Submission to UN Committee on Elimination of Discrimination against Women in Guatemala

We write in advance of the 85th Pre-Session of the Committee on the Elimination of Discrimination Against Women ("the Committee") and its review of Guatemala to highlight areas of concern regarding the government of Guatemala's compliance with the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). This submission addresses articles 1, 10, 11, and 12 of the Convention and covers access to education during Covid-19 school closures, discrimination and violence against lesbian, bisexual, and transgender women, and abortion access.

Access to Education During Covid-19 School Closures (articles 1, 10)

From March 2020 to March 2022, in response to the Covid-19 pandemic, schools in Guatemala were fully closed for 33 weeks and partially open for 53 weeks.[1] From March 2020 through February 2021, 4.2 million students missed at least three-quarters of classroom instruction due to school closures implemented to limit the spread of the Covid-19 virus.[2] In February 2021, the education ministry partially reopened schools, providing education through a mix of distance and hybrid learning.[3] In May 2022, the ministry announced plans to return to in-person classes and published safety protocols to be implemented.[4]

Teachers identified irregular participation by their students in distance learning during school closures, due to limited involvement by parents; limited resources, including access to internet, devices, or textbooks; or due to living in a rural area. In Guatemala, only 15 percent of homes had internet access in 2021, creating a significant barrier to online learning.[5]

The education ministry set up distance-learning television programs, which students were supposed to watch, then do an exercise and send a photo of their work to their teachers. "The program is on a channel that sometimes you can't watch in certain areas," said a primary school teacher in a village in Guatemala.[6] "I have colleagues in schools in the center of [the nearby city of] Antigua, who tell me that they do meetings on Zoom or send assignments through [Google] Classroom. Those of us from the villages don't have access to this technology."

Teachers did not receive adequate support and many had to take it upon themselves to buy materials for themselves and their students. At the beginning of the pandemic, one teacher told Human Rights Watch she had to pay out of her own pocket for materials her students needed, including photocopies of their homework and transportation to their homes to deliver it. "The government and the education ministry demand so much from us, but don't give us the means," she said as she described the many obligations teachers had without the computer, printer, or adequate internet to deliver teaching.

Students faced limited support as well, which inhibited their learning, as many did not have access to phones, computers, or textbooks. Even phone storage or credit was a barrier. The teacher said: "When [my students] had questions, many would call me and then say, "Miss, call me back, I don't have any credit!"

The primary school teacher said her efforts to provide mostly offline distance learning were not working for all her students, partly because most parents have very low literacy and could not support their children: "My challenge is that there are children who are waking up late, not doing their assignments, and they're falling behind." In July 2020, she estimated: "I would say that 40 percent are doing homework and studying."

Without adequate social protections, Covid-19 school closures left all working parents-including teachers-without childcare during the day. This affected women in particular; almost two-thirds of the world teaching workforce is women.[7] In a global report, Human Rights Watch found that many teachers who were also parenting during the lockdown spoke of additional stress, increased workloads, and additional costs of teaching from home and overseeing their children's learning.

A primary school teacher interviewed by Human Rights Watch, who was widowed and taking care of her two daughters at home, said she could not always find the time to help her daughters with learning: "They gave us instructions as teachers that we have to work from 7:30-12:30, resolving any issue, creating work materials, but not helping our children, nor doing anything else."

The teacher described limited resources for teachers, her students, and her daughters, at the cost of her students' and daughters' learning. "For their virtual classes, one of my daughters has to use a phone and the other the computer, so in those moments, I can't use either of them." She continued: "My students often send me questions by phone, and I can't answer because my daughter is using it. I often have to interrupt her so I can take a student's phone call."

The teacher also took on additional responsibilities as a teacher, helping to prepare meals at her school's monthly food distribution for students and their families, many of whom had limited resources. "It's like I'm working double," she said. "It's very difficult."

Human Rights Watch recommends that the Committee ask the government of Guatemala:

• What specific measures does the government plan to take to remedy lost learning time of all girls, including girls from rural areas and low-income backgrounds?
• What specific measures is the government taking and what resources is the government offering to reach out to students who dropped out and support them to come back?
• How does the government plan to mitigate the learning inequities that resulted from disparate access to devices and internet between children from low-income and higher-income households?
• How has the education ministry monitored and followed up students' attendance and participation at school and during distance education? How has the ministry ensured regular direct contact between the teachers or other school officials and students?
• What measures has the government adopted, or does it plan to adopt, to provide affordable, reliable, quality, and accessible internet, including targeted measures to provide free, equitable access to the internet for educational content, and capable devices for every student?
• What resources or support has the government or education ministry provided to students and teachers following the return to in-person classes?

Human Rights Watch recommends that the Committee call on the government of Guatemala to:

• Explicitly allocate educational resources strategically to vulnerable and low-income groups, children traditionally at risk of exclusion from education, and those shown to have been particularly affected in their education during the pandemic, including girls, children from low-income backgrounds, and children from rural areas.
• Now that schools are open, enable schools to assess students' level of learning in each subject, and provide needed support to improve levels, including through free extra tutoring and counselling, as necessary.
• Ensure that all children who aged out of compulsory or free education during the pandemic are able to access, at a minimum, additional free schooling sufficient to allow them to catch up on any backsliding in their education caused by being out of school, plus time equal to school disruptions and closures.
• Ensure that children most likely to be excluded or have inadequate access to internet and capable devices, including those from marginalized or vulnerable communities or living in low-income households, receive targeted support and are included in any measures the government adopts, or plans to adopt.
• Provide supplementary funding for teachers and school officials in historically under-resourced areas and schools and school districts that have indicated the need for additional resources to contact their students, print materials for all, and distribute learning materials in more remote or rural areas, especially when this is the only medium to ensure children continue to engage in remote education.

Discrimination and violence against lesbian, bisexual, and transgender women (articles 1, 10, and 11)

Discrimination and violence against lesbian, bisexual, and transgender women are pervasive in Guatemala. In 2020, Human Rights Watch released a report documenting abuses against LGBT Guatemalans, including violence by family members, intimate partners, gangs, and state security forces, as well as discrimination in access to employment and education.[8] The report found that the Guatemalan government is failing to protect LGBT people adequately. In Guatemala, Human Rights Watch interviewed 7 lesbian or bisexual women and 19 trans women, who shared they personally experienced violence or discrimination related to their gender identity or sexual orientation.[9]

Legal and Policy Context

Guatemala has no comprehensive civil non-discrimination legislation that explicitly protects people from discrimination on the grounds of sexual orientation and gender identity, nor a legal gender recognition procedure for transgender people.

The Attorney General's office does attempt to track anti-LGBT hate crimes. In 2014, through its case management system, SICOMP, the Attorney General's office introduced a box that the official receiving a complaint could tick if the person filing the complaint self-identified as LGBT. However, several interviewees told Human Rights Watch the box is not used as a matter of practice. N.A., who accompanied another trans woman to file a report after she had been attacked, said, "The prosecutor that assisted us addressed her as a man. And he told me that it was not possible to put 'trans woman' in the file. We asked him to do it, but he told me, 'No.'"[10]

The office, in principle, keeps records on the sexual orientation or gender identity of crime victims and complainants. Guatemalan authorities told Human Rights Watch that they had records of 51 criminal complaints between 2016 and 2019 in which an LGBT person was the victim. They said that four of these crimes had resulted in convictions.[11] Even with systems in place to track anti-LGBT hate crimes, LGBT people in Guatemala said that impunity was the norm.

In 2008, Guatemala passed a law against femicide and other forms of violence against women, including physical and sexual violence. The law has also rarely resulted in convictions.[12] Guatemalan officials have stated that the Femicide Law does not apply to trans women because they are not "biological women."[13]

Domestic Violence (article 1)

Lesbian, bisexual, and trans women in Guatemala experience domestic violence at the hands of their family members or intimate partners. E.P., a 24-year-old trans woman whom Human Rights Watch interviewed, said that when she was 15, her mother told her to stop being a "faggot" and threw an iron at her, hitting her in the side of the head and causing bleeding that required hospital treatment.[14] Guatemala's Human Rights Ombudsperson's Office has also reported on intimate partner violence against LGBT people, specifically violence against lesbian and bisexual women from former male partners.[15]

Violence by Gangs (article 1)

Street gangs, including the two factions of the 18 and Mara Salvatrucha 13 (MS-13) are active throughout Guatemala, especially in urban areas.[16] Two trans women Human Rights Watch interviewed said they experienced violence or death threats clearly linked to gangs. A third woman told us she left Guatemala in 2018 due to extortion and threats-she believed by gang members-and an inadequate and discriminatory police response.

K.W., a trans woman from the department of Izabal, told Human Rights Watch that when she was 16 years old, she was raped by seven men whom she identified as gang members, resulting in injuries so severe she had to be hospitalized for 18 days.[17]

M.D. of Organización Trans Reinas de la Noche (OTRANS), which works with trans sex workers, fled to Mexico in 2016 after gang members extorted her and threatened to kill her for not paying. She said gang members had already killed other trans women in Quetzaltenango, and she took the threats seriously. When she got to Mexico, she was not aware of how to apply for asylum, and after three days there, she was deported.[18]

Violence and Harassment by State Security Forces (article 1)

Human Rights Watch spoke with three people who described abuses by state security forces, including police officers and the Guatemalan armed forces.

R.E., a trans woman in Guatemala City, experienced multiple instances of police abuse. In one example, she had also been assaulted by police while standing on the street with another trans friend, in 2014 or 2015: "A police officer hit me on my jaw and for the next two weeks, I could only drink liquids through a straw. He threatened to kill me."[19]

S.V., executive director of the group OTRANS, told Human Rights Watch that LGBT people typically do not file reports against police for violence or harassment because they fear being victimized as a result. "If you file a report against a police officer, he will know that same day who filed a report against him. That makes you afraid that they'll kill you," S.V. said.[20]

In two cases, interviewees mentioned abuses by members of the Guatemalan Armed Forces. In one case, K.W., described being forced to perform oral sex on six soldiers.[21] G.D., the executive director of the HIV organization Gente Positiva, which advocates for respect for LGBT rights but is also involved in other human rights mobilizing, described instances of apparent surveillance of Gente Positiva by soldiers in April 2018 and January 2019.[22]

Education Discrimination (article 10)

No law explicitly prohibits discrimination against LGBT students in Guatemala, and the education ministry has no guidelines aimed at preventing bullying based on sexual orientation or gender identity.

Human Rights Watch interviewed three women who said that they experienced bullying and discrimination in schools for demonstrating signs of non-normative sexuality or gender expression, echoing the experiences documented in other studies.[23] For trans people, bullying and discrimination led in some cases to denial of the right to education altogether.

K.W. said that from the age of nine she had faced attempted sexual assault and school bullying as a result of her gender expression. She left school at age 10, having only completed third grade:

A primary school teacher tried to touch me when I was very little. I told my mother. Nobody listened to me, even my mother, she beat me for lying. The other students threw me in a swamp, beat me, and broke my arm. It's what happens when you look like this. At 10 years my father told me he wasn't going to [pay to] educate me because I was an embarrassment.[24]

O.G., a 21-year-old lesbian in Jalapa, described how she and other lesbian friends suffered sexual harassment from classmates: "Some boys would throw jocote seeds at us, saying we were lesbians.… There are always comments like, 'You need to try a man.'"[25]

Employment Discrimination (article 11)

Human Rights Watch interviewed five trans women, all of whom described personal experiences of employment discrimination, including being fired or refused employment in the first place due to being trans. N.A., a 42-year-old trans woman who leads a collective of trans sex workers in Guatemala City, said that she had been trained as a cook and a pastry chef, but that she had faced discrimination working in restaurants: "Here, if we sell food, people won't buy from us because they say that we have HIV."[26] Sharing another work experience that was not successful, she said, "It's always the same-rejection and discrimination."[27]

Y.U., an activist with the Organization REDMMUTRANS (Multicultural Network of Trans Women), summed up the employment discrimination trans women face: "We don't have access to employment in Guatemala. We are questioned about our identity, not our qualifications."[28]

Recent Legislative Proposals

A recent legislative proposal further discriminates against LGBT people, particularly trans people and limits the provision of comprehensive sexuality education for children.

In December 2021, twenty-one lawmakers in the Congress' Commission on Education, Science, and Technology unanimously approved Bill 5940, which uses the rhetoric of protecting children and adolescents from "gender identity disorders" to justify a patently discriminatory measure that would ban the dissemination of any information about transgender identity in school sex education curricula.[29] The bill would also require media outlets to label programs with transgender content, which the bill likens to pornography, as "not recommended" for children under 18. The bill risks adding to the existing prejudice and stereotypes that often fuel violence against LGBT people.

Withholding age-appropriate and science-based information about gender and sexuality from students, including information relevant to students' sexual and reproductive health, and prohibiting teachers from offering guidance and learning materials on these issues, amounts to a violation of students' right of access to information.

The bill is now poised to go before the full Congress, where it would need to be the subject of three congressional debates and a final vote before becoming law.

Human Rights Watch recommends that the Committee ask the government of Guatemala:

• What measures have been taken to improve the state's ability to conduct effective investigations into crimes motivated by a victim's sexual orientation or gender identity?
• What remedies or redress has the state provided for women who have experienced abuses by state security forces?
• What efforts is the government taking to fight against bullying, discrimination, and violence against lesbian, bisexual, and trans girls, as well as nonbinary students, in educational settings?
• What efforts is the government taking to fight against discrimination of lesbian, bisexual, and trans women, as well as nonbinary people, in employment settings?

Human Rights Watch recommends that the Committee call on the government of Guatemala to:

• Pass comprehensive civil non-discrimination legislation that explicitly includes sexual orientation and gender identity as protected classes and that covers sectors including, inter alia, education, employment, health, and housing, and ensure that any existing civil non-discrimination legislation is also applicable to discrimination on the grounds of sexual orientation and gender identity.
• Pass a gender identity law that allows people to change the sex markers on their official documents through a simple, administrative process, such as filing an application at the Civil Registry. Legal gender recognition should not include burdensome requirements that violate rights, such as a requirement to undergo divorce, surgery, or psychiatric evaluation before changing one's gender.
• Issue guidance indicating that the Law on Femicide is applicable to violence against transgender women.
• Conduct monitoring and evaluation of existing systems to track bias-motivated crimes. Ensure that all officials who receive complaints, including police and prosecutors, receive training on sexual orientation and gender identity in order to assist them in identifying such crimes, and that they systematically ask complainants to indicate whether they (or the victim) may have been victimized on the basis of sexual orientation or gender identity.
• Issue a regulation clearly prohibiting discrimination on the basis of sexual orientation or gender identity and hold accountable law enforcement officers who engage in such discrimination.
• Establish support services for young people, including both children and young adults, who are expelled from their homes for reasons related to their sexual orientation or gender identity, including shelter, counseling services, educational services and job training.
• Adopt an anti-discrimination policy that requires all schools, public and private, not to discriminate against students on the basis of sexual orientation, gender identity or gender expression.
• Adopt an anti-bullying policy that requires all schools to take measures to prevent and respond to instances of bullying based on sexual orientation, gender identity and gender expression.
• Require all ministries and other government agencies to prohibit discrimination on the grounds of sexual orientation and gender identity in hiring, contracting, and all other activities, and to take steps to counter systemic anti-LGBT discrimination.

Access to abortion services (article 12)

The Observatory for Sexual and Reproductive Rights reported over 60,000 pregnancies of adolescents and girls as of July 2022, including 1,323 in girls between 10 and 14 years old.[30] Guatemalan law considers that all girls under fourteen who have sexual relations are victims of sexual violence.

Under existing law, abortion is legal only when the life of a pregnant woman or girl is at risk, and penalties vary from one to twelve years in prison. This is usually interpreted to mean immediate and imminent death.

Several international human rights bodies, such as the Committee on the Rights of the Child, the Committee on the Elimination of Discrimination against Women, and the Human Rights Committee, have called on Guatemala to decriminalize and legalize abortion and ensure access to safe abortion services.[31] However, in March 2022, Guatemala's Congress passed a bill that would have restricted the already limited reproductive rights for women and girls in the country, which was later shelved.[32] However, the country still lags well behind the rest of the region in recognizing women's rights and protecting their reproductive health.

Human Rights Watch recommends that the Committee ask the government of Guatemala:

• What measures are being taken to prevent unwanted pregnancies, in particular of girls and adolescents?
• What measures are being taken to address the unwanted pregnancies of girls and women survivors of rape?

Human Rights Watch recommends that the Committee call on the government of Guatemala to:

• Decriminalize abortion, in particular on the grounds of rape and ensure that the health system provides the adequate access to the services allowing survivors of sexual violence to be able to terminate an unwanted pregnancy.
• Ensure that the health system is prepared to provide comprehensive sexual and reproductive education and care, including safe abortion care, without discrimination, stigma, or revictimization.
• Ensure access to comprehensive sexual and reproductive health information, psychosocial support for women and girls in the event of unwanted pregnancies, and post-abortion care for those who may have had unsafe abortions.