expression as a means of understanding violence against LGBT persons, as it makes it possible to identify the
social context in which such violence manifests itself.124
57.
In that connection, the Commission has given particular attention to violence based on
prejudice toward the gender identity and gender expression of trans persons, especially trans women. It has
reiterated that the majority of trans women are caught up in a cycle of violence, discrimination, and
criminalization that generally starts at a very early age owing to the exclusion and violence suffered at home,
in the community, and at school. According to data collected by the IACHR, 80% of trans persons killed were 35
years of age or younger.125 It also found that they are particularly vulnerable to violence at the hands of State
security forces charged with law enforcement.126
58.
The Commission has stated that when someone who is lesbian, gay, bisexual or trans, or
perceived as such, is attacked or killed, the State must conduct an investigation to determine whether the crime
was committed based on the real or perceived sexual orientation or gender identity of the victim or victims.127
Determining whether or not violence against LGBT persons is based on prejudice requires an exhaustive
investigation of the reasons for the violence, carried out under the principle of due diligence. 128
59.
Without seeking to suggest that it is an exhaustive list, the Commission considers that the
following elements, among others, may be indicative of a crime based on prejudice, particularly when they
occur in combination: (i) the presence of a known bias against LGBT persons on the part of the perpetrator, or
situations in which the perpetrator is part of a group which is considered to be biased against LGBT persons;
(ii) the brutality of the crime and signs of animosity; (iii) the victim’s status as an activist in LGBT issues or a
defender of LGBT persons and their rights; or (iv) the nature or significance of the place where the violence or
incident took place, or from where the victims were lured (for example, a place known to be frequented by
LGBT persons, or an area where sex work involving trans persons is known to take place). 129 The Commission
has also stressed that what is decisive for the purposes of establishing the extent of the State’s obligation is that
from the very beginning of the investigation there be an examination of the motives of the attack, and that this
examination include consideration of the relevance of the victim’s sexual orientation or gender identity,
whether real or perceived. A hypothesis that the crime was motivated by prejudice can thereby be confirmed
or ruled out during the course of the investigation. 130 The Commission found that in murders of LGBT persons
or people perceived as such, trans women and trans persons with female gender identities are more likely to
be killed by firearms, and their bodies were more likely to be found in the streets or other public spaces, and
sometimes in situations linked to sex work.131
60.
In light of the foregoing, the Commission considers that inter-American jurisprudence
developed in cases such as Cotton Field v. Mexico132 and Velásquez Paiz v. Guatemala are wholly applicable to
the analysis of cases of prejudice-based violence within the terms of the context described above, for the
purposes of clarifying acts of violence or attacks presumably motivated by reasons of gender and, in keeping
with the present analysis, prejudice, and that particular consideration should be given to the possible
IACHR, Violence against Lesbian, Gay, Bisexual, Trans and Intersex Persons in the Americas, OAS/Ser.L/V/II.rev.2, Doc. 36, November 12,
2015, par. 43.
125 IACHR, Violence against Lesbian, Gay, Bisexual, Trans and Intersex Persons in the Americas, OAS/Ser.L/V/II.rev.2, Doc. 36, November 12,
2015, par. 276.
126 IACHR, Violence against Lesbian, Gay, Bisexual, Trans and Intersex Persons in the Americas, OAS/Ser.L/V/II.rev.2, Doc. 36, November 12,
2015, par. 26.
127 IACHR, Violence against Lesbian, Gay, Bisexual, Trans and Intersex Persons in the Americas, OAS/Ser.L/V/II.rev.2, Doc. 36, November 12,
2015, par. 46.
128 IACHR, Violence against Lesbian, Gay, Bisexual, Trans and Intersex Persons in the Americas, OAS/Ser.L/V/II.rev.2, Doc. 36, November 12,
2015, par. 45.
129 IACHR, Violence against Lesbian, Gay, Bisexual, Trans and Intersex Persons in the Americas, OAS/Ser.L/V/II.rev.2, Doc. 36, November 12,
2015, par. 504.
130 IACHR, Violence against Lesbian, Gay, Bisexual, Trans and Intersex Persons in the Americas, OAS/Ser.L/V/II.rev.2, Doc. 36, November 12,
2015, par. 505.
131 IACHR, Violence against Lesbian, Gay, Bisexual, Trans and Intersex Persons in the Americas, OAS/Ser.L/V/II.rev.2, Doc. 36, November 12,
2015, par. 119.
132 See: I/A Court H.R., Case of Velásquez Paiz et al. v. Guatemala, Preliminary Objections, Merits, Reparations, and Costs, Judgment of
November 19, 2015, Series C. No. 307, par. 146.
124