Parliamentarians Driving Progressive Law Reform

An interview with human rights advocate Maria Rachid in which she talks about the experience of approving marriage equality in Argentina is available here.

Key developments in the early years of the twenty-first century convinced a group of LGBTI organizations in Argentina that the time had come to advance the civil rights of the LGBTI community in the country. These included the recognition of the rights of same-sex families as equal to those of traditional families and the approval of equal marriage and gender identity laws in Spain – a country which, like Argentina, has a strong presence of the Catholic Church.

It was in this context that in 2005 the Argentinian LGBT Federation was born. The Federation, together with the Argentinian Association of Transvestites, Transsexuals and Transgender (ATTTA) called for: a) approval of a gender identity and an equal marriage law; b) repeal of laws criminalizing homosexuality and cross-dressing; c) inclusion of sexual diversity issues in curricula for comprehensive sexual education; and d) adoption of a new anti-discrimination law. The strategy planned for these actions was simple: to advance from all possible fronts.

The equal marriage law was the item met with the least opposition and was selected to spearhead the public campaign that served as a gateway for the gender identity law. The first draft bill on equal marriage was presented in 2005 and the first one on gender identity in 2007. Both propositions had the signature of at least one delegate of each political bloc represented in the parliament.

The objective was to secure the support and active involvement of all ministers. Several meetings were organized with ministers and secretaries closest to the cause; through them other ministers were reached in a snowball effect leading to a meeting with the Chief of the Cabinet of Ministers. Two working groups were established to ensure a continuous dialogue among parliamentarians and gather support for the bills among different political parties.

Another angle was an advocacy plan that was agreed with LGBTI organizations based in other countries. When the President of Argentina was on official missions abroad, these organizations requested hearings with the President, taking the opportunity to advocate for the equal marriage and gender identity laws in Argentina.

The strategy for the Judiciary was mainly directed towards strategic litigation. More than 100 cases related to equal marriage and more than 100 cases on gender identity were brought to court. Judicial authorities were called to decide on whether the denial to identity for transgender people violated two deeply rooted jurisprudential provisions in Argentina: the right to autonomy and the right to an identity, a concept that had been defined by Argentinian jurisprudence as the “right to be oneself and not another.”

The court cases provided an opportunity to share the unique, “real life” stories of citizens seeking the recognition of their marriages or their gender identities. Consistently, judicial authorities stated that the right of individuals to their identity should be based merely on the expression of will and not on evidences or external elements, such as medical reports, witness testimonies, etc. These judicial statements further stressed the message that the legal change of gender identity should be a simple and streamlined administrative process, requiring only the expression of will of the interested party. This view was later maintained in the approved law.

Both the LGBTI Federation and ATTTA established a successful alliance with the mass media. A group of journalists supportive to the cause were consistently given first priority to cover the stories of the individuals who executed legal actions. A journalist´s guide on the gender identity law was produced as a mechanism to promote positive messages directed to the general population. Building close relationships with members of the media was pivotal in creating a favorable environment for the equal marriage law and gender identity law within the public discourse.

Over the years of intense activism, the LGBT Federation and ATTTA incorporated more strategic allies and actors into the fight: workers’ unions, members of academia, student centers, public personalities and members of various faith-based organizations. Representatives of all these segments of society publically supported the bill, coming together for the same cause, in a single voice.

Success was finally achieved when the Equal Marriage Law was passed in July 2010. Preparations for a legislative campaign for the approval of a Gender Identity Law started right away, as the first signature in support for the bill came directly from the Chief of the Cabinet of Ministers. Once again, success was achieved and the Gender Identity Law was passed by the Senate in May 2012. In this case it was approved almost unanimously.

In 2014, the Federation of Bosnia and Herzegovina (FBiH) remained the only administrative unit in the country of Bosnia and Herzegovina that did not address hate crimes in its Criminal Code. The Women’s Caucus of Parliamentarians of the House of Representatives in FBiH worked actively on behalf of a civil society coalition that was fighting against hate speech and hate crimes to draft an amendment to the criminal code that would include provisions on hate crimes committed on the basis of sexual orientation and gender identity. In 2014, the Women’s Caucus submitted to the FBiH parliament a comprehensive Draft Law of Amendments to the Criminal Code. In February 2016, the House of Representatives of the Legislature in Sarajevo adopted the Draft Law on Amendments to the Criminal Code.

Cultural notions about homosexuality being ‘un-African’ were successfully challenged in July 2015 when the Parliament of Mozambique passed a new Penal Code that decriminalized homosexuality. This was seen by many parliamentarians as critical, since criminalization of consensual same-sex conduct among adults violates rights to privacy and freedom from discrimination, both protected under international law, and places States in material breach of their obligation to protect the human rights of all people and the principle of equality of all before the law.

Those involved in the process in Mozambique shared a few lessons learned on how you can achieve change as a parliamentarian:

• Collaborate and form partnerships. Ask organizations like PGA or multilateral agencies for technical assistance and networking opportunities with parliamentarians in other countries engaged in equality and non-discrimination work.

• Draw from the experience of neighbouring countries to help build arguments and provide concrete examples of the recognition of human rights for LGBTI people.

• Initiate parliamentary questions, motions, resolutions and statements in support of legislative reform (e.g., protective measures, hate crimes) and depenalization, especially in respect to laws that are antiquated and inconsistent with human rights.

Violence against LGBTI community members and impunity of the attacks perpetrated by private actors, particularly gangs and the police, are an ongoing issue in El Salvador. The criminal justice system has failed to recognize and investigate LGBTI hate crimes, thereby rendering individuals vulnerable to attack and without redress. In particular, transgender individuals have been the targets of brutal murders. Most of these cases are not investigated and none have resulted in a successful prosecution.

In September 2015, the Legislative Assembly of El Salvador approved a reform to the Penal Code increasing sanctions against murders (article 129) and threats (article 155) motivated by hate, including on the basis of race, ethnicity, political views, religion, gender, gender identity and expression, sexual orientation or any other equivalent.

According to Karla Avelar, the Executive Director of COMCAVIS TRANS, a Salvadoran LGBTI rights organization, “This is the beginning of all the other reforms that we have to achieve in this small country.” (You can read more about the inspiring personal story of Karla Avelar here).

The Salvadoran case shows that protecting the rights of all vulnerable groups, and including sexual orientation and gender identity and expression as one of a range of categories, can be a good method for ensuring protections. Including an array of grounds for protection, such as race, ethnicity, religion and gender, can help gain more support from other sectors of society and gather the necessary majority for passing reforms.

In Uruguay, a civil union law passed in 2007. Two years later, a new children’s protection law was approved, making adoption for gay couples a possibility. In the same year, the Gender Identity Law was also sanctioned. Six years later, in April 2013, Uruguay approved the equal marriage law. This law had been promoted since 2011 by civil society groups, with the first text being drafted by Ovejas Negras (Black Sheep), the national LGBTI collective.

Several factors influenced these positive outcomes. First of all, the bill presented by civil society was technically sound and well documented, having been developed by legal professionals with extensive knowledge of human rights law. Second, Uruguay has a very organized and knowledgeable civil society movement. Third, there are a large number of young politicians who promote progressive and innovative legal reforms and that are members of parliament and political parties. Fourth, the approval of the equal marriage law benefited from favorable regional and international contexts, in particular, the positive experiences of other countries like Argentina and Spain. Lastly, the government agenda itself was supporting progressive laws.

Likewise, public surveys carried out among the general population demonstrated strong support for the new laws. Also, the majority of mass media supported legislative progresses and did not express negative opinions about the equal marriage bill. On the contrary, the first gay wedding in Uruguay was covered by over 100 media outlets.

Thanks to the legislative reform, the Ministry of Education and Culture created a commission against homophobia. The Equal Marriage Law also led to the creation of human rights offices, such as the Secretary of Sexual Diversity in the Ministry of Social Development and a similar office in the municipality of Montevideo. The Ministry of Social Development now has a Policy on Social Protection for Vulnerable Groups, including LGBTI persons and sex workers. Moreover, agreements have been established between a faculty of psychology and the Ministry of Social Development to provide psychological support to the LGBTI community.

Read more: News article about the legislation in Viet Nam that allows those who have undergone reassignment to register under new gender.

On 24 November 2015, the Vietnamese National Assembly voted unanimously to protect the rights of transgender persons by enshrining in the Civil Code the right of those that have undergone sex-reassignment surgery to have their gender recognized. The new provision is a big step towards protecting the human rights of transgender people and was made possible following the advocacy and campaigning efforts of LGBTI civil society organizations with the direct support of UNDP.

From the outset, a multi-stakeholder approach was adopted and a coalition of partners was developed leveraging UNDP’s existing relationship with the Government of Viet Nam on a broad range of issues, including some rights issues which are viewed as sensitive. Discussion was facilitated between National Assembly members and LGBTI community representatives on the human impact of legislation which denied rights to transgender people. The focus on creating direct relationships between National Assembly members and members of the LGBTI community had a noticeable impact in changing attitudes that ultimately led to over 86 percent of the National Assembly voting to pass into law the provision on gender reassignment recognition.

A tailored approach towards capacity building for civil society organizations was another key component of the project. Instead of approaching capacity building as a series of stand-alone events, UNDP nurtured participants of the programme for the duration of the project, concentrating on ensuring sustainable LGBTI leadership and advocacy beyond the project’s life cycle. This included a mentor relationship between more experienced LGBTI activists and those with less experience and capacity building for parents by strengthening their abilities to conduct outreach and, most importantly, engage in public demonstrations of support and love for their children, sending clear and powerful messages about acceptance.

Finally, UNDP linked the objective of the project and the work of national civil society organizations to existing international practice in this area, taking a rights-based and equality approach, to provide members of the National Assembly with an international framework and standard for eliminating discrimination against LGBTI persons. The combination of these approaches resulted in achieving outcomes beyond what was expected from the outset of the project

The ‘sex change’ article of Viet Nam’s new Civil Code (Article 37) applies to those wishing to change their sex from that assigned at birth and assures the right of transgender people who have undergone sex reassignment therapy to modify their gender marker on identification documents. Despite this achievement, examination of the body remains a condition to gender reassignment, thus disqualifying many transgender people who are unwilling or unable to access intrusive medical interventions to modify their body. These challenges remain and UNDP continues to advocate for transgender individuals to have the right to reassign gender markers in line with their identity, irrespective of surgery.