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ICC for first time recognizes LGBTQ people as victims of gender persecution

Chief prosecutor to seek arrest warrants for Taliban leaders behind human rights abuses

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The International Criminal Court in The Hague, Netherlands. (Photo by STRINGER Image/Bigstock)

The International Criminal Court on Jan. 23 for the first time recognized LGBTQ people as victims of gender persecution under international criminal law. 

Karim Khan, the ICCā€™s chief prosecutor, announced a request for arrest warrants against Taliban officials accused of targeting women and others perceived as defying the groupā€™s strict gender norms in Afghanistan. It is the first time LGBTQ people have been explicitly named as victims in a gender persecution case before the court.

Since the Taliban’s takeover of Afghanistan in August 2021, there has been a significant escalation in the repression of LGBTQ people and women. A report that Human Rights Watch released in 2022 documented nearly 60 cases of targeted violence against LGBTQ people in the months following the Talibanā€™s return to power.

The Washington Blade in October 2022 reported the Taliban have frequently used the contents of seized cell phones to track and target LGBTQ people, further intensifying the climate of fear, and violence against the community in Afghanistan.

In its February 2023 report, ā€œA Mountain on My Shoulders: 18 Months of Taliban Persecution of LGBTIQ Afghans,ā€ Outright International detailed how Taliban security officials systematically targeted LGBTQ people, especially gay men and transgender women, subjecting them to physical and sexual assault as well as arbitrary detention. The report also noted Taliban authorities had carried out public floggings for alleged same-sex relations, with the Taliban Supreme Court publicly defending these punishments on social media at the time.

The report indicates Taliban officials had escalated their efforts to target LGBTQ people, making it a greater priority. They collected intelligence on LGBTQ activists and community members, hunted them down, and subjected them to violence and humiliation as part of their systematic campaign of repression.

Khan has sought charges against the Talibanā€™s Supreme Leader, Haibatullah Akhundzada, the Talibanā€™s supreme leader, and Chief Justice Abdul Hakim Haqqani for crimes against women, girls, and LGBTQ people. Khan said there are reasonable grounds to believe that Akhundzada and Haqqani orchestrated systematic violations of fundamental rights, including physical integrity, autonomy, free movement, free expression, education, private and family life, and free assembly.

Khan further detailed that the Talibanā€™s persecution was committed in connection with other crimes under the Rome Statute, including murder, imprisonment, torture, rape and other forms of sexual violence, enforced disappearance, and other inhumane acts.

Reports indicate the Taliban has banned education for girls beyond sixth grade, severely restricting their access to education and limiting employment opportunities in health and education sectors. Taliban members have also beaten, detained, and tortured women who participated in protests in support of their rights, and have carried out violent attacks against LGBTQ people.

Khanā€™s requests have been submitted to a pretrial chamber comprising three ICC judges, who will decide whether to issue the warrants. The ICC initially authorized the Afghanistan investigation in March 2020, following a preliminary examination that began in 2007. The investigation, however, was paused for several years as the prosecutor and ICC judges considered a request by Afghanistan’s former government to defer ICC proceedings in favor of domestic prosecutions the government claimed to be pursuing.

The judges noted any cases pursued by the former Afghan government represented, at most, a “very limited fraction” of those falling within the scope of an ICC investigation. They also observed that the current government displayed no interest in upholding the deferral request. The ICC, as a result, authorized the resumption of the investigation in October 2022.

ā€œThis is a historic moment since it is the first time in history that the ICC has officially recognized the crimes committed against LGBTIQ+ people. This application for an arrest warrant sends a strong message that the international community rejects the gender persecution of LGBTIQ+ people,ā€ said Artemis Akbary, executive director of the Afghanistan LGBTIQ Organization. ā€œLGBTIQ+ people in Afghanistan need our support and solidarity more than ever, and we must ensure that they have access to justice and accountability.ā€

Outright International in its press release stated this development marks a significant step toward addressing the unique vulnerabilities of LGBTQ people in conflict and crisis situations.

ā€œThe Talibanā€™s reign of terror over women and LGBTIQ people has been based on the assumption that gender persecution can persist with impunity. The ICCā€™s recognition of LGBTIQ victims challenges that presumption by recognizing the humanity of our communities,ā€ said Outright International Senior Director of Law, Policy, and Research Neela Ghoshal. ā€œOnce arrest warrants are issued against Taliban officials, member states should support the courtā€™s efforts to swiftly bring them to justice.ā€

Human Rights Watch International Justice Director Liz Evenson also welcomed Khanā€™s announcement.

ā€œThe ICC prosecutorā€™s request for arrest warrants against two senior Taliban leaders for the crime against humanity of gender persecution should put the Talibanā€™s oppression of women, girls, and gender nonconforming people back on the international communityā€™s radar,ā€ said Evenson. ā€œWith no justice in sight in Afghanistan, the ICC warrant requests offer an essential pathway for a measure of accountability.ā€ 

She added the ā€œinternational crimes committed in Afghanistan are vast, but a broad approach to accountability is needed to break cycles of impunity that have led to more abuses.ā€

ā€œICC member countries should ensure the court has the backing and practical assistance it needs to expand its Afghanistan investigations,ā€ said Evenson.

The Afghan Justice Ministry has not responded to the Washington Bladeā€™s request for comment.

“It is truly groundbreaking for the International Criminal Court to recognize our communities among the victims and survivors of the most heinous crimes and their consequences, and to acknowledge gender identity and gender expression among the drivers of human rights violations,” said ILGA World Executive Director Julia Ehrt. “These warrants of arrest highlight human rights violations that civil society has long documented and that the world can no longer ignore.ā€

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India

Indian state proposes sweeping LGBTQ policy

Judge calls for one set of Tamil Nadu guidelines

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(Washington Blade photo by Ernesto Valle)

The government of Tamil Nadu in southern India has proposed a policy that is designed to improve the lives of LGBTQ and intersex people in the state.

The Tamil Nadu State Planning Commission introduced the “Draft Policy for the Welfare of LGBTQIA+ Persons” in July 2023. Key provisions include a 1 percent quota for transgender and intersex people in education and employment. Progress to implement the policy has been hindered because of the governmentā€™s fragmented approach of developing separate policies for different groups within the community.

The Madras High Court in January 2024 acknowledged Tamil Naduā€™s proposed policy and commended the stateā€™s efforts. 

The court highlighted key recommendations, such as establishing a State Commission for Sexual and Gender Minorities and introducing quotas, while stressing the need to combat discrimination and violence. The court this month, however, raised concerns about the governmentā€™s separate policies for trans people and the broader LGBTQ community.

Justice N. Anand Venkatesh stressed the need for a single, unified policy to effectively address the challenges the LGBTQ community faces. He directed the Social Welfare and Women Empowerment Department to submit a separate proposal for trans people and a consolidated LGBTQ one by Feb. 17 that would allow stakeholder input and improvements.

The Madras High Court has been actively guiding the Tamil Nadu government towards formulating a unified and comprehensive policy for the LGBTQ community, rather than separate policies for different groups within the community.

Tamil Nadu’s proposal offers several advantages aimed at promoting inclusivity and equality. It would provide healthcare inclusion, recommending the extension of the Chief Minister’s Health Insurance Scheme to cover trans-specific medical procedures, such as gender-affirming surgeries, to ensure essential healthcare is accessible. The proposal calls for nondiscrimination policies in all government departments and public authorities that seek to protect LGBTQ people from bias and violence.

The proposal calls for educational institutions to adopt policies that raise awareness and address issues of violence, abuse, and discrimination against students with diverse gender identities and sexual orientations. It also suggests the creation of bodies like the Tamil Nadu Council for LGBTQ Persons and District Level LGBTQ Welfare and Justice Committees to coordinate efforts across government departments.

ā€œTamil Nadu is the first state in India to develop a unified policy covering sexual orientation, gender identity and sex characteristics, based on a recent Madras High Court directive,ā€ said L. Ramakrishnan from SAATHII, an organization that works to create an inclusive healthcare system, and a member of the policy drafting committee. ā€œThis is important because critical sensitization interventions for inclusive education, healthcare and employment require understanding of sexual, sexuality, and gender diversity,ā€Ā 

ā€œAt the same time, recognizing the added vulnerabilities of trans and intersex individuals, provisions such as horizontal reservations and free land allocation are proposed only for transgender and intersex individuals,ā€ added Ramakrishnan.

The proposal, among other things, calls for gender-neutral bathrooms and hostels. It also seeks to protect LGBTQ people from family violence and from corrective rape and so-called conversion therapy that medical providers and faith healers carry out.

The proposed policy would also acknowledge and support relationships outside the traditional marriage framework. It proposes a Deed of Familial Association that would legally recognize queer relationships as the Madras High Court ruled in a case of a lesbian couple who sought protection from harassment. While the deed would offer protection from family and societal harassment, it would not extend legal status or rights associated with marriage or civil unions. 

The Indian Supreme Court on Oct. 17, 2023, ruled against marriage rights for same-sex couples.

ā€œWe have long been working and sensitizing the government for a policy,ā€ said Kalki Subramaniam, a trans activist and artist who founded the Sahodari Foundation, an organization that supports trans people in India. ā€œIt seems to be happening. We, the trans community, demand a separate policy for us because we are the most marginalized and poorest community in the entire LGBTQI spectrum.ā€ 

ā€œI insist on two different policies: One for us, trans and intersex persons, and the other for the LGB community. Practically, it is very much possible,ā€ added Subramaniam. ā€œThe state government, months ago, held public meetings with the trans community in all districts, and the communityā€™s overall demand is a separate policy. I welcome the commission and insist it should have representatives from trans women, trans men, and intersex communities.ā€

She told the Washington Blade the proposed policy is something for which the community has been waiting for years, and is happy to see it on the table. Subramaniam noted the quota, in particular, will ensure equal opportunities in jobs and education.

ā€œTamil Nadu governmentā€™s laudable efforts in building equity for the LGBTQIA+ community stands as a magnificent beacon of hope,ā€ said Harish Iyer, an Indian LGBTQ activist. ā€œIn times of absolute disregard across the world, this effort puts not just the queer community, but India in the forefront of humanitarian efforts.ā€

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Argentina

Argentine president restricts transgender minors access to hormone treatments, surgeries

Advocacy groups say they could challenge Javier Milei’s decree in court

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Argentine President Javier Milei (Screen capture via YouTube)

Argentine President Javier Milei on Feb. 5 issued a decree that restricts minors’ access to gender-affirming surgeries and hormone treatments.

Human rights organizations and LGBTQ groups have condemned the edict that modifies Argentina’s landmark Gender Identity Law.

The International Lesbian, Gay, Bisexual, Trans and Intersex Association for Latin America and the Caribbean (ILGALAC) and ILGA World have condemned the decree, noting it ā€œimposes severe restrictions on the right to gender identity of trans and non-binary people, particularly young people.ā€ They further state the restriction ā€œignores scientific evidence and the recommendations of international bodies, such as the World Health Organization (WHO) and the Inter-American Commission on Human Rights (IACHR).ā€

The Argentine Federation of Lesbians, Gays, Bisexuals and Trans (FALGBT), meanwhile, has announced it will go to court to stop the modification of the Gender Identity Law and, if necessary, will turn to international organizations. Legal experts have argued the decree is illegal and unconstitutional, and Argentina’s Supreme Court should intervene.

FALGBT President MarĆ­a Rachid, told the Washington Blade that ā€œfrom the Argentine LGBT Federation we are filing a declaration of unconstitutionality for this DNU (the Spanish acronym for Necessary and Urgent Decree), because we consider that the president is begging for legislative powers that do not correspond to him. That law was approved by a wide majority in both chambers, where specialists of medicine, of law went to expose concrete research on these issues.ā€

ā€œOn the other hand, we are also going to file injunctions, both collective and individual, to defend the rights of trans children and adolescents, mainly,” said Rachid. “It is not true what he (Milei) says to justify this absolute intrusion to legislative powers, saying that 5-year-old children are mutilated. This is not true. Genital reassignment operations are performed after the age of 18, even by medical indication.ā€

This decree is in addition to other measures of Milei’s government that affect the LGBTQ community, such as the prohibition of gender-affirming treatments and surgeries for minors and limits on housing transgender women in female prisons.These actions have generated controversy and concern among human rights advocates and international organizations.

ā€œPresident Javier Milei, since he took office, has been carrying out a series of measures that directly affect the vast majority of formal and informal workers in Argentina, and the LGBTIQNB population is no exception,” said Ornella Infante, a trans woman who is a national leader of the leftist Evita Movement. “In addition to the hate speeches that multiply violence; it is a class hatred to sectors with organizational and mobilization capacity such as women, unions, social movements, and sexual diversity.ā€

ā€œIt is exposed with the dismissals of LGBT people from national agencies, the definition of gender policies, the closure of INADI, a state agency that worked to eradicate discrimination in the country,” added Infante. “All of this directly affects vulnerable populations and painfully shows that it is part of their government’s ideals to end human rights policies.ā€

ILGA World has urged the international community, human rights organizations and democratic institutions to speak out against these measures and to demand the repeal of the decree, calling it ā€œan abuse of executive power and a blow to democratic institutionality.ā€

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South Africa

South Africa groups offer muted response to president’s pledge to protect LGBTQ rights

Cyril Ramaphosa gave State of the Nation speech on Feb. 6

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South African President Cyril Ramaphosa speaks with attendees at the African National Congress Party Rally on May 10, 2024 in Tshwane, South Africa (Photo courtesy of Ramaphosa's Facebook page)

Several South African advocacy groups say they are not moved by President Cyril Ramaphosa’s pledge to protect LGBTQ rights during the State of the Nation speech he delivered in Cape Town on Feb. 6.

ā€œAs South Africans, we stand for peace and justice, for equality and solidarity. We stand for non-racialism and democracy, for tolerance and compassion,” said Ramaphosa. “We stand for equal rights for women, for persons with disability and for members of the LGBTQI+ community.”

Even though the president made the proclamation, LGBTQ South Africans continue to face hate crimes that often end in the loss of life, despite laws that include the Preventing and Combating of Hate Crimes and Hate SpeechĀ and the prohibition of discrimination based on sexual orientation enshrined in the constitution.

In addition, U.S. President Donald Trump’s 90-day moratorium on nearly all American foreign aid has impacted several LGBTQ organizations in South Africa.

ā€œThe cut in funding has really made a negative impact towards the way we run the organization,” said Sibonelo Ncanana, civil society engagement officer for OUT LGBT Well-Being. “Itā€™s more of a malfunction we are witnessing, so what the president said last Thursday has little relevance due to the ongoing predicament we are encountering.ā€

Bruce Walker, convenor of Pretoria Pride, said he appreciated Ramaphosa’s comments about the protection of LGBTQ rights, but added they were mere grandstanding.

ā€œWe really appreciate him saying this and itā€™s a good thing for an African leader to speak out about the rights of the LGBTI community. LGBTI rights are in our Bill of Rights and constitution,ā€ said Walker. ā€œHowever, the presidentā€™s utterances were just pure window dressing because the current government refuses to condemn the treatment of LGBTI communities in Africa, and are very quiet on the imprisonment and execution of LGBTI people in the world but fight and spend millions to condemn Israel.ā€

Iranti nevertheless said it expected the president to stay true to his word and ensure the rights of the LGBTQ community are protected as the country’s constitution outlines.

ā€˜President Ramaphosa affirmed that he stands with members of the LGBTQIA+ community, a very important act as we witness a regression of LGBTQIA+ rights and the growth of anti-gender movements across the globe,” said Iranti. “We urge the president to follow up on this commitment, with concrete strategies and actions that will improve the lives of LGBTQIA+ people in South Africa.”

South Africa is the only African country that constitutionally recognizes LGBTQ rights. Many South Africans, however, do not recognize the LGBTQ community because of cultural and religious beliefs and the idea that homosexuality is a Western import.

The suspension of nearly all U.S. foreign aid has impacted the Uthingo Network, OUT LGBT Well-Being, Iranti, and other advocacy groups. Trump on Feb. 7 signed an executive order that limits American financial assistance to South Africa because of the Expropriation Act that Ramaphosa signed last month.

Though the Expropriation Act involves compensation, some of the land the government has deemed of public interest ā€” for infrastructure projects, public service expansion, and environment conservation ā€” can be expropriated without permission. Trump said the law violates South Africans’ rights.

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