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Developing Sexual Rights: Challenges and Trends in

Roger Raupp Rios

1 Introduction and analyse it in order to adequately reflect on and The current situation concerning the rights of practice it. Hence, the relevance of a legal approach. , and persons in Latin America can be examined from various perspectives. This article thus begins with a typology of legal These might include analyses of the successes and frameworks as to the level of repression against (or failures, the limits and possibilities, and the formal legal protection of) LGBT people. This initial exercise recognition of these rights by Latin American will be followed by listing the trends and challenges national states, in an approach pertaining more to in the Latin American scenario, aimed at an political science. Studies can also be proposed on the understanding of the current situation and prospects effectiveness of existing rights, based on the degree concerning these rights. I conclude with observations of commitment by various government institutions on what might be done to further advance efforts to involved in their enforcement, adopting a more overcome on the basis of sexual sociological perspective. Anthropological research orientation. can also point to the impacts that formal recognition of these rights can have on the social representations 2 The legal situation of LGBT people in Latin concerning these groups, both inside and outside the America groups themselves. There are many ways of thinking about the legal situation of LGBT people in Latin America. Two In this article, I propose to examine the current perspectives predominate, the ‘descriptive’ and the situation regarding the rights of lesbian, gay, bisexual ‘operational’. The ‘descriptive perspective’ demands a and transgender (LGBT) people from a legal compilation and systematic review of the legislation perspective. What does such an analysis entail? What enacted around the region. This compilation, is the relevance of a legal approach to this issue? although unquestionably important, is beyond the One should begin by distinguishing between a legal objectives of the current article, which aims primarily analysis and a mere inventory of legislation and case to analyse the law’s effectiveness in relation to the law on the topic. A legal analysis involves more than discrimination reality rather than compiling data; on the contrary, it requires a critical to describe the legislative and administrative sources examination of the prevailing legislation and its for Latin American guidelines on the issue. Taking an potential and limits for dealing with these rights, ‘operational perspective’ involves systematising and whether or not the legislation is explicit in relation discussing the most effective legal arguments and to sexual rights. A legal analysis should also cover the procedural strategies for the best possible legal trends and challenges for the recognition and protection required by LGBT people. Based on enforcement of these rights, serving as important consecrated hermeneutic canons in legal theory, this material for a more adequate understanding of perspective requires a broader legal and political reality, to be incorporated by researchers and comprehension of the role of the sexual orientation activists. To the extent that the law (whether in its discrimination law in the region. Such understanding official wording or its enforcement by legal bodies) is enables legal professionals, researchers and activists also a fact of social reality, we must both understand to extract the greatest possible efficacy vis-à-vis the

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reality of the discrimination, while also pursuing the the above-mentioned practices and penalising most adequate procedural strategies. discriminatory acts also establish positive measures for the protection and recognition of 3 Typology of legal frameworks concerning the the sexual practices and identities of gays, rights of LGBT people and transgender persons. The relationship between sexuality and the law, viewed as a legal framework (that is, the set of normative state In the Latin American context, the application of this instruments prevailing at a given moment in a given typology of legal frameworks vis-à-vis the degree of country, encompassing both legislative acts and court protection of LGBT rights allows one to evaluate the decisions), is an ancient one. Traditionally, state law was situation with such rights in the region. The objective produced as an instrument to reinforce and preserve of this article is not to map the situation in each the majority and dominant sexual moral norms. State individual country (a task that would require a joint law has served to confirm hegemonic sexual relations effort by numerous researchers and detailed data and practices. Examples include the consecration of the collection, not to mention keeping pace with the petit bourgeois nuclear family, the attribution of sexual dynamism characterising the legislative and juridical rights and duties between spouses, and the output in such a broad area). Rather, the article seeks criminalisation of homosexual acts. to identify the most salient elements in this scenario, allowing an analysis of the trends and challenges for With the emergence of social movements these rights in Latin America. vindicating the acceptance of practices and relations divorced from this model, the issue of sexual rights, An overview of the Latin American situation, and especially that of LGBT rights, was shifted into considering the available data, shows that: (1) there is the political arena and thus into the legal debate. The no legal framework in Latin America that emergence of these demands and the recognition of criminalises homosexual sexual practices, except in some rights (although slowly and unevenly) launched specific contexts such as military establishments; a new modality in the relationship between these (2) the majority of legal frameworks in Latin America legal frameworks and sexuality (Heinze 1995). penalise acts of discrimination on the grounds of Historically, and concentrating on modernity, one expressions of sexuality (e.g. Argentina, , observes the emergence of these rights in the Colombia, Ecuador, Mexico and Peru); and (3) few 1980s, when a landmark decision by the European legal frameworks establish positive measures for the Court of Human Rights overruled a law criminalising protection and recognition of these sexual rights sodomy, on the grounds that said legislation violated (Argentina and Brazil). Only Cuban law explicitly a basic human right, namely the right to privacy. establishes punishment for public manifestations of (Penal Code, Article 303). In some Since then it has been possible to speak of various other countries, legislation that criminalises relations levels of protection for LGBT sexual rights, and hence between persons of the same sex has only very the following proposed typology of legal frameworks: recently been revoked: in Chile, for example, homosexuality was criminalised until 1998.1 1 Legal frameworks with a minimal degree of protection: those that have revoked the traditional prohibition Meanwhile, in the sphere of protective frameworks, of sexual practices that depart from hegemonic Brazil, Argentina and Colombia are examples of standards (especially linked to penal law). countries which not only prohibit discrimination, but also institutionally recognise unions between persons 2 Legal frameworks with an intermediate level of of the same sex (in Brazil and Colombia, based on protection: those which besides not criminalising court rulings, while in Argentina there is explicit such sexual practices also institute measures to legislation) (Golin et al. 2003; Cabal et al. 2001). The penalise discriminatory acts, especially by degree of protection varies from country to country. prohibiting discrimination on the grounds of Brazil has shown a high degree of institutional sexual orientation. protection, at least formally, since the country launched the 2nd National Human Rights 3 Legal frameworks with a maximum degree of Programme and the ‘Brazil without ’ protection: those which besides not criminalising Government Plan, and of course the government

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support (especially through the Ministry of Health) relations. Within this broader context, there for visibility campaigns and specific attention to gay emerged spaces for the strengthening of civil society and lesbian groups. and various social movements, among which the feminist and gay movements have played outstanding In the context of protective frameworks, Ecuador roles in demanding LGBT rights vis-à-vis the state. should be highlighted for its Constitutional provision explicitly prohibiting discrimination on grounds of More specifically, this dynamic reached the legislative sexual orientation (Leon 1999), with the following and judiciary branches, not only by the gradual wording: establishment of alliances and dialogue with progressive Congressional forces, but also by the All persons shall be considered equal [before the strengthening of judicial bodies. The latter, law] and shall enjoy the same rights, freedoms, encouraged by post-Second World War Continental and opportunities, without discrimination on European Constitutionalism, were opened to the grounds of birth, age, sex, ethnicity, color, social possibility of human rights protection, consecrated origin, language, religion, political affiliation, not only in the international order but also in the economic position, sexual orientation, health respective national Constitutions. The latter was an status, disability, or difference of any other nature. important factor for the development of LGBT rights in Latin America. Constitutional courts in various A broader survey of the situation with LGBT rights in countries such as Brazil, Colombia and Peru handed Latin America also shows in practice the absence of down rulings that penalised acts of discrimination on legal regulation based on a human rights perspective the grounds of sexual orientation (Cabal et al. 2001). in dealing with the specific situation of transsexualism or that of travestis (transvestites).2 On Another important factor in the development of these fronts, the biomedical approach usually LGBT sexual rights has been their increased impetus prevails, especially in relation to transsexualism. As for since the emergence of the HIV/AIDS epidemic. the treatment of travestis, even in countries where Although the epidemic was initially a factor in the cross-dressing is not considered illegal, a repressive stigmatisation of gays and travestis, eventually the approach prevails in respect of their engagement in responses developed to fight the epidemic provided street prostitution and other forms of sex work, greater reflection and networking among such based on the criminalisation of what are considered groups (Cáceres et al. 2002). This in turn helped raise obscene acts in public byways and repression of awareness concerning discrimination and has prostitution. Having briefly indicated these elements, demanded reflection on the relationship between we can proceed to an inventory of trends and the law and sexuality, highlighting the need to adopt challenges for LGBT rights in Latin America. a human rights paradigm in this area. Another important trend in the development of LGBT rights 4 Trends in the development of LGBT rights has been their relationship to issues of access to Several trends can be extracted from the emergence health services. Countries with public health services, and development of LGBT rights in Latin America. In and especially those that intend to increase the the light of the above overview, the following points population’s access to such services, are faced with will be emphasised: (1) recognition of these rights multiple demands relating to sexual rights (Parker within an overall context of re-democratisation in and Corrêa 2003). This emphasises the need to Latin America; (2) the impact of the HIV/AIDS provide health services that consider the specific epidemic; (3) the link between these rights and situations of groups claiming sexual rights, such as public health concerns; and (4) the affirmation of travestis. these rights within demands for social rights. To conclude this inventory of trends in the Since the mid-1980s, Latin America has undergone a development of LGBT rights in Latin America, one process of re-democratisation resulting from the should not overlook a Latin American specificity exhaustion of various military dictatorships and when comparing the issue’s evolution here and in changes related to the international order and Europe and North America. From the legal point of stemming from the dismantling of the former Soviet view, in Europe and North America the recognition Union and the subsequent détente in East–West of LGBT sexual rights began (and continues to

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develop) on the basis of demands invoking the right Another important challenge for the affirmation of to privacy and the right to non-discrimination LGBT sexual rights is the tendency towards a (Heinze 1995). This involves so-called ‘negative rights’, biomedical justification of such rights. To assess this i.e. demands for non-intrusion by either the state or challenge it is necessary to focus on the underlying third parties in individual choices and practices. For tenets in the demand for such rights. While it is true example, case law history in Europe and the USA has that sexual health concerns are important for the always emphasised privacy as the principal achievement of sexual rights, it is equally true that Constitutional premise for the affirmation of LGBT the recognition of sexual rights stems from a individual and group rights (Rios 2004). broader perspective than merely preserving and cultivating health. Sexual rights in general, and The Latin American experience has revealed other especially LGBT sexual rights, are informed by a alternatives. Demands for social rights have fuelled human rights perspective, one that may clash with the discussion on LGBT rights. An example is the narrower biomedical views. An arena where this demand for social security rights and health plan conflict is particularly evident is the situation of entitlements, which has been the pioneering (and travestis. most successful) legal strategy for the recognition of LGBT rights in Brazil (Vianna 2004). A critical aspect of this same challenge is the widespread resistance to the very idea of human 5 Challenges to the development of LGBT rights rights in our Latin American countries. For a Although recent, the development of LGBT rights in considerable share of our population, the very notion Latin America has met with several challenges, of human rights is perceived in a twisted and including: (1) the difficulty in developing a specific prejudiced way, as if human rights were devoted field related to sexual rights, not necessarily linked to exclusively to protecting criminals. This mindset, the the idea of reproductive rights; (2) the need to base result of a long history of authoritarianism, sexual rights on a human rights paradigm rather than permeates many institutions and groups both inside merely cultivating sexual health; (3) the conservative and outside the state, thus further hindering religious backlash against the recognition of LGBT demands for LGBT rights based on human rights sexual rights, and the difficulty in affirming a secular principles. state; (4) the persistence of cultural realities that are incompatible with the development of LGBT sexual The emergence of fundamentalist religious rights; and (5) socioeconomic conditions of poverty movements poses another major challenge for the affecting huge population contingents in the region. development of LGBT rights in Latin America. This trend is seen not only among many of the so-called The history of international human rights instruments neo-Pentecostal churches. Even in the heart of the shows that sexual rights were not originally conceived Catholic Church, conservative currents in relation to as autonomous in relation to reproductive rights. On sexual conduct have gained force. Together, these the contrary, they were seen as a kind of appendix to groups react to the empowerment of the LGBT the idea of reproductive rights. In fact, historically movement by proposing, for example, legislation speaking, the main underlying concern in the aimed at ‘converting’ homosexuals into expression ‘reproductive and sexual rights’ has been heterosexuals, even making use of the public health to weigh against the injustice contained in gender system for this purpose. The difficulty in affirming the relations and the denial of reproductive autonomy. secular nature of the state in the young and There is no denying the importance of the struggle immature Latin American democracies is a crucial against reproductive and gender-based injustice. But, obstacle, to the extent that our societies bear a as LGBT rights make quite clear, the sphere of historical experience of a strong, centuries-old sexuality extends far beyond these limits (Parker and institutional association between the Catholic Corrêa 2003). It encompasses freedom of sexual Church and the civil state (Guesmez 2004). expression and a range of issues affecting LGBT people. In addition, the affirmation of sexual rights Persistent representations of female inferiority and even reaches sexual practices not associated with gender subordination, as expressed in such cultural particular identities, with sadomasochism as a good formulations as , pose another cultural example of this reality. challenge to the development of LGBT sexual rights

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in Latin America (see Parker and Corrêa 2003; Within this framework, deepening and adequately Alpízar and Bernal 2004). We are dealing with a understanding the situation of LGBT rights and how cultural context divorced from human rights they can be protected and promoted at multiple levels principles, reaching such extreme examples as the is an indispensable task for legal authorities, assassination of gays and travestis and widespread professionals and civil society. By proceeding in this sexual violence faced by women. direction, a fruitful dialogue can be established between law-making and jurisprudence, public policies Finally, the precarious socioeconomic conditions and initiatives by civil society, all in a virtuous circle. This affecting a major portion of the Latin American dynamic can help overcome an exclusionary and population pose a huge challenge for the stigmatising culture in relation to those whose enforcement of LGBT sexual rights. Poverty and identities as LGBT mark them as ‘different’, as well as destitution are real barriers against access to various resistance to freedom of sexual expression. benefits such as knowledge, information, and services related to sexuality. They limit the perception In effect, human rights-orientated legal practices can of risks related to unsafe sex. They maintain a barrier contribute not only to a more effective social to formal schooling and have nefarious consequences response against discrimination, but also can help us for attempts to establish a social life free of overcome exclusionary mindsets and repressive legal . categories, making a break with mechanisms of inequality and injustice in both the law and society as 6 Conclusion a whole (Rios 2004). Such kind of legal In recent years the rights of LGBT persons have developments, affirming a human rights perspective, received greater institutional attention in Latin are a decisive step towards the justice and America. Legislative and legal gains have been made democracy in Latin America, especially for those at various moments, some of which – such as the groups that suffer widespread societal discrimination, Ecuadorian Constitution and Brazilian anti- such as LGBT people. The current situation in our discrimination legislation – demonstrate significant countries, related to freedom of sexual expression, is changes in attitudes across the continent. It is, an emblematic example of how rights, realities, however, also the case that persistent factors societal and governmental efforts are pieces of a challenging such rights still leave their affirmation complex social, political and legal puzzle. In such a and consolidation in jeopardy. If this situation is true complex dynamic, everyone has to connect for the countries in which these sexual rights have initiatives, expertise and efforts in order to build a already reached some degree of recognition, it is all society in which non-discrimination and freedom of the more so in those countries where such rights sexual expression are not only legal and political have scarcely been achieved. principles, but also concrete alternatives for all.

Notes sexual relations with the female sex, in Latin 1 For further information on legal frameworks and America transvestites (travestis) generally prefer experiences in these countries, see Cabal et al. same sex sexual relations. Many are engaged in (2001), Vianna (2004) and CLADEM (2003). sex work. See Campuzano in this IDS Bulletin. 2 While in Europe and North America is generally associated with men who prefer

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References Guesmez, Ana (2004) Estado Laico, Sociedad Laica: un Alpízar, Lydia and Bernal, Marina (2004) ‘Youth, Debate Pendiente, Ciudadania Sexual En America Sexuality, and Human Rights: Some Reflections Latina: Abriendo El Debate, Lima: Universidad from Experience in Mexico’, Health and Human Peruana Cayetano Heredia Rights: Special Focus: Sexuality, Human Rights and Heinze, Eric (1995) Sexual Orientation: A Human Right, Health 7.2: 217, Boston: Harvard School of Public The Hague: Martinus Nijhoff Health Leon, Magdalena (1999) Derechos Sexuales y Cabal, Luisa, Roa, Mônica and Lemaitre, Julieta (eds) Reproductivos. Avances Constitucionales y (2001) Cuerpo y Derecho – Legislación y Jurisprudencia Perspectivas en Ecuador, Quito: Fundación en América Latina, Bogotá: Editorial Temis Ecuatonana de Acción, Estudios y Participación Cáceres, Carlos, Pecheny, Mario and Terto Jr, Veriano Social (FEDAEPS) (2002) Sida y Sexo Entre Hombres en América Parker, Richard and Corrêa, Sonia (eds) (2003) Latina: Vulnerabilidades, Fortalezas y Propuestas para Sexualidade e Política na América Latina, Rio de la Acción, Peru: Universidad Peruana Cayetano Janeiro: Associação Brasileira Interdisciplinar de Heredia AIDS (ABIA) CLADEM (2003) Diagnóstico Sobre la Situación de los Rios, Roger Raupp (2004) ‘Apuntes Para un Derecho Derechos Sexuales y los Derechos Reproductivos, Democrático de la Sexualidad’, Ciudadania Sexual 1995–2002, Lima: Latin American and Caribbean En America Latina: Abriendo El Debate, Lima: Committee for Defence of Women’s Rights Universidad Peruana Cayetano Heredia (CLADEM) Vianna, Adriana (2004) Direitos e Políticas Sexuais no Golin, Célio, Pocahy, Fernando and Rios, Roger Brasil: Mapeamento e Diagnóstico, : (2003) A Justiça e dos Direitos de Gays e Lésbicas – Centro de Pesquisas e Desenvolvimento para a Jurisprudência Comentada, : Editora Segurança das Communicações (CEPESC) Sulina

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