by Franklin Gil Hernández [1]
The implementation of sexual and reproductive rights in Colombia can be described as ”half way done”. In all areas in which these rights are disputed — such as access to abortion, equal marriage and parenting rights, HIV&AIDS, sexual education, gender identity, sex work – rights have been “partially granted”, although each of these areas have achieved different stages of development in legal and social terms.
This article provides a bird’s eye view of Colombian political culture in relation to these domains of rights. It analyzes a few key situations concerning these rights in order to raise questions with regards to what has or has not been achieved. It comments on sexuality in connection with other manifestations of inequality and includes a reflection regarding how the sexual justice agenda relates to the current post- conflict peace process.
Currently, the dialogue between the Colombian state and FARC-EP (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo) is reaching its final phase. FARC-EP is the oldest armed leftist group in Latin America, created in 1964 by bringing together previously existing liberal and communist peasant movements. On June 23rd 2016, after almost four years of negotiations with the current government, a bilateral ceasefire agreement was signed. The final peace agreements are being drafted and these will then be subject to a plebiscite. After many years of warfare, this is certainly hopeful news. But the peace process is threatened by various sectors: in particular right wing parties and high level public authorities such as the Procurador GeneralAlejandro Ordóñez[2], known for his extremely conservative positions. The signing of the peace agreement is just the beginning of a much longer and complex process that will continue to unfold over the next few years. [3]
Tensions between sexual and juridical “cultures”
In Colombia, rights with regards to same sex marriages and adoption, abortion, gender identity (social identity and access to sex reassignment surgery, as well as reforms within the prison system and the military) have been granted as a result of judicial battles and decisions issued by high level courts, in particular the Constitutional Court. None of these claims for rights have prospered at the legislative level, which supposedly represents the views and values of the people.
The institutionalization of sexual and reproductive rights in Colombia is therefore outcome of high impact strategic litigations. Consequently, relatively advanced juridical definitions coexist with enduring cultural resistance which still needs to be deeply transformed in order for these norms to be effectively supported by society. Civil servants quite frequently refuse to follow the juridical norms, which are also set aside when other policy issues are considered to be more important. Implementation of these rulings also varies substantially depending upon the context: urban or rural, center or periphery.
The actions taken by the Procurador General Office are paradigmatic of these paradoxes.[4] The office has a mandate to oversee public services and the defense of human rights. Its head, however, is a well know conservative whose positions are openly aligned with dogmatic Christian doctrines and who has done his best to curtail the possibility that sexual and reproductive rights might prosper. Public financial resources and the energies of civil servants have been used to attack Court decisions regarding abortion, sexual education, and equal marriage and parenting rights, in order to create barriers to the implementation of these decisions. This resistance even includes open political persecution, as well as the funding of propaganda against these rights in the media.
Another illustration of the limitations of the newly adopted juridical norms can be found in the rapid proliferation of ”conscientious objection” with regards to legal abortion rights amongst health professionals and other civil servants. The increasing number of objectors creates obstacles for women’s access to abortion procedures. These limits and obstacles clearly reveal that it is not sufficient to legalize the right to abortion if parallel efforts are not implemented to make this right culturally and socially legitimate and accepted.
Majority politics vs. minority rights?
Colombian conservative, who are present in both the legislative and the executive branches, state that ”sensitive” issues as abortion, marriage and adoption cannot be resolved by non-representative bodies such as the Court. In their view, these matters must to be submitted to Congress or to a popular vote. These sectors have made systematic efforts to restrict the role of the courts as a mechanism that ensures the checks and balances of democratic architectures. Conservatives have also invested in delegitimizing the Constitutional Court by describing it as an instrument of the “dictatorship of minorities”, a body that ignores democratic discourses and, in particular, aims to impose a ”gender ideology” over and above the wishes of Colombian society.
Subordination of minority rights to popular vote is clearly inappropriate and unjust, however. Fundamental constitutional premises such as the right to the free development of personhood, or the principles of equality and non-discrimination, cannot be submitted to a referendum. Subjecting LGBT rights to popular vote is an absurd a proposition as promoting a plebiscite to decide whether women can vote or whether black people have equal rights. Majorities cannot unilaterally overrule the claims of minorities: minorities’ rights and voices must ne guaranteed checks and balances designed to restrain State and majority powers.
Recently, however, liberal senator Viviane Morales has collected signatures for a request to submit the Constitutional Court’s decision on the right of same sex couples to adopt to a referendum. [5] 2.1 million signatures were collected, a figure that clearly surpasses what was required for a plebiscite to be approved. The question we must act is what will the impact of this campaign be? Recent experiences indicate that it is not easy for such a referendum to be approved, because the requirements are quite stringent. Furthermore, even if approval occurs, the referendum’s results may be considered unconstitutional. However, the cultural and political impact of this campaign should not be minimized. Even if the referendum does not pass, Senator Morales has accumulated a substantial electoral capital by attacking abortion and LGBT rights. . The same cannot be said of politicians who support these agendas.
It is true that unreliable opinion polls were used by conservative sectors to argue that that the right to adoption by same sex couples lacked popular support. But it should be said that reliable studies also show that support for these rights remains limited. For example, the Encuesta Bienal de Culturas de Bogotá of 2013 shows that 35.9 percent of people consulted partially disagree with the proposition that ”homosexuals can be primary school teachers” and 15.2 percent totally disagree with this statement. Forty three percent of women polled in the 2010 Demographic and Health Survey support the rights of same sex persons to marry, but only 22 approve their right to adopt. How will these figures make themselves felt in a popular plebiscite? As suggested by the popular saying, this referendum will be a fight between a tiger and a hobbled donkey. [6]
The ”enabling” environment and state institutions
The Constitutional Court is currently affected by the deeper troubles of Colombia’s political culture. The Court, which usually understood as the “crown jewel” of the country’s human rights policies, now finds itself enmeshed in an influence peddling scandal. [7] The main protagonist in the scandal is Judge Jorge Pretelt, who has been accused of requesting a 150,000 bribe from a private company, in order to favor it in a judicial decision. Pretelt has also been identified as the current owner of land that is claimed by people who have been displaced by paramilitary groups.[8]
It is not my intention to disqualify a juridical body that has been fundamental in guaranteeing the constitutional rights of all Colombians while being systematically attacked by the right. The Constitutional Court’s decisions have been crucial to ensuring the legitimacy of sexual and reproductive rights in relation to same sex marriage and abortion rights, as well as the rights of trans people. However, the Court should not be immune to critique and its role should not be overestimated. The Court decisions in these realms must be interpreted as the result of the long term work performed by feminists and LGBT activists. In fact, on some occasions, the Court has been reluctant or even timid when discussing these rights. For example, in its first decision regarding marriage equality, it avoided using the term “marriage”, creating confusion that remained unresolved until 2016.[9] The question must be asked why the Court created such a confusion and why it took so long for it to correct this mistake? The hypothesis should be raised that the Court may not, in fact, be as liberal as it seems.
There are even some signs showing that the Constitutional Court does not have a full and consistent understanding of the conceptual grounds upon which sexual and reproductive rights are anchored. The same Court that granted the rights to marriage equality (albeit timidly) has recently reified the notion that mentally disabled persons are fundamentally incapable when it granted authorization for the severely disabled to be sterilized without their consent.[10] This case reveals the agenda of sexual and reproductive rights cannot be limited to abortion and same sex marriage. Many other dimensions concerning gender identities, disabilities/ableism [11] and body hierarchies must also be part of our political and juridical debates.
Furthermore, the enabling environment (or the social basis) for the realization of sexual and reproductive rights is also a matter for concern. A social environment is definitely not enabling when poor, black and indigenous women still die in childbirth, or when they cannot access abortion services. It is also not ”empowering” when middle class gays and lesbians can marry and constitute a family while trans people’s rights continue to be violated at all levels of society. An environment can also be understood as highly disabling when young people whose gender expression and sexual desires do not conform with social norms commit suicide in order to escape school bullying or because they have been evicted from their homes.
Quite clearly, social support for sexual justice in Colombia today is very far from solid, as it can be shown by a criminal case regarding a supposed network of forced prostitution involving the National Police. During the investigation, a media scandal erupted regarding homosexual practices amongst high level civil servants. The case, which is still under investigation, occurred at the School of Police Cadets in Bogotá (Escuela de Cadetes de la Policía General Francisco de Paula Santander) and became known as the “scandal of the ring community”.[12] At its center lurks the identification of a “male homosexual prostitution web” involving high level politicians and civil servants who exchanged state posts and money for sex with men. One key element of the case is the not yet fully explained death of Lina Maritza Zapata, a female cadet who appears to have been murdered because she knew to much about the scheme. [13] The speed with which the case was processed was propelled by moral panic with regards to homosexuality in the highest levels of society and not by social repudiation of sexual harassment and exploitation.[14]
Although the Constitutional Court and School of Cadets scandals can and should be analyzed in more detail, I have sketched them out here because they compellingly reveal the contrast between the recent juridical breakthroughs mentioned above with regards to sexual and reproductive rights, and the conditions prevailing in Colombian political culture at large and Colombian sexual culture in particular. The two cases disclose the abyss that still exists between the new juridical normativity – which portrays itself as modern and contemporary — and a culture of sexuality in which traditional values are entangled with non-hegemonic visions and practices,[15] as well as with blatant manifestations of violence and discrimination.
The peace process and the politics of sexuality
In 2016, ten years have passed since the partial decriminalization of abortion was granted by the Constitutional Court and a final decision on the right to same sex marriage was also delivered. This trajectory has been very positive and must be read as an achievement of Colombia’s social movements and not as a gift provided by State institutions, much less a favor of this or that politician. There are good reasons to celebrate. Yet, as we have seen above, these gains are far from sufficient when seen through the lens of sexual justice, or when situated in relation to the effects of the war that has ravaged Colombia for so many decades..
There is not space here to delve in depth into what the post-conflict era implies. The process currently underway is undoubtedly crucial, but an agreement with the guerrillas does not mean an end to the war, nor will it dissolve the strong component of sexual morality that characterized the conflict. Today, paramilitary groups are being reactivated in various places and the ”renewed narco-traffic “ is also expanding. This signals a new round of intensification of terror and moral coercion based on armed control, which will undoubtedly spill over onto sexual minorities, sex workers, trans people, people living with HIV & AIDS, and causing gender based violence in general.
This renewal of conservative forces that systematically attack sexual and reproductive rights in order to gain political strength leaves the achievements of the last ten years in doubt. As gender and sexual justice values have not been fully transformed in Colombian culture, a mere change of administration might be sufficient to trigger major retreats from the affirmation of sexual and reproductive rights.
An approach to sexual politics that does not encompass a larger vision of the society we envision is far too narrow. A sexual politics agenda that does not recognize the distinctions between the various spheres of power will not have the necessary strength to confront conservative forces, who are very clear with regards to what they want in this regard. For example, the Procurador General and political parties of the right, such as the Centro Democrático Party (which openly attacks same sex marriage, women’s right to abortion and the rights of trans persons) are also questioning the Land Restitution Law and stigmatizing peasants, the Afro-Colombian movement and those displaced by the war, who have struggled to recover their lands.[16] What do landless peasants, displaced racial minorities, gays, lesbians and trans people have in common? It is the fact that all of them the targets of the hate of the most conservative political forces in Colombia. In the State apparatus itself, many of the authorities and civil servants who obstruct sexual and reproductive rights are also creating obstacles to the peace process. This is not accidental.
The connection between sexuality and war is multidimensional. The crudest effect of war is the murder, disappearance and torture of LGBT persons, which has been denounced for many years by LGBT human rights organizations[17] and more recently, with greater consistency and visibility, by the Centro de Memoria[18]. Another less evident effect is that war and its militarizing devices reinforce and deepen sexist, hyper-masculine and violent values that perpetuate discriminatory behaviors and curtail the strengthening of a social environment which can consistently enable the exercise of sexual and reproductive rights.
A third dimension to be addressed is prospective: what place should sexuality occupy in our imaginings regarding the re-foundation of Colombian society? Because this is what we are now facing. Parallels can be drawn with the period when the M-19 (Movimiento Guerrillero M-19) demobilized and became a key factor, among others, that favored the call for the 1991 Constitutional Reform. This, in turn, became a clear turning point for the legitimizing of gender and sexuality in state affairs. What is the place of sexuality in the current post- conflict scenario? What is the sexuality agenda, beyond efforts aimed at making the sexual horrors of war visible, even though this dimension remains crucial? What is the place of sexuality in the new social order that may emerge from the peace agreement? Will sexuality remain secondary in our analyses of power relations? Will it become a domain of political correctness?
The outcome will also be negative if, after this whole historical process, the sexuality agenda become strictly utilitarian, a mere liberal reflection of expanding individualism; just another ingredient of a society that views itself as democratic. In terms of justice, it is not admissible that marriage equality has been granted while social security and protection is not guaranteed to all citizens. A liberal sexuality agenda is not necessarily an agenda of sexual justice.
One paradigmatic example of this paradox is that the legal provisions regarding same sex marriage that have most in Congress (being almost approved as law) were introduced by a parliamentarian who has been found guilty of having close relations with para-military groups.[19] What can we say about this regrettable fact? Is this the sexual politics that we have aimed for? All those who ally with the cause are to be accepted? Or should we recognize that many of those who push sexuality related themes in the public arena are not committed to sexual justice.
In my view, an emancipatory framework for sexuality will prepare ground for a more just social order. Sexual values can change, but these changes fdo not necessarily lead towards justice. Para-militarism in Colombia is the result of powerful groups’ influence over the state and of their capacity to control sectors of the population. But it is also related to the convergence between the conservative views of these groups and the common of large sectors of the society. There are nefarious moral coincidences between those who invented the so-called “technologies of death”, the armies that execute these murders, and the perceptions of the civil population. In the name of order and security, everyone apparently agrees that ”whores and homosexuals” should be disappeared, that young people should not roam in the streets at night, that women who abort are evil. Quite often, “people of good will” do not want to hear about the macabre strategies adopted to ensure order and security. And there are also those who, learning about these practices, view them as a “necessary evil”.
The report prepared by the Centro de Memoria Histórica correctly states that gays, lesbians and trans people are not evicted by the armed groups: they are evicted by their own families. The war may create a state of exception for these people, but quite often this is nothing more than the superlative manifestation of values that are already widely spread in the communities themselves. If the cultural ground upon which gender and sexuality orders are anchored does not change, either with or without the participation of the armed groups, people who transgress its values will continue to be violated, discriminated against and will remain second-class citizens. Most principally, their rights will easily become a bargaining chip traded between the goverment and those who opposed the peace process at the first sign of any political storm.
Post – scriptum
The battle against rights: the crusade against “gender ideology in education”
After this article was published, a commotion occurred whose triggers and effects must added to this overview of sexual politics in Colombia. In August 2016, a polemic erupted around sexual education in primary and high schools, which was framed in the worst terms possible by conservative sectors. The cornerstone of the polemic was the diffusion, through social networks, of a fake school primer that featured sexually explicit images (an illustration drawn by the Belgian artist Tom Bounden) [20].
This was a blunt strategy of disinformation that relied on the promotion of moral panic and aimed at persuading parents that the Minister of Education was distributing pornographic materials in order to promote homosexuality. The strategy was very effective and included the call for massive demonstrations against what was labeled “gender ideology” in various cities across the country. It has also opened the ground for direct attacks against the Minister of Education and is currently triggering a political battle in Congress.
Minister Parody is the partner of Cecilia Álvarez, who was once the Minister of Commerce, Industry and Tourism. She was forced out of the closet against her will when, in 2014, aggressive messages criticizing her homosexuality were circulated on social media and these were picked up by the mainstream media. Parody is not an activist and has never manifested opinions on sexual rights beyond her personal life. She is also not aligned with alternative educational proposals. She was chosen as a minister in order to oversee the demise of the public education system in Colombia. Even so, she has been the target of horrendous lesbophobic and sexist attacks that do not directly relate to sexual education, but reveal much about the violent sexism of conservative politics. Interested readers can check the images that these groups have spread.[21]
The main losers in this fundamentalist outbreak are the children and adolescents who attend public schools: all of them and not just those whose sexuality may differ from dominant norms. Quite probably, measures that have been designed to prevent sexist discrimination and violence in schools will remain in the drawers and an opportunity will be lost of using the well-conceived and comprehensive materials that have been produced to guide the schools in the creation of more friendly and enabling environments. Part of this work included the revision of school rules[22] in order to align these with the premises of the Constitution , while eliminating contents that violate the premises.
As we well know, in Colombia and elsewhere, school is an environment that is often hostile to gender equality and sexual diversity, which also quite often promotes sexist and racist values. Different from what is said by the anti –gender groups, Colombia’s new educational measures do not derive from the Minister’s personal position or from a specific governmental policy. Rather, they aim at fulfilling the recommendations issued by the Constitutional Court when it judged the emblematic case of Sergio Urrego, who committed suicide after having been subject to homophobic bullying sanctioned by the rules of the school where he studied.[23] They have also been designed to implement Law 1620 (2013), which created a national system of peaceful coexistence in schools, educating with regards to human rights, sexuality and the prevention/mitigation of school-based violence.
It is not difficult to understand why conservative sectors are reacting the way they are. In nick-naming feminist and gender theorizing as ”gender ideology,” these sectors seek to de-legitimize this domain of knowledge production, as well as the policy gains that have been made by social movements.. Having at their backdrop the scenario outlined above in this article, this case is yet another illustration of how far we are from the realization of gender equality and sexual rights in the social pact that regulates Colombian social and political relations.
The conservative attack on “gender ideology” de-legitimizes both gender studies and feminist political actions aimed at promoting equity and justice. It portraying these efforts as mere propaganda that seeks to destroy the family and traditional values and which threatens morality and corrupts children. Gender and sexuality claims are politically devalued by this “scandal” while conservatives affirm that these changes “have gone too far”. The use of the term “ideology” establishes an association with totalitarian views and regimes that have resulted in tragedies in Western history.
The paradox resides in the fact that these affirmations are deployed by actors whose intent is to impose upon others a single and absolutist vision of the family, sexuality and gender. A proper use of “gender ideology” as an analytical tool would lead us, in fact, to a critique of heteronormativity and of sexism. It would, in other words, reinforce efforts that de-construct what we have learned and replicate with regards to how men and women ”must be”. “Ideology” more adequately describes the hegemonic projects of society and the the mindsets of dominant groups.
The Colombian polemic is directly connected to the Brazilian legislative initiative known as the Escola sem partido (School without a Political Party). In both cases, conservative proposals conceal the fact that schools are never neutral. As a key institution in the machinery of social reproduction, the educational system has always transmitted dominant, traditional and univocal values. Although shifts have taken place that embrace less vertical educational models, the absence of children and youth voices in the polemics currently underway tells us a lot about the sharp hierarchies that persist in education.
This is a crucial debate for the future of our societies: what are the values we want to replicate? In a moment of rapid social change, a sharp contrast exists between absolutist visions and a multi-vocal, open and democratic way of thinking. We are not just facing the problem of violence in schools: we are facing the challenges of violence in the future. Will schools form future harassers and intolerant people, or will they form citizens that will be respectful of differences?
Conservative groups have sent an appalling message of violence and intolerance to a Colombia that is still going through the peace process. . The polemic they have created has definite implications for post- conflict political conditions, and not just because President Santos has already negotiated with the Catholic bishops regarding the suspension of sexual educational materials, [24] but also because the current political climate must be read as a blunt conservative response to the potential approval of the peace agreement in the plebiscite. Most importantly, perhaps the polemic about :”gender ideology”’ shows that it is impossible to talk about peace and reconciliation without addressing sexist violence and sexual and gender injustice.
Images
Photos 1 and 4: authors’ personal archive
Photo 2: Juan Manoel Serrano
From a painting of the project developed by Juan Manoel Echavarría http://www.jmechavarria.com/essay.html. Named La guerra que no hemos visto http://www.jmechavarria.com/chapter_lgqnhv.html ), the project engaged demobilized guerrilleros, para-military and displaced people in drawing and painting workshops.
Notes
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[1] Professor at the Escuela de Estudios de Género de la Universidad Nacional de Colombia and researcher with the same university’s Interdisciplinary Gender Studies Group (Grupo Interdisciplinario de Estudios de Género).
[2] The term Procurador General has been left in Spanish because the function does not have a perfect correspondence in English. Its mandate is to do oversight of state functioning and public servants having as its main parameter the national constitution.
[3] http://www.altocomisionadoparalapaz.gov.co/Documents/informes-especiales/abc-del-proceso-de-paz/index.html
[4] http://www.eltiempo.com/archivo/documento/CMS-12679182
[5][5] http://www.elespectador.com/noticias/politica/aval-de-registraduria-referendo-contra-adopcion-igualit-articulo-632190
[6] Aunque pienso que es una imagen clara, ‘pelea de tigre con burro amarrado’ (atado) es una frase del argot popular que indica una desventaja desproporcionada que anticipa claramente un resultado.
[7] http://www.elheraldo.co/nacional/caso-pretelt-las-fichas-de-un-escandalo-que-crece-sin-parar-187647
[8] http://www.semana.com/nacion/articulo/el-otro-golpe-de-la-fiscalia-jorge-pretelt/423898-3
[9] http://www.eltiempo.com/politica/justicia/hangout-uniones-del-mismo-sexo-entre-el-matrimonio-y-la-union-solemne/15832416
[10] http://unradio.unal.edu.co/nc/detalle/cat/todas-y-todos/article/discapacidad-y-esterilizacion.html
[11] Existe un debate sobre las categorías para dar cuenta de lo que prefiero llamar jerarquías corporales: discapacidad, situación de discapacidad, diversidad funcional. Sin resolver el asunto, escogí esta categoría para inscribir el problema como una cuestión de poder y acercarlo con otras jerarquizaciones en torno al cuerpo como las que tienen que ver con la raza, el género, la edad, la clase o la sexualidad.
[12] En Colombia ‘anillo’ es una palabra que puede ser usada para referirse al culo.
[13] http://www.elespectador.com/entrevista-de-cecilia-orozco/comunidad-del-anillo-reino-10-cursos-de-policia-articulo-479538
[14] http://www.elespectador.com/entrevista-de-cecilia-orozco/comunidad-del-anillo-reino-10-cursos-de-policia-articulo-479538
[15] Anumber of gay men and lesbians have been elected to the public office in Columbia. Trans women occupy important posts in local administrations and two open lesbians are ministers of the current cabinet. This certainly siganls a change, but it is still an insufficient change.
[16] http://www.las2orillas.co/el-procurador-y-las-camisetas-de-no-a-la-restitucion-tierras/
[17] Organizations such as Colombia Diversa, Santamaría Fundación, Caribe Afirmativo y Corporación Opción have for many years registered armed conflict violations of LGBT
[18] http://www.centrodememoriahistorica.gov.co/noticias/noticias-cmh/aniquilar-la-diferencia
[19] http://www.noticias24.com/actualidad/noticia/148298/corte-colombiana-condena-a-prision-ex-senador-por-lazos-paramilitares/
[20] http://www.vice.com/es_co/read/habla-artista-gay-comics-confundieron-cartillas-ministerio-educacion-gina-parody-tom-bouden-porno
[21] http://www.pulzo.com/nacion/las-pancartas-ofensivas-que-tienen-dolida-a-la-ministra-parody/PP101373
[22] http://es.slideshare.net/Jairo-Sandoval-Hernandez/cartilla-ambientes-escolares-libres-de-discriminacin
[23] http://www.elespectador.com/noticias/bogota/sergio-urrego-un-caso-no-se-debe-repetir-articulo-598462
[24] http://www.eltiempo.com/estilo-de-vida/educacion/no-vamos-a-implementar-la-ideologia-de-genero-presidente-santos/16671165