Queen for a day

October 2010.

A brief round-up/update on what´s been going on.

1. The Inter-American Court of Human Rights issued its judgments in the decisions of Valentina Rosendo Cantu and Ines Fernandez Ortega. Two indigenous women who were raped by State agents in Guerrero, Mexico. The Court followed international jurisprudence and found the Mexican state responsible for rape as torture. In the Cantu case, the Court noted the special vulnerability of the girl child and minorities (she was 17 when the facts occured) and in Fernandez case, the Court highlighted the aggravating factor of having been watched while being raped. The decisions are well worth reading and form part of the growing jurisprudence of the Inter American Court on gender based violence (think Penal Castro and Campo Algodonero) and on reparations. The Court in the Fernandez case ordered the government to provide her children with scholarships for education. This holistic approach to reparations is something that the Strasbourg court could learn from.

The decision also forms part of a wider trend globally in issuing positive decisions on women´s rights. The CEDAW committee finally published its new decision/recommendation on the definition of rape in the Philippines case. Argentina has condemned a former military official for rape as torture and the ECHR has been busy classifying gender violence as gender discrimination. Perhaps, CEDAW is finally coming into its own and influencing judicial decisions?

2. The European Court of Human Rights recently answered the question of whether equal rights for mothers and fathers should exist in the military? In Konstatin Markin v. Russia the Court refuses to accept the Russian government´s assertion that the difference between men and women means that it can differentiate and discriminate against father´s based on sex. Instead the Court draws a difference between maternity leave, that is, leave necessary for the mother´s recuperation and parental leave, which is to care for the baby more generally. The Court found a violation of Article 14 in conjunction with Article 8. Full summary here: http://echrblog.blogspot.com/

3. Sometimes I ask myself why I continue to read articles on ´dont ask, dont tell´. I mean, gay men, lesbians and trans persons suffer horrific violence and discrimination in many parts of the world which fail to gain nearly a 10th of the media attention that the US discriminatory military policy has garnered. However, I did read an interesting article in Slate (here http://www.slate.com/id/2270940/) on how ´gayness´is proven in the proceedings. This is interesting from a refugee point of view. How does one exactly prove one´s sexual orientation? The answer of course in the US is pictures, photos, witnesses, emails etc. Most of these means are not those easily accessible for asylum seekers who have had to live their lives in fear. Of course the best form of evidence is if the soldier ´comes out´. Why is it that it is totally believable if a soldier comes out but not if an asylum seeker asserts that he or she has a well founded fear of persecution based on a particular social group because he or she is gay?

Another interesting thing I took from the Slate article was the defence of ´queen for a day´. The reason why don´t ask, don´t tell remains an interesting battle is that it is not just about the military. Its about being able to be who you are, out and proud in any situation. No one should be asked to be discreet about their sexual orientation. The Courts have recognised that for the purposes of refugee law (HT and HJ v Sec of State for the Home Dept). If don´t ask, don´t tell can learn that from refugee law, perhaps refugee law should learn to give more credibility to those who risk coming out.

4. A final interesting development this week has been the decision of the COlombian Constitutional COurt in asserting that women´s human rights includes sexual pleasure. More information here http://www.caracol.com.co/nota.aspx?id=1371477.