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UK and El Salvador: How do they Match Up on LGBT Rights?
The UK does not fully implement every aspect of the Employment Equality Directive (‘the Directive’). Therefore, that there are gaps in its anti-discrimination laws. However, El Salvador falls drastically further below the standards set out in the Directive. Furthermore, the social situation and lack of an effective legal framework or remedies for discrimination in El Salvador means that the issues faced are much more serious than those faced by LBGTI individuals in the UK. El Salvador is not at a stage where it can fully protect LGBTI individuals from even the gravest violations; these problems must be solved before El Salvador can hope to implement non-discrimination laws a standard equal to that required of EU Member States.
The Directive aims to ensure that there is equality and no discrimination for all people in employment. Significantly, it recognizes that: 'Employment and occupation are key elements in guaranteeing equal opportunities for all and contribute strongly to the full participation of citizens in economic, cultural and social life and to realising their potential.' It is argued that the opposite is also true; people cannot access or enjoy employment if they do not have equal opportunities in the first place, due to other human rights violations as is the case in El Salvador (OHCHR).
The Council of the European Union’s guidelines on LGBTI rights suggest that the EU’s human rights and anti-discrimination instruments should be used 'to promote and protect all human rights of LGBTI persons.' Therefore, perhaps the Directive should be used as a guideline, even in non-EU countries, such as El Salvador, because it provides for the ideal standard of employment conditions with regards to non-discrimination.
The UK is an EU Member State, so it must achieve the goals set out in the Directive. The UK has enacted legislation that implements the Directive (the Equality Act 2010); however, there are some areas where it falls short of full and explicit implementation (Waaldijk & Bonini-Baraldi). The most significant problem with the legislation is that '[t]he Directive’s important requirement of a shift in the burden of proof in discrimination cases … [has] not been fully implemented in [the UK] (Waaldijk & Bonini-Baraldi). This means that 'the victim of sexual orientation discrimination may sometimes have to allege (or even prove) his or her sexual orientation' (Waaldijk & Bonini-Baraldi). This is problematic because it is incompatible with Articles 1 and 2 of the Directive; which effectively require that people should not be forced to ‘come out’.
Although there are problems with the laws in the UK, the legal framework for anti-discrimination and equality protection in El Salvador is significantly weaker. There are drastically less laws prohibiting discrimination on the grounds of sexual orientation and gender identity in employment in El Salvador. Since 2010 there has been a prohibition of discrimination in employment based on the grounds of sexual orientation and gender identity, but this only applies to the public sector (Decreto No. 56). This means that there is no legal protection in private sector employment and 'advocates reported that private employers freely discriminated against LGBT individuals' (US Department of State). In practice, this means that, LGBTI individuals are forced to hide their sexual orientation of gender identity for fear of discrimination and its consequences. This is the opposite problem to that caused by the lack of a reversal of the burden of proof in discrimination cases in the UK, and arguably much more destructive. Clearly then the laws in El Salvador are not in line with the Directive.
In the UK, there is a solid legal framework; relatively effective remedies; and a more liberal attitude to gay rights. Therefore the effects of a few gaps in anti-discrimination law should not have disastrous effects. In contrast, the impact the almost total lack of anti-discrimination laws in El Salvador is catastrophic for LGBTI people. They do not have a trusted legal system with effective remedies, so people do not report discrimination. There are many social factors that exacerbate the problem created by the lack of effective anti-discrimination laws for employment in El Salvador, including: the sheer poverty facing many of these individuals; the lack of access to higher education because of discrimination; and a lack of basic human rights protection (US Department of State). Both economic difficulties and discrimination in education are factors that lead to a lack of employment opportunities for these individuals. It is easy to see how this can become a vicious circle. In the most extreme, but all too common, cases LGBTI people are forced into sex work because they are excluded from all other employment opportunities if they refuse to hide their sexual orientation or gender. This is especially true for transgender women, for whom sex work leaves them 'vulnerable to violence' and a lack of legal (or other) protection (US Department of State). There is also a huge number of extra-judicial killings of LGBTI individuals in El Salvador and 'even though [these] … may have been perpetrated by private actors … none of these cases was investigated by the State in an effective and adequate manner, and the perpetrators have not been punished' (Comcavis-Trans). This shows that the government in El Salvador is violating the human rights of many LGBTI individuals (OHCHR). There are of course problems with sex work (Royal College of Nursing), and LGBTI killings in the UK, but there is no culture of impunity in the UK, unlike in El Salvador.
In conclusion, there are many factors that contribute to LGBTI individuals’ access to, and conditions of, employment. LGBTI individuals do face discrimination in employment the UK (Stonewall), but the situation in El Salvador is much worse. There is no prohibition of discrimination in private sector employment and the government contributes to many human rights violations, so LGBTI individuals rarely find employment and this often leads to grave consequences, Therefore, the NGO should focus its campaign on El Salvador.