By: Zuleika Rivera
With the passing of Edith Windsor one cannot help but think about the LGTBQI movement in the United States and how much progress was made in the last few years.[1] Strategic litigation was crucial in the passage of progressive laws including the Supreme Court’s decision in Obergefell v. Hodges[2], but we must also reflect on civil society and the battles they fought to even have the chance at strategic litigation. The global movement for LGTBQI rights has not been as lucky or as progressive. One example of this is Peru where LGTBQI rights are not the only rights under attack. The last few months have been particularly trying for Peru’s human rights organizations and civil society due to a series of setbacks that threaten twenty years of progress. These setbacks range from rumors of Fujimori’s possible pardon to projects of law attacking women and minority rights to police violence against striking teachers. These setbacks are something we are now seeing around the world, but the case of Peru is one more people should know about.
The first of these setbacks is Legislative Decree 1323, a reform of the Penal Code, which seems to strengthen Peruvian femicide and sexual orientation laws (it has been at the debate stage for almost a year); however, Congress wants to repeal the provision in the project of law referring to discrimination to include that discrimination on the basis of sexual orientation and gender identity will not be sanctioned because that is not discrimination.[3] In other words, these would not be considered hate crimes. This, in of itself, is worrying. Peru’s LGBTQI community lacks protection and constantly experiences discrimination with the Observatory of LGBT Rights and HIV/AIDS reporting 174 homicides and 382 cases of violence against LGBT persons in Peru since 2005.[4]
In another worrying setback, the Superior Court of Lima voted to partially annul a gender parity focus in the national school curriculum.[5] Peruvian’s conservative sector opposed this new curriculum because they say sexual education should be up to the parents and reject social construction of gender. The judgement annuls the section that includes a social construction of gender.[6] This poses another setback for the LGTBQI community and women since it leaves out the recognition of measures to prevent discrimination against these groups.[7] The Ministry of Education has stated it will appeal the judgement and while this may seem a partial setback, it is a stepping stone towards other setbacks.[8] Peru’s conservative sector is just testing the waters.
Another project of law known as PL 211/2016-CR would create “cunas salvadoras” or baby hatches to curve the rise of abandoned children.[9] However, this law is closely linked to women’s right to decide. In Peru, abortions are only legal if the government determines there is a therapeutic reason to end the pregnancy, but victims of sexual violence who are pregnant and wish to end the pregnancy cannot.[10] In addition, the project does not mention how much money would be allocated for this program which can be worrisome considering that the Peruvian health sector is already underfunded and in need of a reform.[11] Health centers should be more concerned with providing attention and support to victims of sexual violence, sexual education, and make sure they have contraception in stock.[12]
These are just three of the current setbacks in Peruvian society but more could be named. The country faces a crucial challenge today and that is to protect the rights civil society has fought for and won over the last 20 years.
[1] See Robert McFadden, Edith Windsor, whose same sex-marriage fight led to a landmark ruling, dies at 88, N.Y. Times (September 12, 2017), https://www.nytimes.com/2017/09/12/us/edith-windsor-dead-same-sex-marriage-doma.html?mcubz=0.
[2] See generally Obergefell v. Hodges, 556 S.Ct. 3204 (2014).
[3] See Beatriz Ramírez Huaroto, Un resumen del Decreto Legislativo 1323 sobre violencia de género, Legis.pe (January 10, 2017), https://legis.pe/resumen-decreto-legislativo-1323-violencia-genero/.
[4] See Eric Anderson, Peru’s Congress moves to repeal hate-crime legislation, Peru Reports (April 10, 2017), https://perureports.com/2017/04/10/lgbt-congress-vote/.
[5] See Minedu apelará fallo que anula enfoque de género en currículo, La República (August 30, 2017), https://larepublica.pe/sociedad/1081296-minedu-apelara-fallo-que-anula-enfoque-de-genero-en-curriculo.
[6] See id.
[7] See id.
[8] See id. (quoting sectors of civil society that advocate for LGTBQI rights).
[9] Proyecto de ley de cunas salvadoras se debatirá el otro mes en el Congreso, La República (August 25, 2017), https://larepublica.pe/sociedad/1078324-proyecto-de-ley-de-cunas-salvadoras-se-debatira-el-otro-mes-en-el-congreso.
[10] La ley del aborto en el Perú, Decidoyo, https://decidoyo.org/aborto/marco-legal/ (last visited September 13, 2017).
[11] See Más que reforma del sector de salud se necesita reforma del Estado, señalan, Nacional (May 16, 2016), https://www.radionacional.com.pe/noticias/nacional-en-la-noticia/m-s-que-reforma-del-sector-salud-se-necesita-reforma-del-estado-se-alan.
[12] Proyecto de ley de cunas salvadoras se debatirá el otro mes en el Congreso, La República (August 25, 2017), https://larepublica.pe/sociedad/1078324-proyecto-de-ley-de-cunas-salvadoras-se-debatira-el-otro-mes-en-el-congreso.