Country Report for use in refugee claims based on persecution relating to
sexual orientation and HIV+ status
Produced: July 30, 2009
Sexual Orientation and Gender Identity research – firstname.lastname@example.org
International Human Rights Program
University of Toronto
This document was prepared by law students and highlights information about publicly-accessible country
conditions available at the time it was prepared. It is not exhaustive, nor is it updated on a regular basis. The
information provided here is not a substitute for legal advice or legal assistance, and the International Human
Rights program at the University of Toronto, Faculty of Law cannot provide such advice or assistance.
T able of Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
L egislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
C ase L aw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Government Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Non-governmental O rganization Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Scholarship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Media Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
This dossier provides a summary of the case law in Canada regarding refugee claims
made on: 1) the basis of the claimant’s HIV status and 2) the basis of the claimant’s
sexual orientation. Although the former addresses claims without regard to the
claimant’s country of origin, the latter focuses on claims made by Venezuelans. The
dossier then provides the human rights situation for HIV+ individuals and LGBT
individuals in Venezuela through a summary of governmental reports, reports by Non-
Governmental Organizations, scholarly literature and media reports.
Case Law: s. 97(1)(b)(iv) and claims related to health care
The health care exclusion in the Immigration and Refugee Protection Act requires that the
personal risk to the life of the claimant is not caused by their home country’s inability to
provide adequate health or medical services. The leading case on the health care
exclusion appears to be Covarrubias v. Canada (Minister of Citizenship and
Immigration)  3 F.C.R. 169 which distinguishes between a country that is unable to
provide care and one which is unwilling to provide health care for an unjustified or
persecutory reason. Covarrubias states that while the former is excluded by s.
97(1)(b)(iv), the exclusion will not operate when the latter is the case. A country, for
example, which deliberately allocates insufficient resources in a deliberate attempt to
persecute or discriminate or for some other “illegitimate” reason, will satisfy this
In Contreras v. Canada (Minister of Public Safety and E mergency Preparedness) 
F.C.J. No. 648, an HIV+ Guatemalan claimant was obliged to show that treatment was
unavailable or denied on grounds of persecution. Gorzsas v. Canada (Minister of
Citizenship and Immigration)  F.C.J. No. 561 established that the Board should not
focus on the availability of treatment alone but should consider other factors such as:
employment, educational, general health care and in-group discrimination. An applicant,
Gorzsas states, need not prove a “sustained or systemic denial of core human rights” but
instead that his personal circumstances put him at risk. Diaz v. Canada (Minster of
Citizenship and Immigration)  75 Imm. L.R. (3d) 225 determined that the Board
must address whether the stigmatization of HIV/AIDS impeded delivery of treatment and
services by staff and whether systemic barriers as regards HIV testing and employment
amount to persecution. Ramirez v. Canada (Minister of Citizenship and Immigration)
 F.C.J. 1028 requires the Board to address discrimination from medical personnel
and employment discrimination, as well as whether cumulative effect of discrimination
amounts to persecution. In Leudjeu v. Canada (Minister of Citizenship and Immigration)
 164 A.C.W.S. (3d) 389, when the Board determines that a “less than ideal”
situation does not expose individuals to persecution, that decision will not be subject to
judicial review. Travers v. Minister of Citizenship and Immigration  53 Imm. L.R.
(3d) 400 held that that the correct approach to s. 97(1)(b)(iv) was to determine 1) whether
the claimant’s life would be at risk and 2) whether the health care exclusion applies. In
Travers, it was also determined that the availability of some treatment did not establish
that the claimant’s life would not be at risk. In J.O. v. Canada (Minister of Citizenship
and Immigration)  41 Imm. L.R. (3d) 305, the Board was criticized for failing to
address issues such as denial of hospital treatment, inadequate treatment and employment
Case Law: Venezuelan claims made on the basis of sexual orientation
Although there is little recent case law on homosexual Venezuelans, some decisions
before the Board in the 1990s were positive. In B.W.L. (Re)  C.R.D.D. No. 316, an
Argentine citizen who had lived in Venezuela for a time was deemed unable to live
openly as a homosexual and unable to avail himself of state protection based on
documentary evidence showing a long history of gay bashing and reports of arrests of
young, effeminate gay men. The claim in C.L.Q. (Re)  C.R.D.D. No. 145 was also
successful on the basis of documentary evidence of extreme physical violence against
LGBT persons and police harassment of LGBT persons; the Board rejected the existence
of an Internal Flight Alternative. The claimant in J.J.Y. (Re)  D.S.S.R. No. 50 was
also successful on the basis of having been interrogated, humiliated, beaten and insulted
twice in the span of three years by police. In A.(G.D.) (Re)  C.R.D.D. No. 92, the
claimant had a well-founded fear of persecution based on documents establishing poor
police treatment of homosexuals and their subjection to harassment and intimidation.
The Board granted the claim in N.(O.I.) (Re)  C.R.D.D. No. 112 of a transgender
Venezuelan on the basis of documentation attesting to the hostility of society to LGBT
persons, the failure of police to treat LGBT victims seriously and the participation of
police in rights abuses. The claimant in X.M.U. (Re)  C.R.D.D. No. 146 was
successful on the basis of documentary evidence on the persecution of Venezuelan gays;
although the claimant was criticized for failing to seek state protection, they accepted that
homosexuals might not be assured of protection in Venezuela.
Documentary evidence on the human rights situation of LGBT or HIV + Venezuelans
Although English-language documentation on the human rights situation of LGBT or
HIV+ Venezuelans is scare, a review of governmental and non-governmental
organization reports, the academic literature and media reports reveals:
Workplace discrimination and refusal of access to government health services for
HIV+ individuals is widespread
Non-consensual HIV testing is a frequent condition of employment and employers
successfully avoid prohibitions on such practices
HIV+ Venezuelans experience frequent rights violations or inhumane and degrading
treatment at the hands of police officers
Government agencies have failed to protect the rights of HIV+ people
Despite a pronouncement by the Supreme Court of Venezuela that ARV therapy for
HIV+ Venezuelans is a basic human right, responsible government agencies deliver
inconsistent and inadequate treatment which seriously affects the quality of life for
LGBT Venezuelans face discrimination, occupy a precarious position in Venezuelan
society and are, because they fear reprisal, reluctant to report rights abuses
LGBT persons are at a substantially higher risk in small towns or cities and rural
LGBT Venezuelans are frequently assaulted, abused and murdered and suffer
Rights abuses against LGBT persons are not vigorously investigated
There are gay-friendly venues in Caracas and growing numbers attend Pride parades
Certain governmental programs have become open to LGBT issues but government
support remains discreet and inconsistent
Law enforcement and agencies of justice have little legitimacy in the eyes of
Venezuelan LGBT persons
Police have engaged in illegal searches, detentions, the extortion of and beating of
In 2003 in Caracas, there were 312 complaints related to the violation of human rights
of LGBT persons by police lodged with an NGO; only 5% were lodged with
authorities due to a fear of reprisal, fear of publicizing sexuality or lack of familiarity
with the complaints process
Transsexuals are subject to extreme violence at the hands of state actors
Transsexual rights activists have been subject to detention and harassment by police
I: L egislation: C anada
1. Immigration and Refugee Protection Act , R.S. C . 2001, c. 27, s. 97(1)(b)(iv).
97(1) A person in need of protection is a person in Canada whose removal to their
country or countries of nationality, or if they do not have a country of nationality, they
country of former habitual residence, would subject them personally
. . . (b) to a risk to their life or to a risk of cruel and usual treatment or punishment if
. . . (iv) the risk is not caused by the inability of that country to provide adequate health or
I I: C ase L aw: C anada
1. S. 97(1)(b)(iv) and H I V .
F ederal Court of Canada
(a) Covarrubias v. Canada (Minister of Citizenship and Immigration)  3 F. C .R.
Linden J.A. held s. 97(1)(b)(iv) should be “broadly interpreted, so that only in rare cases
would the onus on the applicant be met” (31). On a balance of probabilities, claimants
must establish there is “personal risk to his or her life” that was not “caused by the
inability of his or her country to provide adequate health care” (31). S. 97(1)(b) includes
situations where foreign governments allocate “limited public funds in a way that obliges
some of its less prosperous citizens to defray part or all of their medical expenses” (38).
However, s. 97(1)(b)(iv) “leaves open the possibility for protection where an applicant
can show that he faces a personalized risk to life on account of his country's unjustified
unwillingness to provide him with adequate medical care, where the financial ability is
present. For example, where a country makes a deliberate attempt to persecute or
discriminate against a person by deliberately allocating insufficient resources for the
treatment and care of that person's illness or disability, as has happened in some countries
with patients suffering from HIV/AIDS, that person may qualify under the section, for
this would be refusal to provide the care and not inability to do so. However, the
applicant would bear the onus of proving this fact.” (39). Linden J.A. concluded that if
an individual is denied health care for an “illegitimate” (for example “persecutorial”)
reason, the exclusion may not operate (41).
(b) Contreras v. Canada (Minister of Public Safety and Emergency Preparedness)
 F. C .J. No. 648.
The Applicant was an HIV+ Guatemalan citizen. Heneghan J. determined that an
applicant must show that medical treatment in his home country is unavailable or denied
on grounds of persecution to HIV+ homosexuals.
(c) Gorzsas v. Canada (Minister of Citizenship and Immigration)  F. C .J. No.
Teitelbaum D.J. held that, in assessing the risks faced by an HIV+ applicant, focusing
treatment available alone while ignoring issues related to employment, education, general
health care and in-group discrimination is unreasonable (22-26). Moreover, an applicant
will not have to prove the inadequacy of an entire health care system just that his personal
circumstances put him at risk; nor is “a sustained or systemic denial of core human
rights” essential to the establishment of personal risk under the IRPA (27-28).
Teitelbaum D.J. also cited the three legal principles relevant to a consideration of
cumulative discrimination: 1) persecution is the harassment or affliction of an individual
with repeated acts of cruelty or annoyance etc. 2) “in cases where the evidence
establishes a series of actions characterized to be discriminatory, and not persecutory,
there is a requirement to consider the cumulative nature of that conduct” and 3) “it is an
error of law for the RPD not to consider the cumulative nature of the conduct directed
against a claimant” (34). An analysis of the cumulative effects of discrimination must go
beyond “bare acknowledgement that the individual had these risk factors” and canvass
specifically the personal risks faced by an individual baring all these characteristics (36).
(d) Aragorn v. Canada (Minister of Citizenship and Immigration)  77 Imm. L .R.
The IRB should not concentrate its analysis on one specific incident alleged by the
applicant and his failure to seek state protection from the threat of retaliation (11). A
PRAA officer should not assume the IRB has conducted a complete risk assessment (12).
(e) Diaz v. Canada (Minister of Citizenship and Immigration)  75 Imm. L .R.
The IRB failed to address whether the stigmatization of HIV+ Mexicans impeded the
delivery of treatment and services by medical staff and whether system barriers related to
HIV testing and employment amounted to persecution on a balance of probabilities. The
Board ought also to consider the applicant’s socio-economic status in relation to his HIV
status as well his dearth of family support in a country where many HIV+ individuals rely
on their families for care.
(f) Ramirez v. Canada (Minister of Citizenship and Immigration)  F. C .J. 1028.
Gauthier J. criticized the Board for failing to address allegations that HIV+ patients face
discrimination from medical personnel in the provision of care and services and that
HIV+ persons would face discrimination in employment (even though evidence was
adduced to show Mexican employers conduct texting and will dismiss or refuse to hire
infected person). Gauthier J. also criticized the Board for failing to address whether the
cumulative effect of the discrimination faced by the applicants could amount to
(g) Leudjeu v. Canada (Minister of Citizenship and Immigration)  164 A . C. W .S.
A PRRA officer will not be patently unreasonable where he or she reviews all the risks of
discrimination alleged by the claimant but still determines that the less-than-ideal
situation for HIV-infected individuals in Cameroon does not expose them to persecution.
(h) Dia v. Canada (Minister of Citizenship and Immigration  160 A . C. W .S. (3d)
“The officer did not specifically deal with HIV. However, under section 97 of the
Immigration and Refugee Protection Act, a risk caused by an inability of a country to
provide adequate health or medical care does not constitute a risk to life or a risk of cruel
and unusual treatment or punishment. Furthermore, the record shows that HIV treatment
is available in Zambia, particularly in urban areas. She would be returning to Lusaka.”
(i) Travers v. Minister of Citizenship and Immigration  53 Imm. L .R. (3d) 300.
A claimant from Zimbabwe sought protection as a convention refugee under s. 96 of the
IRPA and as a person in need of protection under s. 97 of the IRPA. His convention
refugee claim was based upon evidence of stigma, discrimination and mistreatment of
persons in Zimbabwe suffering from HIV/AIDS. As a person in need of protection, Mr.
Travers claimed that, should he return to Zimbabwe, he would face a risk to life caused
by the unwillingness of the government to provide adequate care.
According to Barnes J., “the correct approach to the application of section 97 of the IRPA
in a context like this one is to first decide if there is sufficient evidence to establish that
an applicant's life would be at risk and then to determine if the health care exclusion
applies” (18). Barnes J. held that “the fact that some level of health care would not be
denied . . . does not establish that his life would not be at risk” (19). Following
Covarrubias, Barnes J. was “not satisfied that the section 97(1)(b)(iv) exclusion is so
wide that it would preclude from consideration all situations involving a person's inability
to access health care in his country of origin. Where access to life-saving treatment would
be denied to a person for persecutorial reasons not otherwise caught by section 96 of the
IRPA, a good case can be made out for section 97 protection” (27).
(j) De-Robles v. Canada (Minister of Citizenship and Immigration)  148
A . C. W .S. (3d) 299.
The judge agreed with the Board’s doubt of the credibility of an HIV+ Argentine’s
alleged fears of persecution based on his HIV status.
(k) Mendez v. Canada (Minister of Citizenship and Immigration )  42 Imm. L R.
Campbell J. determined that a PRRA officer who refused to consider evidence
concerning the persecution of HIV+ homosexuals in Mexico was patently unreasonable.
(l) J.O. v. Canada (Minister of Citizenship and Immigration)  41 Imm. L .R. (3d)
Shore J. criticized the Board’s ignoring of documentary evidence giving examples of
HIV+ persons in Nigeria being denied hospital treatment, given inadequate treatment and
experiencing employment discrimination.
2. Homosexuals and Venezuela
Immigration and Refugee Board of Canada
(a) R.M.W.  C.R.D.D. No. 76.
The claimant was a homosexual Venezuelan from Caracas who had lost a job because he
did not hide his sexuality and latterly had to maintain secrecy about his sexual identity in
order to preserve subsequent positions. He had also experienced beatings, detentions,
arbitrary fines and robbery by police; extortion from private actors; and, beatings and
blackballing by a former lover who wanted to maintain the secrecy of their relations.
The Board doubted the credibility of the claimant’s account of his abuses at the hands of
a powerful former lover. The report noted that, with respect to gays and lesbians,
“Venezuela’s human rights record is mixed” (30). While homosexuality is more
tolerated in Caracas, homosexuals are treated harshly elsewhere in the country and abuses
do occur at the hands of security forces (30). The Board doubted, given the incredulity of
his description of his former love affair, the veracity of his account of police abuse (30).
(b) B.W.L. (Re)  C.R.D.D. No. 316.
Here, the claimant was Argentine but had been sent to Venezuela by his father and
subsequently returned when family members in Venezuela learned of his sexual identity
(7, 10). In Argentina, the claimant had been raped and detained by police and feared the
culture of machismo therein.
The Board that the claimant would not be able to live openly as a homosexual in
Argentina and nor would he be able to avail himself of state protection. Although
homosexuality is not illegal per se, documentary evidence shows a long history of gay
bashing. Although there are review boards that prevent police from arbitrarily detaining
LGBT persons, there was no evidence that such boards had been implemented. The
Board was also persuaded by reports of the arrest of young, effeminate, gay men under
Article 78 (Offenses Against Public Modesty).
(c) C.R.H. (Re)  C.R.D.D. No. 178.
The Venezuelan claimant alleged that he had been denied the right to serve in the military
and had been verbally harassed and detained by police. He had a relationship with an
army colonel who allegedly persecuted and attempted to murder him when the
relationship ended. The claimant fled to Caracas without success and then Valencia. In
January 1994, he was arrested in a raid on a gay bar.
The Board doubted the claimant was homosexual based on his lack of knowledge about
homosexuals in Venezuela nor did the Board find his account of the relationship with the
(d) E.N.U. (Re)  C.R.D.D. No. 67.
The Board doubted the claimant’s allegation that he was actually gay. “The remainder of
his testimony regarding his sexual identity and his subsequent homosexual activities was
vague and generalized, e.g., dressing up in his sisters' clothes when he was 10; cruising a
park in San Cristobal; a shortterm secret liaison in Nueva Esparta. He knew little about
the situation of gays in Venezuela, information which the panel would expect him to
know if he was aware of his own sexual orientation since he was a teenager” (13).
(e) C.L.Q. (Re)  C.R.D.D. No. 145.
The claimant was a lesbian from Venezuela who had been detained by police, threatened
with rape and sexually touched.
The Board accepted evidence from authoritative sources showing the subjection of
homosexuals to police harassment and violence and detention of gays under the Loy
Sobre Vagos y Maleantes (Law of Vagrants and Crooks) (16). The Board noted that the
dearth of documentary evidence on lesbians in Venezuela could be attributed to the
overall invisibility of the group (17). There were accounts of a Caracas couple being held
at gunpoint by police, extortion, rape in detention and extreme physical violence against
both gay men and women. The Board also determined that there was no viable Internal
Flight Alternative in Venezuela.
(f) J.J.Y . (Re)  D.S.S.R. No. 50.
The claimant was a homosexual with citizenship in Columbia and Venezuela. The
Board determined: “La preuve présentée révèle que le revendicateur a été l'objet de
persécution de la part des autorités vénézuéliennes à cause de son orientation sexuelle et
de son implication au sein du comité exécutif du groupe social "la Fondation Vie pour la
vie" et dans le cadre du programme Action Sida combinée à sa participation dans ce
contexte, de dénonciations contre la corruption et la fraude perpétrée par des élus
municipaux” (6). The claimant had been interrogated, humiliated, beaten and insulted
twice in the span of three years by metropolitan police for his activist activities (6). The
Board also noted the corruption of municipal officials and the precarious situation of
homosexuals in Venezuela (7, 13). It also noted the application of the Law On
Vagabonds and Criminals to homosexuals.
(g) A. (G.D.) (Re)  C.R.D.D. No. 92.
The claimant was from Caracas and a member in a gay activist group. He had been
arrested and harassed by police several times and also dismissed from his work position
when police revealed his sexual identity to his employer.
The Board accepted that the claimant had wellfounded fear of persecution based on
documents showing political instability, high levels of corruption, serious human rights
abuses by police and failure to punish these abusers as well as victimization of activists.
In addition, the Board accepted that the situation of homosexuals was “very poor” and
that homosexuals were subject to police harassment and intimidation. They were also
detrained under the country’s Vagrants and Criminals Law and, in prison, subject to
(h) N. (O.I.) (Re)  C.R.D.D. No. 112
The claimant, a transgender female from Venezuela, was deemed a Convention refugee.
The claimant had been detained by police, subject to extortion and shot with a pellet gun.
The Board accepted documentary evidence on police abuse (raids, beatings, public
humiliation and arbitrary detention) and general threats to the lives of transgendered
persons from non-state actors.
According to the Board “documentary evidence portrays a society hostile to homosexuals
and even more hostile to transvestites and transsexuals. We note that this documentary
evidence corroborates the claimant's testimony that police do not take complaints of by
transsexuals and homosexuals seriously and do not even attempt to make a genuine effort
to provide protection to homosexuals. Indeed, the agents of persecution are often state
authorities themselves. We find that the claimant has met the onus of rebutting the
presumption of state protection.
i) X . M.U. (Re)  C.R.D.D. No. 146.
The claim, a homosexual Venezuelan, reported a number of brutal experiences and police
abuses (including raids, detention and rape). Reports confirmed the persecution of
LGBT persons in Venezuela and the discriminatory use of the Ley Sobre Vagos y
Maleantes to detain homosexuals. The Board criticized the claimant’s unwillingness to
seek protection (stating that the hostility of some police members to the gay community
did not illustrated that the entire law enforcement division would be opposed to offering
assistance) but realized that a homosexual “might still not be assured of adequate
protection, in a country where ordinary citizens may be generally assured of protection”
(3637). There was, moreover, no realistic flight alternative for the claimant.
I I I: Government Reports
(a) United States
(i) Bureau of Democracy, Hum. Rts., and Lab., U.S. Dep’t of State, Venezuela:
Country Reports on Human Rights Practices—2008 (25 F ebruary 2009), online: <
“There were no reliable statistics on societal violence or discrimination based on sexual
According to the NGO Citizen Action Against AIDS, persons diagnosed with HIV/AIDS
frequently were discriminated against at the workplace and often were refused access to
government health services.”
(b) C anada
(i) Immigration and Refugee Board of C anada, Venezuela: Situation and treatment
of homosexuals; recourse available to those who have been harassed based on their
sexual orientation (2004- F ebruary 2006) (17 M arch 2006) V E N101086. F E online:
LGBT Venezuelans face discrimination and occupy a precarious position due to “social
rejection”, according to LGBT NGO Union Affirmativa de Venezuela (UNAF). This
situation makes them reluctant to report rights abuses and, despite frequent assaults, there
are no statistics. Homosexuals often, an activist cited in Green Left Weekly asserts, do
not report discrimination due to distrust, bureaucratic complications and fear of reprisal.
Discrimination is less common in large cities like Caracas but individuals are at risk in
smaller towns, cities and rural areas. A UNAF representative avers, “homosexual
couples could move about the streets as they wished and that, in his opinion, a
homosexual knowing his or her rights is like having [translation] "an antidote" to
A representative from the Movimiento Gay Revolucionario de Venezuela attributes
discrimination to cultural factors and exonerated the State of culpability. He cited official
representation of the government at LGBT events; two other activists observed growing
numbers attending events and increased private and public support for events (including
police protection). Some LGBT persons support Chavez but claim gays need increased
participation in government and homosexual legal issues need open discussion.
Many gay Venezuelans are rejected by their families and “end up on the street or living in
very precarious conditions.”
Although there are no legal prohibitions on homosexuality or same-sex acts, a gay rights
activist stated LGBT Venezuelans are still assaulted, mistreated and sometimes murdered
and no public policies prohibit discrimination based on sexual orientation. Despite Labor
laws prohibiting discrimination based on sexual orientation, homosexuals are still under
threat of losing jobs, UNAF states. This compels many to hide their sexual identity.
Employers disguise the dismissals as “staff cutbacks.” Green Left Weekly states that the
AG Venezuela established a division to deal with LGBT needs but the IRB could not find
additional information on recourse available to homosexuals encountering harassment.
The IRB noted that Venezuela Lambda Alliance was a legally based gay NGO providing
community services with operations in Caracas and rural areas. The Movimiento Gay
Revolucionario de Venezuela is a leftist LGBT organization. The UNAF has never
received any threats and distributes educational materials. There are several venues
catering to gays in Caracas.
(ii) Immigration and Refugee Board of Canada, “Venezuela; Situation and
treatment of homosexuals; recourse available to those who have been victimized
because of their sexual orientation (2002-2004),” (2 March 2004) VEN42331.E
The Research Directorate cited a gay travel website describing the “thriving” gay
population of Caracas with several venues catering to LGBT persons. Organizations
such as Lambda Alliance of Venezuela, based in Caracas operate several LGBT-oriented
services including a phone hotline; it following up on complaints to authorities.
The 2003 gay pride parade attracted 2,000 attendees and enjoyed police protection and
support from the Office of the Mayor of Caracas. “According to the Executive Director
of the Lambda Alliance of Venezuela, the country's Protestant and Roman Catholic
churches are always strongly critical of the gay pride march, and participants are
sometimes insulted or threatened by public officials present at the [yearly] event.”
The coordinator of the UNAF has indicated positive developments concerning the human
rights of LGBT persons: organizations like the Venezuelan Program of Action-Education
in Human Rights, the Justice and Peace Support Network and the Ombudsman have
become open to these issues and members of the judiciary (prompted by UNAF) have
taken interest in this group. Governmental support, however, remains discreet and
While labor laws prohibit discrimination based on sexual identity, these laws are not
respected in practice, UNAF and the Lambda Alliance aver. These organizations also
complain that abuses go unreported “because [victim employees] are afraid it could lead
to difficulties in finding another job.”
UNAF also reported that cases of police entering hotels frequented by homosexuals,
engaging in illegal searches and detentions, harassment, extortion and beatings. The
group noted a “sustained increase” in Human Rights violations against homosexuals in
Caracas over the years: in 1998, 85 complaints; in 1999, 92; in 2000, 121; in 2001, 152;
in 2002, 200; in 2003, 312. In 2003, 46 cases related to use of verbal aggression by state
security, 29 to verbal aggression by private security, 31 to illegal detention by state
security, 38 to illegal detention by private security, 24 to coerced sexual activity, 51 to
harassment, 2 to assassination, 16 to assault causing bodily harm, 17 to refusal of hospital
treatment, 17 to expulsion from homes by family and 29 to miscellaneous violations.
Of these complaints, only 5% were eventually lodged with authorities; those who did not
report stated they were afraid of reprisal (45%), 22% were afraid of publicizing their
sexuality, 20% were not familiar with the complaints process and 13% feared their
parents would discover their orientation. Of the agencies to which a complaint may be
lodged, the ombudsmen showed greater receptivity than the Attorney General. The
UNAF also indicated a reluctance to report mistreatment by state actors due to a fear of
repercussions “and that the bodies charged with responding to victims' allegations are in
any case incapable of providing them with protection.” The UNAF Coordinator stated
that he himself had been told homosexuals have no rights when he attempted to file a
complaint. Lambda Alliance concurred that the police treat homosexuals poorly when
they attempt to file a complaint.
Homosexuals living outside Caracas are also at risk. Those in Valencia, for example are,
according to a 2002 Amnesty International report, in constant fear of harassment, ill
treatment and arbitrary detention by police and cannot move freely.
I V : Non-Government O rganizations
(a) Acción Ciudadana Contra el SI D A
(i) E dgar C ar rasco, V ictor C astillo, G abrielle G uerón, Informe sobre Homofobia,
Violencia e Impunidad contra la Conunidad Lesbiana, Gay, Transexual y Bisexual en
the República Bolivariana de Venezuela (2008).
Spanish language report being translated by Carlos.
(ii) A cción C iudadana Contra el SI D A , Informe F inal del Estudio Diagnostico
Situacional de las Personas Viviendo con VI H/SI D A en Venezuela (February 2007).
Spanish language report being translated by Carlos.
(iii) A cción C iudadana Contra el SI D A , Informe Final del Proyecto “Discrimination
y E xclusión Social por VI H/SI D A (A pril 2004).
Spanish language report being translated by Carlos.
(vi) E dgar C ar rasco and M arcia O choa, Informe Sobre Impunidad en Violacion de
los Decrechos H umanos Comunidad G L B T (31 M ay 2003).
Spanish language report being translated by Carlos.
(ii) E dgar C ar rasco M ilena L iani, W alver V illegas, Report on Human Rights and
H I V/A I DS: Venezuela online: <http://www.laccaso.org/pdfs/venezuela_andean.pdf>.
The report begins highlighting major advances with respect to human rights in
Venezuela’s Constitution of 1999: 1) a principle of progressiveness of human rights “as
well as the aspects related to non-renouncability, indivisibility and interdependence”(6);
2) treaties and international agreements as sources for human rights that may be favored
over internal regulations (6); 3) the right to access data about oneself (7); 4) Access to
justice and the establishment of “collective and extended rights [that] increase human
rights protection for people sharing the same situation, but unable to attend court” (7);
and (5) State responsibility “to investigate and punish human rights violations and to
indemnify victims when necessary” (7).
These constitutional protections, however, are compromised by “a different reality that
comprises serious problems such as: impunity, corruption of judicial entities, excessive
abuse of power, poverty, lack of personal security, etc.” (8). Civil and political rights,
moreover, have “deteriorated ever since 1999” and many reports from the Human Rights
Commission reflect “the ongoing increase of cases that transgress the right to life, to
personal integrity, to citizen safety, likewise, cases that involve people disappearance,
and freedom of expression restraint” (9). Economic, social and cultural rights have
received uneven protection (9).
Persons living with HIV/AIDS come within the scope of the Constitution’s protection of
human rights by virtue of a principle of equality and nondiscrimination designed to
achieve broad human dignity (11).
Under Article 21 of the Venezuelan Constitution (the right to equality and non
discrimination), the State is obliged to adopt “positive measures favoring groups or
peoples that might be discriminated, neglected or prejudiced” and entitles people with
special needs, including those living with HIV/AIDS, to “use their capacities fully and
autonomously and to integrate themselves into family and community” (11).
Under Article 46 (the right to physical, psychological and moral integrity), preserves
Venezuelans from torture, inhuman or degrading treatment and nonconsensual scientific
and medical testing (12). The authors note that “interpretation problems have arisen
when dealing with medical tests consent since most employers request these tests to be
run before getting a job or for keeping one, without implying that the subject has
consented them” (12).
Articles 43 and 83 establish health as a “basic social right” which the State must
guarantee and thus confirms national jurisprudence on the treatment of people living with
HIV/AIDS (12). The health system must be, according to a constitutional system, free,
universal, integral, equal, socially integrated and cooperative (13).
Article 86 entitles everyone, including the financially disadvantages, to social security
Articles 102 and 103 guarantee principles of equality and non-discrimination in relations
to education and, by implication, precludes lack of access to HIV-infected Venezuelans
(13). The right to work, under Article 86, is constitutionally protected and the following
principles are preserved: “intangibility and progressiveness of rights and benefits; non-
renounceability to them; application of the best regulations favoring workers, invalidity
of any employer’s act which is opposite to constitutional dispositions; non-discrimination
and protection from economical and social abuse, especially of teenagers” (14). The
authors, with this in mind, state that a “request for an HIV test as a requirement for
getting a job would be considered an action out of the constitutional framework since it
violates the principle and right to equality and non-discrimination thus any action
involved would be considered ineffective” (14).
The report also made note of regulations by the Ministry of Health and Social
Development requiring pregnant women to take HIV tests, providing ARV treatment to
positive pregnant women before, during and after birth, consolidating HIV/AIDS
programs into one program, the rendering of testing services regardless of any distinction,
consensual HIV testing, the notification of HIV/AIDS cases by health institutions “in
order to apply the corresponding medical treatment” (14-16).
The report also noted that, on November 29 2002, “the Juridical Consulting of the
Ministry of Labor issued Decision No. 71 that, for the first time in Venezuela, officially
states recommendations for dealing with HIV/AIDS in the workplace” (17).
The report summarized the HIV/AIDS National Program of Venezuela and its aims to
prevent HIV transmission through informational programs, to increase the scope of
integral assistant (including free medical treatment), improved epidemiological
information, preventing mother to child transmission and designing “effective
instruments for reporting human rights violation of the people living with AIDS and of
other vulnerable populations” (20).
The budget for this Program in 2002 was 50 thousand million bolivars of which 20
thousand million ($26, 160, 889.47) were intended for the purchase of ARVs (21).
Increased spending on ARVs reflects an increased demand over the years 2000, 2001,
2002 (21). SUMED SEFAR, through AIDS Regional Coordination officers,
implemented processes for the distribution of medicines (22). In response to space
limitations for patients and drug distribution and insufficient staff at an HIV/AIDS
treatment hospital in Caracas, the IVSS Centro de Immunología Clínica opened October
2000 (26). This clinic experienced some “administrative chaos” in 2002 with the effect
of “causing certain instability” (26).
In June 2002, a shortage in ARVs presented itself in Caracas which “serious affect[ed]”
the quality of life by creating an opportunity for resistance to drugs and absence from
work (28). The delay was dues to a problem with purchase orders (28). This situation,
and another involving viral load testing, “show that IVSS is not complying with its
obligations” stated in a regulation obliging the provision of HIV permanent HIV
treatment as well as the administration of relevant testing for infected individuals (29).
Budgetary, staffing and space limitations have also impeded the provisions of “integral
health service[s]” (30).
The report also stated that the Citizen Branch of The Office of the Public Defender issued
a memo, on October 27, 2000, urging the Venezuelan state to curb discrimination and
rights violations of HIV+ citizens (32-34). This Office has assisted in achieving a
judicial decision prohibiting educational institutions from requiring HIV tests and
“cooperating in providing solutions for homeless [persons] living with HIV in Caracas”
However, despite these “great efforts carried out in relation to human rights, desired
advances related to HIV/AIDS have not been achieved yet, specially in relation to case
solution, since most of the cases have not received proper treatment” (34). Some officers
are disinterested in finding solutions for human rights violations of infected persons and
flawed investigations occur (34). Many suits accepted the offender’s plea for innocence
leading the Public Defender to state that no rights violation had occurred.
The Ministry of Education, Culture and Sports has developed programs related to
HIV/AIDS including amendments to educational curricula (35).
More than 50% of a Human Rights Program carried out by ACCSI (a Venezuelan
HIV/AIDS NGO) involved work disputes ranging from firing, testing required to obtain
or keep positions, unjustified incapability, profit share payment, accidents at work and
access to social security (40). In 2000, a Ministry of Law Juridical Counseling issued
Decision No. 71 which deemed discrimination based on HIV/AIDS a prohibited
discriminatory activity and called requests for HIV testing “for getting or keeping a job”
discriminatory and unconstitutional (41-42).
According to the report, there are three shelters in the Metropolitan area of Caracas which
“face serious difficulties due to the lack of granting of financial resources and the absence
of good living conditions for the people living with HIV therein inhabiting” (45).
Moreover, “it has been difficult for HIV+ cases to get admitted in these centers” (45).
When ACCSI has had to negotiate for the admission of infected individuals, admission
“has been granted upon conditions and agreements that place responsibilities on the NGO
for the admitted people behavior and actions” (45). There are “no clear policies at [the]
municipal level” regarding how “indigent HIV cases are managed” (45). Centres
managed by nuns, moreover, have a negative HIV test requirement which authorities
have not attempted to alter (45).
The report also noted “a wide range of foundations and associations intended to work
towards AIDS” existing in Caracas and other regions (48). These NGOs provide
“emotional support, medical and laboratory assistance, juridical and human rights
counseling, general advice, information centers, prevention programs, support group and
medicine supply” (48). They have also filled in gaps in state support for infected persons
and NGOs have received approval from the Ministry of Health and Social Development
to carry out several projects (48)
A document prepared by the Fundación Mexicana para la Salud and SIDALAC found
that found that Venezuela had the “lowest percentage within national response shares for
preventing and assisting HIV/AIDS (49).
According to the authors, employment is one of the most frequent spheres in which HIV+
persons encounter rights abuses (59). Private and public corporations conduct non
consensual testing on both prospective and current employees with the result of non
hiring or dismissal (59).
The report noted several human rights violations between the years 2000 and 2002. A
worker, for example, at the Pandería Crocante was dismissed after the submission of an
HIV test (51). An employee, after Instituto Venezolano de los Seguros Sociales (IVSS)
disclosed his HIV status to his employer Unibanca, was dismissed (51). At FOSPUCA,
a chief threatened to fire and humiliated an HIV+ employee (51). An HIV+ teacher was
compelled to quit due to treatment by school’s administration and his colleagues (51).
The Hotel Meliá Caracas, moreover requires HIV tests to obtain and retain positions; a
party have been dismissed based on his stated (51). An HIV+ employee at PepsiCola
has also been dismissed (51). HIV+ employees have also been dismissed, refused
positions, experienced nonconsensual testing, experienced suspensions to their salary,
beatings, noncoverage by their employer’s insurance policy at the Nuevo País
Newspaper, Ultra Optica, The Metropolitan Ministry of Education, the TCG Consulting
Group, the Banco Federal, Condominio Santiago de Leónin Caracas, Nino Carbonne, the
Unión de Conductores La Responsable and PDVSA (5256). An officer with the
Liberator Major was required was obliged to take an HIV test by her supervisor because
coworkers claimed she was positive (5354). A soccer player with the Deportivo Italacao
was tested, without consent, for HIV and dismissed (54). At the Ministry of Defence, test
results of a sergeant were circulated amongst his troop (55).
An educational institute, the FAN School of Communications and Electronics, Instituto
Universitario Militar, had HIV testing as a requirement to preregistration (54). The
Universidad Pedagógica Experimental Liberator (UPEL), Liceo Aplicación (Caracas),
Instituto de la Policía Metrolpolitana and the Institutor Cecilio Acosta (Los Teques) also
imposed HIV/AIDS testing as an admission requirement (60).
There were also reports of abuses within the health care system. A homeless person
living with AIDS was denied entry to the Hospital Algodonal and the emergency services
of Hospital Vargas (53). At the MHSD Regional Hospital in Valle La Pascua, Edo.
Guárico, doctors were accused of discriminatory and poor medical practices; there,
patient privacy was compromised through the spread of flyers in the streets (54). The
Instituto de los Seguros Social (IVSS) was responsible for irregularities in ARV
treatment supplies (54). At the Hospital Clinico Univeritario de Caracas, hand surgery
was delayed to an HIV+ patient who required immediate assistance (55). Staff at the
Hospital Gurí Ormesa/Edelca spread an HIV+ person’s diagnosis around the community,
destroying his business (56).
The Acción Ciudadana Contra el SIDA (ACCSI) was successful in a court case against
IVSS requesting regular ARV treatment and use of new technologies for HIV treatment
(5657). In 1998, IVSS issued “an administrative order that acknowledged the right to
access to treatment for HIV+ persons” (57). It was also successful in a court case, in
December 2002, involving an HIV+ soccer player who had been dismissed on the
grounds of his HIV status (58).
The report also stated that police frequently violate the rights to freedom and personal
security of HIV+ persons (58). Especially affected were homosexuals and transsexuals
who are “insulted and . . . physically and verbally attacked by police agents and mall
security guards” (58). Police, the report states elsewhere, “have been involved in
criminal actions and inhuman and degrading treatment towards” homosexuals and
bisexuals (67). Hospitals and health centers were also agents of discrimination who
provided non-continuous ARV treatment, rejected HIV patients and subjected patients to
According to the report, the Office of the Public Defender has not, due to its complex
bureaucracy, been efficient in the enforcement of its objective to protect the rights of
HIV+ people (73).
(b) World Policy
(i) A ndrew Reding, Sexual Orientation and H uman Rights in the Americas
(December 2003) online: <
http://www.worldpolicy.org/projects/globalrights/sexorient/2003-L G B T-
According to Reding, “Brazil, Argentina, Mexico, and Venezuela all show strong
regional contrasts in treatment of sexual minorities. LGBT individuals remain very much
at risk in smaller towns and cities and rural areas” (2). In Latin America, macho and
sexually dominant men are less likely to be considered homosexual and “suffer little if
any social stigma” (3). By contrast, effeminate men “are subject to constant taunting,
verbal and physical abuse and discrimination” (3).
Reding also observed a “close correlation” in Latin America between’ patterns of
discrimination against sexual minorities and patterns of neglect of HIV/AIDS” (3). He
In some countries in Latin America and the Caribbean, it is not uncommon, and
sometimes not illegal, for businesses to screen prospective employees for HIV. In
those countries where free access to advanced antiretroviral therapy is contingent
on employment-based national health insurance coverage, being denied such
employment can be tantamount to a death sentence for anyone who cannot
otherwise afford treatment. (3)
Although the coordinator of LGBT unit of Venezuela’s Amnesty International chapter
described the social attitude of “general tolerance” with “incomprehension and ignorance
prevail[ing]” and the violence is not widespread, gays fear losing their jobs and abuses
are not vigorous investigated (42). Employers often fire gay employees, citing other
reasons (42). Transsexuals and transvestites have been illegally detained by police and
subject to illegal searches (42-43). Transvestites have been subject to extreme violence,
sometimes resulting in murder (43-44).
(c) H uman Rights Watch
(i) H uman Rights W atch, Together, Apart: Organization around Sexual Orientation
and Gender Identity Worldwide (New Yor k : H uman Rights W atch, 2009).
The report noted that Venezuela has “national protections against sexual-orientation-
based discrimination—though none for gender identity” (34). However, the report notes
that “progress has had an uneven reach. Brazil, a transgender activist pointed out, “has
the largest Pride parade in the world, but also some of the highest levels of hate crimes
against LGBT people.” Laws used to arrest transgender people in public places—along
with sex workers, gay men, and lesbians—are still on the books across [South America]”
The report also found that transgender people encountered, in the health care system
“discrimination, abuse, lack of access to services, and comprehensive refusal to
acknowledge their identities” (35). One Venezuelan activist stated, “Nine out of ten trans
people do not consult doctors even in case of serious illness, because of the mistreatment
they know they will face in health services” (35).
Discussion of sexuality was lamentably minimal in Venezuelan schools and, when it is
addressed, heterosexual models are put forth (36). Religion, and a politicized version of
the family it put forth, was cited as a persuasive force in Latin America (36).
Finally, Venezuelan activists lamented the fact that the gay rights movement in
Venezuela lagged behind movements in neighboring Latin American countries; these
neighbours were not providing sufficient assistance to less fortunate countries (37).
(ii) H uman Rights W atch, A Decade Under Chávez: Political Intolerance and Lost
Opportunities for Advancing H uman Rights in Venezuela (New Yor k : H uman Rights
W atch, 2008).
“This book examines the current state of Venezuelan democracy from a human rights
perspective. It does not address all the pressing human rights issues [facing the country
today, many of which pre-date the Chávez presidency. Rather, it focuses on the impact
that the Chávez government’s policies have had on institutions that play key roles in
ensuring that human rights are respected: the courts, the media, organized labor, and civil
No direct discussion of HIV/AIDS and sexual orientation human rights issues.
(d) International Gay and Lesbian H uman Rights Commission
(i) International Gay and Lesbian Human Rights Commission, “Venezuela: Protest
the Murder of a Transwoman in Caracas,” (10 June 2009) online:
In May 2009, a transwoman was shot by an unknown individual in Caracas and died of
injuries. According to the article, “[t]his is the fourth murder to affect the Caracas
transgender community in the last six months.”
(ii) International Gay and Lesbian Human Rights Commission, “Venezuela: Trans
A ctivist H ad to L eave the Country Due to Police H arassment and Is Asking for
Protection,” (22 May 2006) online: <http://www.iglhrc.org/cgi-
An activist for transsexual rights witnessed the murder of her friend in Valencia and
underwent severe harassment by police (including a shooting which temporarily
paralyzed her). She had been followed to Barquisimeto and Caracas.
(iii) International Gay and Lesbian Human Rights Commission, “Venezuela:
Transgender Activist In Hiding After Threat From Police,” (2 December 2002)
A transgender activist leading called for justice after the murders of transsexuals,
allegedly by police in Carabobo, is facing threat of arrest and violent police retaliation.
(iv) International Gay and Lesbian Human Rights Commission, “Venezuela: New
Violence Against Transgender People,” (22 January 2002) online:
On January 11, 2002, a transgender woman was shot dead in Valencia and police
involvement is considered highly possible. Police were accused on involvement in the
murder of a transgender woman in July 2000. A uniformed officer shot at another trans
woman on January 13. On January 16, two transgender activists were placed in
incommunicado detention without information on the charges laid against them.
(v) International Gay and Lesbian Human Rights Commission, “Venezuela:
Harassment of Transvestites,” (4 April 2001) online: < http://www.iglhrc.org/cgi-
Commander of Police in Carabobo has stated that “homosexuals and prostitutes are to be
ruled by a police code. The cannot move freely in the streets.” [emphasis mine]. Trans
activists claim that the Commander “has also begun taking direct revenge on activists
who have publicized police abuse to the international community.”
(e) International L abor O rganization
(i) International L abour O rganization/Joint United Nations Programme on
H I V/A I DS, People at Work: Addressing Stigma and Discrimination (2006).
“Venezuela: A professional football player was fired because he tested HIVpositive. The
test was done by his employer without his consent and the positive test results were
communicated to other players and others involved in the sport. On 6 February 2003, the
tribunal ordered his reinstatement with full employment entitlements and benefits.
Establishing an important precedent, the tribunal ruled void the “agreement” he had
signed, under employer pressure, waiving his rights . . .” (7).
(f) Pan American H ealth Organization
(i) Pan America Health Organization, “Toward Universal Access to Prevention,
Care, and Treatment,” (2006).
According to this report, over 90% of Venezuela’s health districts were providing ARV
treatment (21). The report also stated that “Venezuela’s surveillance of HIV care and
treatment was improved with 3 by 5 funding as well. In 2005, the country’s National
AIDS Program implemented a new information system to monitor care and improve
patient follow-up. Using data from the system, a centralized team will be able to track
cases, monitor therapies, and assist physicians with treatment” (35).
(ii) Pan-America Health Organization, “Understanding and responding to
H I V/A I DS-related stigma and discrimination in the health sector,” (Pan A merican
H ealth O rganization, 2003).
“A 1996 study of322 health workers revealed higher consistent negative attitudes among
dentists (36% rejection; 45% discrimination) and nurses (26% rejection; 46%
discrimination) than among doctors (27% rejection; 42% discrimination) and students
(23% rejection; 42% discrimination). This was “[p]robably due to the higher risk of
contagion present in the clinical activities of these professionals”. (Prieto Belisario 1996)
Segurado et al 2003)
In 2002, the government launched a national campaign intended to promote diversity and
to reduce discrimination against homosexual men” (34).
(g) Latin American and Caribbean Council of AI DS Service Organizations
(i) L atin A merican and C aribbean Council of A I DS Service O rganizations, “Report
on access to comprehensive care, anti-retroviral treatment and human rights of
people living with HIV/AIDS in Latin American and the Caribbean,” (October
Despite recognition by the Venezuelan Supreme Court of the right of IVSS (Institute of
Social Security) members to regular and continuous delivery of ARVs in 1997 and, in
1999, access to ARVs as a basic human right (5), the country has “recently faced serious
interruptions in ARV treatment supply [and] NGO organizations and persons living with
HIV have filed claims and judicial resources aimed at improving and regulating supply
and services” (11).
Inefficient “bureaucracy and public programs” have caused shortages in medication, lack
of inventory control, expiry of medications, lack of planning and organization for the
delivery of medicine, lack of capable personnel, lack of counseling for HIV+ persons,
lack of pharmacy monitoring and other deficiencies and irregularities (26-27).
According to the report, a “[l]ack of programmed purchase by the sectors involved has
made interruption in ARV access treatment a constant problem to be faced by people
living with HIV/AIDS. Sometimes, “cocktails” are partially delivered and in some cases,
people living with HIV/AIDS must request donations from NGOs or get financial aid for
acquiring or completing indicated therapies. Likewise, ARV treatment access budget
depends on the results of public bond sales outside the country (26-27)
(h) U N A I DS
(i) U N A I DS, H I V – Related Stigma, Discrimination and H uman Rights Violations:
Case Studies of Successful Programmes (Geneva: U N A I DS, 2005).
“[I] in July 1999, the Supreme Court ordered the Ministry of Health to provide, free of
charge, antiretroviral medications, treatments for opportunistic infections and diagnostic
testing to all Venezuelan citizens and foreigners resident in Venezuela who are living
with HIV. This was the ﬁrst time the Court had ruled in the collective interest. The
Supreme Court said that the right to health and the right to life were closely linked in this
case to the right to access the beneﬁts from science and technology. It cited recent
developments in antiretroviral therapy as examples of the achievements of science and
technology; and it said that these developments allow people living with HIV to prolong
their lives and to improve their quality of life. To guarantee the implementation of court
rulings, ACCSI established committees of people living with HIV who volunteered to
observe and facilitate the process between Ministries, people living with HIV, and the
pharmaceutical industry, and to help ensure adequate supplies. Despite challenges
relating to insufficient budgets and supply failures, the programme is assisting
approximately 15 000 people living with HIV” (58-59).
V : A cademic Scholarship
1. HIV and refugee claims (Non-Venezuelan)
(a) “Federal Court orders judicial review of decision on Mexican refugee application”,
(2009) 14:1 H I V/A I DS Policy & Law Review.
This article reports on Diaz v. Canada , a Federal Court order for judicial review of a
negative refugee claim. This claimant was a homosexual HIV+ Mexican. The court held
the Board did not adequately address question of whether stigma directed at HIV+
Mexicans “affected the delivery of treatment and medication by medical staff in Mexico”
and whether “systemic barriers” linked to HIV testing and employment “amounted to
persecution.” The Board also overlooked links between the claimant’s socio-economic
status and HIV status and the claimant’s family would not care for him even though, in
Mexico, families are usually the primary caregivers for infected persons.
(b) “HIV-positive man from DRC deemed a ‘person in need of protection,’” (2008)
13:2 H I V/A I DS Policy & Law Review.
The IRB accepted that the manner in which the Congolese government treated the HIV
epidemic posed a risk to the life of an HIV+ refugee claimant. The Board accepted that a
government which is unwilling to pay for ARV treatment despite resources and military
expenditures and whose health care system stigmatizes infected individuals and which
tolerates rape and military and police leading to HIV transmission “willfully neglects
people with HIV and is willfully indifferent to the spread of HIV infection.”
(c) “Federal Court of A ppeal examines for first time refugee protection on the basis
of inadequate health care,” (2007) 12:1 H I V/A I DS Policy & Law Review .
The decision in Covarrubias v Canada (2006) “provides an opening for a failed HIV-
positive claimant to legally remains in Canada where the country to which she is to be
deported has in bad faith failed to provide adequate health or medical care to people
living with HIV/AIDS.”
(d) “Federal Court overturns negative Pre-Removal Risk Assessment of H I V-
positive failed refugee claimant,” (2005) 10:2 H I V/A I DS Policy & Law Review .
The Federal Court founds that a PRRA Officers erred in disregarding new evidence from
a friend of the claimant describing his own “humiliation and suffers as he attempted for
five years to obtain adequate HIV treatment in Mexico.”
(e) “Court orders Immigration and Refugee Board to take into account evidence of
H I V-related discrimination,” (2004) 9:3 H I V/A I DS Policy & Law Review .
This article recounts a Federal Court’s grant of an application for judicial review of a
negative decision by the IRB with respect to an HIV+ Nigerian woman’s claim. The
Court held that the IRB “ignored salient documentary evidence” concerning
discrimination that the claimant would face from family and community, in employment
“and other systemic discrimination.” It also “found that the IRB contradicted itself by
citing evidence of widespread discrimination against HIVpositive Nigerians, but then
ruling out the possibility of systemic discrimination.”
(f) “Federal Court orders redetermination of HIVpositive Zimbabwean’s refugee
claim,” (2006) 11:2/3 HIV/AIDS Policy & Law Review.
The Federal Court determined that the s. 97(1)(b) “analysis involved two steps. First, the
IRB should decide whether there is a risk to life. Second, if there is such a risk, the IRB
must determine if the health care exclusion is applicable. The Court found that the IRB
made an error when it ‘expressly declined to qualitatively assess the treatment programs
that would be available’ to the applicant, instead finding that ‘some level of health care
would not be denied’ him. In doing so, the IRB ‘wrongly conflated the two parts of the
test.’” Moreover, “The Court rejected the distinction between "unable" and "unwilling."
The Court found that the health care exclusion would exclude from refugee protection
persons who could not access health care because they do not have the resources to pay
2. LGBT in Venezuela
Elisabeth Jay Friedman, “Gender, Sexuality and the Latin American Left: Testing
the Transformation,” (2009) 30:2 Third World Quarterly 415.
According to this study of Brazil, Bolivia, Chile and Venezuela, “the transformation of
gender and sexual power relations is impeded by entrenched opposition, institutional
roadblocks and inconsistent commitment on the part of leftwing executives” (415).
Friedman noted that in “Venezuela’s ﬁrst constitutional reform in 1999, the Catholic
Church blocked the addition of a clause stipulating non-discrimination on the basis of
sexual orientation (along with abortion). Eight years later the clause was included in the
unsuccessful 2007 constitutional reform” (428). Friedman noted that “today’s leftwing
governments show a mixed commitment to women’s and LGBT rights” (430).
Friedman concluded on Venezuela:
The Bolivian and Venezuelan experiences conﬁrm the ﬁnding that constitutional
reform processes can offer an opportunity for activists to promote women’s and
LGBT rights. However, such mobilisation does not always lead to state action,
particularly when church-led opposition is strong; in any case, the current reforms
have either failed or face signiﬁcant opposition. (430)
Tod W. Burke et al., “A CrossNational Comparison of Gay and Lesbian Domestic
Violence,” (2002) 18:3 Journal of Contemporary Criminal Justice 231.
According to the study, the negative light that is cast on homosexuality has led
Venezuelan police to “ignore gay and lesbian victims” (237). Scholars, the media and the
legal system have also “ignored the plight of gays and lesbian” (237). The research
revealed that “Venezuelans overwhelmingly expressed a distrust of law enforcement”
(249). A number of Venezuelan respondents thought that their local police department
was biased against homosexuality (251). 61.11% of the Venezuelan participants in the
study stated a distrust of the courts (251).
The authors thus concluded “agencies of justice are accorded much less legitimacy in
Venezuela than in the United States” (251). In Venezuela, “law enforcement has little
legitimacy” for gays and lesbians (253).
VI: Media Reports
“Protesta de pacientes VIH positivo culminó en trifulca,” El Universal (16 July
2009) online: < http://www.eluniversal.com/2009/07/16/pol_art_protestade
[Spanish Language report]
A peaceful protest in Carabobo state in front of the headquarters of the health ministry
resulted in a violent clash between demonstrator and security personnel. The protestors
were complaining about inadequacies of treatment (late delivery of ARVs and lack of
Claudio Lomnitz and Rafael Sánchez, “United by Hate: The Uses of antiSemitism
in Chávez’s Venezuela,” Boston Review (July 2009) online:
Although this article primarily addresses the flagrant antiSemitism in current Venezuela,
it makes some pertinent remarks on homophobia in the country:
Chávez thus refers to his opponents as “escuálidos” (squalids), a Spanish term that
connotes not only dirtiness and abjection, but also flimsiness, wimpiness, and
scrawniness. Not surprisingly, figures conventionally associated with degradation
are important in the imagery. Homophobia is a key element in that repertoire;
although unlike Cuba (Castro is Chávez’s admired “father”), which bans
homosexuality and persecutes homosexuals, Chavismo relies on homophobia as
invective rather than state policy.
Will Grant, “Venezuela ‘silent’ on hate crimes,” B B C News (2 June 2009) online:
In the course of a weekend four transsexual prostitutes are murdered in Caracas in
conditions that suggest robbery was not the motive. Over 20 transsexuals have been
murdered since 2009 began. Police are not interested in investigating murders of
transsexuals. According to Prof. Tamara Adrian, a law professor in Venezuela, “"Hate
crimes become absorbed into the more generic violence in this country and often are not
identified as anti-gay hate crimes as such." Transsexuals are regularly humiliated and
insulted in the streets; groups film themselves abusing transsexuals and post the videos
According to Prof. Adrian, “The important thing to understand about the LGBT
community in Venezuela is that they are given no legal protection whatsoever . . . There
are huge prejudices still in place among the legal actors themselves - inside the state
prosecutor's office, the police, the judiciary and the national assembly.”
“La homofobia lleva unifome policial” E ntornointeligente.com (22 M arch 2009)
<http://www.asylumlaw.org/docs/sexualminorities/V enezuela T ransg.032209.pdf>.
A Metropolitan Police officer harasses and intimidates a transsexual and a gay man.
According to a recent report, “Homofobia, violencia e impunidad contra la comunidad
lésbica, gay, bisexual y transgénero (LGBT) en Venezuela,” 50% of the study’s
participants had negative experiences with state law enforcement officials
Lyndon Barnett, “Venezuela Lagging On Reform,” Sydney Star Observer (18
February 2009) online:
“Caracas-raised Cesar, 41, believes Hugo Chávez’s pro-gay statements and actions are
nothing more than political stunts to garner support from Venezuela’s gay and lesbian
“A year after his election victory, Chávez redrafted the Venezuelan constitution,
increasing the presidential term from five to six years. Three years later he expressed
regret on his weekly television program, Aló Presidente, that an anti-discrimination
clause on the basis of sexuality was omitted from the new constitution.”
“Culturally Venezuelan society has yet to embrace homosexuality completely. However,
Caracas does have a gay infrastructure with gay bars and a keen activist movement.
[The interviewee stated,]‘Nobody ever acknowledges being gay in Venezuela. Nobody
would admit to it.’”
“Exigen prueba para ingresar o mantener un tabajo,” E ntornointeligente.com (1
December 2008) online: <
http://www.asylumlaw.org/docs/sexualminorities/V enezuela H I V120108.pdf>.
There are several cases in Venezuela (including in Caracas) of non-consensual HIV
testing being performed by employers as a condition of obtaining or maintaining
Bertrand Rosenthal, “Slow Progress Against HIV stigma in Latin America,” A E G IS
(30 July 2008) online: < >.
“Most countries in Latin America -- where some 1.7 million are HIV-positive according
to the latest UNAIDS figures -- have anti-discrimination laws, but they rarely sanction
those who fail to respect them.
From Chile to Mexico, accounts of HIV discrimination abound.”
“In Venezuela and El Salvador, NGOs have reported cases of companies carrying out
AIDS tests without the individual's consent, leading to lay offs for those tested positive.”
Rex Wockner, “Venezuela moves to protect gays,” International News (22 O ctober
A constitutional amendment to ban discrimination based on sexual orientation has passed
a Venezuelan legislative committee and moved to the full National Assembly.
Should the measure and other proposed changes pass the assembly, they would advance
to a national referendum in December.
Federico Fuentes & Kiraz Janicke, “Struggling for Gay and Lesbian Rights in
Venezuela,” Green Left Weekly (December 2005) online:
Interference of Catholic Church in Constituent Assembly, LGBT activists allege, have
previously blocked LGBT rights resolutions. One activist attributed discrimination to the
cultural factors rather than the state.
Rex Wockner, “GLBTs march in Venezuela” International News (11 July 2005)
<http://www.asylumlaw.org/docs/sexualminorities/V enezuela %20Rex %20071105.p
More than 3,000 GLBTs marched in the largestever pride parade in Caracas, Venezuela,
July 3 from Plaza Brión to Plaza de los Museos. They demanded legal recognition of
samesex relationships and an end to police abuse.
"We're in the streets to obtain equality and the respect of society," Jesús Medina,
president of Lambda Alliance, told the newspaper Últimas Noticias. "This is a cause
similar to ones in the past to end racial discrimination and for women's rights to work and
“The Mayor’s Office in Caracas opens an office to service the LGBT community,”
www.paginasboletinas.com (20 June 2005) online:
<http://www.asylumlaw.org/docs/sexualminorities/C aracasM ayor L G B Toffice.pdf>.
“Division para el Desarollo de las Personas Gays Lesbians, Bisexuales, Transexuales y
Transgeneros”, operating under the Mayor office in Caracas, works to support NGOs
addressing LGBT issues.
Humberto Marquez, “Venezuela: NGOs Successfully Press for Replacement of
Dubious AIDS Drugs,” Inter Press Service (19 July 2004) online:
The Venezuelan government agreed to supply alternative ARVs after versions of the
drugs were removed from WHO prequalification list. Of the 4,970 Venezuelans who
received the de-listed drugs, several suffered from skin rashes, stomach acidity, gastritis
Terry Kirby, “Societies Polarized by rising profile of homosexuals,” The
Independent (5 July 2004) online: < http://www.independent.co.uk/news/uk/this-
“The book, Sex, Love and Homophobia , by Vanessa Baird and published by Amnesty
International, is an overview of the history of gays and lesbians and their current status
around the world.”
“The targeting and killing of transgender people, says the book, has become an
"epidemic" on the streets of some South American countries - Argentina, Brazil and
Venezuela - despite the progressive attitude towards gay rights of some local authorities
in the first two countries.”
Diana Cariboni, “Access to Anti-AIDS Drugs Varies Widely in Latin America,”
A E G IS (1 December 2003) online:
In Venezuela, just over 10,000 people receive treatment with ARVs in the public health
system, less than 20 percent of the 70,000 people living with the disease, according to
NGOs. In 2001, the Supreme Court ordered that the cocktail therapy be provided to all
patients free of charge.” “
“About 200 HIV-Positive V enezuelans Protest at Social Security O ffices O ver
Access to HIV/AIDS Medicines,” The Body: The Complete H I V/A I DS Resource (8
A ugust 2003) online: <http://www.thebody.com/content/world/art11915.html>.
200 individuals in Caracas protested and the Social Security Institution (IVSS) to use
donations to import and domestically produce ARVs. Due to a shortage, 3,500 HIV+
Venezuelans were forced to register with groups which donate medicines. One
organization leader stated having to turn away patients due to insufficient supplies. The
Venezuelan Supreme Court had obligated IVSS to cover costs in 2002.