adopting a new constitution that emphasizes rights. But its mistreatment of its lesbian, gay, bisexual and transgender (LGBT) citizens is a glaring lacuna in its progress.

English translation of poster text: Is it possible to refuse an anal test? From a legal point of view: It is possible to refuse an anal test when examined by a forensic doctor. But the reality is different. The victims often “accept” the test for fear of being tortured, because of their young age, or because they are unaware of their rights guaranteed by the Constitution. 

(c) Shams 2015

Article 230 of Tunisia’s Penal Code punishes sodomy with up to three years in prison. Unlike many countries that retain but do not enforce colonial-era statutes prohibiting same-sex acts, Tunisia actively prosecutes people for consensual same-sex conduct, with at least nine men and transgender women convicted in the last two years, and others awaiting trial.

Because consensual anal sex is a victimless crime, Tunisian authorities are often at a loss to find evidence to convict people the police pick up because someone has denounced them or simply because they “look” gay.

Their solution? A discredited method used in 19th century France, which involves doctors inserting their fingers or an object into the anus of the accused, attempting to draw conclusions about whether the person has had anal sex based on the shape of the anus or the “tone” of the anal sphincter.

There is nothing scientific about this method, which has been roundly criticized by forensic experts and the World Health Organization. The United Nations Committee against Torture has called on Tunisia to end forced anal examinations, a form of cruel, inhuman and degrading treatment that can rise to the level of torture.

In response, Tunisia’s National Council of the Medical Order announced on April 3 that doctors must inform people accused of sodomy of their right to refuse the test. The government echoed the council’s statement at the UPR hearing, claiming that medical examinations in homosexuality cases are contingent on consent.

But insisting that no one should undergo a form of ill-treatment unless they “consent” is not enough. A person might consent under pressure from police, or because they believe their refusal will be held against them, or because they believe it will prove their innocence.

Last year, Human Rights Watch interviewed several victims of forced anal exams in Tunisia and elsewhere who described being beaten or threatened until they gave their “consent.” Others were told that a refusal to undergo the tests could count as evidence against them in court. One young Tunisian man, “Wassim,” arrested in Kairouan in 2015, told us: 

They gave me a blank page and the doctor told me to write, “I, the undersigned, accept and hereby authorize you to conduct an anal examination on me.” The doctor told me, “If you don’t sign, I will put in your report that you had sodomy.

Often, the pressure takes place outside the medical examination room, and a doctor may have no way of knowing whether an accused person is consenting freely. “Amar,” who was also subjected to an anal exam in Kairouan, told us that a police officer slapped and punched him just outside the hospital and told him to submit the test. When the police officer took him into the examination room, Amar signed his “consent.”

Even when an accused person does consent freely, the “results” are meaningless. The Independent Forensic Experts Group identified 15 separate medical conditions that may cause decreased anal sphincter pressure, ranging from chronic constipation to Parkinson’s disease.

It’s not too hard to begin imagining possible scenarios. A heterosexual man who happens to suffer from constipation is denounced as “homosexual” by a jealous colleague. The police nab him and drag him to hospital. A doctor informs him that he can undergo a “test” that will determine whether he is gay. He consents, convinced that since he’s never had anal sex, the test will clear his name… and finds himself in prison for three years.

Tunisia’s recent insistence on consent is a step forward, but it is inadequate. During the UPR hearing, several countries recommended to Tunisia that it ban anal examinations in homosexuality prosecutions – full stop. They also called on Tunisia to decriminalize consensual sex between adults.

Tunisia should take the UPR recommendations as an opportunity to further cement its human rights progress, and should agree to ban anal exams and decriminalize homosexuality, without conditions. Otherwise, its approach to human sexuality will remain rooted in the 19th century, and its citizens will continue to be vulnerable to an atrocious affront to their dignity at the hands of the state.

 

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Police in Chechnya, a region in southern Russia, are rounding up men believed to be gay, holding them in secret detention, and beating and humiliating them. Sometimes police forcibly “out” these men to their families, hinting that they should be taken care of in an “honor killing.”

Tell Putin to end the crackdown on gay men in Chechnya and help protect those in imminent danger from coming to any harm.

https://www.hrw.org/chechnya100

Posted: January 1, 1970, 12:00 am

South Korean soldiers at a marine base in Gimpo, South Korea, on June 10, 2016.

© 2016 Reuters

An alleged crackdown by the South Korean army on gay male service members, which came to light in April, is striking fear into gay soldiers and potential conscripts.

Earlier this year a video clip that appeared to show two military men having sex circulated on social media, sparking what seems to be a military witch hunt for gay conscripts. Two years of military service is compulsory for all able-bodied South Korean men. Most are drafted in their early 20s, and expulsion from service carries significant social stigma that can affect both their career prospects and family and community life.

The Military Human Rights Center for Korea, an advocacy group that has been documenting the sweep, published screen shots of dating app conversations that the group says resulted from military pressure on targeted men to have such discussions to identify other supposedly gay men. The human rights group and other South Korean advocacy groups that have been working on the case say that military investigators have confiscated mobile phones belonging to up to 50 soldiers suspected of being gay and insisted that they identify other gay men on their contact lists and gay dating apps.

Army officials say they are conducting a perfectly legal criminal investigation into soldiers accused of filming and uploading the video, invoking a discriminatory military code that prohibits consensual same-sex acts. One of the men targeted by the sweep remains in detention—under arrest on allegations of having consensual sex with another man.

The government should order an investigation into allegations of abuses that have stemmed from the anti-gay sweep in the military.

South Korea’s government has consistently voted to support measures at the United Nations that call for an end to discrimination against LGBT people, but it has failed to uphold those principles at home. In 2014, Seoul’s mayor canceled the enactment of a city human rights charter after religious groups opposed the inclusion of sexual orientation in a non-discrimination clause. In recent years, activists have had to fight bureaucratic battles to hold an annual pride gathering. And the government has rolled out a new sex education curriculum with no mention of homosexuality because, education officials said, it needed to maintain “value neutrality regarding society, culture and religion.”

South Korea does not criminalize consensual same-sex behavior among civilians, and the army prohibits anti-gay discrimination and “outing” of gay soldiers. However, the 1962 Military Criminal Act’s Article 92-6 has been used to punish sexual acts between servicemen with up to two years in prison under a “disgraceful conduct” clause—regardless of consent and whether they have sex in or outside of military facilities.

Domestic and international human rights groups have challenged the discriminatory law. But as recently as 2016, South Korea’s Constitutional Court upheld the provision in a 5-4 ruling. And the government has repeatedly defended the sodomy clause—including at the United Nations—contending that banning “indecent conduct” is necessary for maintaining discipline in the predominantly-male military.

Proponents of the law—in the past and during the current uproar—have said it is necessary to leave the sodomy provision in place to protect against sexual violence, but the Military Criminal Act already contains separate prohibitions on rape and sexual molestation.

The current crackdown demonstrates how Article 92-6 can lead to abusive, discriminatory targeting of soldiers. The government should order an investigation into allegations of abuses that have stemmed from the anti-gay sweep in the military, and begin the process of repealing the Military Criminal Act’s Article 92-6.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Migrants atop the double-layer fence around Spain’s north African enclave Ceuta, September 2016

©2016 Antonio Sempere

(Milan) – Lesbian, gay, bisexual, and transgender (LGBT) asylum seekers in Spain’s North African enclave, Ceuta, are exposed to harassment and abuse, Human Rights Watch said today. Spanish authorities should transfer them to mainland Spain without delay and halt its de facto policy of blocking most asylum seeker transfers to the mainland.

Migrants registering at the Ceuta migrants center after arriving in the enclave, February 2017

© 2017 Antonio Sempere
“LGBT asylum seekers who fled homophobic harassment and intimidation at home face similar abuse in Ceuta, both at the immigration center and on the street,” said Judith Sunderland, associate Europe and Central Asia director at Human Rights Watch. “Spain should transfer them to reception centers on the mainland, where they can get the services and support they are entitled to.”

All migrants who enter Ceuta irregularly are housed in the Temporary Stay Center for Immigrants (Centro de Estancia Temporal de Inmigrantes, CETI), under the authority of the Employment and Social Security Ministry. The facility, designed for short-term stays and with a capacity of 512 people, is often overcrowded. Despite staff efforts, asylum seekers cannot get the care and services there to which they have the right under Spanish law.

Tents at Ceuta migrants center to house people due to over-crowding, March 2017.

© 2017 Private

When Human Rights Watch visited on March 28 and 29, 2017, the center held 943 residents, many living in large tents set up on what should be a basketball court inside the compound, with others sleeping in rooms that should be used for classes or group activities. While the center is open, and migrants may come and go, they are not allowed to leave Ceuta, an enclave of only 18.5 square kilometers.

Inside of tent housing 24 men at Ceuta migrants center, March 2017. 

©2017 Private
According to center staff, currently 70 to 80 asylum seekers are in the Ceuta center, of whom at least 10 have filed for asylum on the grounds of discrimination based on their sexual orientation or gender identity.

Human Rights Watch spoke with three gay men housed at the center, two from Morocco and one from Algeria, all of whom had filed for asylum on the grounds of persecution due to their sexual orientation. They described extreme abuse, including physical violence, by family members, repeated and widespread societal rejection, and physical attacks on the streets in their countries of origin. One Moroccan man said he had been jailed in part due to his sexual orientation. Both Morocco and Algeria criminalize consensual same-sex sexual activity, punishable by up to three years in prison and fines.

All three spoke of difficulties in the center and in Ceuta due to their sexual orientation.

“Ahmed” (a pseudonym), a 29-year-old Moroccan, said he fled his country because he suffered threats from both his family and the police but that he is experiencing the same kind of treatment at the hands of other people staying in the CETI. “They [other CETI residents] tell me if they see me outside [the center] they’ll beat me,” he said. “They come after me, and I run. One time, in November or December, they hit me.”

LGBT asylum seekers are trapped in Ceuta by what Human Rights Watch believes to be a policy designed to deter asylum applications from all asylum seekers, except for Syrians, who manage to reach the enclave. Migrants who do not apply for asylum are given expulsion orders and transferred to mainland Spain at a target rate of 80 per week where they are placed either in detention centers pending deportation or in shelters operated by nongovernmental groups. Asylum seekers, however, are generally not permitted to transfer.

“Denying asylum seekers their freedom of movement to deter applications would not only be cruel and misguided, but also a misuse of power,” Sunderland said. “Yet, the evidence suggests that the authorities impose a terrible choice on people in need of protection, requiring them to declare their need and face months or years in limbo in Ceuta, or to take their chances and apply for asylum only after they’ve been transferred to the mainland with an expulsion order in hand.”

While some migrants may stay at the center in Ceuta four or five months, those who apply for asylum normally stay much longer, sometimes throughout the entire procedure for assessing their application for protection, a process that can last well over a year. Police in Ceuta carry out border checks and block asylum seekers who try to leave the enclave for mainland Spain.

In 2010, the Spanish Interior Ministry said that the asylum seekers in the enclaves receive documents allowing them to live both in Ceuta and in the other North Africa Spanish enclave, Melilla. However, the ministry said that these documents do not in any circumstances entitle them to travel to the Spanish mainland. Although Spanish authorities do regularly transfer Syrian asylum seekers from the enclaves, the ministry does not appear to have changed its policy with respect to other nationalities despite a series of court rulings and recommendations from the Spanish human rights institute – the Defensor del Pueblo – and refugee rights organizations. Court rulings also have said that asylum seekers should have freedom of movement inside Spain.

“The situation of the enclaves, the European Union’s borders on the southern rim of the Mediterranean, is no doubt different than for other EU countries but that’s no excuse for punishing those who enter Ceuta to seek asylum,” Sunderland said. “Spain has the wherewithal to treat asylum seekers decently including LGBT people searching for a tolerant country where they can live without fear of discrimination or violence.”

Accounts by Asylum Seekers

“Ahmed,” the 29-year-old Moroccan, told Human Rights Watch that in his home country, “I couldn’t find anyone to protect me, neither my family nor the police.” He had been sentenced to six months in prison after he ran to the police late one night from two men beating him in the streets because he is gay. But life in the center in Ceuta, where he has been housed since mid-October 2016, is hard. “Here too they insult me, call me ‘faggot.’ They tell me if they see me outside [the center] they’ll beat me. They come after me, and I run. One time, in November or December, they hit me. It was an Algerian. He called me a faggot, he said ‘I’m going to kill you.’ The day before yesterday, I was in a friend’s room [in the center] and an Algerian came and threw me out, saying, ‘Hey faggot, get out of here.’”

Ahmed spoke of his dreams of a new life: “I want to survive, I want a future. I don’t want to have to always think that I’m going to be beaten up…I can’t in Morocco, and I can’t here either because Ceuta is like Morocco.”

“Francisco” (a pseudonym), a 30-year-old from Morocco, had been living in the center for 14 months. He said that his family had kicked him out when he was 12 because of his sexuality. He had been raped by two men in a garbage dump while still a teenager, and beaten and arrested by the police. The last straw was when a cousin, with whom Francisco had been living after the cousin’s return after years abroad, turned against him after learning he was gay:

I came to Ceuta. I didn’t have any other choice but to ask for asylum. But here it’s terrible. I am desperate. Ceuta is just like Morocco. One time I was at the beach, and a man who was a little older than me offered me a joint. I said no. He wanted to have sex but I said no, and he threw a rock at me and hit me. I went to the police. At first they didn’t want to take my complaint. They didn’t do anything. That man is always there at the beach…In the CETI I don’t talk to anyone, I avoid problems. If I didn’t, I would burst. You know, being thrown out of my home when I was 12, all the problems…

“Said” (a pseudonym), a 32-year-old Algerian, had been at the CETI for almost 10 months when Human Rights Watch met him: “I want to live a new life,” he said. “I need to forget my problems. I didn’t have a clear idea of where to go, just a place where I could live without violence. It’s hard here. You can only sleep and eat, sleep and eat. I avoid everyone here to avoid problems.”

A staff member told Human Rights Watch that other residents often “ridicule, harass, and attack” LGBT asylum seekers. “Many don’t accept sharing a room with a homosexual. Either they harass them here or they fight outside the center.”

EU Policy

The European Union Reception Directive, binding on Spain, requires EU countries to take into consideration the situation of vulnerable people when it comes to accommodation, and to take measures to prevent sexual assault and harassment in reception centers. Although LGBT asylum seekers are not listed in the directive among people considered vulnerable, Human Rights Watch agrees with the EU Fundamental Rights Agency and the International Lesbian, Gay, Bisexual, Trans, and Intersex Association (ILGA-Europe) that many LGBT people seeking asylum qualify due to the kind of persecution experienced in their countries of origin. In a 2015 report, the United Nations Refugee Agency, UNHCR, noted that, “LGBTI persons of concern face a wide variety of protection risks in countries of asylum, including further persecution by authorities, host communities, family members, and other asylum-seekers and refugees.”

Best practices in reception for people identified as LGBT asylum seekers by such organizations include accommodation in single rooms, transfers to smaller centers, specific training for staff, and facilitating access to LGBT organizations and support networks.

These conditions cannot be met for LGBT asylum seekers at the reception center or elsewhere in Ceuta.

Nongovernmental organizations, the Defensor del Pueblo, and UNHCR have repeatedly underlined that the center in Ceuta, as well as the one in Melilla, are not fit as reception centers for asylum seekers. In a report published in June 2016, the Defensor del Pueblo concluded that these centers “cannot be considered appropriate for housing and attending to asylum seekers” and reiterated that the institute has drawn attention to “the lack of specialized assistance for asylum seekers and particularly for persons with special vulnerabilities.” UNHCR’s representative in Spain, Francesca Friz-Prguda, said in December that the centers “do not meet the minimum requirements laid out in European [asylum] directives” and “are not the place for people who arrive traumatized fleeing from war and persecution.”

Land border crossings to Ceuta have fallen over the past few years, despite some recent large group arrivals. In 2016, just over 2,000 people – mostly sub-Saharan Africans and some Algerians – crossed the land border irregularly. Fewer than 16,000 people filed new asylum applications in Spain in 2016, well under 2 percent of the EU total.

The Situation in Ceuta

Double-layer fence around Spain’s north Africa enclave Ceuta, January 2017.

©2017 Antonio Sempere
Ceuta is just across the Strait of Gibraltar from Algeciras, entirely separated from its neighboring territory in North Africa by a double-layer fence topped with razor-wire. A triple-layer fence separates Spain’s other enclave, Melilla, closer to the Algerian border, from Moroccan territory. Irregular migration to the enclaves takes a variety of forms, including large group attempts to scale the fences, crossing in hidden compartments in vehicles, approach by sea, and through the use of fake travel documents.

Human Rights Watch visited Melilla on March 23 through 26, and Ceuta on March 27 through 29. Researchers were not granted access to visit the reception center in Melilla. At the time of the visit, approximately 880 people were living in the Melilla center, which as a capacity of 480. At least 350 asylum seekers were housed in the Melilla reception center, at least 50 of whom have applied on grounds of persecution due to their sexual orientation or gender identity.

The Moroccan government has coordinated security measures and border management with EU member states, especially Spain, since the 1990s, and the country is an important partner in EU efforts to externalize border controls. While the numbers of migrants and asylum-seekers reaching Spain from Morocco pale in comparison to arrivals to Italy and Greece, EU migration cooperation with Morocco, driven by Spain, has provided a blueprint for policies pursued by the EU and member states since 2015 with other transit countries.

Bilateral readmission agreements between Spain and Algeria, as well as between Spain and Morocco, make it easier for Spain to directly return nationals of those countries from its enclaves.

Morocco adopted a national strategy in 2013 to overhaul national policies toward migrants and asylum seekers, including by providing certain basic rights. In 2016, the government granted one-year renewable residency permits to thousands of sub-Saharan Africans and to over 500 UNHCR-recognized Syrians. However, interviews with sub-Saharan Africans in Ceuta and Melilla in March 2017 indicated that police raids on informal migrant camps, destruction and theft of property, involuntary transfers to other parts of Morocco, as well as violence by Moroccan border guards, previously documented by Human Rights Watch findings, continue. Morocco does not yet have a functioning asylum system.

Spain has taken drastic border control measures in its enclaves, including summary returns to Morocco and disproportionate use of force by border guards. In April 2015, the Spanish government changed the law to formalize the unlawful practice of summary returns to Morocco of anyone apprehended scaling the fences in a group, a move denounced by numerous nongovernmental groups, including Human Rights Watch, as well as the Defensor del Pueblo, the UN, and the Council of Europe.

A challenge to summary returns in 2014 is pending before the European Court of Human Rights. On February 6, 2014, at least 15 migrants died attempting to swim to Ceuta when the Spanish Guardia Civil fired rubber bullets and teargas at the water. A high court reopened in January 2017 the investigation into criminal responsibility of 16 Guardia Civil agents, overturning a lower judge’s decision in October 2015 to close the case without filing charges.

Spain officially inaugurated border asylum offices in both enclaves in 2015. While Syrians and Palestinians continue to access the Melilla asylum office, many reportedly using fake Moroccan documents and by bribing Moroccan officials in order to leave the Moroccan side, no other nationals have ever approached the Melilla office. Since its inauguration, in March 2015, not a single person has applied for asylum at the Ceuta border office. The obstacles to exiting Morocco via the official border crossing leave many, including asylum seekers, no choice but to attempt to enter the enclaves irregularly. Once in Ceuta or Melilla, they can apply for asylum at a police station or at the CETI.

Human Rights Watch visited the well-appointed but locked and empty Ceuta border asylum office on March 29. The chief inspector in charge explained that a trained officer is always on duty, with a key, should anyone arrive. He added, however, that the office “is useless, it’s only to comply with a European regulation.” When asked why he thought no one had ever applied for asylum at the office, he explained that the Moroccans “shouldn’t let people through…they do their filter. It doesn’t make sense to have an office on this side of the border if Morocco can grant asylum, it’s not a country at war.”

Migrant looking at list of people to be transferred from Ceuta to mainland Spain, March 2017.

©2017 Private
Human Rights Watch has observed that the central Interior Ministry routinely decides not to allow non-Syrian asylum seekers be transferred to the mainland, while irregular migrants are transferred. Ricardo Espíritu Navarro, director of the Ceuta reception center, said: “It’s not the responsibility of the Ministry [of Employment] to draw up the lists of transfers. The Ministry of Interior makes its own decisions. They usually don’t transfer asylum seekers. They don’t transfer Algerians. I don’t know why, it’s not my job.” The director said he had convinced the authorities to transfer to the mainland, in early March, a group of Algerian women asylum seekers, including some who are LGBT, who had protested unfair treatment and length of their stay at the Ceuta center.

Human Rights Watch believes the prospect of having to remain in Ceuta indefinitely deters people in need of international protection from applying for asylum. Human Rights Watch spoke to a 22-year-old from the Central African Republic who, a month after arriving at the reception center, was struggling with the decision of whether to apply for asylum: “They say you have to apply in the first place you reach, but if there’s no place for me how am I going to do that? The procedure takes a long time, I don’t want to stay here.” Human Rights Watch heard from several sources about a sub-Saharan man who withdrew his asylum application after the police explicitly told him he would be transferred to the mainland if he did so; he was transferred a few days later.

The police regularly deny transfer requests by asylum seekers in Ceuta. Police orders viewed by Human Rights Watch cite Spain’s commitments under the EU’s Schengen Border Code to check identity papers and travel documents for travel from the enclaves of Ceuta and Melilla to other parts of Spain or to other Schengen countries, and assert that the applicant does not fulfil any of the requirements for entry into Spain “nor is there any exceptional reason of a humanitarian or public interest” to allow the person entry. The Ceuta National Police, through its media office, declined a Human Rights Watch request to meet with the head of the immigration and borders unit (Brigada de Extranjería y Fronteras).

Numerous Spanish court rulings have upheld the right of asylum seekers to freedom of movement within Spanish territory and ruled that preventing asylum seekers from traveling from the enclaves to the mainland constituted a violation of that right. Reiterating its findings in previous cases, the Sevilla Superior Court ruled in February 2015 that under Spanish immigration law asylum seekers enjoy the right to freedom of movement, irrespective of the manner in which they entered the country, and that the “exceptionalism of Ceuta resides in [the right of the police to conduct border] checks but not in a limitation not imposed by law. That the police can check [documents] does not mean they can impede the enjoyment of a right.”

The higher court found that the lower court’s decision validating the police denial of the possibility to travel onward from Ceuta amounted to “punishing irregular entry into Spain of someone who subsequently applied for asylum, which is at odds with existing legislation.”

Posted: January 1, 1970, 12:00 am