Brazil’s review by the CEDAW: contributions

Contributions to the List of Issues Prior to Reporting of the review of Brazil by the Committee on the Elimination of Discrimination against Women (CEDAW)

Date of submission: 12 October 2020

Submitted by:

Associação Brasileira Interdisciplinar de AIDS (ABIA) / Sexuality Policy Watch (SPW)

Centro pela Justiça e o Direito Internacional (CEJIL)

Comitê Latino-Americano e do Caribe para a Defesa dos Direitos das Mulheres (CLADEM/Brasil)

Conectas Direitos Humanos

GELEDÉS Instituto da Mulher Negra

Relatoria do Direito a Saúde Sexual Reprodutiva da Plataforma Dhesca

Overview

Since 2016 and much more intensively after 2019, Brazil has been experiencing the flagrant and substantial aggravation of human rights violations, including of women’s human rights, as established by CEDAW and other treaties that have been ratified by Brazil. Such deterioration is particularly poignant in relation to sexual and reproductive rights, being accompanied by threats to “gender” and gender equality, intensification of racism and racial discrimination and the blatant deterioration of the protection of indigenous rights with evident implication for the lives of indigenous women. This deplorable scenario is now further magnified and exacerbated by the effects of the COVID 19 pandemic that has already left behind a 150.000 death toll of which the victims have been the persons and groups made vulnerable by age, as well as racial, ethnic and socio-economic inequalities.

While underlining the recent deterioration of norms and practices in the domain of protection it should be noted that signs of this corrosion have been detected for much longer. This has been particularly manifested in the realm of sexual and reproductive rights, in particular abortion rights, but also in what concerns gender and gender equality. Legislative efforts to further curtail access to abortion rights have accumulated since the mid 2000s and, as it will be shown below, have evidently intensified after 2015. Attacks on gender perspective in education and sexuality education have erupted in 2013 before getting greater traction in 2015, before being transported to state policies agenda after 2019. As importantly the women’s social and economic rights have been impaired by the effects of a very long economic recession, as well as by policies adopted after 2016, such as the Constitutional Amendment 95 fixing the ceiling of public expenditures that restricted funding for social protection, health and educational policies.^[1] Subsequently, labor and social security and reforms negatively affect labor rights and protection, as well as gender disparities in pensions and benefits. Not less importantly, the female prison system remains overloaded, with high levels of incarceration while conditions of the national prison system deteriorated.^[2]

Shifting towards the 2019-2020 period, a synthetic portrayal of the aggravated demise of women’s human rights and gender equality can be summarized as follows:

A systematic attack on the concept of gender, announced at the inauguration of the new administration, is now translated into constant speech acts, further attacks on the gender perspective in education and the infusion of this anti-gender vision that is now into Brazilian foreign policy, which means it’s transplantation to inter-governmental arenas and negotiations.
Notwithstanding, at the ground level, rates of gender- based violence, including feminicide that have been increasing for some time have their upward pace and levels of lethality are higher amongst black women. Rates of feminicide may potentially escalate under the effect of new policies adopted that enlarge the scope of arms possession and portability.
More recently, blunt assaults and policy measures have been adopted to created barriers to abortion in the case of rape, which include procedures that breach confidentiality and potentially criminalize women and providers.
Policies aimed at the protection of human rights related to sexual orientation and gender identity have been dismantled. Though the consistency of data is not reliable, because there are no proper systems in place, there are string signs that violence against transgender women and lesbians has increased.
Lastly, the rights of indigenous women, of women living in quilombos and other traditional communities are now harshly threatened by the dismantling of environmental protection, deliberate destruction of natural reserves and, most principally flagrant legislative and policy assault on land rights. In what concerns indigenous people, in an effort to contain these destructive trends, a case of potential genocide under the purview of the Statute of Rome has been tabled against the Brazilian state at International Criminal Court.^[3]

For additional and more detailed information of the state of human rights in Brazil in relation to the areas above mentioned, in 2019, check the Mid Term Civil Society Report for the 3^rd cycle of Brazil’s Universal Periodic Review.^[4]

Women’s human rights and gender equality: gender violence

Bearing in mind the objective of the Brazilian State to guarantee women their full development and progress for the exercise and enjoyment of human rights and fundamental freedoms under equal conditions with men (art. 3) and which is an assumption of the exercise of citizenship and equality material to guarantee a life free of violence, we consider the analysis of the scenario of violence against women in the country as a theme of analysis of respect for the rights of women in the country of utmost importance.

Brazil remains the country in Latin America with the highest number of femicides, as disclosed by ECLAC.^[5] As highlighted by IPEA, in its 2019 Atlas of Violence^[6], the homicide of women increased by 30.7% between 2007 and 2017 and, between 2017 and 2018, it also increased by 6.3% in their numbers in the country. It is important to highlight that according to data from the 2019 violence map women accounted for 67% of the victims of physical aggression registered in the country.

The intersectionality between race and gender also plays an important role in discussing the Brazilian context. The disparity of conditions between black and non-black women is revealed by the figures: in absolute numbers, among non-black women the growth in homicides is 1.7%, and among black women it is 60.5% 20. Black women account for 66% of all women murdered in the country in 2017.^[7] In addition, the data regarding violence against girls and adolescents is exorbitant and if the State’s measures fall short to face violence committed by private individuals, they are non-existent when violence against girls and women is heightened when crossed with the domain of organized crime in the peripheral territories of large, medium and small cities (mainly in the North and Northeast regions of the country).^[8]

According to the Public Security Forum, the domestic violence records of March and April 2019 and 2020, only the State of Rio Grande do Norte had an increase in the rate from 287 records in March 2019 to 385 in March 2020. However , the number of femicide increased in practically all states.^[9] Still according to a 2017 survey, the main place of violence is in the victims’ homes.^[10]

Sexual and reproductive health and rights

Rates of maternal mortality in Brazil are very high when considering the country’s income per capita and the fact that 90 percent of deliveries are performed in hospitals. The national rate is 59.1 maternal deaths/100 thousand live births, with great regional, social and racial disparities.[11] Brazil has not met this goal in the Millennium Development Goals, despite the women’s health policy implemented since the 1980s, and even if, as of 2011, this policy has adopted a narrower perspective on maternal and child health (Stork Network Strategy).[12]

This failure is significant in the context of this report because, in August 2011, the CEDAW Committee judged the case of Alyne da Silva Pimentel Teixeira, in which Brazil was condemned to make financial reparations to her family and to adopt measures of non-repetition, via a sustained investment on consistent reproductive health policies. The Brazilian response was sufferable. Only two and a half years after the decision (in March 2014) an agreement was reached to pay the individual reparation to Alyne’s mother. Because of pending legal matters, the financial reparation to Alyne’s daughter remains unresolved and, quite regrettably, the non-repetition measures have not been implemented.^[13]

The effects of the failure in properly adopting non-repetition measures is strikingly illustrated by a recent study showing that amongst the 160 maternal deaths reported worldwide during the COVID-19 pandemic, 124 occurred in Brazil, most of them (71 percent) of black women of the North and Northeast regions.^[14]

In addition, but not less relevant, a 2019 administrative reform lowered the status of the Technical Area of Women’s Health in the Ministry of Health (MoH) structure. Then, in June 2020, — following WHO guidelines on COVID 19 –, the Area Coordination issued a Technical Note recommending the maintenance of reproductive health services, including legal abortion care, during the pandemic, the Note was suspended the technical team responsible was removed.^[15]

Conditions are not positive either in relation to the national policy on AIDS that since the 1990s had been acknowledged as a model response to the epidemic. Since 2010, this policy has been losing ground^[16] and , in 2019, the Department of HIV, AIDS, STD and Viral Hepatitis was also downgraded by the Ministry of Health administrative reform. Then, in January 2020, the president of the republic made a public statement that people living with HIV were “an expense to all Brazilians,” a phrase that bluntly fuels stigma and discrimination.^[17] This policy demise, which affects all people affected by HIV, has a specific impact on women. In that respect, it should be noted that, despite the pioneer in the introduction of the female condom in the 1990s, many deficiencies in HIV prevention among women have been registered since then and in late 2019 a new abstinence policy for adolescents was announced, to be implemented between Ministry of Health and the Ministry of Women, Family and Human Rights, despite the wide recognition of the lack of effectiveness of abstinence to prevent ISTs and HIV prevention.

Reproductive Rights

In this area, this report calls attention to growing threats on the right to abortion, which in Brazil is already very restricted. Until 2012, abortion was permitted in the cases of rape and woman’s life risk. In that year, when the period analyzed by this report begins, the Federal Supreme Court (STF) decided on the legality of abortion in cases of fetal anencephaly. However, and regrettably, this decision did not mark the beginning of a positive trajectory in regard to expanding access to abortion rights.

Between 2012 and 2019, the number, capacity and quality of legal abortion services has decreased (even when their numbers were already limited considering the scale of the country). This is aggravated by the fact that abortion in the case of rape has been a particular target of anti-abortion forces. In 2013, Bill N. 5069 that imposed police registry requirements that would limit access to services and break confidentiality was tabled to contest a new law ensuring access to abortion services and, in 2015, it almost passed.^[18]

Today, there are 72 bills that aim at restricting access to the right to abortion in Congress. Between 2012 and 2017, 3 constitutional amendments (PEC) have also been presented to enshrine the premise of the right to life from conception in the constitutional text, of which two are still being considered.[19] There are also 2 bills being processed (Statutes of the Unborn) that aim to ensure full citizenship rights to the embryo.[20] Since 2019, a single anti-abortion parliamentarian presented 14 provisions aimed at restricting the existing laws or protecting the unborn child.[21] Furthermore, in the same period, government authorities have systematically declared, domestically but also in international arenas, their full repudiation of abortion rights in all cases, in the name of right to life since conception, a position that contradicts what is defined in the Brazilian constitution.

In this political and policy environment two abortion rights related episodes occurred recently that gained international visibility. In the state of Espírito Santo a pregnant eleven years old girl subjected to systematic sexual abuse had her right to abortion under then law hindered by a series of obstacles created by anti-abortion forces, supported by the federal administrations. She has to be transported to another state to undergo the procedure where she and her grandmother were once again harassed. Having returned to her home state, because of persisting threats she and her family had to be included in a state program for human rights victim protection. ^[22]

Then, on August 29^th, the Ministry of Health issued Ordinance N. 2882 that cancels a 2005 Ordinance regulating legal abortion services. It requested doctors to compulsorily notify police authority in cases of rape, abolishing the presumption of the truthfulness of the woman’s testimony, and it required medical personnel to offer women and girls ultrasound screening to visualize the embryos. Law provisions were presented to suspend the rules and the ordinance was subject to an interrogation of unconstitutionality^[23], and denounced to UN Special Rapporteurs^[24]. In reaction, a new ordinance (N. 2561) was issued that eliminates the requirement of ultrasound visualization but keeps intact other requirements. No decision has yet been issued by the Supreme Court in relation to the matter.

Children, adolescents and youth

The Federal Constitution of 1988, in article 227, attributes to children, adolescents and young people the condition of subjects of rights. In 1989, the Ministry of Health, in keeping with the Convention on the Rights of the Child (UN, 1989), created the Adolescent Health Program (PROSAD) (Ordinance No. 980/GM, 12.21.1989) to fully address and multidisciplinary the health of children and adolescents, from 10 to 19 years of age, expressly addressing the issue of sexuality and reproductive health, understanding sex education as necessary to contribute positively to the development of children and adolescents and no longer be a means of perpetuating violence, repression and control.

PROSAD was revised in 1996 to meet the changes introduced by the Statute of the Child and Adolescent – ECA in 1990, following the international commitments assumed by the Brazilian State, which states in its article 4 the “duty of the family, the community, society in general and the public power to ensure, with absolute priority, the realization of the rights relating to life, health, food, education, sport, leisure, professionalization, culture, dignity, respect, freedom and coexistence family and community. It also ensures, in article 11, “full access to lines of care focused on the health of children and adolescents, through the Unified Health System, observing the principle of equity in access to actions and services”. And it establishes, in its article 15, the “right to freedom, respect and dignity as human persons in the process of development and as subjects of civil, human and social rights guaranteed in the Constitution and in the laws” (Law N. 8.069/1990).

In 2010, the Ministry of Health launched the National Guidelines for Comprehensive Health Care for Adolescents and Youth in Health Promotion, Protection and Recovery, based on the National Policy for Comprehensive Health Care for Adolescents and Youth, aiming at guiding actions, integrated with the other health policies, actions and programs already existing in the Unified Health System (SUS) (Laws 8.080/1990 and 8.142/1990) from a holistic view of the human being and for a systemic approach to the needs of the young population, including the ensuring access to sexual and reproductive health, which includes information on reproductive planning and contraceptive methods for preventing unplanned pregnancies and sexually transmitted infections (STIs).

The Ministry of Health, in the document Health, a right of adolescents (2007) reaffirms the fundamental rights of children and adolescents to privacy and the preservation of confidentiality, under penalty of violation of their right to health, especially the right to health, sexual and reproductive health. The model of care for children and adolescents has been undergoing positive and integrative changes between government agencies to prioritize service to this population, as in relation to civil and criminal legislation.

The Penal Code was amended by Law No. 12.105/2009, introducing art. 217-A, which considers rape of a vulnerable person any sexual intercourse commited agains people under 14 years old. Brazilian criminal law allows abortion if there is no other way to save the pregnant woman’s life or if pregnancy results from rape (art. 128). By decision of the Constitutional Court, to these hypotheses, the pregnancy of an anencephalic fetus was added (ADPF nº 54).

Law No. 13.811/2019 amended the Civil Code (art. 1520) to prohibit marriage to those who did not reach the nubile age (16 years of age), although there are informal unions. In August 2020, Brazil was surprised by the news of the pregnancy of an 11-year-old girl, pregnant with a rape committed by a relative, who expressed, in consensus with her legal representative, to the District Attorney of Childhood and Youth of the District of São Mateus TJ/ES, her desire to terminate the pregnancy.^[25]

Gender and education

While we should have information on the implementation of Article 10 and 5 of the CEDAW Convention, talking about education and gender in Brazil today immediately leads us to a series of debates about censorship, “fake news” and disputes over the nomenclature “gender ideology”. The debate gained strength due to the vote on the National Education Plan (PNE) in 2014, which culminated in the replacement of the expression “racial, regional, gender, and sexual orientation equality” with “all forms of discrimination”.

Since then, draft laws have grown with the intention of criminalizing the gender debate under different nomenclatures and wide-ranging meanings, from banning sex education to sexual orientation and gender debate. Projects under the leadership of a group called Escola Sem Partido, already aware of the UN special procedures that issued a joint communiqué in 2017. Gender was not legally forbidden in the school, but discursively a violent debate was installed in the school routine and insecurity, with organized public attacks even against Judith Butler. The anti-gender speech had an electoral appeal in Brazil in the 2018 elections and is part of the current government’s political mobilization.

In 2020, the Federal Supreme Court ruled on the unconstitutionality of anti-gender laws in Brazil, which represents an advance from the point of view of the affirmation of freedom, other actions are pending judgment. Despite this recognition, it does not mean that a project in favor of non-discrimination is underway in the country, what is known is the militarization of schools, which affects behaviors and affects the concept of education in the country.

Women’s human rights, inequality and ethnic-racial discrimination

Black women in Brazil have been the prime targets of racism, sexism, lesbophobia, transphobia, capacitism and other forms of discrimination.

The Continuous National Household Sample Survey (Pnad)[26], released by the Brazilian Institute of Geography and Statistics (IBGE) based on data from 2019, points out that more than half of Brazilians were black or brown: 56.10%, constituting the black population. Inequalities can be verified in several official statistics, however, they are even more striking when it comes to the black woman who, according to the Ipea’s Racial Inequalities Report, totaled about 51% of the country’s female population and are more vulnerable due to structural racism. It also reveals differences between white and black families; whites earned 73.9% more than blacks and browns. They also reveal 63% of households headed by black women are below the poverty line.

Also according to (Pnad), in relation to access to power, black women represent only 2% of the National Congress and are less than 1% in the Chamber of Deputies.[27]

The IBGE points out that the black population represents the largest contingent of those living on the street, people deprived of their liberty, those living in extreme poverty and in precarious households, who do not have water supply and/or sanitation, who have lower incomes or survive informality; those who depend on garbage of recyclable nature or not; domestic workers; caregivers for the elderly, those who are in a situation of food insecurity; who have difficulties accessing health, social assistance and education services and equipment.

The Covid-19 pandemic is revealing that population groups that have historically been neglected, those with low job protection and populations without adequate access to affordable health care are among the hardest hit, especially at the highest risk of death. Within this group, the risk of vulnerability of indigenous, black and immigrant women is even greater because they are mostly the social group that is in the most precarious and informal jobs, or those that survive on up to a minimum wage, retirement, housework or service providers, aggravated by the lack of access to quality services, poor living conditions and environmental factors.^[28]

The consolidation of a democratic and republican state demands that black women be recognized as subjects of law and fully applied in the constitutional provisions.

Questions to be addressed on Brazil’s list of issues prior to reporting

On Sexual and Reproductive Rights:

What are the actions, policies and public services adopted by the Brazilian State to promote the sexual and reproductive rights of children and adolescents, to prevent sexual violence, to provide assistance to battered girls and to hold offenders responsible?
How are girls (children and adolescents) guaranteed freedom and autonomy to decide on termination of pregnancy resulting from rape? Are girls informed about the right to abortion when they become pregnant? What services are available and accessible?
How many services for sexual violence and legal and safe abortion services are available in Brazil?
Are there programs or services for monitoring (health, social, educational and legal) and preventing the re-victimization of these girls, including their non-criminalization when accessing services during the abortion process?
What are the measures and guidelines adopted by the Public Ministry in relation to girls who suffer sexual violence?
What are the actions, programs and public policies on sexuality education aimed at children and adolescents? In particular, what are the actions, programs and public policies aimed at girls who became pregnant with sexual violence, who became mothers or not, to stay in school and continue their studies?

On Gender and Education:

What actions does the Brazilian State indicate as measures to guarantee a non-sexist and anti-racist education in school curricula as established by the Maria da Penha Law?
What measures does Brazil take to refute projects and actions that repress the gender debate in schools and censorship in the school space in all areas of education?
Is sexual violence against girls and women tackled through education? What projects exist in the country that serve girls and women at school and from the school curriculum?
How does the Brazilian State favor judicial decisions in favor of the gender debate at school?
What are the current measures in place to include gender equality in educational curriculums in public and private schools, colleges, universities and what is the content of the curriculum in these institutions?

On Gender-based Violence:

Which measures are in place in Brazil to provide training on women’s human rights to health providers, judges, and the police in relation to gender-based violence?
How often are women’s human rights training provided to authorities and how does the State act to address issues related to the mindset on gender and to provoke structural changes in the country related to the protections of women’s rights?

On the government’s budget regarding initiatives towards women’s rights:

What were the goals and priorities regarding the promotion of women’s rights, assistance to women and girls in situations of violence, the prevention of violence and the elimination of discrimination, established in the annual and multi-annual budgets since 2012?
What are the indicators used? What is the amount of resources planned and implemented? What were the resources transferred to public and private entities?
What are the programs and actions in the other portfolios (transversality of gender policy)? What were the priorities for public bank financing?
Is there a specific budget allocation for the implementation of the Maria da Penha Law?

Recommendations to the Brazilian state:

Guarantee the right to life, to human dignity, for the black population in general, and for transgender and cisgender black women in particular. This presupposes a concrete confrontation with institutional racism, sexism and compulsive cisheterosexuality that prevent our lives from being treated with the same dignity and respect as others, free from all forms of discrimination.
Ensure that labor and employment relations, with fair and adequate remuneration, are guided by racial, ethnic, gender, sexual orientation, gender identity, generation, disabilities, physical and mental conditions, in the countryside or in the cities, for access and permanence in the workplace. As well as legally ensuring participation in community and union organization activities.
Ensure and act concretely in the punishment of acts that characterize institutional racism in public and private organizations, perceptible through the disproportionate numbers of preventable deaths on cis and trans black women in particular (such as those resulting from maternal death, lack of security in access to sexual and reproductive rights, attention to sexual violence and the right to legal abortion, among others provided for in the health care protocols of the black population), and in relation to the black population in general, complying with the provisions of the National Comprehensive Health Policy of the Black Population.
Ensure compliance with the resolutions of the protocols, pacts, declarations, conventions, regional (OAS) and international (UN) action plans, reiterating the normative function of these commitments.

^[1] https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21006

^[2] http://ittc.org.br/infopen-2017-texto-1/

^[3] https://apublica.org/wp-content/uploads/2019/11/e-muito-triste-levar-um-brasileiro-para-o-tribunal-penal-internacional-diz-co-autora-da-peticao.pdf

^[4] Available here: https://wp.me/pxgon-5Da

^[5] CEPAL, Gender Equality Observatory for Latin America and the Caribbean. Physical Autonomy Indicator: Femicide or Feminicide. Available at: <https://oig.cepal.org/en/indicators/femicide-or-feminicide>

^[6] IPEA. Atlas da Violência, 2019, p. 35 e ss. Available at: <https://www.ipea.gov.br/portal/images/stories/PDFs/relatorio_institucional/190605_atlas_da_violencia_2019.pdf>

^[7] Idem

^[8] Comitê Cearense pela Prevenção de Homicídios na Adolescência, page 22. Available at: https://cadavidaimporta.com.br/wpcontent/uploads/2018/11/CCPHA_RELATORIO_2018-1_V02.pdf.

^[9] Fórum de Segurança Pública. Violência doméstica durante a pandemia de Covid-19 – ed. 2º, 29 de maio de 2020, p. 5 – 6. Anexo II.

^[10] LIMA, Renata Miranda; LIMA. Stefani Miranda; CROCE, Mayla; MUSSARA, Raissa. Combate à violência contra a mulher e contra a criança no mundo é urgente! Parte II (dados do agravamento à violência contra a mulher no Brasil). Escola Superior da Advocacia de São Paulo. Available at: https://esaoabsp.edu.br/Artigo?Art=243.

[11] Ministério da Saúde, Boletim de Maio de 2020. Available at https://portaldeboaspraticas.iff.fiocruz.br/atencao-mulher/mortalidade-materna-no-brasil-boletim-epidemiologico-n-o-20-ms-maio-2020/

[12] For information on maternal mortality rates until 2012, see: https://sxpolitics.org/ptbr/wpcontent/uploads/2011/12/brazil-upr_-maternal-death.pdf

^[13] Available at: https://reprohealthlaw.wordpress.com/2018/10/31/brazil-implementing-international-human-rights-to-improve-obstetric-care/

^[14] Takemoto MLS, Menezes MO, Andreucci CB, et al. The tragedy of COVID-19 in Brazil: 124 maternal deaths and counting. Int J Gynecol Obstet 2020 [Preprint]. July 9, 2020 [cited 2020 July 19]. Available from: https://doi.org/10.1002/ijgo.13300.

https://academic.oup.com/cid/advance-article/doi/10.1093/cid/ciaa1066/5877027

^[15] Available at: https://sxpolitics.org/brazils-minister-of-health-dismisses-two-civil-servants-for-expressing-support-for-womens-sexual-and-reproductive-health/20965

^[16] Available at: http://abiaids.org.br/mito-vs-realidade-sobre-resposta-brasileira-epidemia-de-hiv-e-aids-em-2016/29228

^[17] Available at https://www1.folha.uol.com.br/cotidiano/2020/02/pessoa-com-hiv-e-uma-despesa-para-todos-no-brasil-diz-bolsonaro.shtml; and at http://abiaids.org.br/em-nota-abia-repudia-declaracao-de-bolsonaro-e-pede-garantia-dos-direitos-constitucionais-das-pessoas-que-vivem-com-hiv-aids/33836.

^[18] https://www.pri.org/stories/2015-11-24/brazils-new-abortion-rules-would-require-tests-rape-victims

[19] Available at https://wp.me/pxgon-5Dk

[20] Available at https://wp.me/pxgon-5Dn

[21] Available at https://wp.me/pxgon-5Dh

^[22] To have additional information on the case, read an in-depth article: https://sxpolitics.org/the-case-of-the-girl-from-espirito-santo-is-this-a-new-turning-point-in-the-long-journey-for-abortion-rights-in-brazil/21576

^[23] http://www.stf.jus.br/portal/cms/verNoticiaDetalhe.asp?idConteudo=451025

^[24] Available at https://static.aosfatos.org/media/cke_uploads/2020/09/01/urgent-appeal_legal-abortion_brazil-1-copiar.pdf

^[25] https://g1.globo.com/es/espirito-santo/noticia/2020/08/28/menina-de-11-anos-fica-gravida-apos-estupro-no-norte-do-es.ghtml