Historic August for LGBT Rights in Colombia

By Juliana Martínez

Colombia Diversa / Flickr / Creative Commons Attribution-NonCommercial-ShareAlike 2.0 Generic (CC BY-NC-SA 2.0)

Colombia has again shown itself to be a country of contrasts – a society ostensibly ruled by Catholic and conservative morals with one of the hemisphere’s most progressive Constitutional Courts – with two important legal decisions on LGBT rights.  The Court has defended the democratic, pluralistic, and inclusive spirit of the Colombian Constitution against powerful authoritarian and conservative forces for years.  In 2007 and 2008, it granted pension, social security, and property rights to registered same-sex couples, and it ruled that same-sex couples “constitute a family” in 2011.  In spite of some recent rulings tarnishing its liberal record, last month the Court made two decisions that, though limited, have historic implications.

  • It ruled in favor of step-child adoptions by gay couples.  After much political, legal, and even religious debate, the Court broke a four-year silence on the highly contested issue, ruling 6 to 3 that Verónica Botero could legally adopt the biological children of her wife, Anna Leiderman.  The ruling does not explicitly allow joint adoption by gay couples, but the decision cites ample scientific evidence and declares that parental homosexuality cannot be considered a risk factor for children, thus leaving the door open for further LGBT-friendly jurisprudence in the matter.
  • The court recognized the gender identity of trans women by declaring that they do not have to comply with the compulsory military service required of all Colombian males.  The case centered on Gracy Kelly Bermúdez, a transgender woman who filed a lawsuit against the mayor’s office in Bogotá when she was denied a job for failing to provide proof of her military service.  Bermudez had not entered the military because she identifies as a woman, and therefore did not have the Military Service Registration Certificate (libreta militar) required when applying for jobs, studying at the university level or accessing health care services.  She would have been exempted if she had undergone an official sex change – the right to change one’s sex has been protected in Colombia since 1993 – but this can only be legally done after undergoing sex realignment surgery, a procedure that most trans women do not have access to, cannot afford, or do not want.  Therefore, despite their gender identity and expression, the legal sex of the majority of trans women continues to be “male.”  The Court decided in favor of Bermúdez and ordered the mayor’s office to hire her immediately.

These decisions are far-reaching.  In the Bermúdez case, the Court was essentially prioritizing gender identity over assigned sex at birth.  It declared that asking trans women for the Military Service Registration Certificate when hiring them is unconstitutional because it violates their right to define their own gender.  Furthermore, the Court told Congress to draft a bill that regulates the rights of transgender people in Colombia, paving the way for a much-needed Gender Identity Law.  The ruling also has deep regional implications.  Since Argentina passed a groundbreaking Gender Identity Law in 2012, many countries have been struggling to achieve similar results – and the Colombian legal precedent can become a viable alternative for impact litigation.  Currently, at least ten countries in Latin America have compulsory military service with different levels of enforcement attached to non-compliance.  But as the Bermúdez case illustrates, military conscription mandates can turn into strange, yet effective platforms to denounce how the state routinely imposes gender identity on its citizens, often against their own will, and to catalyze legal reform that advances LGBT rights in the Americas.

* Dr. Juliana Martínez teaches gender and sexuality and Latin American Literature in the Department of World Languages and Cultures at American University.

September 25, 2014

Brazil: Is Marina Silva the PT’s Nemesis?

By Luciano Melo

MarinaSilva

Photo courtesy of the Marina Silva campaign website

No politician in recent years has been able to shake and polarize Brazilian politics as Marina Silva has since becoming the Brazilian Socialist Party (PSB) presidential candidate after its original nominee, Eduardo Campos, died in a plane crash last month. She has an alluring biography: born into an extremely poor family and illiterate until she was 16, she worked as a rubber tapper and rose to become one of the most prominent ecologists and defenders of the Amazon region alongside Chico Mendes, a true Brazilian hero. After earning a degree in history, Silva entered politics in the mid-1980s. Several years later she received the most votes as a state representative for Acre, served twice as a senator, and later became the Minister of Environment in Lula’s administration (a position from which she resigned due to fundamental divergences with the Workers Party and Dilma Rousseff). In 2007 she won the UN’s Champions of the World award, and three years later she ran for President under the Green Party banner, amassing 20 million votes on a platform emphasizing environmental issues and education.

Recent polls find roughly a third of Brazilian voters favoring Silva in the first round of balloting scheduled for October 5, and running even with or slightly ahead of President Rousseff in an anticipated run-off election three weeks later. The Brazilian media suggest that a large part of Silva’s appeal comes from a personal aura of transparency and rectitude – a refreshing change from others competing for Brazil’s top job. She has also demonstrated an old-fashioned ability to compromise in order to form alliances. A committed environmentalist, Silva teamed up with Eduardo Campos, a titan of agribusiness, and now, heading up the PSB ticket, her running mate is Beto Albuquerque, a moderate farmer who can bring a certain level of balance in the economic-environmental equation. On the separation of church and state, however, Marina may face a difficult balancing act. She is an evangelical Christian, winning a large chunk of religious voters in 2010, and she has defended the teaching of creationism in schools, saying that God created even Darwin. She rolled out an agenda for advancing LGBT rights recently, but criticism by Pastor Silas Malafaia, one of Brazil’s main evangelical leaders, forced her to reverse course and abandon her position 24 hours after having presented it.

Although Brazil is a religious country, laïcité – a French version of secularism – is a serious matter for the upper and middle classes, and Silva’s religiosity may cost her votes. She has exposed her core weak spot, which the other candidates will exploit in the upcoming debates and electoral campaigns. But popular concerns about corruption run much deeper in the eyes of the Brazilian people. The fact that presidents Dilma and Lula and the PT have become synonymous with misconduct in general, and mismanagement regarding Petrobrás in particular – a scandal involving 40 PT members in a multi-million real scheme – weakens their ability to counterattack amidst Silva’s continuous rise. What we will see in the elections in October is therefore a battle between the PT’s Bolsa Família – one of the most successful social programs in the history of Brazil – and a candidate who theoretically embodies honesty and honor. Whatever the outcome, it seems that PT has met its biggest challenge in 12 years.

Transgender Rights: Signs of Progress in Latin America

By Emily McGranachan

Marcha de Orgullo, Buenos Aires, Argentina / Photo credit: blmurch / Foter.com / CC BY

Marcha de Orgullo, Buenos Aires, Argentina / Photo credit: blmurch / Foter.com / CC BY

Social and structural discrimination limit the economic, health, and social prospects of transgender individuals, often leading to precarious lives fraught with human rights violations.  According to Argentine psychologist Graciela Balestra, transgender people around the world have an average life expectancy of only 30 years.  In Latin America, they have the highest rate of HIV infection (35 percent) and frequently face violence and insecurity.  According to the 2012 Trans Murder Monitoring Project report, of the total reported murders of transgender people in the world between 2008 and 2011, 79 percent took place in Latin America.  International HIV/AIDS Alliance and Red Latinoamericano y del Caribe de Personas Trans (REDLACTRANS) published similarly startling statistics in a 2012 report titled “The Night is Another Country.”  While the report focused on the experiences of transgender women, it also reveals that transgender men also experience high rates of discrimination and violence throughout Latin America.  Of the transgender women interviewed in the study, about 80 percent reported experiencing violence or threats by police and other officials.  Throughout Latin America the prevalence of transphobia – defined as the fear or hatred of transgender people – has led to impunity for violence and discrimination against transgender people, and these crimes, including murder, are seldom prosecuted.  The transgender community also faces challenges of social discrimination and the lack of access to health care and jobs, marginalizing transgendered people in society.

While the current situation is stark, some societies have shown greater openness to transgender people.  Whereas Brazil and Colombia allow identity card changes only after surgery and board evaluation, Argentina in 2012 became the first country in Latin America to pass a progressive law easing the rules with regard to gender identity and identification.  Now a person in Argentina can change the name and sex on their identity card without having to go through the long and discriminatory process of sex reassignment surgery or going before a judicial review board.  In 2009, Uruguay slightly loosened its controls when it began requiring only board approval for identity card changes.  Government initiatives, like that of Argentina, have direct impacts on the lives of transgender people, who are able to access jobs and other securities, according to Balestra.  Greater inclusion in society and stronger legal protections by the government can signify or signal a change in social values within the broader society.

The Obama Administration has been a vocal supporter of LGBT (Lesbian, Gay, Bisexual and Transgender) rights as part of a broader human rights agenda in international diplomacy.  Among its initiatives are the Global Equality Fund to support local LGBT organizations and advocates, a greater recognition of refugee rights for LGBT people, and a general promotion of rights abroad through working with NGOs and states.  Recognizing the situation in Latin America, the State Department highlights its work trying to establish a special rapporteur for LGBT human rights within the Inter-American Commission for Human Rights.  As some aspects of LGBT rights progress in the United States (the U.S. still has a high rate of violence against transgender people as well), it is expanding its understanding and definition of human rights.  While the right to security, health care, employment and dignity have long been international human rights, only recently has the discrimination and violence transgender people face become an important part of the human rights platform.  The incorporation of LGBT human rights into U.S. foreign policy, backed by a strong U.S. example of justice and security for transgender citizens, will encourage other countries to follow suit.