The local council of Tecate, Baja California, Mexico, has passed an amendment to the city's "Police and Good Governance Act", penalizing "men who dress as women and move around public places, causing perturbation" (Article 34.15, Chapter VI) with arrest and a fine equal to 40 days' salary at the minimum wage.
According to reports from the newly formed gay organization Grupo Arcoiris Comunidad Gay Tecate, six men have already been arrested under the Act; one of these has faced physical abuse at the hands of police.
IGLHRC joins Grupo Arcoiris Comunidad Gay Tecate in asking for URGENT letters to be sent to Tecate local councilors, condemning the new formulation of Article 34.15 and demanding its immediate elimination.
Please write to:
- Presidencia Municipal
- Ortiz Rubio # 1310
Zona Centro, C.P. 21400
Fax: (52 665) 654 1175
And please send a copy to Grupo Arcoiris Comunidad Gay Tecate at:
Dear Council Members,
We are writing to express our concern for the amendment to Tecate's "Bando de Policía y Buen Gobierno" that penalizes "men who dress as women and move around public places, causing perturbation" (Article 34. 15, Chapter VI).
We find the expression "men who dress as women" dangerously ignorant of the complex realities of human sexuality and identity. We urge you to consult experts in medicine, sexology and psychology so you can learn about the lives of transgender people, that is, individuals who were born into a particular biological sex but whose perception of themselves corresponds to another. These are not "men who dress as women": these are individuals who do not see themselves as men, and who dress in a way that brings their appearance into harmony with their inner being. Some of them call themselves "gay men", others "transvestites".
Please keep in mind that being a transvestite or a gay man is not a crime. A particular mode of dress or a "mannerism" is a public expression, and hence subject to protection. The right to free expression is a basic human right, recognized by international treaties that Honduras has ratified, such the International Covenant on Civil and Political Rights and the Inter-American Human Rights Convention. The UN Special Rapporteur on Freedom of Expression, Mr. Abid Hussein, has stated that restrictions to "the ability to publicly express one's sexual orientation and gender identity--for instance through clothing … and public and social behavior"--is a violation of the right to freedom of expression, and as such falls within his mandate.
The association between "men who dress as women" and "causing perturbation", as expressed in the text of the amendment, is also a source of deep concern--not to mention the consideration in Article 34.15 of "men to dress as women" as a "moral offense". We can safely assume that the aim of Article 34.15 is to protect "public morals". This is a dangerously ambiguous concept, usually enforced against communities that are already vulnerable or excluded. No modern, complex society can operate under a single, exclusive idea of what constitutes "morality." Those in power impose their own idea of morality upon others, a fact testifying to power relationships and not to the quality of the "morality" itself. By contrast, democratic societies employ dialogue and negotiation to arrive at inclusive understandings of what can and cannot be restricted--adopting the basic principle that the law targets only what harms others, and taking into consideration the needs of all communities.
The effects of Article 34.15 are already damaging the gay community in Tecate. Six men (Enrique Espinoza Apodaca, Rubén Obregón Mange, Jesús Alexandro Reyes Castro, Jaime Valdez Avila, José Alberto Villagómez Machuca and a young men who only wants to reveal his first name, Luciano) have already been arrested and fined under the amendment. Luciano was also physically abused by local police officers, according to reports from local gay organization Grupo Arcoiris Comunidad Gay Tecate. In all cases, police officers failed to fulfill the requirement of recording the cause of arrest and amount of the fine on standard forms. Thus, there is no written evidence that these arrests ever took place. We urge you to conduct a full investigation into procedural violations and abuses that took place during those arrests, and to punish those who are found responsible for them.
Above all, we urge you to reconsider the amendment to the Bando de Policía y Buen Gobierno. It constitutes discriminatory treatment against a section of the Tecate population, and an offense to their human dignity and their uniqueness. Please consider that modern societies are diverse, encompassing many communities. Authorities should actively promote dialogue and understanding through lines of diversity, based on the idea enshrined within the Universal Declaration of Human Rights that "all human beings are born equal in dignity and rights." When the State punishes one particular expression of identity, while others are considered "moral" and legitimate, this is a violation of the basic principle of equality.
We are aware of the recent creation of the non-governmental organization, Grupo Arcoiris Comunidad Gay Tecate, which aims to promote and protect the human rights of the Tecatean gay community. We encourage you to meet with their representatives and to listen to their testimonies, their perspectives about gay and transgender identities, and their information about human rights protections enjoyed in other parts of Mexico (like in the Federal District, Aguascalientes, and Chiapas, where discrimination based on sexual orientation is forbidden by the respective Penal Codes) and in the rest of the world as well.
(Your name, organization and address)
On October 21, 2002, the Tecate City Council passed an amendment to the city's "Police and Good Governance Act" that defined "men who dress as women and move around public places, causing perturbation" as a "moral offense" and punished them with arrest and a fine equivalent to 40 days of the minimum wage (Article 34.15, Chapter VI).
Eight councilors (from the three main political parties in Mexico), including the Presidente Municipal (a mayoral figure in the city council of small Mexican towns), voted in favor of the amendment. Four councilors voted against the measure.
Six men (Enrique Espinoza Apodaca, Rubén Obregón Mange, Jesús Alexandro Reyes Castro, Jaime Valdez Avila, José Alberto Villagómez Machuca and a young men who only wants to reveal his first name, Luciano) have already been arrested and fined under the amendment. Luciano was also physically abused by local police officers, according to reports from local gay organization Grupo Arcoiris Comunidad Gay Tecate. In all cases, police officers failed to complete the necessary forms noting the cause of arrest and the fine paid. Thus, there is no written evidence that those arrests ever took place.
The amendment and its enforcement have galvanized the gay community in Tecate. A group of gay men and transgender people organized themselves as an association called Grupo Arco Iris Comunidad Gay Tecate and managed to attract the attention of national media as well as some reporters from the USA. As a creative reply to the city council's attempt to erase gay men and transgender people out of the public view, activists are planning a Gay Cultural Week in mid-December that will feature a Christmas float. The city's "First Gay Pride March and Protest" is also planned for November 5; participants will demand the repeal of the amendment.
IN THE LAW
Right to freedom of expression
Protected by the UDHR (Article 19), the ICCPR (Article 19) and the IACHR (Article 13).
Special Rapporteur Abid Hussein's quotation is taken from the letter that he and five of his colleagues addressed to gay, lesbian, bisexual and transgender communities all over the world inviting them to report and denounce human rights violations (June 2001).
Right to freedom from discrimination and right to equality before the law
Protected by the Universal Declaration of Human Rights (UDHR) in its Articles 2 and 7, by the International Covenant on Civil and Political Rights (ICCPR) in its Articles 2 and 26, and by the Inter-American Convention on Human Rights (IACHR) in its Articles 1 and 24.
The United Nations Human Rights Committee affirmed in its decision in Toonen v Australia (1994) that existing protections against discrimination in Articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR) should be understood to include sexual orientation as a protected status. Numerous other human rights mechanisms of the United Nations have subsequently condemned discrimination based on sexual orientation. Three States--South Africa, Ecuador, and Fiji--have adopted Constitutions that expressly include sexual orientation in anti-discrimination provisions.
Article 1 of the Mexican Constitution forbids all discrimination based on "ethnic or national origin, gender, age, different-ableness, social condition, health condition, religion, opinions, preferences, legal status or any other that damages human dignity …". Following the UN Human Rights Committee, sexual orientation would be protected under "sex" - and the reference to "preferences" can be of particular use in this case.
The Constitution of Baja California affirms for the State inhabitants "all individual and social guarantees consecrated by the Political Constitution of the United States of Mexico as well as the other rights granted by the Constitution".
At State level, on September 2, 1999, the Mexico City Legislative Assembly passed an Amendment to Article 281 of the Federal District's Penal Code that incorporated discrimination as a crime. It was the first Mexican law of an affirmative nature that recognized sexual orientation as a right. The article sets punishments of "one to three years in prison, a fine of fifty to two hundred days and twenty five to one hundred days of community service to anyone who on the basis of age, gender, pregnancy, marital status, race, language, religion, ideology, sexual orientation, skin color, nationality, origin or social position, work or profession, economic status, physical character, disabilities or health status
- provokes or incites hate and violence
- in the exercise of his professional, trade or business activities refuses services to a person who is entitled to it
- ostracizes or excludes a person or group with those actions causing material or emotional harm
- denies or restricts work rights"
In March 11, 2001, the Aguascalientes State Legislature passed an amendment to the State Penal Code (Article 205 bis) written in similar terms to that in force in Mexico City. And, in August, 2001, the Chiapas State Legislature passed a similar amendment to its Penal Code (Article 205 bis).
Right to freedom of movement
Protected by the UDHR (Article 13), the ICCPR (Article 12) and the IACHR (Article 22).
Right to liberty and security of the person
Protected by the ICCPR in its Article 9, and by the IACHR in its Article 7.
Right to be free from cruel, inhuman or degrading treatment
Protected by the UDHR in its Article 5, ICCPR in its Article 7 and IACHR in its Article 5.
Mexico ratified the ICCPR in 1981 and the IACHR in 1982. The UDHR is considered part of customary international law, and binding on all member States of the United Nations.
Published on October 30, 2002 | OutRight Action International an LGBT human rights organization