Vicky Hernández et al. v. Honduras: A Landmark Victory with a Bitter Aftertaste

On June 28, on International LGBT Pride Day, the Inter-American Court of Human Rights (IACtHR) issued its ruling in Vicky Hernández et al. v. Honduras, the first case involving lethal violence against an LGBT person, specifically a trans woman, to reach the highest body of the Inter-American regional system.

During the proceedings, Honduras denied that its police force had any part in Vicky Hernández’s murder, which occurred on another June 28, this time in 2009, on the first night of the curfew imposed during the coup d’état against then-president Manuel Zelaya. The decision sparked considerable anticipation: the Inter-American Commission on Human Rights (IACHR) and representatives of Hernández’s family had requested the IACtHR to apply the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (“Convention of Belém do Pará”) to the case. Previously the treaty had only been applied to instances of violence against cisgender women. Furthermore, the petition was submitted to the IACHR in 2012, before Advisory Opinion OC-24/17 had been issued.

Quite a lot, therefore, was at stake.

The facts

Vicky Hernández was murdered in San Pedro Sula at the age of 26. An HIV-positive trans woman in a situation of prostitution, she had an established record of training other trans women about sexual health. While school remained unfinished, she supported her mother and niece financially. Hernández embodied the story of many trans women in Latin America, whose experiences have been widely documented, first by non-governmental organizations, and then by the United Nations and the IACHR itself. 

On June 28, 2009, during the first night of curfew decreed by the de facto government, Hernández met two other trans women and went to the place where they usually worked. On the way, they were intercepted by a police patrol, which attempted to arrest them. They fled in different directions. The next morning, Hernández’s body was found at a major intersection with a lethal wound in her head, alongside a used condom and a bullet. The two women who saw her for the last time were also murdered weeks later under similar circumstances.

Vicky Hernández’s body was initially recorded as male. To this day, Honduras lacks a gender identity law that allows trans people to have their name or gender recognized. In the internal investigation, the forensic personnel refused to perform an autopsy on her body, on the grounds that she had HIV. The State did not pursue a serious line of investigation, referring instead to a possible “crime of passion.” Testimony was never taken from the family, much less from Hernández’s trans companions. When the case was heard by the IACtHR, the Honduran side was forced to acknowledge — they practically had no other choice — that the local authorities had not taken prompt action to clarify what had happened, and that, more than a decade after the crime, the status of the investigation was the same as in 2009.

The return of context

Two core issues were in dispute before the IACtHR. The first was whether international responsibility for Vicky Hernandez’s death could be directly attributed to Honduras. Various pieces of circumstantial evidence in the case pointed to the involvement of State agents in the crime, but the Commission and Hernández’s representatives needed to persuade the Court to evaluate them together and determine whether a wrongful act of such magnitude had indeed occurred, a notion that Honduras consistently refused to concede. The State’s representatives acknowledged the obvious, i.e., that no serious investigation had taken place, but they argued that this fact did not mean that the police were directly responsible for Hernández’s death.

The IACHR addressed this issue during the case’s public hearing by presenting an expert witness to establish the existence of a generalized context of violence against LGBT people in Honduras at the time of the murder. Here the Commission was making a risky move, given the reluctance in recent Inter-American case law to use contexts as a basis for assigning international responsibility (Kawas Fernández v. Honduras). And while the IACtHR had included a section on context in its previous ruling on violence against LGBT people (Azul Rojas Marín et al. v. Peru), there the circumstances were clearly different, as the involvement of State agents in torturing the victim was never in dispute.

In the present ruling, the Court used the opinion of the expert witness presented by the IACHR and the testimony of Claudia Spellmant, a trans woman who knew Hernández, to draw two conclusions. First, it affirmed that in Honduras at the time of the murder there was “a context of violence, arbitrary detentions, homicides, and discrimination against LGBT people, and in particular against trans women sex workers,” which in many cases “was carried out by members of the police force” (31 and 89). Second, it held that the crime had occurred during curfew, that is, when “the State held nearly complete control over public spaces and people’s movement therein” (87).

These two considerations, in addition to the lack of punishment of the perpetrators of the crime, led the Court unanimously to rule that there was sufficient evidence to find the State directly responsible for the violations of Vicky Hernández’s right to life and personal integrity.  Truth be told, at no point did Honduras present an argument capable of refuting the Commission’s claims. Perhaps another country with more experience litigating such matters would have at least sown some doubt in the IACtHR. Nor was its case helped by the fact that the Court issued provisional measures in favor of Hernández’s family and their representatives for the threats they received during the public hearing.

Trans women are women  

The second core issue in the case had to do with the application of the Convention of Belém do Pará to trans women. This was the only subject that divided the judges, and two of them, Eduardo Vio Grossi and Elizabeth Odio Benito, cast votes dissenting with the majority decision. The other judges deemed that by the current standards of International Law the term “woman” unquestionably encompasses women in all their diversity, including trans women. The majority vote was based on General Recommendations 28 (2010) and 35 (2017) of the Committee for the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), as well as the guidelines in the Follow-up Mechanism to the Belém do Pará Convention (“MESECVI”), which on more than occasion refer to women as having “various gender identities.” 

While Vio Grossi’s dissent was unsurprising (the judge had already expressed his disagreement with Advisory Opinion OC-24/17), the vote cast by Odio Benito, the presiding judge and sole woman on the Court, caused quite a stir. If nothing else, it is curious that toward the end of their terms on the IACtHR these two judges found common ground on this issue. They argued the Convention of Belém do Pará should be strictly applied in its original meaning, with no regard for gender identity. Odio Benito went somewhat further, claiming that the treaty applies solely to people of the “female sex and gender” (38). The violence suffered by Vicky Hernández, Odio Benito maintained, had “a different source and very distinct features from the gender-based violence suffered by women for being women” (33). In other words, in the judge’s view, being a woman is one thing, being a trans woman is something else.  

For LGBT groups across Latin America, Odio Benito’s vote has left a bitter aftertaste, especially given the consequences her interpretation could have under a Court with a different makeup, as well as the interest some States have shown in seating less progressive judges on the bench. Beyond these political observations, Vio Grossi and Odio Benito’s votes reveal a disagreement on the IACtHR over how to interpret longstanding treaties in the Inter-American system. Yet their views also show that they are willing to reduce, quite wrongly in my opinion, the complexity of what it means to be a woman to a question of biology — a position at odds with what the Court (and Odio Benito herself) stated in Advisory Opinion OC-24/17.

“Prejudice-based violence” and crimes against LGBT people

Another key aspect of this decision was the convincing use of “prejudice-based violence” as a conceptual framework. This case was the IACHR’s second attempt to argue that a given crime was based on prejudice. On the first occasion, which led to the Azul Rojas Marín ruling, the Court accepted this approach only timidly, holding onto the controversial label “hate crimes.” 

“Prejudice-based violence,” a term originally proposed by María Mercedes Gómez in 2008, posits that certain crimes against LGBT people have a twofold aim: they reveal a desire to punish those who defy gender norms, and they pursue a symbolic aim by sending a bloody message to those whose sexual orientation, identity, or expression is not accepted by society. It is an individual prejudice loaded with societal complicity.

In this second attempt, the IACtHR embraced the framework more willingly, pointing out that “Honduran authorities systematically used stereotypes and prejudices,” and that they did not follow:

“the investigative reasoning whereby her death could be analyzed as a possible manifestation of gender-based violence and discrimination stemming from her identity as a trans woman” (121).

In a very interesting analysis, the Court also linked the transphobic prejudice underlying the murder to the fact that Honduras still lacks a gender identity law, which led Hernández to “bear an identity not representative of her individuality” (124).

Measures for the prevention and eradication of violence against LGBT people

One final aspect of this decision to highlight is the use of reparation measures, not only from a traditional punitive perspective, but also to prevent what happened to Hernández from happening again. Using the framework of the Convention of Belém do Pará, the IACtHR ordered Honduras to take three intriguing steps.

The first was to make a documentary about the situation of trans women in Honduras. This film must “make reference to the facts of the case and their content” and “fully involve the victims at all stages of production” (163), and be made available in civil society and State institutions, as well as in the country’s schools and universities. The Court had ordered the creation of audiovisual material on a previous occasion (it did so in Manuel Cepeda Vargas v. Colombia and in The Massacres of El Mozote and Nearby Places v. El Salvador), but this is the first time that it has prescribed such a measure in a case in which the victim is an LGBT person.

A second measure Honduras was ordered to take was the establishment of an educational scholarship in Vicky Hernández’s name. Within two years, the State must set up a program to let trans women in Honduras finish secondary and technical schooling in a public institution. The Court specified that the program must have both yearly and rolling application deadlines.

Finally, Honduras was ordered to put in place a procedure whereby trans people can have their gender identity recognized. This measure, which Honduras objected to during the hearing, will become, in practice, the first application of the standard set by Advisory Opinion OC-24/17 to an international contentious case.

These measures will not be easy for Honduras to comply with, yet they certainly stake out a suggestive path for the cases involving LGBT people recently submitted to the Court by the IACHR: Pavez Pavez v. Chile (employment discrimination) and Olivera Fuentes v. Peru (consumer discrimination). In the meantime, we should pay close attention to what steps the States in the Inter-American system take, in light of this ruling, to fight against the prevailing transphobia within their borders.

Note: The author of this blog entry was the expert witness appointed for this case by the IACHR.