oDR

In Kazakhstan, transgender people face discrimination

In Kazakhstan, transgender persons have the right to surgical procedures to change their sex – but little access to other rights.

Zhanna Baitelova
4 April 2019
Viktoria Rai
|
Personal archive

In Kazakhstan, a transgender woman has filed a legal case against the country’s largest bank, whose manager refused to serve her when she presented ID with a male name on it.

Of course, the situation in terms of LGBT rights, and transgender people in particular, is much better in Kazakhstan than, for example, Chechnya, where people are openly persecuted. But as across Central Asia, the rights and freedoms of LGBT people are restricted by law in Kazakhstan.

Central Asian states have a lot in common in this regard: same-sex marriages are banned and same-sex partnerships are unrecognised, while same-sex partners are banned from adopting children. LGBT person also face discrimination during their military service – they are simply banned from serving or working in law enforcement agencies. Central Asian states also lack anti-discrimination legislation. In Kazakhstan, Kyrgyzstan and Tajikistan, however, people can undergo surgery to change their sex.

Kazakhstan introduced provisions for legally changing one’s sex in 2009. It would seem that this would at least guarantee the rights of people who don’t fit into the heteronormative binary. But it is not so straightforward: transgender people have no possiblity of changing their ID documents to new ones that match their new gender identity. The law bans transgender people from changing their documents without undergoing obligatory initial “surgical sexual realignment”, which involves sterilisation.

According to the international Yogyakarta Principles adopted in 2006, no individual can be subjected to any medical intervention without their consent. This issue could be resolved by anti-discrimination legislation, but Kazakhstan is in no hurry to adopt it.

“They wouldn’t give me my own money in the bank”

Viktoria Rai, the transgender woman from Almaty who was not permitted to withdraw funds, went to court to defend her honour. On 11 October 2018, she was refused her request to withdraw money from her own account at the People’s Bank of Kazakhstan, the largest bank in the country. The cashier called the manager, who informed Viktoria that they wouldn’t give her any cash.

Viktoria Rai | Фото предоставлено героиней материала

“I am a customer of this bank,” she insists. “I have renewed my card in this branch and use it frequently. The bank has all my details, and the manager has never doubted that I am who I am. But she told me to use the bank’s ATM. ‘We’ve been told not to hand money to any woman with male ID.’” Viktoria’s colleague asked the manager whether Viktoria was being refused her money because she was a transgender woman, and the manager confirmed that this was the case.

Viktoria recorded the entire conversation and immediately sent a request to the bank to explain its refusal to serve a customer, but had no response within the prescribed 15 days. She then sent a second request, this time online, but again received no response.

Having exhausted all possibilities of resolving the issue without resorting to the courts, Viktoria, with the support of human rights expert Tatyana Chernobil, sent the police an official complaint against the bank manager on grounds of discrimination. In it, she demand that a criminal charge be brought for “a breach of my rights as a person and a citizen”.

“At the police station, they didn’t want to accept my complaint – we were sent from office to office” says Viktoriya. “They eventually saw us, but two days later they announced that they couldn’t register a charge because there was no crime! And the investigator didn’t question me once.”

Viktoria then contacted an examining magistrate to file a complaint against the investigator in question. But when the judge examined the case, he didn’t examine the complaint against the investigator, but the actual incident in the bank. Viktoria was stunned to see that the case now included testimony from the bank manager, but not herself.

“It got most interesting after I posted on Facebook, mentioning the bank, the police and human rights groups,” Viktoria tells me. “This was the day before the examination of my appeal against the magistrate’s decision to refuse my right to a defence. So after reading my post, the people at the bank got their act together and wrote to me that senior management was unaware of the conflict, that they were very sorry and that they wanted to fix everything. They explained that they didn’t know how to work with transgender people and asked me to teach them. We agreed to meet before we went to court. On the day of the case, no one contacted me. The case was heard after lunch, and was thrown out in less than 15 minutes.”

In early January 2019 Viktoria brought a civil case to court, demanding compensation for emotional distress. As Kazakhstan law requires a specific sum to be named in compensation cases, she requested the symbolic sum of one tenge (£0.002). Her aim was to draw the attention of bank senior management to its employees’ discriminatory treatment towards her and demand a public apology.

“I won’t stop. I’ll go to the UN,” Viktoria tells me. “I want the bank to stop discriminating against people, especially transgender people. I still feel it’s disgusting and shameful – I was never treated like that before.” Viktoria also knows that two other transgender women have faced discrimination from the People’s Bank of Kazakhstan.

Before this incident, Viktoria had never encountered any problems with government or commercial amenities that require you to show ID papers. She had frequently travelled around the country using her existing ID, and had in fact set up and paid off a personal loan with another bank without any trouble.

“I haven’t yet changed my ID document to one that matches my new gender identity because the state is forcing me to undergo mutilating operations, which is tantamount to torture. My state of health and the cost of the operations don’t allow me to change my ID,” Viktoria tells me.

In this situation it’s important to note that the UN’s Special Rapporteur on Torture has condemned similar requirements, considering forced sex change operations torture or cruel treatment. “International and regional human rights agencies have begun to recognise that violence and abuse against women requesting services in the area of reproductive health can cause intense and prolonged physical and psychological suffering occasioned by the fact of their gender. Examples of this include... forced sterilisation...female genital mutilation.”

Meanwhile Kazakhstan’s Constitution and Criminal Code ban torture and other types of cruel treatment, including that based on any kind of discrimination.

“Show me what’s between your legs, then you’ll get a blanket”

While Viktoria Rai was trying to sort things out with her bank, another legal case was examined in Kazakhstan’s Almaty region. In 2017, Viktoria Berkkhodjayeva, a transgender woman, was accused of threatening violence against an employee of the penal colony where she was serving a seven year sentence (Viktoria was convicted of blackmailing another transgender woman by threatening to reveal information about her recent sex change).

The case was a high-profile one. At the time of the investigation, Viktoria had not yet managed to officially change her ID details and there was a legal conflict over where she should serve her sentence – in a men’s or women’s colony. It was only after receiving help from human rights campaigner Ardak Janabilova, director of Kazakhstan’s Human Rights Monitoring Centre and the country’s International Bureau for Human Rights and the Rule of Law, that Viktoria Berkkhodjayeva received ID matching her gender identity. She faced no further complications with this as she had already undergone the necessary surgery.

However, things were not so simple for Viktoria in the penal colony in the village of Zarechny, 50km to the north of Almaty. On more than one occasion, Viktoria complained to her lawyer Aiman Umarova that she was victimised by both guards and other inmates.

“They call me ‘it’. They always scoff when I say I’m a woman, and tell me to show what I have between my legs,” Viktoria tells me during an interview with her lawyer present.

Last autumn Viktoria came into conflict with a medic on the prison staff who refused to issue her a blanket. In a letter sent via her lawyer, Viktoria wrote that the medic also ordered her to show what was between her legs. The confrontation was cut short by another prison officer and the colony’s deputy governor was called, but it ended with Viktoria tearing off his epaulettes, which led to another charge against her. The case was then referred to the courts.

“There was a video showing her tearing off the epaulettes. It’s unofficial – nobody knows where it appeared from.” Viktoria’s lawyer tells me. “But it does show the deputy governor blocking her way, stopping her from going outside and sending her to a disciplinary cell with strict conditions of confinement.”

In January this year, during a preliminary hearing on the incident, the lawyer petitioned the court to refer Viktoria’s case to the prosecutor’s office for re-examination. The judge issued a decision against the prison staff and ruled that the case be indeed referred back because of the apparent breaches of regulations by colony staff that had been identified.

Viktoria’s health is now deteriorating – she is losing her sight. And the constant verbal humiliations she is subjected to from other prisoners and attempts to draw her into fights have left her in a depressed state.

How can violence and discrimination be prevented?

Iskander Ksanov, a human rights activist with the Alma-TQ transgender initiative group, tells me that over the last few years there have been a number of research projects looking at the situation of transgender people in Kazakhstan: their needs and demands and also their access to healthcare. The results have shown that transgender people encounter frequent discrimination in the workplace, educational and medical settings and law enforcement bodies, as well as when crossing national borders and accessing governmental and commercial amenities.

“We have, for example, identified a situation where an emergency paramedic refused to offer medical help to someone when they discovered they were transgender. Or where an employer fired an employee when they found out they were transgender. It’s the same in educational settings, when a transgender person drops out of school, college or university after constant humiliation and harassment from staff and fellow-students,” says Ksanov, who also reports that the person’s friends and family may also behave in the same way.

“Judges see criminals who attack transgender people out of transphobia as just common hooligans`"

According to Ksanov, the only answer to the problem of violence and other ill-treatment of transgender people is anti-discrimination legislation that would include gender identity as one of its fundamental elements. But Kazakhstan’s legislation lacks even any concept of hate crime, which complicates any definition of crime motivated by hatred of a particular social group or characteristic.

“Judges see criminals who attack transgender people out of transphobia as just common hooligans,” says Ksanov.

Kazakhstan also practises legal discrimination against transgender people – they are visible only at the moment of transition. The country’s legislation refers to the possibility of a “sex change” and includes regulations governing medical examinations and “sex changes”, and its “Marriage and Family” legislation covers the possibility of a name change after “surgical sexual realignment”.

“But nowhere can you find gender identity included as something that might be subject to issues of discrimination,” says Ksanov. As he sees it, current legislation relating to transgender people looks like a corridor leading out of state and commercial amenities, and requiring obligatory sterilisation and surgical “correction” for people to be able to amend their ID papers to match their gender identity.

“And if a transgender person has neither the finance nor strength to undergo expensive medical intervention and surgical 'correction' that will deprive them of their reproductive ability, they find themselves having to constantly ‘come out’ as transgender and prove that their ID documents belong to them as they encounter official transphobia or even violence,” Ksanov tells me. It’s a flagrant violation of their human rights, so the legislation has to be changed.

“It’s also important for the situation and problems of transgender people in Kazakhstan to come out into the open," says Ksanov. “Otherwise, if these issues aren’t aired in public, it means they don’t exist.”

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