Perú: Support Equality And Sexual Rights In Constitutional Reform

SUMMARY

The Peruvian Congress has embarked on a process of amending the national Constitution. Congressional debates began on September 12 and will continue until October 3.

Seven lesbian, gay, bisexual and transgender non-governmental organizations have created a coalition called FREDIF (Frente por el Derecho a ser Diferente--the Front for the Right to be Different), to promote the inclusion of "sexual orientation" as a category protected against discrimination in the new Peruvian Constitution. A coalition of local women's organizations led by CLADEM (Comité de América Latina y el Caribe para la Defensa de los Derechos de la Mujer--Latin American and Caribbean Committee for the Defense of Women's Rights) supports FREDIF's claim and has also advanced important proposals of their own, protecting sexual rights and the rights of women and children.

Members of Congress have so far ignored those citizens' demands. FREDIF and the women's coalition are staging peaceful demonstrations in front of the Congress each week while the amendments are discussed.

ACTION

IGLHRC joins FREDIF and the coalition of women's organizations in calling for letters to members of Congress supporting their proposals.

Please email your letters to
pvp@congreso.gob.pe (Peruvian Virtual Congress - a system implemented by the Peruvian Congress to receive comments online)

Or fax them to:
(51 14) 311 78 32

Please address your letters to the following Members of Congress.

Dr. Henry Pease
President of the Constitutional Commission
Dr. Carlos Ferrero Costa
President of the Peruvian Congress
Dra.. Mercedes Cabanillas,
Second Vice-President of the Peruvian Congress
Dr. Natale Amprino Pla
Fourth Vice-President of the Peruvian Congress
Dra. Annel Townsend,
Member of Congress
Dra. Gloria Helfer
Member of Congress
Dr. Heriberto Benitez,
Member of Congress

And please send a copy to:

MHOL (Movimiento Homosexual de Lima)
mholpe@terra.com.pe

and

CLADEM
eda@flora.org.pe

SAMPLE LETTER

Commission on the Constitution
Congress of the Republic of Peru

Dear Congresswomen and Congressmen,

We write to express our support for amendments to the Peruvian Constitution proposed by FREDIF (Frente por el Derecho a Ser Diferente) and by the coalition of women's groups led by CLADEM (Comité Latinoamericano y del Caribe por la Defensa de los Derechos de las Mujeres).

The proposals are consistent with international law and precedent, and will strengthen Peru's democracy as well as further social as well as political equality. We urge you to consider that:

  • The inclusion of sexual orientation as a status protected against discrimination will place Peru among those States, South Africa among them, which have ensured full inclusiveness in their Constitutional protections. It is consistent with international human rights precedents, including key decisions of the United Nations; it is also consistent with a progressive understanding of equality.
  • CLADEM's proposals also acknowledge the State's responsibility for creating the social and material conditions in which rights can be fully and equally enjoyed. Adopting these proposals will affirm Peru's commitment to real enjoyment, rather than merely formal recognition, of rights.
  • The rights to a name, to filiation, and to be recognized by one's parents at birth are fundamental aspects of the right to identity.
  • Affirming the neutrality of the Peruvian State with regard to religious belief, and the separation of Church and State, guarantees the freedom of conscience, as well as the independence of government from moral particularism and pressure.
  • CLADEM's proposals also commit the State to combating sexual violence--a necessary promise, and one which will assist in overcoming the invisible disempowerment and exclusion of crucial sectors of the population, including women and children.
  • CLADEM's proposals also incorporate the right to the free exercise of sexuality, and oblige the State to inform the public about sexual and reproductive freedoms and health. This obligation has been recognized by international mechanisms, including the UN's Committee on Economic, Social, and Cultural Rights, as essential to the State's task of protecting the health of its population. It is particularly essential in the light of the restrictions still experienced by women--in Peru as elsewhere in the world--against the exercise of their sexuality. To recognize and name that repression is crucial to ensuring equality.

We encourage you to incorporate the proposals advanced by the gay, lesbian, bisexual, transgender, and women's communities into Peru's new Constitution. In so doing you will not only help fulfil the promise of human rights--but will establish a place for Peru in the vanguard of States which promote equality and expand democracy.

Sincerely,

(Your name, organization and address)

BACKGROUND

Following are versions of possible Constitutional changes being discussed in Peru. In each case, the first citation is from the Constitutional Reform Proposal currently being discussed by the Constitutional Commission of Congress. After that, the amendments to the provision proposed by FREDIF and the coalition led by CLADEM can be found.

1. Title 1 - Chapter 1 - Fundamental Rights

Article 1. The human person is the supreme end of society and State. All have the duty to respect and protect it, and facilitate its development.

CLADEM Proposal:

Defense of the human person and respect for its dignity are the supreme end of society and State. The State guarantees the principles of human rights' indivisibility, interdependence and non-regressivity.

2. Section 1: Civil Rights

Article 2. Every person has the right:

2.1 To life, identity, moral, psychological and physical integrity, and free development. From conception, the person is subject to the law insofar as it is to his/her advantage. The death penalty is forbidden.

CLADEM Proposal:

2.1 To life. The State must guarantee a dignified standard of life that allows free development of one's personality. The death penalty is forbidden.

To identity, to a name, to know who their progenitors are and to be recognized and registered by his/her father or mother at birth.

The State guarantees to every person to right to investigate his/her filiation.

To moral, psychological, physical and sexual integrity. It is the duty of the State to adopt legislative policies and measures in order to prevent, punish and eliminate violence, in particular that affecting women, boys, girls, adolescents and the elderly.

2.2. To equality before the law. Every form of discrimination having as its object or result the annulment or undermining of recognition, enjoyment or exercise of personal rights, is forbidden. State and society promote positive conditions and measures so that in reality and effectively nobody be discriminated.

CLADEM/FREDIF Proposals:

To equality before the law, equal opportunity and treatment.

Every form of discrimination based on difference of origin, filiation, race, ethnicity, gender, age, language, religion, opinion, economic status, disability, sexual orientation, health status, culture or any other condition having as its object or result the annulment or undermining of recognition, enjoyment or exercise of human rights is forbidden.

The State will promote conditions that will make equality real and effective and will undertake affirmative action in favor of those groups subject to discrimination and marginalization.

2.3 To freedom of conscience, opinion and religion, individually and collectively. There is no persecution based on ideas or belief. There is no crime of opinion. The exercise of all beliefs is free, provided that personal dignity, fundamental rights or norms of public order are not violated.

CLADEM Proposal:

To freedom of conscience, opinion and religion, individually and collectively. There is no persecution based on ideas or belief. There is no crime of opinion. The exercise of all beliefs is free, provided that personal dignity and fundamental rights are not violated. No religion will be adopted by the State.

Conscientious objectors are recognized in their rights, provided they do not violate the rights of others.

2.23 To personal freedom and security. Thus ...

h. No one shall be a victim of moral, psychological or physical violence, nor subjected to torture or inhuman, humiliating or degrading treatment. Anyone can request immediate medical examination of the aggrieved person, or of those unable to resort to the authorities personally. Statements and evidence obtained through violence or without respect for the procedures prescribed by law, have no value.

CLADEM Proposal:

To personal freedom and security. Thus ...

h. No one shall be a victim of moral, sexual, psychological or physical violence, nor subjected to torture or inhuman, humiliating or degrading treatment. Anyone can request immediate medical examination of the aggrieved person, or of those unable to resort to the authorities personally. Statements and evidence obtained through violence or without respect for the procedures prescribed by law, have no value at all.

New article proposed by CLADEM:

Every person has the right to make decisions about his/ her sexual life, free from any form of coercion, violence and discrimination. The State promotes the exercise of free and pleasurable sexuality through providing sexual information and education throughout the life cycle.

Women's organizations participating in the coalition led by CLADEM are: Centro de la Mujer Peruana Flora Tristán, Movimiento Manuela Ramos, Centro de Estudios para la Defensa de la Mujer-DEMUS, Movimiento El Pozo, Milenia Radio, Asociación Aurora Vivar and Centro de Investigación y Promoción Amazónica.

On September 12, 2002 the Executive Director of MHOL (Movimiento Homosexual de Lima), Aldo Araujo, delivered almost 5.000 signatures collected by FREDIF in support of including "sexual orientation" among protected statuses in Article 2.2. of the new Constitution. Mr. Araujo was received by Congressmen Javier Diez Canseco and Henry Pease and had the opportunity to discuss with them about the text of the Article. Mr. Pease expressed the opinion that discrimination based on sexual orientation is of a cultural rather than strictly juridical nature. Nonetheless, he promised to circulate the proposal among other members of Congress.

IN THE LAW

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 which expressly include sexual orientation in anti-discrimination provisions. In adopting FREDIF's proposal, Peru would be acting in accordance with existing standards of international human rights law.

The proposals made by CLADEM are equally in the spirit of existing international protections. The rights to bodily integrity and sexual autonomy grow out of recognized principles safeguarding the liberty and security of the person; the right to privacy; the rights to freedoms of expression, association, and assembly; and core economic and social rights, including the right to health. These rights--as the UN Committee on Economic and Social Rights has observed, in its General Comment 14 on the right to health--entail both freedoms and entitlements. What the Committee states about health is true of the range of rights involved and interlinked in the concept of sexual rights:

"The freedoms include the right to control one's health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation. By contrast, the entitlements include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health."

CLADEM's proposals thus appropriately encompass both protections against undue State interference with the person, and requirements for positive State action to fulfil human rights. This is also consistent with other existing international standards on sexual and reproductive rights--and with core protections of the rights of women.

For example,the Declaration and Platform for Action of the Beijing Fourth World Conference on Women states in its Paragraph 96 that "The human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence." It also affirms the right of women to "decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health," as well as "their right to make decisions concerning reproduction free of discrimination, coercion and violence" (Paragraph 95). Similar language is found in Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

CLADEM's proposals also strengthen the requirement that the State respond to violence. The UN General Assembly, in its Declaration on the Elimination of Violence Against Women, and the UN Commission on Human Rights have recognized (in the words of the latter) "that violence against women both violates and impairs or nullifies the enjoyment by women of human rights and fundamental freedoms." The Commission has drawn attention to "the long-standing failure to protect and promote these rights and freedoms in relation to violence against women." (Commission Resolution 1995/85 on the Elimination of Violence Against Women) The UN Special Rapporteur on Violence Against Women, Radhika Coomaraswamy, states that "Violence against women in general, and domestic violence in particular, serve as essential components in societies which oppress women, since violence against women not only derives from but also sustains the dominant gender stereotypes and is used to control women in the one space traditionally dominated by women, the home." (1995 Report of the Special Rapporteur, E/CN.4/1996/53, at 27.) The Beijing Platform for Action observes that "Sexual and gender-based violence, including physical and psychological abuse, trafficking in women and girls, and other forms of abuse and sexual exploitation place girls and women at high risk of physical and mental trauma, disease and unwanted pregnancy. Such situations often deter women from using health and other services."According to the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (Convention of Belem do Para), "Violence against women shall be understood to include physical, sexual and psychological violence" (Article 2). The Convention on the Rights of the Child (CRC) mentions "sexual abuse" among the forms of violence from which children must be protected by the State (Articles 19.1 and 34)

Especially notable is the proposals' affirmation of the rights to identity and to filiation. The right to a name and to "be registered immediately after birth" is protected by the ICCPR in its Article 24.2, and by the CRC in its Article 7.1, which also protects the right of the child "as far as possible" to know its parents. The Interamerican Convention on Human Rights (IACHR) also recognizes the right to a name in its Article 18. However, these basic rights are widely violated in Peru.

Many births in Peru, as in other Latin American countries, go unregistered. The rural and urban poor often find the physical distance of registries, or the existence of fees, insuperable barriers to registering their children. The State shows little interest in officially confirming the citizenship of the poor and their children, who can contribute little through taxation. Unregistered children, however, find later in life that the lack of birth certificate leaves them unable to obtain a State ID. And not possessing identification often bars them from attending school or receiving medical care, including vaccinations; in adulthood it deprive them of basic rights, including the right to vote, and restricts their access to essential services. (Similar problems are faced by transgender people in many countries of the world.) CLADEM's proposal would compel State authorities to make registries accessible to all residents of the country. Comparably, CLADEM's proposal recognizing the right to filiation would offer protections to single mothers, constraining the State to ensure that children can know their parentage--and that neither parent can evade the duty of support.

Peru ratified the ICCPR and ICESCR in 1978, CEDAW in 1982, and the CRC in 1990. It ratified the IACHR in 1978.