Cuba: Treatment of sexual minorities, particularly lesbians, including state protection; social and judicial attitudes in cases of child custody (2012-October 2013)

1. Situation

The US Department of State's Country Reports on Human Rights Practices for 2012 states that there were no official reports of discrimination based on sexual orientation in employment, housing, access to education and health care (US 19 Apr. 2013, 25). However, sources report that societal discrimination based on sexual orientation continues to occur (ibid.; Washington Blade 17 Sept. 2012; Global Post 29 June 2012). In her op-ed, Sarah Stephens, a human rights advocate and the executive director of the Center for Democracy in the Americas, states that the "traditional macho Cuban culture remains a barrier to LGBT equality" (Stephens 13 Mar. 2013). A representative of the Red de Lesbianas Ateneas, a Ciego de Avila-based network of lesbians, was quoted by Inter Press Service (IPS) as saying that "[d]omestic violence and limited access to housing or jobs due to homophobia are among the limitations that lesbians suffer the most" (20 May 2013).

According to the research project Transrespect Versus Transphobia Worldwide (TvT) conducted by Transgender Europe (TGEU), an international organization that promotes the rights of transgender people in Europe (TGEU n.d.), one transgender person was killed in Cuba in 2012 while in police custody (TvT 2013, 1). According to CubaNet, a [translation] Florida-based non-profit media organization (CubaNet n.d.), the individual was detained and beaten by police officers for [translation] "no apparent reason"; she was taken to a police station where she was beaten again and died from her injuries (ibid. 16 Jan 2012). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

2. Legislation

The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) State Sponsored Homophobia 2012 report indicates that same-sex activity is "legal" in Cuba (May 2013, 21). Two sources also report that homosexual acts were decriminalized in 1979 (Global Post 29 June 2012; COHA 24 Oct. 2012).

The 1992 Constitution of Cuba indicates that "[d]iscrimination because of race, skin color, sex, national origin, religious beliefs and any other form of discrimination harmful to human dignity is forbidden and will be punished by law" (Cuba 1992, Ch. 6, Art. 42). State Sponsored Homophobia 2012 notes that prohibition of discrimination based on sexual orientation is absent from the constitution (ILGA May 2013, 87).

Similarly, Stephens notes that "there are no formal legal protections for LGBT Cubans" (13 Mar. 2013). A representative of Red de Lesbianas Ateneas quoted by the Inter Press Service (IPS) also states that "[t]here is no law on the rights of homosexuals" (IPS 20 May 2013). The TvT representative indicated that there is no "anti-discrimination" or "hate crime legislation" protecting LGBT people (TvT 9 Oct. 2013).

Sources report that in 2008, the government passed a law that provides free gender reassignment surgery for transgender people (Freedom House 2013; Stephens 13 Mar. 2013; IPS 20 May 2013). Sources indicate that transgender Cubans who change their gender are granted new legal identification documents (Stephens 13 Mar. 2013; IPS 20 May 2013). In correspondence with the Research Directorate, a representative of the TvT indicated that 25 reassignment surgeries were performed in Cuba; not all persons received legal recognition of their identity (TvT 9 Oct. 2013). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

Sources report that same-sex marriage is not legally recognized in Cuba (May 2013, 87; Stephens 13 Mar. 2013; The Independent 15 Aug. 2011; El Nuevo Herald 29 June 2013; Pink News 13 May 2013). According to the TvT representative, a bill recognizing same sex unions was submitted to the National Assembly in 2008, but had not been discussed (TvT 9 Oct. 2009). Freedom House similarly reports that the Bill "has been stalled in the National Assembly since 2008" (Freedom House 2013).

The ILGA State Sponsored Homophobia report and IPS indicate that joint adoption by same-sex couples is not legal (ILGA May 2013; IPS 4 June 2013). The IPS article further states that the "issue of legalising adoption by homosexual couples is a controversial, taboo subject in Cuba" (ibid.). According to an LGBT activist quoted by IPS, "'there is still a very deep-rooted prejudice that homosexual people are not capable of bringing up children as well as heterosexuals. People continue to view them as 'sick,' and believe they might pass on their 'sickness' to children'" (ibid.).

Information on social and judicial attitudes in cases of child custody could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

3. State Efforts

Mariela Castro, President Castro's daughter and the head of the National Centre for Sexual Education (CENESEX), a government-funded institution (Global Post 29 June 2012; Cuba 7 Feb. 2013), has been promoting the rights of LGBT persons (US 19 Apr. 2013, Sec. 6; Washington Blade 17 Sept. 2012). According to a national report submitted by Cuba to the UN Human Rights Council, CENESEX is responsible for coordinating the National Sex Education Programme and other activities such as counselling and sex therapy, comprehensive care for LGBT people and campaigns for respect for freedom of sexual orientation, among others (Cuba 7 Feb. 2013, Para. 112). In 2012 the government sponsored events to celebrate an International Day Against Homophobia (Freedom House 2013; US 19 Apr. 2013, 25 Sec. 6). El Nuevo Herald reports that in May 2013, Mariela Castro attended an "equality forum" in Philadelphia that focused on LGBT issues (29 June 2013). IPS reports that CENESEX held a workshop in May 2013 for lawyers and judges on "how to take advantage of existing laws in cases of violations of LGBT rights" (20 May 2013). Stephens writes that CENESEX provides training for police officers to "improve understanding of the LGBT community and to help them to respond to crimes against LGBT people such as domestic violence, hate crimes and violence committed by family members" (13 Mar. 2013).

3.1 Police and Judiciary

In correspondence with the Research Directorate, a professor, who specializes in Cuban political history and contemporary Cuban politics, expressed his opinion stating that "while the police no longer harass sexual minorities ..., their willingness to investigate and follow up cases of harassment is likely to be less active" (Professor 3 Oct. 2013). In contrast, the representative of the TvT indicated that there were incidents when police officers harassed transgender people in public (TvT 9 Oct. 2013). Country Reports 2012 indicates that, according to NGOs, "the government had not done enough to stop harassment of LGBT persons" (US 19 Apr. 2013, 25).

Freedom House also states that the government does not recognize the work of independent LGBT rights groups and that "their efforts have often been attacked by CENESEX" (Freedom House 2013). Similarly, Country Reports 2012 notes that "[s]everal unrecognized NGOs worked to promote LGBT issues and faced government criticism, not for their promotion of LGBT issues, but for their independence from official government institutions" (US 19 Apr. 2013, 25).

However, according to Stephens, CENESEX supports LGBT rights groups, such as Las Isabelas, an organization for lesbians and bisexual women (13 Mar. 2013). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

Washington Blade, a Washington-based gay news agency, reports that US gay activists with links to LGBT people in Cuba state that "[w]hile they see the changes that Mariela Castro has brought about as positive for LGBT people, ... LGBT people ... remain under the control of a repressive government" (Washington Blade 18 Aug. 2011). El Nuevo Herald reports that although "macho" attitudes have not disappeared completely, the authorities are trying to provide a more [translation] "tolerant picture" on the issue (El Nuevo Herald 29 June 2013). A report published by the Council for Hemispheric Affairs (COHA), a Washington-based non-profit independent research organization (COHA n.d.), also states that

[d]espite the recent announcements by the Castro regime to move towards an LGBT friendly community, the government remains inconsistent with all of its promises. For example, gay men have long been considered unfit to join the Communist Party. Within the last 20 years, a few prominent gay bars and organizations have been raided and shut down by the government. Gay rights activists, both in Cuba and abroad, have accused the Cuban authorities of applying the crime of "pre-criminal dangerousness" unfairly to homosexuals, and ignoring complaints of those who have been beaten or fired from their jobs because of their sexual orientation. Other gay rights activists have criticized Mariela Castro for her inconsistency and hypocrisy when it comes to gay rights, arguing that gay activists continue to be imprisoned, beaten, or simply disappear while she provides little more than lip service to the issue. (COHA 24 Oct. 2012)

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Council on Hemispheric Affairs (COHA). 24 October 2012. Justin Halatyn. "From Persecution to Acceptance? The History of LGBT Rights in Cuba." [Accessed 4 Oct. 2013]

_____. N.d. "About COHA." [Accessed 8 Oct. 2013]

Cuba. 7 February 2013. National Report Submitted in Accordance with Human Rights Council Resolution 16.21, Annex, Paragraph 5* Cuba. [Accessed 4 Oct. 2013]

_____. 1992. Constitution of the Republic of Cuba. [Accessed 10 Oct. 2013]

CubaNet. 16 January 2012. "Muere travesty tras golpiza propinada por policies." [Accessed 5 Oct. 2013]

_____. N.d. "Sobre CubaNet." [Accessed 11 Oct. 2013]

El Nuevo Herald. 29 June 2013. Juan C. Chavez. "Activistas gay de Cuba de visita en Miami." (Factiva)

Freedom House. 2013. "Cuba." Freedom in the World 2013. [Accessed 29 Sept. 2013]

Global Post. 29 June 2012. Megan Sweas. "Cuba's Gay Rights Revolution." [Accessed 4 Oct. 2013]

The Independent. 15 August 2011. "Wedding Is a Small Triumph for Cuba's Sexual Minorities." [Accessed 25 Sept. 2013]

International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA). May 2013. State Sponsored Homophobia. [Accessed 11 Oct. 2013]

Inter Press Service (IPS). 4 June 2013. "LGBT: Gay Parents in Cuba Demand Legal Rights to Adopt." (Factiva)

_____. 20 May 2013. Ivet González. "Rights: Small and Large Steps Towards Equality for Gays in Cuba." (Factiva)

Pink News. 13 May 2013. Joseph P. McCormick. "Cuba: Hundreds Protest Against Homophobia in Havana." [Accessed 3 Oct. 2013]

Professor, University of Nottingham, UK. 3 October 2013. Correspondence with the Research Directorate.

Stephens, Sarah. 13 March 2013."Op-ed: Cuba Finds its Footing on LGBT Rights." [Accessed 25 Sept. 2013]

Transgender Europe (TGEU). N.d. "Transgender Europe - TGEU." [Accessed 7 Oct. 2013]

Transrespect Versus Transphobia Worldwide (TvT). 9 October 2013. Correspondence with the Research Directorate.

_____. 2013. "Reported Deaths of 1,123 Murdered Trans and Gender Variant Persons from January 2008 until December 2012." [Accessed 30 Sept. 2013]

United States (US). 19 April 2013. "Cuba." Country Reports on Human Rights Practices for 2012. [Accessed 4 Oct. 2013]

Washington Blade. 17 September 2012. Michael K. Lavers. "Cuban LGBT Activists Cite Progress, Ongoing Harassment." [Accessed 26 Sept. 2013]

_____. 18 August 2011. Lou Chibbaro. "Trans Wedding in Cuba Highlights Growing Tolerance." [Accessed 26 Sept. 2013]

Additional Sources Consulted

Oral sources: Attempts to contact the following were unsuccessful: academics at the University of Miami and Florida International University; Cuba - Centro Nacional de Educación Sexual; El Observatorio Cubano de Derechos Humanos, Madrid; Unity Coalition, Miami.

Internet sites, including: Amnesty International; Association of LGBT Journalists; Cuba - Centro Nacional de Educación Sexual, Cubagov.cu, Cuban Embassy, Ottawa; Diario de Cuba; ecoi.net; El Telégrafo; El Observatorio Cubano de Derechos Humanos; European Commission; Factiva; Fox News Latino; GlobalGayz; Havana Times; Hombres por la diversidad; Human Rights Watch; International Federation for Human Rights; International Gay and Lesbian Human Rights Commission; La Prensa; LGBT Cuba; Miami Herald; National Gay and Lesbian Task Force; Organization of American States; The Star; United Nations - Human Rights Council, Office of High Commissioner for Human Rights, Refworld, UNAIDS; Unity Coalition.