In March 2022, Colombia’s Constitutional Court handed down its ruling T-033 ordering the inclusion of a “non-binary gender” option under the sex category of national identity cards (DNI). Colombia is the second country in the region, after Argentina, to recognise the existence of genders other than male and female in citizen cards.1 These legal gains are just two examples of the many victories achieved by LGBTIQ+ activists in Latin America.
However, in a context of persistent discrimination, exclusion, and violence against people because of their sexual orientation, gender identity, gender expression and physical features, it makes sense to ask: how have such legal gains been secured in the region? What hurdles have been encountered in the road towards such gains? And what strategies for socio-political impact could be useful for overcoming such hurdles? These are some of the questions discussed in this article, which aims to weave together Latin American LGBTIQ+ and feminist activism ideas to suggest, in particular, the potential that technology offers for contributing to the transformation of legal frameworks in the state, cultural imaginaries and cis-heterosexist social relations.
Conceptual developments in the field of academia, such as the concept of prejudice-based violence coined by Colombian human rights scholar and activist María Mercedes Gómez,2 have been instrumental in reformulating notions of justice considered by the law, which has historically been a colonial and patriarchal institution with cis-heterosexist biases. According to a report by the Inter-American Commission on Human Rights, “members of academia have developed useful concepts surrounding the issue of violence against LGBTI persons, which may contribute to the development of approaches by international human rights bodies,” in the absence of “a comprehensive definition of prejudice-based violence regarding sexual orientation, gender identity or bodily diversity” (IACHR, 2015, chap. 2, para. 24). We can thus see that concepts arising in academia impact the definition of notions of justice that disrupt part of the conceptual foundations of justice, which further institutionalise it.
In addition to concepts such as the one discussed, which has succeeded in influencing the definition of categories of crimes, figures such as the amicus curiae3 are today commonly used by LGBTIQ+ social movements to bring expert opinions from LGBTIQ+ persons and allies into litigations that deal with cases involving prejudice against the victims’ sexual orientation, bodily diversity and gender identity. Amicus curiae briefs have served to clarify concepts and define contexts so that courts can make decisions and act in ways that contribute to the proper administration of justice in cases of violence and discrimination against LGBTIQ+ persons. This has also happened on a national level with requests by state agencies for technical concepts.
In the example mentioned at the beginning of this article, Colombia’s Constitutional Court asked social organisations to provide technical concepts on the relevance of including a non-binary gender option under the sex category of national identity cards. The organisation Fundación GAAT (Action and Support Group for Persons with Trans Life Experience) coordinated the drafting of a document that summarised, among other issues, clarifications concerning identity documents, the distinction between sex and gender, and the input from international law that contributed to the resolution of the tutela action brought by Dani García Pulgarín against the National Civil Status Registry and the Ninth Notary Office of Medellín.4
The exclusion and discrimination that materialises in what has recently been denounced by LGBTIQ+ activists as a continuum of violence have hindered even the political and democratic participation of persons with diverse sexual orientations and gender identities and expressions that do not conform to the system of compulsory cis-heterosexuality. Viewing the state as a web of conflicting relations, embodied by concrete individuals, can help understand how – despite the gaps in the political participation of LGBTIQ+ persons and other excluded groups – there are multiple forms of resistance for contesting the way in which one’s own life is defined in the sphere of the state.
One of the most striking aspects of GAAT’s involvement in the above Constitutional Court action is that it called on a number of non-binary activists and scholars, from around the country and with different backgrounds, to participate by reflecting on the issue addressed by the tutela action.5 This strategy shows that there are forms of participation in national decision-making that transcend the limitations of representative democracy, which, incidentally, excludes historically oppressed and discriminated groups from participation. Convergences such as this further the positioning of demands, with common and simultaneously plural efforts by LGBTIQ+ persons in state-related actions. In this case, the convergence was facilitated by digital communication.
I use the expression maricón-temporary political influence to highlight three aspects: the marica (or queerness) aspect as a form of political action, its contemporaneous quality and its impermanence. While communication via virtual media currently offers an opportunity to foster plural forms of participation for LGBTIQ+ persons, do we want it to be the only permanent form of participation? I propose an approach from an anti-colonial perspective for understanding socio-political impact as a way for individual and collective caring of existences that have common needs and interests. Self-care entails allowing the body – both the individual’s body and the social body – to remember that it can recognise and tend to its needs, and that doing so has implications in the space with which it interacts. Socio-political impact can be more effective if its consequences are felt in our bodies, in the land we inhabit, and in the societies we are part of.
The strategies described thus far for the inclusion of a non-binary gender option in Colombia’s citizenship cards reveal that political influence efforts are focused on the judicial sphere. In this regard, drawing on studies by the gender researcher Mara Viveros Vigoya, the following observations can be made:
“Much of the progress made in terms of sexual and reproductive rights in Colombia has failed to engage broad sectors of society. Among other reasons, this is to a great extent due to the fact that these gains – including the partial decriminalisation of abortion,6 adoption by same-sex couples, recognition of the identity of transgender persons, and same-sex marriage – have not been achieved through legislative debates; rather they have been the result of tutela actions, high court rulings, and high impact litigations, which have institutionalised those gains through the courts.” (Viveros Vigoya, 2017 p. 234)
If we look at this phenomenon from a regional perspective, we can see that, with the exception of countries such as Argentina, Uruguay, and most recently Mexico, much of the legal progress made in terms of the human rights of LGBTIQ+ persons in Latin America has indeed been achieved through the courts. Brazil is another clear example of this. Despite being recognised as one of the countries in the region with the greatest legal progress in LGBTQIA+ rights, these gains have been achieved through judicial actions brought primarily by independent activists. In 2019, in that country, through a precautionary measure granted under a class action and a direct action for unconstitutionality due to omission, homophobia and transphobia were included as forms of discrimination analogous to racism, as defined in the country’s anti-racism legislation. In its decision, the Supreme Court of Justice argued that homophobia and transphobia are forms of social racism and ruled to include them under Federal Law 7,716, a 1989 law that defines racist crimes. Despite the existence of that law, according to figures by the organisation ANTRA (National Association of Trans Persons), Brazil continues to have the highest number of homicides of LGBTIQ+ persons in the region.
This allows us to infer that, as in Colombia, in other Latin American countries there is a lack of widespread support from society for legal measures that promote the rights of LGBTIQ+ persons. Although the legal progress achieved through judicial channels sets new legal precedence, such case law may not be properly enforced due to a social context of prevailing prejudice against LGBTIQ+ persons that permeates even the actions of state officials. For example, in Colombia, despite the elimination of a criminal code section stipulating that “whoever performs an obscene act in public spaces or spaces open to the public will be subject to one to six months in jail,” which had served as a justification for police persecution of trans persons in public spaces, police violence against LGBTIQ+ persons due to their non-normative gender identities and expressions persists. This is corroborated by organisations such as Colombia Diversa that, based on official sources, registered more than 84 cases of police violence against trans men and women in the country in 2020 (Colombia Diversa, 2021).
Reports such as those prepared by ANTRA and Colombia Diversa, as well as technical concepts such as the one coined by GAAT, exemplify the strategy used by LGBTIQ+ activists, which consists in producing technically and scientifically rigorous evidence to achieve legal gains in the promotion of the rights of LGBTIQ+ people and persons with other multiple manifestations of their corporality, gender identity and expression and sexual orientation. Another example of this strategy are the observatories that exist in different countries of Latin America for monitoring, documenting, and investigating LGBTIQ+ homicides, which are working together in regional initiatives.
In Honduras, the evidence collected by the Cattrachas Observatory contributed to the ruling in the Vicky Hernández v. Honduras case heard by the Inter-American Court of Human Rights. In this regionally emblematic case, the information documented by Cattrachas, in addition to the amicus curiae briefs submitted by more than 20 third parties, including other national organisations from Latin American countries, international organisations and networks, international human rights bodies and independent experts offering their input on issues such as the context of the 2009 coup d’état in Honduras in which the events took place, state obligations regarding the investigation of crimes against life, theoretical frameworks in relation to hate crimes and prejudice-based violence and the state’s due diligence duty.
Besides enabling exchanges and the converging of knowledge aimed at exerting socio-political influence through conceptual definitions and socio-historical and cultural characteristics, technology has also been of interest and relevance in strengthening the technical aspects of the information produced. With the participation of up to 11 organisations from various countries, the network Red Sin Violencia LGBTI has been keeping a record of homicides of LGBT persons since 2014, using a virtually hosted information system that enables the uploading of information from different territories and provides common variables that allow for transnational comparability of data. Through these digitally-mediated efforts, we know that from 2014 to date at least 4,000 LGBT persons have been murdered in 11 of the 33 countries of Latin America and the Caribbean, that Brazil, Colombia, Mexico, and Honduras are the countries with the highest recorded number of such homicides and that the actions recommended for preventing, addressing, investigating, punishing, and redressing this violence differ depending on the social and state contexts.
Understanding that the state and international bodies have different relationships with different social movements is now strategically relevant. Organisations that have succeeded in forging relationships with state bodies at the national level can use their position to engage groups that have historically been excluded because of their sexual orientation, gender identity and expression, origin, ethnicity and bodily diversity, among other things. This ensures that the needs of these groups are heard where they need to be heard in order to be taken into account in national decision-making. Technology-mediated communication can be a maricón-temporary channel through which to build participatory strategies for socio-political impact.
Moreover, in an understanding of politics that goes beyond the institutional sphere, social organisations and activists that have been able to consolidate significant relations with the state and international bodies have much to learn from community-based movements that have a clear impact on the concrete lives of individuals and benefit from legal frameworks that protect their actions.
What can be done in a social context of widespread violence and discrimination against LGBTIQ+ persons that persists despite the legal progress achieved? That is a question that social organisations have addressed in their activism. Understanding the political beyond state and institutional dimensions has served, for example, to communicate through digital means so as to engage collective forces to exert pressure and secure the proper enforcement of relevant laws. There are also emerging movements that question the establishment and formality on paper of the rights of LGBTIQ+ persons.
In the year 2021, the first LGBT-pride counter-march was convened in Bogotá through digital means. Most prominent among their rallying cries was a resistance to the institutional assimilation and rainbow-washing of people historically discriminated and attacked because of their sexual practices, bodies and non-normative gender expressions. In particular, social media makes it easier to identify with other people’s life experiences, in the understanding that “if it happened to you, it can happen to me” and that “we are not alone.” This, in fact, favours the coming together of segregated and marginalised persons to position themselves with common demands. That same year, a video of three trans persons dancing in front of riot police during the national strike went viral in the country and across Latin America. Both the video and the individuals featured doing vogue dance moves became symbols of social mobilisation. They were sought out for interviews and their aesthetic and political styles were hailed in traditional and social media.
Digital communication and technology are enormously powerful tools for destabilising the situation of systematic violations of human rights that LGBTIQ+ persons suffer in Latin America as a result of discrimination and the attacks on life, personal integrity, freedom of expression and equality. However, these tools are not the end goal. We do not want merely to be featured in digital images to be seen by others. Our lives must also be given a place in the streets, in universities, in decent and fair jobs and in places of decision making at the national and international level. Our goal is to reach a point in which we are no longer forced to resist and we can relax, let go, dance and flow freely and without fear. Meanwhile, we can use the strategies that are available to us. We can use the gaze that observes us so that others feel our presence, in the state and in society. We can assert our sensitivities and theorise about our shared experiences; trace paths towards an epistemic justice; become increasingly sophisticated in our use of technology to weave shelters; and build relationships that transgress hierarchies.
What do we want to see after we dismantle the prejudice that imprints its meanings on our bodies? What ideas do we want to incorporate in the collective lives we dream of? Collaborations among academia, law, the arts, human rights advocacy and community activism can bring us closer to realising the changes we want to see in our societies. From the virtual settings that we have succeeded in occupying, we have learned to use those collaborations to exert socio-political influence beyond the page and the screen. This article has described some experiences that show strategies for disputing meanings towards guaranteeing our rights in Latin American states and societies. We must continue devising other strategies together. The territory and lives that we want for us can only come true when we start to imagine them.
- 1. It should be noted that the presidential order requiring the inclusion of “X” in Argentina was criticised by transgender persons and people with diverse gender identities and gender expressions. Gains such as that described in the example are questionable and incomplete.
- 2. The author proposes an approach that addresses prejudice as a socially distributed attitude potentially resulting in discriminatory practices, which lead to the subordination of people who are different and/or diverge from the system of mandatory and exclusionary heterosexuality, and ultimately to the suppression of difference in the social landscape. This approach has been extremely important in strengthening litigation strategies for the proper administration of justice in cases of violence and discrimination against LGBTI+ people, as it has served to argue in favour of the need for evidentiary material that can prove the prejudice that exists in broad social contexts and in crime scenes involving LGBTI+ victims. Some examples of the evidentiary material that can be identified with the help of the notion of prejudice-based violence could be a non-normative gender expression, prior threats, insults referring to the victim’s sexual orientation or their gender identity or expression, or the focus of violence on certain parts of the body, such as the victim’s genitals, prosthetic implants, or face. Statistics on violence and discrimination in broad social contexts can also be used strategically to prove that prejudice was involved in a crime. One of the articles in which this author develops the notion of prejudice-based violence is Gómez, M. (2007). Violencia, homofobia y psicoanálisis: entre lo secreto y lo público. Revista de estudios sociales. https://revistas.uniandes.edu.co/doi/pdf/10.7440/res28.2007.04
- 3. Amicus curiae is Latin for “friend of the court”. It is a legal figure that enables the participation of individuals or groups that are not part of a legal action, allowing them to submit relevant opinions in the interest of informing the court’s final resolution of the case under consideration. They contribute in particular to decisions in cases where the public good is at stake. For more detailed information, see: “El amicus curiae: ¿qué es y para qué sirve? Jurisprudencia y labor de la Defensoría del Pueblo,” available at https://www.corteidh.or.cr/tablas/26654.pdf
- 4. Tutela or protective actions are court actions that can be brought by individuals seeking protection of their rights. According to the ruling in this case, García Pulgarín reported that public and private authorities had treated them in a way that was harmful to their dignity. This treatment, they said, was the result of the authorities’ failure to distinguish between their identity, gender expression and the information recorded on their citizenship card under the “name” and “sex” fields. They requested that the content of the “sex” field in the identity card be changed to “x”, “neutral”, or “indeterminate”. The Constitutional Court ruled that gender identity understood as defined by one’s self-perception is a fundamental right and that failing to recognise it is a form of institutionalised subordination and, consequently, a serious denial of justice. However, it dismissed García Pulgarín’s request to eliminate the inclusion of a “sex” field altogether in identity documents, and further established that the NB (non-binary) category has a rights-protection role, as it recognises the gender experiences of non-binary persons.
- 5. In its ruling C-483 of 2008, the Constitutional Court of Colombia, defines the tutela action as a “judicial defence mechanism to which anyone may resort to obtain immediate protection of their fundamental rights.”
- 6. In 2022, the Constitutional Court of Colombia ruled to decriminalise voluntary abortion (ruling C-055) before the 24th week of gestation. Abortion after 24 weeks continued to be decriminalised under the three exceptions in place at the time of the publication by Viveros Vigoya.
- Inter-American Commission on Human Rights (Organisation of American States) (2015). Violence against LGBTI persons. https://www.oas.org/en/iachr/reports/pdfs/violencelgbtipersons.pdf
- Viveros Vigoya, M. (2017). Intersecciones, periferias y heterotopías en las cartografías de la sexualidad. Revista Latinoamericana Sexualidad, Salud y Sociedad. https://www.scielo.br/j/sess/a/kMQ4xDxC9TYCwNF3tNxz45J/?lang=es
- Colombia Diversa (2021). Nada que celebrar. Informe de derechos humanos de personas lesbianas, gays, bisexuales y trans en Colombia 2020. https://colombiadiversa.org/c-diversa/wp-content/uploads/2021/06/Nada-que-celebrar_Colombia-Diversa_-cifras-de-asesinatos-a-personas-LGBT.pdf
- Gómez, M (2007). Violencia, homofobia y psicoanálisis: entre lo secreto y lo público. Revista de estudios sociales. https://revistas.uniandes.edu.co/doi/pdf/10.7440/res28.2007.04