Blog: Sexual and Reproductive Rights
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October 22, 2019
By Liz Mineo / Harvard Staff Writer
Costa Rican magistrate Victor Madrigal-Borloz has served for the past 21 months as the U.N. independent experton protection against violence and discrimination based on sexual orientation and gender identity. He will present his report on how laws and cultural norms adversely affect LGBT individuals to the U.N. General Assembly on Thursday. The Gazette interviewed Madrigal-Borloz, who is the Eleanor Roosevelt Senior Visiting Researcher with the Human Rights Program at Harvard Law School, to talk about his work and his hopes for the future.
Q&A: Victor Madrigal-Borloz
GAZETTE: Why did you decide to take on this role?
MADRIGAL-BORLOZ: I have been working in the field of human rights for over 20 years and I saw the possibility to bring about substantial change. The topic bears a lot of significance to me, as a gay man myself. I have been working on these issues for over a decade, first at the Inter-American Commission [on Human Rights] and now at the global level. I have seen many people suffer as a result of stigma and discrimination, and this was a once-in-a-lifetime opportunity to do something about it and put my skills at the service of a cause.
GAZETTE: What did your report find in terms of the root causes of violence and discrimination against LGBT people?
MADRIGAL-BORLOZ: There are primary and secondary root cases. First, there is the notion that societies are structured around certain power relations, which have been designed in relation to a person’s sex. Your role in society is determined by your genital configuration. That’s a very basic construction, and all forms of violence and discrimination come from a defense of those power relations. The other factors come from mechanisms that aim to protect those power relations, such as the idea that gay, lesbian, or trans people don’t exist, and the stigma around them, which is enabled through the message that gay, trans, bisexual, and lesbian people are sick or mentally ill. The other aspect is criminalization. Same-sex relations are still criminalized in 69 countries, which means that, as of today, over 2 billion people live in countries where being gay or lesbian is illegal. Another factor is demonization expressed in the notion that somehow LGBT lives are sinful, immoral; that gays or lesbians cannot be good citizens. The idea is that at the end of the day, there’s something immoral about our existence, and that’s what all of us need to fight against.
GAZETTE: Of your findings, which ones struck you the most?
MADRIGAL-BORLOZ: What disturbs me is that in 2019 there are countries that are considering bringing back the death penalty for same-sex relations. There was a discussion in Uganda about it, and early this year Brunei Darussalam enacted legislation allowing the stoning of gay men. That, to me, is shocking. What I also find surprising is that there are environments that are actually extremely progressive when it comes to gender identity, but can be very restrictive when it comes to sexual orientation and vice versa. In Pakistan, for example, there is an extremely forward legislation on the recognition of gender identity, but sexual orientation is very much criminalized. Sexual orientation has always been a more challenging notion for societies, which in general have used the notion of a traditional binary, hetero-parental family as the nucleus of society, and this has been recognized in public discourse and in the law. But what we also know is that homosexuals, lesbians, and bisexuals have existed and sought happiness all throughout history.
GAZETTE: What policies or practices have been the most successful in the protection of LGBT rights?
MADRIGAL-BORLOZ: Anti-discrimination legislation with the words sexual orientation and gender identity is very important because it allows for all actors in the system to understand that a red line has been drawn and that shouldn’t be crossed. This creates the belief that lesbian, gay, trans, bisexual, or gender-diverse people are entitled to protection. Other good practices are policies aiming at promoting integration of LGBT people in society and campaigns to change hearts and minds.
Let me give you an example. About a year ago, the Inter-American Court of Human Rights issued an advisory opinion, OC-24, which determined that Costa Rica and other countries in the continent must implement same-sex marriage, and it gave a time frame for that. Despite the fact that this created great polarization in Costa Rica, the Costa Rican state has now put together a campaign called “Yes, I do,” or in Spanish, “Si, Acepto,” which focuses on the parents of gay and lesbian children and their reasons why they support gay marriage and why their children are entitled to happiness.
Another good measure is access to justice, and this means that judges have to actively seek to implement the principle of nondiscrimination when it comes to LGBT rights. That’s what the Supreme Court of India, the Supreme Court in Botswana, and the High Court in Trinidad and Tobago did when they voted to decriminalize gay sex in their respective countries.
GAZETTE: How do you explain the dramatic advances in the protection of LGBT rights in regions such as Latin America, where same-sex marriage is now legal in five countries?
MADRIGAL-BORLOZ: It’s the work of civil society and human-rights defenders and advocates who have fought relentlessly for their rights. I began working on these issues over a decade ago, and at that time the trans movement in South America was strong. An extraordinary trans activist in Argentina, Lohana Berkins, used to say that trans women must expose the audacity of their bodies to the society that fails to understand the fragility of their lives. The average life expectancy of a trans woman in Latin America is 35 years, and that’s what Berkins was talking about. It was her voice and those of other great fighters in the LGBT movement that forced people to see their humanity, and ensured that Argentina, Uruguay, and other countries in the continent have the most advanced legislation on legal recognition of gender identity.
GAZETTE: Which countries are the worst and best performers in terms of LGTB rights?
MADRIGAL-BORLOZ: I have a lot of resistance to ranking countries, because things change very fast. Most of these rights are not necessarily enshrined or written in stone; there are forces in societies that are quite keen on seeing them taken back. We live in times in which rising populism uses certain categories of people, such as LGBT communities, as pawns for their political objectives. But I can say that the most problems arise in the countries where gay sex is criminalized, and they are roughly distributed along the Caribbean, sub-Saharan Africa, some regions of Asia, and the Middle East. It’s not a small part of the world. Criminalization forces people to live underground, and often the situation of those whose existence is considered criminal is devastating. The killing of trans women, for example, has been invisible from public records because they are classified as men. And the levels of violence against lesbian women and gay men all over the world is worrisome.
GAZETTE: Why have there been more gains in protection of sexual orientation than gender identity, and what does it say about the possibility of social change?
MADRIGAL-BORLOZ: There is a certain concentration of power and influence within gay and lesbian, or cisgender, urban populations. They have been able to represent their valid agendas in the political debate. On issues of concern for the gay and lesbian urban upper and middle class, there has been more progress than on those concerning trans women or trans men coming from the countryside. But those gains show that social change is possible within one generation. Those of us who were born in the ’60s have seen the world change from a majority of countries criminalizing and pathologizing LGBT identities to a majority of countries embracing the richness that comes from diversity.
Social change is possible when the prime minister of Luxembourg speaks at the General Assembly last week, and declares “I was never hoping to be the gay prime minister. I just happen to be the gay prime minister.” When political leaders take part in a pride parade, they are changing the views that people have about LGBT people. I’ve had the honor of marching alongside Justin Trudeau in Vancouver, and the first lady of Costa Rica in pride parades. That makes me hopeful, but also the fact that the new generations have changed their paradigm of thinking; they embrace the notion that their existence is not determined by rigid notions of gender. That is a great source of inspiration.
But I worry that for some, the change will not come fast enough. Elderly LGBT people are suffering enormous health disparities, and after living their lives in inclusive environments, they are being forced to go back into the closet as they move to retirement communities that are not prepared to cater for their needs. They deserve happiness now.
GAZETTE: What would you like to see happening before your tenure as the U.N. independent expert ends in 2020?
MADRIGAL-BORLOZ: My dream is to see a world free of criminalization of same-sex relations by 2030. Given the fact that international human rights law considers criminalization of same-sex relations a violation of human rights, I see no reason why states would actually get away with continuing this practice past 2030. That’s what I like to dream about.
This interview has been edited for clarity and condensed for length. This article first ran in the Harvard Gazette on October 22, 2019.
October 21, 2019
On October 17, 2019, Victor Madrigal-Borloz, the Eleanor Roosevelt Senior Visiting Researcher with the Human Rights Program and the UN Independent Expert on sexual orientation and gender identity, spoke to the Harvard Law School community, previewing his October 24 address to the United Nations General Assembly.
Mr. Madrigal-Borloz shared findings from his recent report on socio-cultural and economic inclusion for LGBT individuals. The report provides an overview of LGBT access to education, employment, housing, health, public spaces, and religious and political discourse. The talk was organized by the Human Rights Program at HLS and co-sponsored by HLS Advocates for Human Rights and the Harvard Human Rights Journal.
Watch the full October 17 address above or on the Harvard Law School YouTube site.
You can read more about Mr. Madrigal Borloz’s HLS residency as a senior visiting researcher on the Harvard Law Today website.
June 17, 2019
The Human Rights Program is pleased to announce that Victor Madrigal-Borloz, the United Nations Independent Expert (IE) for the protection against violence and discrimination based on sexual orientation and gender identity (SOGI), will be joining HRP as a Senior Visiting Researcher. Mr. Madrigal-Borloz will be in residence at Harvard Law School from July 2019 to December 2020 while carrying out his mandate as Independent Expert. He will build a team of students to support his research agenda, take part in HRP’s prestigious Visiting Fellowship Colloquium, present his research publicly to the HLS community, and join the larger human rights community at Harvard University.
“The Human Rights Program is honored to welcome Victor Madrigal-Borloz to Harvard Law School while he carries out his mandate,” said Gerald Neuman, Co-Director of the Human Rights Program and J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at Harvard Law School. “His work demonstrates his nuanced understanding of the issues and his sophisticated approach to dialogue with governments in order to achieve progress. Even as homosexuality is decriminalized in India, we see the world take steps backward elsewhere. Advocacy on these issues is more timely than ever.”
The United Nations Human Rights Council appointed Mr. Madrigal-Borloz for a three-year term beginning January 2018. As Independent Expert, he is pursuing two overarching objectives: 1) heightening awareness of the violence and discrimination people experience due to sexual orientation and gender identity and 2) identifying measures that States may undertake to eradicate such violence and discrimination. He pursues these objectives via a variety of mechanisms: writing thematic reports, reviewing allegations of human rights violations, and evaluating country-specific situations, among others.
“I am delighted to have found an ideal match in the Human Rights Program for three key reasons: its resolve to pursue excellence to ensure the furtherance of human rights, the commitment of its faculty to the eradication of violence and discrimination based on sexual orientation and gender identity, and the intellectual curiosity and contagious enthusiasm of its students,” said Mr. Madrigal-Borloz.
Until recently, Mr. Madrigal-Borloz was the Secretary-General of the International Rehabilitation Council for Torture Victims (ICRT). He was previously Head of the Registry of the Inter-American Commission on Human Rights, in addition to serving as a member of the UN Subcommittee on the Prevention of Torture. In the latter role, he was Rapporteur on Reprisals and oversaw a draft policy on the torture and ill-treatment of LGBTI persons.
Mr. Madrigal-Borloz previously visited HRP in February 2019 for a public talk. He participated in a live Q&A with Zhadé Long JD’20, which can still be viewed on our Facebook page.
April 9, 2018
April 10, 2018
The Inter-American Court of Human Rights and the Protection of LGBTQI Rights
12:00- 1:00 p.m.
Lunch will be provided
Please join HLS Lambda for a discussion with Ana Helena Chacón, Vice President of Costa Rica, on the landmark Advisory Opinion 24 issued last January by the Inter-American Court of Human Rights regarding same-sex marriage and transgender rights. The Court resolved that same-sex couples should be recognized and guaranteed “all the rights that are derived from a family bond between people of the same sex” and that governments must guarantee access “to all existing forms of domestic legal systems, including the right to marriage, in order to ensure the protection of all the rights of families formed by same-sex couples without discrimination.” The Opinion sets precedent for 19 other Latin American and Caribbean countries that have agreed to abide by the Court’s decisions.
In addition to being the Vice President of Costa Rica, Madame Chacón acted as the Representative of Costa Rica in the case before the Inter-American Court and is globally recognized as a vocal champion for LGBT rights.
This event is being co-sponsored by La Alianza and the Harvard Women’s Law Association.
March 12, 2018
Earlier this month, we welcomed Carol Sanger, Visiting Professor at HLS and Barbara Aronstein Black Professor of Law at Columbia Law School, and Mindy Roseman, Director of International Programs and Director of the Gruber Program for Global Justice and Women’s Rights at Yale Law School, for a timely and compelling conversation about human rights and the criminal punishment of abortion. Below is the full audio of their conversation.
February 28, 2018
March 1, 2018
“Criminal Abortion in the U.S.”
11:45- 12:45 p.m.
Please join us for a lunch talk on human rights and the criminal punishment of abortion with Carol Sanger, Austin Wakeman Scott Visiting Professor of Law at HLS and Barbara Aronstein Black Professor of Law at Columbia Law School, and Mindy Roseman, Director of International Programs and Director of the Gruber Program for Global Justice and Women’s Rights at Yale Law School.
Despite Vice President Pence’s pledge to consign Roe v. Wade to the “ash heap of history,” there are signs that many Americans would not support the re-criminalization of abortion. Professor Sanger will discuss this evidence and raise questions about the criminal punishment of abortion, such as why pregnant woman have not been subject to criminal abortion laws in the U.S. and whether the current administration and red state politicians actually want Roe V. Wade to be overturned. Dr. Roseman will situate the U.S. experience within a global context by discussing criminal abortion in other countries and examining the treatment of criminal abortion under international human rights law.
This event is being co-sponsored by the HLS Criminal Justice Policy Program, the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics, and HLS Students for Reproductive Justice.
January 31, 2018
Thursday, February 1, 2018
“A Road Less Traveled: Feminism and Advocacy in Saudi Arabia”
A talk by Saudi scholar and activist Hala Aldosari
12:00- 1:00 p.m.
Lunch will be served
Saudi activist and scholar Hala Aldosari will discuss the status of women’s rights advocacy in Saudi Arabia, drawing lessons for feminists who choose to tread an uncharted, less traveled road. In this talk, Aldosari will draw personal insights and reflections from women’s rights campaigns and the ongoing journey to organize thought and action in a country where activism continues to be criminalized.
Co-Sponsored by the Middle Eastern Law Students Association, HLS Advocates, and the Islamic Legal Studies Program: Law and Social Change.
January 26, 2018
Monday, January 29, 2018
“Punishing Disease: HIV and the Criminalization of Sickness”
Lunch will be served
Please join us for a talk with Trevor Hoppe, Assistant Professor of Sociology at the University at Albany, SUNY, on his book, Punishing Disease: HIV and the criminalization of sickness. The book examines how and why U.S. policymakers and public health systems have adopted coercive and punitive responses to stop the spread of HIV/AIDS. It also looks at how others diseases have been punished throughout history, and cautions against the extension of criminalization to diseases such as hepatitis and meningitis.
This talk is part of the Human Rights Program’s year-long speaker series examining the criminalization of human rights concerning gender, sexuality, and reproduction. The event is co-sponsored by the Petrie-Flom Center for Health Law, Policy, Biotechnology and Bioethics, the Center for Health Law and Policy Innovation, and the Criminal Justice Policy Program.
November 9, 2017
Tomorrow, Nov. 10: Addressing the Harms and Curbing the Use of Armed Drones; LGBTQ Rights in the Arab World
Friday, November 10, 2017
“Armed Drones: Addressing Harms and Curbing Use”
A talk by Elizabeth Minor, Advisor, Article 36
12:00- 1:00 p.m.
Please join us for a brown bag informal lunch discussion with Elizabeth Minor, an Advisor at UK-based disarmament NGO Article 36. Minor will explore the current state of international action by states and NGOs to address the concerns raised by armed drones. She will also discuss the need to work towards agreement on the limits of the acceptable use of these technologies in order to respond to the harm they cause.
Minor is a researcher and campaigner who has worked for eight years with NGOs and in international coalitions, undertaking policy analysis and advocacy to address armed violence and harm from certain weapons. Most recently with Article 36 she worked to achieve the Treaty on the Prohibition of Nuclear Weapons with the International Campaign to Abolish Nuclear Weapons (ICAN), which was recently awarded the Nobel Peace Prize for 2017.
This event is part of the International Human Rights Clinic’s work on armed conflict and civilian protection.
“Dismantling Oppressive Structures: LGBTQ Rights in the Arab World”
A panel discussion
12:00- 1:00 p.m.
This event is open to Harvard Law School affiliates only
Over the past ten years, new battle lines have begun to form in much of the Arab world. Quietly, slowly, but firmly, LGBTQ activists across the region have begun to resist the legacy of decades of injustice and discrimination against them visibly and vocally by organizing their ranks and embarking on brave acts of resistance.
This panel will examine the cultural and sociopolitical origins and dynamics of homophobia and transphobia in the Arab world and engage in an open and honest conversation about what queer liberation would look like in this complex region. Panelists will draw on their own experiences as activists and debate solutions to dismantle the existing structures of oppression in a number of contexts, including Lebanon, Tunisia, Egypt, and Palestine.
The panelists: Sa’ed Atshan, Assistant Professor of Peace and Conflict Studies at Swarthmore College (Palestine); Dalia Al-Farghal, LGBTQ Rights Activist, (Egypt); Senda Ben Jbara, LGBTQ Rights Activist (Tunisia); and Tarek Zeidan, LGBTQ Rights Activist, Helem or Lebanese Protection for LGBTQs (Lebanon).
This event is co-sponsored by Lambda, HLS Advocates, MELSA, and the Human Rights Progam, all at Harvard Law School.
September 27, 2017
Thursday, September 28, 2017
“Rights, Action, and Accountability: Tackling Gender-Based Violence and HIV in Southern Africa”
A talk by Dean Peacock, Executive Director, Sonke Gender Justice
12:00 – 1:00 p.m.
Lunch will be served
Please join us for a talk by Dean Peacock, Co-Founder and Executive Director of Sonke Gender Justice, an award winning South African NGO working across Africa to prevent gender-based violence, reduce the spread and impact of HIV and AIDS, and promote human rights. Dean is a visiting scholar at the University of California, San Francisco Center for AIDS Prevention Studies and is an honorary senior lecturer at University of Cape Town’s School of Public Health. He is an internationally recognized expert on masculinities and serves on many advisory boards, including the Nobel Women’s Initiative Campaign to Stop Rape and Domestic Violence in Conflict, and was a member of the U.N. Secretary General’s Network of Men Leaders.
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