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Sexual Orientation and Human Rights: the Use of Human Rights Law to Address Sexual Orientation-Based Discrimination and ...


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SEXUAL ORIENTATION AND HUMAN RI GHTS: THE USE OF HUMAN RIGHTS LAW TO ADDRESS SEXUAL ORIENTAT ION-BASED DIS CRIMINATION AND VIOLENCE IN ECUADOR By SHELBI D. DAY A THESIS PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLOR IDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS UNIVERSITY OF FLORIDA 2005

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Copyright 2005 by Shelbi D. Day

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This document is dedicated to my mentor, for her guidance and for sharing her wisdom throughout my academic career, and to Mandy for her support and encouragement.

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iv ACKNOWLEDGMENTS I thank my parents for their encouragemen t, Kirsten Anderson for her assistance with translations, Dr. Anthony Oliver-Smith for his guidance, and my thesis committee for all of their assistance.

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v TABLE OF CONTENTS page ACKNOWLEDGMENTS.................................................................................................iv ABSTRACT......................................................................................................................v ii CHAPTER 1 INTRODUCTION........................................................................................................1 Significance of the Study..............................................................................................3 Purpose and Design of the Study..................................................................................4 Research Questions...............................................................................................5 Limitations.............................................................................................................5 Definition of Terms...............................................................................................6 Structure of Thesis........................................................................................................8 2 BACKGROUND........................................................................................................12 Literature Review.......................................................................................................12 Social and Cultural Context.................................................................................12 Cultural and religious origins of ho mophobia and sexual orientation-based discrimination.........................................................................................12 Cultural context—the machismo complex...................................................15 The Lesbian and Gay Rights Movement.............................................................22 Background on Human Rights Law...........................................................................23 Sexual Orientation and Human Rights Law........................................................23 Overview of Human Rights Sy stems, Structures, and Laws...............................25 The Universalism and Cultural Relativism Debate.............................................32 3 STATEMENT OF THE PROBLEM..........................................................................36 Overview of Human Rights Abuses of Sexual Minorities in Latin America.............36 Case Study: Violence and Discrimination Against Sexual Minorities in Ecuador....39 4 ANALYSIS.................................................................................................................47 The Use of Human Rights Law to Address Sexual OrientationBased Discrimination and Violence Against Sexual Minorities in Ecuador.............................................47 International Human Rights Law in the UN System...........................................47

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vi Regional Human Rights Law: The Inter-American System................................55 Human Rights Protections in an Andean Regional Agreement and in Ecuadorian National Law....................................................................................................60 Should Human Rights Law Be Used to Address Sexual Orientation-Based Discrimination in Ecuador? The Univer salist/Cultural Relativist Debate.............62 5 CONCLUSION...........................................................................................................71 Summary of Findings.................................................................................................71 Future Research..........................................................................................................74 LIST OF REFERENCES...................................................................................................76 Books, Articles, and Reports......................................................................................76 Constitutions and National Law.................................................................................84 Human Rights Instruments.........................................................................................84 BIOGRAPHICAL SKETCH.............................................................................................87

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vii Abstract of Thesis Presen ted to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for Master of Arts SEXUAL ORIENTATION AND HUMAN RI GHTS: THE USE OF HUMAN RIGHTS LAW TO ADDRESS SEXUAL ORIENTAT ION-BASED DIS CRIMINATION AND VIOLENCE IN ECUADOR By Shelbi D. Day December 2005 Chair: Paul Magnarella Major Department: Latin American Studies On paper, Ecuador looks like a champion of human rights—especially with respect to gay men, lesbians, bisexuals, and transg endered persons (GLBT persons or sexual minorities). It is one of only three countries in the world that explicitly includes sexual orientation in an anti-discrimination provi sion in its constituti on, and it has adopted additional protections for GLBT persons in na tional and subregional legal instruments. Despite these progressive steps, however, se xual orientation-base d discrimination and persecution ranging from physical violence and murder at the hands of the police to harassment and less overt forms of discrimination is widespread throughout Ecuador. Homophobia and antipathy towards homosexuali ty oftentimes underlie these actions. Homosexualidad (homosexuality) is seen as a rejec tion of the majority culture and the strong social and cultural constructions of appropriate gender and sexuality. In some cases, sexual orientation-ba sed discrimination, persecution, and harassment violate the human rights of sexua l minorities. As human rights abuse has

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viii been documented, national and in ternational GLBT and human rights organizations have begun to look to human rights law as a tool to address human rights violations. An examination of international, regional, and subregional human rights treaties and documents shows that human rights law can be used to address these issues. Specifically, GLBT persons or other States could submit human rights complaints to quasi-judicial bodies in the United Nations or Inter-Amer ican human rights systems. Likewise, protections for GLBT individuals exist in Ec uadorian national law, and legal challenges of human rights violations and discrimination can be brought in national courts. Nevertheless, consistent with the ongoi ng universalist/relativist debate amongst human rights advocates, it is e ssential to consider the extent to which human rights law should be used to protect GLBT persons in a society that has deeply embedded cultural and religious norms that are antithetical to homosexualid After consider ing a variety of factors and employing a human rights paradigm, it is appare nt that human rights law should be used to address violations of the fundamental human rights of GLBT individuals living in Ecuador. While culture mu st be respected, it canno t be an excuse to relegate a minority to second class citizensh ip and to render them defenseless against human rights abuses by the majority. As th e government of Ecuador has already adopted explicit protections for sexual minorities, there would likely be minimal intrusion on Ecuadorian society and culture. Even if thes e national protections were aspirational at the onset, it is reasonable to expect that, at some point, GLBT persons would seek to invoke their rights. Afterall, democratic pr inciples require equa lity of all people.

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1 CHAPTER 1 INTRODUCTION On March 12, 2004, Patricio Ordn ez Maico, a gay man and a member of Fundacin Amigos por la Vida, an Ecuador ian NGO that campaigns for the rights of los homosexuales (homosexuals), was stabbed in the ches t and the back by an intruder while inside the NGO’s office (AI 2004b). The intruder gained entry into the building and then attacked Maico from behind with a knife. When Maico managed to wrestle the knife away, the intruder drew a pistol and threaten ed to shoot Maico, saying “I am going to kill you queer son of a bitch”1 (AI 2004b). After further st ruggle ensued, the intruder dropped the gun and fled, leaving both weapons behind. A week before the incident, Maico, who had previously filed three compla ints against the Quito Judicial police for arbitrary arrest and detention, physical and sexual abuse, and re taliatory threats for reporting abuse, presented his cas e at an international human rights meeting in Quito. As in most cases, Maico’s reports of the pr evious incidents went uninvestigated and unpunished. Although this case is just one example of what human rights advocates say is widespread human rights abuses agains t sexual minorities (also referred to los hombres gay [gay men], las lesbianas [lesbians], las bisexuals [bisexuals], and los transgneros [transgender] hereinafter GLBT people/persons or sexual minorities) in Latin America, this true account incorporates elemen ts common to the widespread abuse and 1 Translation by Amnesty International (Amnesty Inte rnational 2004). The intruder, who spoke Spanish, said “te voy a matar maricn hijo de puta” (Amnesty International 2004).

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2 discrimination experienced by those who are, or are perceived to be, sexual minorities in Ecuador and other Latin American countries. Indeed, throughout Latin America, when a man or a woman is known to be un homosexuale (a homosexual), s/he oftentimes faces a variety of human rights abuses ranging from physical abuse and torture to economic and social discrimination. The homophobia and ge nder discrimination th at underlie such abuse has deep historical roots in Latin Amer ica, dating back to pr e-colonial indigenous beliefs and to the religious beliefs that were imposed on the New World by European colonizers during the conquest and coloni zation periods. Such discrimination is reinforced by existing traditional cultural constructions of appropriate gender and sexuality that stigmatize the defiance thereof. Most laws explicitly outlawing same-sex sexual relations were repeal ed during the independence period in Latin America, however, the discrimination underlying such laws is still evident in many places throughout the region, in cluding Ecuador. While sexual minorities in some countrie s, including Argentina, Mexico, and Brazil, have recently made significant le gal gains and protections, in many areas throughout Latin America discrimination and violence are common (Reding 2003). Indeed, throughout much of the region, widespread antipathy towards homosexuality has transcended history and continues to pervad e government offices, the church, and society at large. In many Latin American count ries, sexual minorities “face country-wide discrimination, persecution, violence, and murder ” (Reding 2003: 1). However, today, as has historically been the case, such abus e largely goes undocumented and it is addressed with “acquiescence or indifference on the part of the authorities, and impunity for the

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3 perpetrators, who are in many instances th e police themselves” (A I 2004b; Reding 2003: 1; ICCHRLA 1996: 8). As the focus in Latin America has shifted over the past two-and-a-half decades to include democracy and human rights (McC oy 1997: 58), regional and international human rights organizations have begun to doc ument the widespread abuse against sexual minorities throughout Latin America. In other regions of the world, human rights law has proven useful in addressing similar kinds of discrimination and persecution against sexual minorities. Since GLBT people in many parts of Latin America face varying forms of human rights abuse on account of their sexual orientation, any numbe r of countries could serve as a focal point for analysis of this problem However, this thesis focuses on Ecuador because: (1) it is the only Latin American c ountry whose constitution includes an explicit prohibition of discrimination based on sexual or ientation, and (2) desp ite this protection, political and human rights reports indicate the existence of widespread violence and discrimination against GLBT people (AI 2004b; Reding 2003: 1, 2; AI 2002b; AI 2001a). Additionally, issues pertaining to human rights and sexual or ientation in Ecuador have received little academic attention. Significance of the Study Human rights law purports to protect indi viduals from human rights abuse at the hands of their government and other actors. A greater understanding of existing human rights abuse is instrumental in the promoti on of peace and justice w ithin a given society, country, or region. As such, the identifica tion, research, and disc ussion of human rights abuse of individuals and groups within various cultures is imperative (Magnarella 1994: 7). In conducting such resear ch, however, the culture at issu e must not be forgotten and

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4 must also be studied and consid ered. Only then, is it possibl e to determine, the viability of applying and enforcing human rights laws against those responsible for human rights violations. Despite the existence of widespread vi olence and discrimination that sexual minorities in Ecuador face, there is little identi fiable social science or legal scholarship on human rights and sexual orientation in Ecuador Rather, existing information on Ecuador is limited to human rights reports and news articles documenting changes made to Ecuador’s Constitution in 1998 and the continuing violence, repression, and discrimination against sexual minorities. A s ynthesis of this information is helpful in beginning to understand the political and social reality of sexual minorities in Ecuador, to identify the violence and abuses that they face, and to determine how human rights law can be utilized to protect and defend them from such abuse. Purpose and Design of the Study I propose to analyze how human rights law can be used to address the widespread discrimination, persecution, and violence that sexual minorities in Ecuador face and to then assess the feasibility of using human ri ghts law to address such abuse. To conduct my case study, I synthesized the available human rights reports and news articles on Ecuador and then analyzed that information in light of pertinent so cial science and legal scholarship. This information suggests that sexual minorities in Ecuador face widespread and systemic discrimination on account of sexual orientation, which is largely attributable to deeply rooted homophobia, underlyi ng gender norms, and religious ideology. In other regions of the world, such as Canada and the European Union, human rights law has proven useful in addressi ng various kinds of discrimination and persecution against sexual minorities. Even in other Latin American countries such as

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5 Argentina, Brazil, and Mexic o, progress has been made on behalf of GLBT people in the name of human rights. As a member of both the United Nations (UN) and the Organization of American States (OAS), Ec uador is subject to various human rights treaties and customary intern ational human rights norms, an d it can be held accountable for violations thereof. Moreover, by adopting explicit protections for sexual minorities in national law and including an antidiscrimin ation provision which explicitly prohibits discrimination based on sexual orientation in its constitution, Ecuador formally recognized the rights of sexual minorities with in its borders. Accordingly, I will address the following research questions: Research Questions How can human rights law be used to address sexual orientation-based discrimination and related human rights abuses against sexual minorities in Ecuador? Whether, in light of the deeply rooted cultural, religious, and moral beliefs in Ecuador regarding homosexuality, using human rights law to address these issues is a feasible option or whether it is an inappropriate imposition of Western, androcentric culture and solutions. Limitations This study is library-based and does not rely on any original data. It serves only to synthesize existing human rights data and anthropological and legal literature to determine how human rights law can be us ed to address discrimination against a subordinated minority group—GLBT people, and whether the use of human rights law to create change and protect sexual minorities is a feasible optio n. Due to language limitations of the author, the re search upon which this study is based is solely that which is available in, or was translated into, E nglish. As such, it is limited in its scope.

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6 Definition of Terms For purposes of this thesis, it is neces sary to reduce complicated terms and concepts to finite definiti ons. Without doing so, it would be impossible to engage in meaningful analysis of the quest ions at issue. It is importa nt to note, however, that the terms defined below are subject to various interpretations in th e English language, and definitions vary according to culture and language.2 At the risk of oversimplifying complex terms, the following definitions are used for purposes of this paper. Sex: refers to “the biological designation of an indivi dual as a male or female” (Wilets 1997: n.1). Gender: refers “to the socially constructe d roles of ‘female,’ ‘male,’ or combination thereof” (Wilets 1997: n.1). Sexuality: “in broad terms describes a spectrum of behavior that extends from the procreative to the erotic, and encompasse s ideals, desires, practices, preferences and identities” (Chant and Craske 2003: 128). Sexual orientation: “refers to a person’s sexual and emotional attraction to people of the same gender (homosexual orient ation), another gender (heterosexual orientation) or both genders (bis exual orientation)” (AI 2001d: 4). Homosexualidad: is the Spanish word that descri bes the sexual orientation of people who are physically and emotionally at tracted to people of their same gender (Fundacin Ecuatoriana Equidad 2005c).3 2 Anthropologist Deborah Elliston noted that the cross-cultural application of Western notions of homosexuality in anthropological research yields lim ited results, because ideals, practices, norms, and understandings may vary according to culture (Elliston 2002: 289). Theorists “have noted that lesbian and gay are not context-free categories but express subjective understandings of gender, sexuality, and social location closely linked to the historical emergence of North Atlantic capitalism and to the politics of cultural pluralism during the late modernist period” (Lew in and Leap 2002: 8). Using such terms risks the invocation of “cross-cultural parallels and equivalences that are fictional and often distort the details of situated gendered construction that the research is tr ying to [understand]” (Lewin and Leap 2002: 8). As Rosenbloom recognized, “there are undoubtedly women [and men] in every part of the world who have intimate and sexual relationships with [persons of their same sex],” however, reducing those varied relationships to the finite Western terms “lesbian” and “gay” is grossly inadequate (Rosenbloom 1996: xxiii). In attempt to utilize definitions that most accura tely reflect the cultural be ing studied, Spanish terms and definitions were derived from Ec uadorian resources wh ere appropriate. 3“Es la orientatcin sexual de las personas que se si enten atradas afectiva y sexualmente por las personas de su mismo gnero.” (Fundacin Ecuatoriana Equidad 2005c) (translation provided by Kirsten Anderson).

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7 El hombre gay: refers to men that feel sexually attracted to other men and fall in love with men. For these men, having se xual feelings towards men feels normal and natural. Sometimes these men may feel attracted to women also, but in general they say that they have stronger and mo re significant feeli ngs for men (Fundacin Ecuatoriana Equidad 2005d; Fund acin Ecuatoriana Equidad 2005b).4 As discussed further in Chapter 2, in Latin Am erican culture, sexual orientation is not necessarily determined by sexual activity. Ra ther, it is determined by adherence to or deviation from culturally constructed male gender norms. Lesbiana: refers to women who love and feel sexually attracted to other women. They can feel emotionally and spiritually connected to other wo men and they prefer to partner with women (Fundacin Ecuatoriana Equidad 2005c; Fundacin Ecuatoriana Equidad 2005d).5 Bisexual: refers to people who have the capacity to love people of their same sex or the opposite sex. They are capable of being physically, sexually, and emotionally attracted to women, me n, and transgendered people (Fundacin Ecuatoriana Equidad 2005a).6 Transgnero: is someone who belongs genetically to one sex but feels, acts, and wishes to be a member of the oppos ite sex (Fundacin Ecuatoriana Equidad 2005e).7 Homophobia: “the irrational fear of homosexua lity and persons of homosexual orientation” (ICCHRLA 1996: 8). International human rights law: “refers to the body of inte rnational law aimed at protecting the human dignity of the individual. . it principally seeks to guarantee the rights of persons vis--vis their own government, but al so protects them against 4 “A los hombres que se sienten atrados por otros hombres” (Fundacin Ecuatoriana Equidad 2005d). “Los hombres que se llaman a s mismos gay se sienten atrados sexualmente por otros hombres y se enamoran de ellos. Sus sentimientos sexuales hacia los hombres son norm ales y naturales para ellos. Si bien algunos hombres gay pueden sentirse atrados tambin por las mujeres, por lo general dicen que sus sentimientos por los hombres son ms fuertes y ms importantes para ellos” (Fundacin Ecuatoriana Equidad 2005b) (translation provided by Kirsten Anderson). 5 Lesbiana refiere a las “mujeres que aman a otras mu jeres,” “mujeres que se sienten atradas sexualmente por otras mujeres,” “mujeres que podemos sentirnos vi nculadas ms estrechamente a las mujeres emocional y espiritualmente,” y “mujeres qu e preferimos a otras mujeres como pareja” (Fundacin Ecuatoriana Equidad 2005c; Fundacin Ecuatoriana Equidad 2005d) (translation provided by Kirsten Anderson). 6 Los bisexuals son “personas que tienen la capacidad de amar a personas de su propio sexo y de otro sexo. Esta capacidad puede incluir la atraccin fsica, se xual y emocional o relaciones con hombres, mujeres y transgneros” (Fundacin Ecuatoriana Equidad 2005a) (translation provided by Kirsten Anderson). 7El transgnero refiere a algo de lo “que es aquel qu e siendo genticamente de un sexo, para este caso el masculine, siente, acta y desea como perteneciente al otro” (Fundacin Ecuatoriana Equidad 2005e) (translation provided by Kirsten Anderson).

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8 other actors in the international community that might violate those rights” (Ratner and Abrams 2001: 10). Universalism: the notion in the human rights context that “claim[s] that international human rights lik e rights to equal protecti on, physical security, free speech, freedom of religion and free asso ciation are and must be the same everywhere” (Steiner and Alston 2000: 366). Cultural relativism: the notion in the human rights context which “claim[s] that (most, some) rights and rules about mo rality are encoded in and thus depend on cultural context, the term ‘culture’ often be ing used in a broad and diffuse way that reaches beyond indigenous traditions and customary practices to include political and religious ideologies a nd institutional structures” (S teiner and Alston 2000: 36667). Structure of Thesis In chapter 2, this thesis provides backgr ound information that is necessary to fully understanding the issues discussed herein. Specifically, it provides a review of the pertinent social science literature on the nor ms and cultural constr uctions of gender and sexuality that exist in Lati n America. An understanding of these cultural norms is imperative in identifying and fully understa nding the discrimination and human rights violations that sexual minorities in Ecuador face as deviants from normative sexuality. I will also review the literature explaining the origins of the deeply rooted religious and cultural beliefs underlying hom ophobia and sexual orientatio n-based discrimination in Latin America. In so doing, I will examine the role of the Catholic Church in imposing its doctrine before, during, and after the conque st and colonization of what is now known as Latin America and its continuing infl uence on Latin American culture today. Although, progressive steps on behalf of sexual minorities have been made over time, antipathy towards homosexuality is still ev ident throughout the region and discrimination exists in both the public and th e private spheres. Oftentimes such deep rooted cultural,

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9 social, and religious beliefs re sult in, or contribute to, violat ions of the human rights of those who are, or are perceived to be, sexual minorities. Then, chapter 2 presents an overview of the GLBT movement in Latin America generally. It shows that, de spite the repression that se xual minorities throughout Latin American face, they have cultivated a move ment dedicated to recognition and rights. Ecuador is a good example of how such a moveme nt can join together to effect change, even in a country ripe with antipathy towards homosexuality. Finally, it presents an overview of human rights. It begins by examining how, and to what extent, human rights law has been used to address issues related to sexual orientation. To facilitate a better understanding of the human rights system, structure, and laws, it then provides an overview of both the United Nations (UN) and the InterAmerican human rights regimes. Because Ecuador is a member of both the UN and the Organization of American States (OAS), it can be held accountable for human rights violations under either system. While th e human rights instrume nts and organs under both systems are similar, a brief overview of each system and its primary structure and instruments is essential for a clear unders tanding of the analys is. In conclusion, it addresses the role that human rights pl ay in anthropology, explaining the underlying arguments in the ongoing debate between relativ ists and universalists as it pertains to human rights. In chapter 3, I first present an overview of the problems that sexual minorities in Latin America commonly face; then, I provi de a case study of Ecuador, highlighting documented instances of discrimination, pers ecution, and violence that GLBT people in Ecuador face on account of their sexual orient ation. To do so, I synthesized existing data

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10 such as newspaper articles and human right s reports, documenting actual instances of violence and discrimination against sexual minorities Chapter 4 analyzes how human rights la w can be used to address violence, persecution, and discrimination against sexua l minorities in Ecuador. Although sexual orientation is not explicitly mentioned in any human rights instrument under the UN or Inter-American human rights systems, human rights law has proven to be a viable option to protect sexual minorities in the international realm through developing case law and interpretations within the UN system. While the use of human rights law to address violations based on sexual orientation is a re latively novel appro ach in the InterAmerican system, I will argue that human right s instruments can be used to address the oppression that sexual minorities face in Ec uador. Ecuadorian law and a subregional human rights agreement also provid e protections for GLBT persons. After establishing that huma n rights law can be used to address discrimination against sexual minorities in Ecuador, I will disc uss the appropriateness and feasibility of using human rights law to addres s these issues in a country w ith deeply rooted religious and cultural beliefs contrary to homosexualidad (homosexuality). To do so, I will engage the ongoing debate between universalists and cu ltural relativists a nd consider arguments on both sides of the debate as they pertain to the human rights violations at issue in Ecuador. Using a human rights paradigm cr eated by Hernndez-Truyol, I will balance cultural considerations against the rights of sexual minorities, and consider the impact that the use of human rights law to protect GLBT individua ls would have on the existing majority cultural and societal norms. I will also consider the effect of the Ecuadorian Government’s adoption of explicit protections for sexual minorities in its constitution, an

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11 executive decree, and a subregional agreement. After doing so, I will determine whether (and to what extent) the applic ation of human rights law is a ppropriate or if it essentially amounts to the imposition of androcentric, West ern ideas and strategies on a developing nation. Finally, chapter 5 summarizes the main findi ngs of this study. I find that, despite cultural and religious beliefs concerning homosexualidad (homosexuality), the discrimination and persecution of sexual mi norities violates fundamental human rights and therefore should be addressed through th e use of human rights law. While human rights law can be an effectiv e tool to address such disc rimination, it is important to consider the underlying cultural context to find the most useful approa ches and strategies to ensure the protection of sexual minorities Additionally, I will suggest that future research should be done to better understa nd the plight of sexual minorities in Ecuador and I will raise specific ques tions that should be addresse d in future social science research.

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12 CHAPTER 2 BACKGROUND Literature Review There is no article or body of literature that addresses the precise questions raised here. Rather, there are several articles and books, in both law and the social sciences, which underlie and inform this thesis. To date, the bulk of the social science academic work done on homosexuality “has focused mo re on men than on women,” especially in anthropology (Babb 1998: 29). Work focusing specifically on human rights and sexual orientation has been done in the context of law, and much of it has focused either generally on the topic or specifi cally on legal progress or the l ack thereof. In an attempt to be comprehensive, the most pertinent as pects of those works are reviewed below. Social and Cultural Context Cultural and religious origins of ho mophobia and sexual orientation-based discrimination In Latin America, there is a long hist ory of homophobia and sexual orientationbased discrimination and attack s directed towards GLBT persons. However, “[a]nxiety about or social restriction on same-sex desire and eroticism are, of course, nothing new or particularly limited to Latin America” (Green and Babb 2002: 5).8 Although, in Latin America, the social and legal restrictions th at were placed on same-sex desire were largely a product of the Spanish conquest a nd colonization of the New World, such ideals 8 It is worth noting that, in some ways, the history of the treatment of sexual minorities in Latin America is the same as the United States, an d in some cases developments in Latin America have been more progressive than elsewhere.

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13 originated long before that ti me. Prior to the arrival of European colonists, some indigenous societies, including the Aztecs and the Incas, punished same-sex sexual activity (Meja 2000: 43; Murray 1995: 280, 281).9 In the case of the European colonists, as Green and Babb explained in their brief hi storical overview of homophobia in Latin America, such restrictions date back to proscriptions under Jewish law that were reaffirmed in the New Testament by Saint Paul, “adding the notion of sin to sexual activities between people of th e same sex” (Green and Ba bb 2002: 5). Although there is conflicting evidence concerning th e Catholic Church’s stance on same-sex activities prior to the twelfth century, it is clear that after that time, especially during the Holy Inquisition, the Church took a hard stance agains t same-sex sexual activ ity. At that time, the Church “included sodomy among the transg ressions that it puni shed by death through public burnings” (Green and Ba bb 2002: 5; Boswell 1980: 281).10 “As part of the conquest of the Americas the Catholic Church imposed its ban against sodomy on indigenous cultures while monitoring the sexual behavior of Spanish and Portuguese colonizers” (Green and Babb 2002: 5). Although there is no official tally of how many people died by flames during the conquest and early colonial period, two things are certain. First, several Span ish and Portuguese conquistadores reported 9 As Max Meja explained the Aztecs of “pre-Hispa nic Mexico, the dominant culture at the time the Spanish arrived” had harsh laws against same-sex sexua l activity (Meja 2000: 43). They “punish[ed] the practice severely with public execution for those who were caught” (2000: 43). Similarly, Stephen O. Murray relayed that, in the Andean region, the Incas also severely punished sexual activity between individuals of the same sex (Murray 1995: 280, 281). It is noteworthy, however, that same-sex sexual relations and activity was not punished in all indigenous cultures in which it existed, and in some it was even tolerated (Murray 1995: 282-288; Meja 2000: 44-46). 10 The word “sodomy” has held different meanings at different times throughout history (Boswell 1980). “At some points in history it has referred almost exclusively to male homosexuality and at others almost exclusively to heterosexual excess” (Boswell 1980: 93 n.2). Generally, the English word “sodomy” has its origins in interpretations of the Christian Biblical story of Sodom and Gomorrah (Boswell 1980). During the time of the Holy Inquisition, “sodomy” or “sodomite” referred to male same-sex activity (Boswell 1980: 281—285).

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14 encountering same-sex sexual practices amongst indigenous peoples throughout the region, in places including Mexico, Panama, Br azil, and the Andean nations. Second, the conquistadors reacted to those engaged in su ch activities with punishment, in accordance with Catholic law and do ctrine (ICCHRLA 1996: 3). “In the years immediately following Latin American independence from Spain and Portugal, most new states rewrote their crimin al codes, eliminating sodomy from the list of legal prohibitions ” (Green and Babb 2002: 5). A lthough consensual same-sex sexual activity was no longer consider ed a crime in most Latin American countries, deeply engrained antipathy towards homosexuality remained and was reflected in public decency codes and laws targeting those people and activ ities that fell outside the normative ideals of appropriate sexuality. Wh ile “the influence of Roma n Catholicism was by no means uniform across the New World, there is little doubt that religious conquest played a significant role in determining what sexual be havior was, or was not permissible” (Chant and Craske 2003: 134). In more recent times, throughout Latin Am erican, antipathy towards homosexuality has been evident in various ways, including the “killing of homosexuals under military regimes in Argentina, Chile and Guatemal a, to less draconian, but still powerful, attempts” to eliminate homosexuality during the Cuban revolution (Chant and Craske 2003: 154). In the early twentieth century, “eu genicists, physicians, psychiatrists, and jurists in Argentina, Brazil, and other Latin American countries engaged in campaigns to ‘medicalize’ what increasingly became kno wn as homosexuality” (Green and Babb 2002: 6). During this time, homosexuality was deemed a personal and social disease and efforts

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15 aimed to “cure” those suffering from this affliction.11 Despite the emergence of lesbian and gay rights movements throughout Latin America, homophobia and social ostracism pe rsists today and the Catholic Church continues to view homosexuality as “unnatura l and intrinsically bad” (Chant and Craske 2003: 133, 135). Although the notion of “homos exuality as abomination shows no sign of abating in most quarters of the Catho lic Church in Latin America,” the Vatican maintains that it is against discrimination ag ainst GLBT people (Cha nt and Craske 2003: 136). Nonetheless, it has continued its activ e role in denouncing homosexuality and it has systematically interfered with advocates’ efforts to gain legal protections for GLBT persons. In Ecuador, like much of Latin America, Catholicism is the predominant religion (Embassy of Ecuador in Washington, D.C. 2004),12 and its traditional ideals are deeply embedded in Ecuadorian culture. Throughout Ecuador and much of Latin America, antipathy and traditional religious beliefs concerning homosexuality are evident.13 Cultural context—the machismo complex In Latin American culture, there are str ong constructions of gender and sexuality. Consistent with the persistent gender hierarchy that is ev ident throughout Latin American 11 Significantly, as compared to criminalization, the medicalization of homosexuality was generally presented, and sometimes experienced, as progressive. In retrospect, however, it can be seen as being another way that sexual minorities were oppressed and treated inequitably. 12 However, many indigenous communities “still preserve their ancient beliefs of worship of the earth, the mountains, and the sun” (Embassy of Ecuador in Washington, D.C. 2004). 13 Rebutting the notion that religion “has been the cause of intolerance” of gay people, Boswell explained, “[r]eligious beliefs may cloak or incorporate intoleran ce, especially among adhere nts of revealed religions which specifically reject rationality as an ultimate cr iterion of judgment or tolerance as a major goal in human relations. But careful analysis can almost always differentiate between conscientious application of religious ethics and the use of religious precepts as ju stification for personal animosity or prejudice” (1980: 6—7).

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16 history, males are relegated to the public sp here and females to the private sphere. Moreover, men play the role of the authorita rian boss and females are subordinate (Green and Babb 2002: 9). Although women have gained some rights and recognition in the last two decades, in many places, traditional norms continue to exist. Despite a growing spectrum of representations of sexuality in Latin America, two extremes stand out—one of “sexual repression, associat ed with religion, and particul arly, Roman Catholicism, in which notions of guilt, sin, and restraint preponderate” and another of “exoticism and sensuality” (Chant and Craske 2003: 131). While the “respectable” woman is expected to maintain the former, it is acceptable for men to indulge in the latter. Today, Latin American constructions of ge nder and sexuality reflect the markedly racialized and sexualized pow er relations assumed during the conquest and colonization of the New World. According to traditional Catholic ideals, the “only legitimate arena for sex was monogamous, heterosexual marri age” (Chant and Craske 2003: 134). Although the influence of Catholicism was not uniform throughout Latin America, its “proscriptions concerning sexuality have been remarkably persistent, and have played a major part in influencing hegemonic sexual di scourses,” both past and present (Chant and Craske 2003: 134). In contemporary Latin Amer ica, the Catholic C hurch’s legacy is evident in a variety of spheres, “including dualisms between male and female sexuality” and gender norms (Chant and Craske 2003: 135). Specifically, today, while women are still expected to adhere to monogamy a nd to fulfill the reproductive role, men are encouraged, or expected, to e ngage in preand extra-mari tal affairs (Hernndez-Truyol 1997: 917).

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17 Underlying these ideals is the cultural notion of hyper-masculinity that is commonly referred to as the machismo complex. As explained by Joseph Carrier in the context of mestizos in Mexico, under the machismo ideal, “men are expected to be dominant and independent and females to be submissive and dependent” (1995: 3). The machismo complex “molds men as cold, inte llectual, rationa l, profound, strong, authoritarian, independent, and brave” (H ernndez-Truyol 1997: 916; Espn 1997: 89). In addition to being hyper-masculine, Latinos are expected to have uncontrollable sexual urges and to engage in sex for pleasure, both before marriage and after (Chant and Craske 2003: 141; Espn 1997: 89-90; He rnndez-Truyol 1997: 917). Deeply embedded in the notion of machismo are sexism, racism, and classism, under which the dominant male is controller and conqueror of all. However, research has shown that in some countries such as Mexico and Peru, depending on one’s social class, manhood is also tied to marriage, reproduction, and being a dependabl e and engaged father (Fuller 1996: 52, 53, 301, 311-12). In fact, “paternity is one of the main axes of masculine identity of Peruvian Middle class men” (Fuller 1996: 312). Latinas on the other hand, are socialized to be submissive and feminine, to be mothers and wives. They are expected to be subordinate to their brothers, husbands, and fathers. Marianismo the ideal role of women, as re inforced by family, church, and society is modeled after the idealization of the Virgin Mary. Under this cultural construction, women are taught to be subordinate, self-sacri ficing, and chaste. They are the keepers and protectors of Latino culture and family and are treated as second class to men and to family (Hernndez-Truyol 1997: 915-16). This idealization of the ideal woman as “mother – expressed in references to madrecita santa (holy [little] mother), el

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18 sagrado deber de ser madre (the sacred duty to be a mother), and la mujer sufrida y sacrificada (the suffering and self-sacrificing moth er) – makes it difficult for women not to see motherhood as their destiny” (Chant and Craske 2003: 135). Arguably, those who do not maintain the normative sexuality are shunned and relegated to the category of “whores” (Chant and Craske 2003: 142). As Lancaster explained, however, the machismo complex “is not exclusively or even primarily a means of structuring power relations between men and women. It is a means of structuring power between and among men ” (Lancaster 1992: 236). “The conquest of women,” he explained, “is a feat performed with two audiences in mind: first, other men, to whom one must constan tly prove one’s masculinity and virility; and second, oneself, to whom one must also show all the signs of masculinity” (Lancaster 1992: 236-37). The machismo complex demands constant proof, assertion, and reinforcement of one’s masculinity. In f act, as Murray explained, “[t]opping other men (usually verbally or symbolically, bu t occasionally physically) is central to machismo perhaps as important as maintaining the subordination of women” (1995: 55). The machismo ideal has significant implicati ons on the construction of homosexuality throughout Latin America. As Murray explained, throughout Latin America, homosexuality oftentimes is defined by gender, not sexual activity (1995: 49). In other words, under the machismo complex, distinctions for men (heterosexual/homosexual) are not necessarily made according to the biological sex of one’s sexual partner; in stead, there exists an activo / pasivo dichotomy which distinguishes the position that one assumes during sexual relations (Fuller 1992: 57). “[M]asculine insertors ( activos ) . are not considered homosexuales [and] feminine insertees ( pasivos )

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19 . are” (Murray 1995: 49; Fulle r 1992: 57). Another Peruvian anthropologist explained that “[ a ] ctivos consider insertor behavior part of a male’s prerogative. Adherence to this belief permits activos to gratify sexual needs without compromising a masculine, even heterosexual identity” (Arboleda G. 1995: 105; Mott 1995: 224). While Fuller noted that recent research indicates that young Peruvian women are beginning to question the norms dictating or ignoring th eir sexuality, there is no indication of similar diversity in sexual types for men—according to men, males are either considered men or “faggots” (Fulle r 1996: 52, 53). As such, although there is a degree of acceptance of male to male sexual activity especi ally during adolescence, in part due to the unacceptability of female premarital sex, men who engage in same-sex sexual activities must clearly be in the act ive sexual role and must reinforce their preference for women if they are to be considered “men” (Murray 1995: 55). Gender conformity (or the deviation therefrom) is key, because the cultural assumption is that gender roles are consistent w ith sexuality (Murray 1995: 63). As Fuller explained in the context of Peru, “[t]he domain of the abject ed acts as the limits of the masculine; the point at which someone loses or endangers his masculine condition. This is related to the loss of the symbols of social recognition and ultimately with feminization” (Fuller 1996: 302). The most extreme example of feminization, she posits, is “occupying a passive position in [a] homosexual relationship” (Fuller 1996: 302). Lancaster similarly concluded that passive homosexuals are “f eminine men, or more accurately, feminized men, not fully male men” and, therefore th ey are stigmatized (Lancaster 1992: 242; Carrier 1995: 17). In addition to the stigmatization of effe minate or passive gay men, the cultural

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20 emphasis on hyper-masculinity and the requireme nts to constantly prove and reinforce one’s manhood have consequences—homophobia, discrimination, rejection, and related violence. As Murray explai ned, it is not uncommon for the passive man in same-sex sexual relations with a “heterosexual” man to “get beaten up after sexually servicing ‘real men’ or just for the hell of it if there’s nothing better to do and one comes into the view of ‘real men,’ or (frequently, in the case of policemen), because effeminacy and/or homosexuality are affronts to public morality ” (1995: 57). Carrier also described how insecurity or cultural pressures to adhere to the machismo ideal can lead to murder and violence (Carrier 1995: 83-84). Similarly, a ccording to Brazilian anthropologist Luiz Mott, “discrimination and violence against lesbians and gays is a daily tragedy for millions of homosexuals in [Brazil]” (Mo tt 1995: 224). Additionally, homosexuals are commonly rejected by their families, their jobs or even their school. Carrier explained that, in Mexico, people generally disapprove of homosexuality, and most of the gay men that he encountered did not want their families or heterosexual friends to know for fear of stigmatization, and in some cases rejection or violence (Carrier 1995: 13; 65). While a lot has been written on male ho mosexuality, little has been written on lesbianism in Latin America. Ostensibly, there are several reasons for the lack of information. First, because the machismo culture is by definiti on male-orientated, some scholars have concluded that “lesbian relationships are generally perceived as less threatening to society” (Reding 2003: 16). Alternatively, some scholars believe that lesbian relationships tend to be less visible, and are theref ore understudied. As Lancaster explained, “[i]n Nicaragua, as in many peas ant societies throughout the world, there is little popular interest in categorizing or regul ating female same-sex relations, and little

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21 exists in the popular lexicon to account for it” (1992: 271). In fact, Lancaster stated that in the course of his field research, there were only scattered refere nces to lesbians in newspaper articles and “the subject of lesb ianism never came up [in conversations with his research subjects] unless [he] raised it” (1992: 271). Third, female sexuality is traditionally not recognized under the machismo complex, and lesbian sexual activity falls outside of the normative noti ons of sexual intercourse. Under marianismo ideals, Latinas are expected to be the dispensers (not th e receivers) of care and pleasure and for women, sex continues to be linked only to reproduction and marriage (Chant and Craske 2003: 135; Hernndez-Truyol 1997: 915; Esp n 1997: 89). As e xplained by Claudia Hinojosa, “[o]ne of the cultural factors that has had the greatest impact in making lesbian women invisible is the notion that we women do not have our own sexuality” (Hinojosa 1998). She explained that people “don’t unde rstand what happens sexually between two lesbian women” (Hinojosa 1998). In reality, however, some research suggest s that, when lesbians fail to conform to normative gender roles, they too face discri mination. Brazilian sc holars reported that, although lesbians are “not as eas ily identified” because they “are generally more discreet and less overt in their behavior ,” they face severe discrimination when they are overt, or open about their sexuality (Gonalves de Fr eitas 1998: 203). In fact, once a woman’s lesbianism is known, she generally faces a dominant/submissive dichotomy and discrimination similar to that experienced by gay men (Gonalves de Freitas 1998: 202; Mott 1995: 224-225). Two lesbian activists in Mexico explained that “[w]omen who do not fulfill the roles of mother and spouse—single mothers, prostitutes, lesbians—are seen as posing a threat to society. Women are educated from a young age to become wives

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22 and mothers; they are under pressure to marry” (Prez and Jimnez 1996: 114). Consistent with these notions, it is common for men to think that the cure for lesbianism is sex with a “real man”; thus, lesbians are oftentimes threatened with and subjected to sexual violence. The Lesbian and Gay Rights Movement Despite these restrictions and historical responses to same-sex relations, sexual minorities have found ways to circumvent such restrictions, creating social spaces that have ranged from clandestine gatherings to enclaves in urban centers throughout Latin America. To be sure, because, as men, ga y men enjoy greater access to sexual partners and public space, they were able to create clandestine enclaves in urban areas that sheltered them from social ostracism (B abb 2003: 311, 313). Lesbians, on the other hand, were generally limited to small social circles and covert organizing due to the social restraints placed on women (Babb 2003: 311, 313). From the creation of such spaces, lesbian and gay rights movements have emerged in many Latin American countries (Green and Babb 2002: 3). Over th e last two decades, GLBT rights movements have made varied progress in countries throughout Latin America, and many have successfully “triggered national political deba tes about sexuality, di scrimination, and the meaning of full democratic par ticipation of all sectors in po litical process” (Green and Babb 2002: 3). Collectively, GLBT organizations th roughout Latin America, though small and politically modest, “have mana ged to shift the political di scussions about the person[s] and the political” and, in some places, the “i ssue of discrimination against homosexuals in Latin America is” now subject to deba te (Green and Babb 2002: 4). Significantly, social scientists have recently noted connect ions between local movements and the larger

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23 international movement. For instance, Brown, attributed the emergence and expansion of the Argentine lesbian and gay rights movement, which is pol itically modest and at times disjointed yet alive and well, to both “the earlier international diffusion of lesbian and gay identity and models of activism” and the “political opportunities afforded by concrete financial support” (2002: 125-26). Similarl y, Babb recently noted that, in Nicaragua, many men and women identify with the transn ational lesbian and gay rights movement (2003:306). Moreover, Mott posited that, in Brazil, lesbian a nd gay rights defenders and activists welcome the support and assistan ce in defending their rights (1995: 225). Background on Human Rights Law Sexual Orientation and Human Rights Law The lesbian and gay rights movement and the human rights movement merge at the employment of human rights la w to address GLBT rights (S anders 2003: 1). While none of the human rights documents make any refe rence to “sexual orie ntation” or “gender identity,” gays and lesbians have gained some recognition under the UN system through the invocation of “provisions on personal privacy and certain general provisions on equality” (Sanders 2003: 2). By the end of the twentieth century, “concern with discrimination on the basis of sexual orient ation had gained sufficient recognition in national legal systems, in the various European institutions, in actions of the United Nations Human Rights Committee, in in itiatives of the UN High Commissioner on Human Rights and in the work of important Non-Governmental Organi zations that it had become realistic to say that the issue was now part of a broad international human rights agenda” (Sanders 2003: 2). After conducting a comprehensive review of the pertinent legal developments throughout the international and regional human rights systems, Sanders concluded that,

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24 while there have been both victories and defeat s in attempts to invoke international law to address issues pertaining to sexual orientation, it is becoming an increasingly viable option. This, he suggests, is evident from se veral things, including favorable outcomes in the judicial processes, the participati on by lesbians and gay men in important UN sponsored human rights meetings, and increa sing, albeit limited, support by governments willing to speak out on behalf of sexual mi norities (Sanders 2003: 35). Significantly, Sanders noted that international law developm ents generally occur only if reforms occur at the domestic level. He pointed to se veral State-level deve lopments throughout the world, such as explicit constitutional prohi bitions of discrimination based on sexual orientation in South Africa, Fiji, and Ecuador and the interpretation of general constitutional equality provisions to include se xual orientation in other countries (Sanders 2003: 36). In so doing, he highlighted the f act that State-level protection for sexual minorities, at least on paper, is no longer limited to Western/Northern States. While the most significant progress in lesbian and gay legal issues has occurred in the European Regional System, Sanders concluded that co ntinued State-level developments will “permit sexual orientation issues to be ope nly addressed at the United Nations and in regional organizations in years to come” (2003: 36). While in many regions of the world lesbia ns and gay men have gained recognition and made notable progress in human rights laws, many legal scholars have argued the need to recognize and address gender-based di scrimination and biases (Dorf and Careaga 1995; Rosenbloom 1996). Legal scholars and human rights advocates have begun to call attention to the importance of the human rights issues of lesb ians specifically, especially since lesbians face discrimination on account of both sex and sexual orientation.

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25 Although much of the discrimination that lesbia ns and gay men face is similar, lesbians historically have been less vi sible than gay men. Because of this “invisibility,” some people “believe that lesbians face less severe persecution than gay men;” however, Rosenbloom argued that such “inv isibility” in the law is actually an indication of deeper underlying discrimination—namely the denial of lesbians’ existence by society and governments—and merely makes discrimination more difficult to document (Rosenbloom 1996: xiii-xiv). Accordingly, the invisibility of lesbians from human rights documentation in Ecuador should not be mistaken for a lack of discrimination. Instead, it may indicate underlying discrimination that ne eds to be further st udied and addressed. Overview of Human Rights Systems, Structures, and Laws International human rights law is a body of international law that was “born principally in the ashes of” the atrocities that occurred during World War II (Ratner and Abrams 2001: 5). The post-war Nuremberg tr ials were effectively a “springboard for the development of international human rights law, as much of the international community came to conclude that a government’s trea tment of its citizen s in peacetime was appropriate for general international regulati on” (Ratner and Abrams 2001: 7). While the notion that “human beings are inherently entitled to certain fu ndamental rights and freedoms has roots early in human thinking” (C arter and Trimble1999: 844), prior to that time, states had almost absolute sovereig nty over that which occurred within their borders. Plainly, with only a few excepti ons, human rights issues were within the jurisdiction of individual stat es and were not regulated by international law (Ratner and Abrams 2001: 4; Carter and Trimble 1999: 845). After World War II the status of human beings slowly evolved from being objects to subjects of international law, prompting

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26 states to “reaffirm people’s faith in human rights and di gnity of the human person” (Nowak 2003: 23). The human rights regime that emerged from World War II is both rich and complex (Hernndez-Truyol 2002: 353). International hu man rights law, at its core, is based around the concept that “every nation has an obl igation to respect th e human rights of its citizens, and that other nati ons [i.e., states not indivi duals] and the international community have a right, and responsibility, to pr otest if this obligati on is not lived up to” (Carter and Trimble 1999: 844). To implemen t this concept, a body of international rules, procedures, and organizations was de veloped (Carter and Trimble 1999: 844). The principal organization tasked with promo ting human rights and fundamental freedoms was the United Nations (UN), which wa s founded immediately after World War II (Carter and Trimble 1999: 845). Since the inception of the UN, several regional systems have taken up concern with human rights i ssues and have created regional human rights systems which make nations accountable on a re gional and international level (Carter and Trimble 1999: 846). One such system, which is especially pertinen t here, is the InterAmerican system, which was created by the Or ganization of American States (OAS), a collective of 34 countries in Nort h, Central, and South America. In the UN, the founding document, the Charter of the United Nations (UN Charter), “established general obligations requiring UN member states to respect human rights and provided for the creation of a Human Rights Commission to protect and advance those rights” (Carter and Trimble 1999: 845). A lthough the UN Charter has only scattered references to human rights, it established the structure of the UN system and it “states the UN’s basic purpose of securing and maintain ing peace” (Steiner and Alston 2000: 137).

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27 It also put in place the Economic and Social Council (ECOSOC) to “set up commissions in economic and social fields and for the prom otion of human rights” (U.N. Charter: Art. 68). In 1946, ECOSOC established the Co mmission on Human Rights (UNCHR) “which has evolved over decades to become the wo rld’s single most important human rights organ” (Steiner and Alston 2000: 138). Ther eafter, the UNCHR bega n drafting a bill of rights for the UN system. There are three in struments that, together, compose what is known as the International Bill of Rights: th e Universal Declaration of Human Rights of 1948 (UNDR) and two principal covenants that entered into force in 1976, the International Covenant on Civil and Politi cal Rights (ICCPR) and the International Covenant on Economic, Social and Cultura l Rights (ICESCR) (Briceno 1998: 52). The UNDR is a nonbinding instrument that c overs both civil and political rights as well as economic and social rights, and it was designed to “exert a moral and political influence on states” (Steiner and Alston 2000: 138). The ICCPR and the ICESCR are equally binding instruments, however the I CCPR receives more resources and “civil and political rights have received the lion’s sh are of attention by th e international human rights community” (Briceno 1998: 52). Additio nally, the obligations of the ICCPR and the ICESCR are quite different. The ICCPR ca lls for relatively quick compliance, but the ICESCR allows for a gradual approach dependi ng on a country’s resources. Consistent with the vision of the UN Charter, the UN has subsequently adopted additional human rights treaties that expand upon the right s articulated in the founding documents. 14 14One such treaty is the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which is a major treaty th at was formed several decades afte r the ICCPR. CEDAW, which has 165 state parties, prohibits discrimination based on se x, and entitles women to the equal enjoyment of civil and political rights as well as social, cultural, and economic rights (Briceno 1998: 52; CEDAW).

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28 While the UN system is a universal system in that it “is based on treaties that aim at worldwide membership,” the Inter-American Syst em is a regional system that is “based on treaties whose membership is restricted to states” in the OAS (Steiner and Alston 2000: 136). Although the origins of the Inter-American System date back to 1889, the basic constitution of the OAS, the Charter of the Organizatio n of American States (the OAS Charter), was not approved until 1948 at the ninth Inter-American Conference held in Bogot, Colombia (1989: 210, 212; Steine r and Alston 2000: 868). “The OAS was established [to]…strengthen[en] regiona l peace and security, promot[e] and consolidate[e] representative democracy, ensu r[e] the pacific settlement of disputes, achiev[e] arms reduction, and promot[e] ec onomic, social, and cultural development” (Melish 2002: 8). The OAS Charter, which is a legally bi nding instrument, sets forth the basic structure of the OAS and it embodies gene ral human rights oblig ations (Melish 2002: 8).15 The American Declaration of the Rights and Duties of Man (Ame rican Declaration) is “considered the founding instrument of the Inter-American human rights system” (Melish 2002: 9). Like the UNDR, the Am erican Declaration is nonbinding, and its purpose is the “interna tional protection of th e rights of man” (American Declaration: preamble). Aiming to serve as “the principal guide of an e volving American law,” it sets forth a long list of rights that member stat es commit themselves to respect (American Declaration: preamble). These include both civi l and political rights as well as economic, social and cultural rights (American Declaration: preamble). 15 The OAS Charter also includes a strict nonintervention clause which provides that “No State or group of States has the right to intervene, directly or indirectly for any reason whatsoever in the internal or external affairs of any other States” (OAS Charter: Art. 18).

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29 The other framework document, the American Convention on Human Rights (American Convention), sets forth “protected rights” and it created the Inter-American Court of Human Rights to hear cases referre d to it by a lower judiciary body, the InterAmerican Commission (Melish 2002: 11). The American Convention is legally binding on those states that ratify it.16 It is considered the “most important legal instrument for vindicating rights through the Inter-American system” (Melis h 2002: 10). At its core, it requires state parties to “respect the right s and freedoms recognized [t]herein and to ensure that all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination” (American Convention: Art. 1(1)). It also sets forth protected rights, which are separated into civil and political rights and economic, social, and cultural rights (American Convention: Chapters II and III). Throughout the history of the Inter-American Sy stem, focus has been almost exclusively on civil and political rights (Dulizky 2003: 18) Several additional pr otocols and treaties have been enacted to clarify and expand existing rights and prot ections, including the Additional Protocol to the American C onvention on Human Rights in Matters of Economic, Social and Cultural Rights (Protocol of San Salvador) which “aims to fill the [economic, social, and cultural rights] gap in regional treaty la w” (Melish 2002: 12). In addition to multilateral treaties and declar ations, human rights law, in both the international and the regional systems, is derived from sources including customary international law; international resolutions and recommendations; decisions and actions of UN organs and other international bodi es; and national laws, regulations, court decisions and policy pronouncements (Carter and Trimble 1999: 846-849; See the Statute 16 Twenty four countries, including Ecuado r, have ratified the American Convention.

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30 of the International Court of Justice: Art. 38). While treaties “create legally binding obligations for the nations that are parties” thereto, international de clarations, resolutions, and recommendations have only persuasive ( non-binding) authority (Carter and Trimble 1999: 846-47). According to underlying principl es of international law, countries are bound only by those treaties and agreements to which they consent (Vienna Convention on the Law of Treaties: preamble and Arts. 11-15). Customary international law is also an important body of international human rights law. It refers to “c onduct [of states], or the cons cious abstention from certain conduct [by states]” which, over time, may dict ate what actions or inactions are legally permitted, prohibited, or obligatory (Steiner and Alston 2000: 69). Customary law results both from the objective actions of states a nd the subjective evidence of their motivation (Steiner and Alston 2000: 69, 70). Some schol ars argue that the elements embodied in treaties and declarations that have been ratified or adopted by a large number of UN member States may be considered part of customary international law (Magnarella 1994: 4). As the real subjects and bene ficiaries of human rights la w, individuals have some ability to assert the rights granted to them under certain human rights instruments. Under some human rights treaties, i ndividuals or NGOs (in addition to member states) can bring claims against a state directly before an inte rnational or regional ju dicial body (Carter and Trimble 1999: 849). Actual enforcement of hu man rights laws depends largely upon the consent and compliance of the nations involved (Carter and Trimble 1999: 849). Oversight mechanisms to assist in enfor cement have grown both within international organizations and in non-governmental orga nizations (NGOs) (Ratner and Abrams 2001:

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31 7). For instance, in the UN, there are seve n human rights treaty bodies (committees that are created by the treaty that they monitor) that are tasked with the duty to “monitor implementation of the core internationa l human rights treaties”—the ICCPR, the ICESCR, the Torture Conventi on, the Convention on the Elim ination of All Forms of Racial Discrimination, the Convention on the El imination of All Forms of Discrimination Against Women, Convention on the Rights of th e Child, and the Inte rnational Convention on the Protection of the Rights of All Migr ant Workers and Members of their Families (UN 2005). The Inter-American Commission on Human Rights was created by treaty to monitor states’ compliance with human ri ghts treaties in the OAS. A number of international non-governmental organizati ons (NGOs) like Human Rights Watch and Amnesty International inves tigate and prepare reports on human rights violations throughout the world and distribute them to the UN Committees and the Inter-American Commission on Human Right s (Magnarella 1994: 6). Over the last two to three decades, the human rights regime has proven useful in addressing human rights abuses in Latin Am erica. In the 1980s, in the wake of “[m]assive and systemic violations of hu man rights” throughout the “region as State policy, including disappearances, extra-judici al executions, torture, forced exile, and illegal and arbitrary arrests, ” human rights efforts were focused on “preserving the right to life, physical freedom and integrity, th e prohibition against torture, freedom of expression or the minimum and most basic rules of due proc ess” (Dulitzky 2003: 18). As conditions have improved over the last twenty years, “some sectors of the human rights movement have timidly begun to direct their attention towa rds the guarantee of economic, social and cultural rights destined to achieve a more just, equitable, and

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32 fraternal society” (Dulitz ky 2003: 19). In March of 2004, Human Rights Watch reported that “some of the most positive human righ ts initiatives have now come from Latin America,” citing Mexico’s “efforts to safe guard human rights in the fight against terrorism” and Brazil’s creation and promotion of a “new resolution to tackle violence and discrimination against people on the basi s of their sexual orientation” (Mungoven 2004). In addition to being a subfield of internat ional law, human rights also is a subfield of anthropology. According to Paul Magnarella the role of anthr opologists in human rights is to use their knowledge, experience, theoretical skills, and practical research abilities to further the causes of human righ ts and justice (1994: 7). Although admittedly anthropologists can do little in the way of human rights on an individual basis, by combining their efforts with lawyers, NGOs, hu manists, and other social scientists, they have the ability to “accomplish a great deal” by contributing to “further development of human rights norms, internati onal investigative pr ocedures, fact-fin ding, the reporting and publicizing of human right s abuses, and the formal filing of complaints before judicial and quasi-judicial bodies” (Magnarella 1994: 7). Because anthropologists oftentimes are in the unique position to doc ument and report huma n rights issues among the cultures they study, Magnarella concludes that they must not turn a blind eye to such abuse (1994: 7). The Universalism and Cultural Relativism Debate Anthropologists have historically struggl ed with the appropriateness of altering, influencing, or interfering with individual cult ures. Central to anth ropology is the notion of cultural relativism, under which the primary pr actice of anthropologists is to “describe, explain, and understand the alien culture, wi thin the framework of one or another

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33 theoretical perspective” (Steiner and Alst on 2000: 368). From an anthropological stand point, the principle of cultural relativism “m eans that [anthropologi sts] approach each new culture with an open mind, on the presump tion that it constitutes a potentially ethical and humane design for living” (Magnarell a 1994: 3). This age-old debate was reinvigorated in the human rights context as some anthropologists have reconsidered their role in light of the human rights movement. Contrary to the traditional relativistic approach, some anthropologists have argued that the traditional relativist presumption may be abandoned when thorough investigation reveals, as it sometimes does, that “segme nts of the society seriously abuse the human rights of others by torturing helpless people, murdering the innocent, denying due process to the accused, depriving the w eak of their property, and th e like” (Magnarella 1994: 3). In those cases, anthropologists must make th e difficult ethical decision of whether getting involved risks altering the authentic culture and is therefore inappropriate or whether “there is a universal morality binding the fate of all people” (Magnarella 1994: 3). Adopting the view of the latter, Magnarel la argues that “everyone, anthropologists included, shares an obligation to protect the weak and inno cent from the unjustified and immoral treatment of the powerful” (1994: 3). Since the inception of the human right s movement, similar arguments have emerged amongst legal scholars with regard to the application a nd implementation of human rights law. Those adhering to cultural relativist philosophies ar gue that “the world contains an impressive diversity in views about rights and wrong that is linked to the diverse underlying cultures,” (S teiner and Alston 2000: 367); a nd, in its strictest sense, argue that human rights is esse ntially a Western imperialist t ool that “imposes the vision

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34 of a few on everyone all the time” (Hern ndez-Truyol 2002: 357). This argument was reflected in the early reactions of postcolonial states in the South to “the Western impetus to universalize” human rights norms (2002: 356) Advocates of universalism argue that certain human rights are universal “and must be the same everywhere” (Steiner and Alston 2000: 367). The universalist philosophy is based on the notion that “all humans are entitled to human rights because all pe ople possess human dignity” (Magnarella 2002: 16). According to Magnarella “[i]deally, universalism comb ined with democracy means that people everywhere are entitled to equal dignity—each person is inviolate, each is entitled to enjoy certain right s and to be free from certain abuses” (Magnarella 2002: 1819). This debate is ongoing in the contex t of human rights, as legal scholars and anthropologists consider the implementati on and enforcement of various human rights laws and norms. Recognizing the validity of the concer ns underlying both arguments, HernndezTruyol offered an alternative view that is c onsistent with human ri ghts standards. She suggests that, while notions of universality shou ld not be “used as a sword to eviscerate traditional cultural practices,” cultural practi ces and the power of tradition should not “be accepted as a shield to protec t so-called traditional cultur al practices that create, reinforce, and perpetuate the subordination, enslavement, or exclusion of individuals within their particular cultures” (2002: 357). To effect this balance of protecting the human rights of individuals while respec ting diverse cultures, Hernndez-Truyol proposed a human rights paradigm. At the heart of the human rights model is the principle of personhood, which embraces th e ideal of the indivisibility and interdependence of the rights envisioned in the Universal Declara tion, including civil and

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35 political rights as well as social, economic, and cultural rights. Sh e explained that these basic principles ensure respect for the ri ghts of individuals, and are integral in “interpreting and translating within, betw een, and among cultures, by creating a context that embraces the value of diverse peoples” and cultures (HernndezTruyol 2002: 357). This paradigm can be used to protect “individuals from denial of personhood simply because they take a differently charte d path” or fail to conform to the majority views in their culture (Her nndez-Truyol 2002: 366). Cu lture must be taken into consideration, however, it is necessary to de termine the viability of employing human rights by considering both group and individu al rights. This can be done under the human rights paradigm by identifying and ba lancing the competing interests of the human rights at issue against the “context of social, economic political, and individual circumstances” (2002: 366). The followi ng questions can serve as a methodological guideline: (1) what is the clai m or right being asserted; (2) what circumstances gave rise to the claim; (3) who is claiming the alleged breach—a cultural insi der or outsider; (4) who is violating the right at issue; (5) “what is the impact of enforcing the group norm as compared to the impact of protecting the individual right”—“what is the level of intrusion of the group norm on individual freed oms” and “what are the consequences of erosion of the norm on the community” (H ernndez-Truyol 2002: 366-67). To be effective, this approach must remain flexib le and objectively consid er both sides of the issue at stake (2002: 367).

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36 CHAPTER 3 STATEMENT OF THE PROBLEM Overview of Human Rights Abuses of Sexual Minorities in Latin America Today, sexual minorities throughout Latin America face widespread homophobia and discrimination.17 They are subjected to abuse, persecution, and discrimination ranging from economic and social exclusion to physical abus e, torture, and, in some cases, death. In fact, in some places thr oughout the region, “social cleansing” is an ideal that still exists and is acted upon (ICCHRLA 1996: 4; IGLHRC 2001: 7). For instance, in Brazil, activists estimate that between 1980 and 2000, paramilitary groups and others killed close to 2000 GLBT persons (ICCHRLA 1996: 4; IGLHRC 2001: 7). In some of those cases, they were aided and abetted by pol ice. Furthermore, arbitrary arrests and detention, torture, and assa ssination of GLBT people is common (ICCHRLA 1996: 4). Such cases have been documented in many countries throughout Latin America, including Mexico, Colombia, and Argentina. Although only one Latin American countr y—Nicaragua, explic itly prohibits consensual same-sex sexual activities between consenting adults,18 police in other countries often arrest and detain GLBT pe rsons under vaguely worded laws that are 17As indicated herein, some Latin American countries ha ve made significant strides with regard to rights and protections for sexual minorities. In recent years, for instance, rapid progress has been made in Brazil, Argentina, and Mexico in establishing rights of sexual minorities (Reding 2003: 19, 23, 55). While human rights abuses have continued, such legal and political strides are significant and should not be overlooked. 18Nicaragua, Article 204 of Law No 150 in the Law of Penal Code Reforms, explicitly prohibits consensual same-sex sexual activities between consenti ng adults. Although the law is rarely enforced, it criminalizes the most intima te aspects of same-sex relationships (IGLHRC 1996: 127).

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37 arbitrarily enforced against sexual minori ties. Once detained, GLBT persons are oftentimes subjected to various forms of a buse, including physical violence, rape, and extortion (Sarda 1998: 41; ICCHRLA 1996: 4; IG LHRC 1996: 3). In 2001, in a report to the UN Special Rapporteur on Torture, the In ternational Gay and Lesbian Human Rights Commission reported that “tortu re is an extreme but wide spread means for regulating sexuality, and enforcing gender norms” (IG LHRC 2001: 2). Amnesty International recently reported that, in Honduras, GLBT pe rsons “have been subjected to grave human rights violations . for many years, includi ng killings and discrimi nation in exercise of their civil, political, social and economic rights” (AI 2003c: 1). In the private sphere, sexual minorities in Latin America face other forms of discrimination that prevent them from being equal participants in the workplace and at school, from obtaining adequate healthcare, and from benefits equal to heterosexual families. For example, in Argentina, Peru, Brazil, Mexico, and Nicaragua, sexual minorities have reportedly been fired for admitting their homosexuality even where they did so in an effort to obtain partner bene fits (Chant and Craske 2003: 155; Sarda 1998: 41, 130). While some countries and provin ces have recently enacted legislation outlawing discrimination based on sexual orient ation, in most Latin American countries there are no laws prohibiting discriminati on, and thus sexual minorities who are fired from their jobs because of their sexual orie ntation have no legal r ecourse (IGLHRC 1996: 130). Even in places where anti-discrimi nation legislation exists, however, proving discrimination solely on the basis of sexual or ientation is difficult (as it is on other bases such as race, sex, and ethnicity). Furtherm ore, under the current definition of family, same-sex families are denied benefits and protections equal to those received by

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38 heterosexual families. Significantly, in some provinces in countries such as Brazil and Argentina some protections and famili al rights recently ha ve been enacted.19 Although the discrimination and abuse disc ussed above is widespread and is no secret to authorities, in most countries throughout Latin Amer ica, little has been done to protect GLBT persons. Moreover, many se xual minorities do not report human rights violations for fear of furthe r discrimination and retaliation. Even when abuse is reported, however, reports oftentimes go undocumented or uninvestigated. Widespread societal discrimination and impunity leave GLBT pers ons without protection, and, in many cases, with no where to turn. For example, in Mexi co, when a twenty-five year old lesbian told her family that she was homosexual, they got extremely angry and her father beat her and then sent three men to rape her. Her reports to authorities were not taken seriously and she continues to live in fear (IGLHRC 1996: 115). In most countries, there are no explicit legal protections for sexual minorities, and where such measures do exist, they are rarely enforced. For inst ance, in Brazil, although progres sive legal strides have been made, human rights advocates re port that at least one GLBT person is killed every five days due to homophobia (Reding 2003: 25). In the absence of local and national protections, or adequate enforcement ther eof, sexual minorities throughout Latin America, and elsewhere, are beginning to look to human rights law and regional and international judicial bodies for protection. 19For example, in Brazil, the government granted sa me-sex couples “the right to inherit each other’s pension and social security benefits,” (Rohter 2000), and in Buenas Aires, Argentina, same-sex couples can enter into civil unions (Reding 2003: 19).

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39 Case Study: Violence and Discrimination Against Sexual Minorities in Ecuador Ecuador is the only country in the Wester n Hemisphere, and one of only three in the entire world, whose constitution explic itly forbids discrimination based on sexual orientation (Reding 2003: 36).20 Indeed, on November 25, 1997, Ecuador repealed its anti-sodomy law, Article 516 of Ecuador’s Criminal Code (AI 1998), after its Constitutional Tribunal decided unanimously that the anti-sodomy law, which punished consensual same-sex sexual relations with imprisonment, was unconstitutional. The repeal came after Ecuadorian GLBT activis ts organized a natio nal group, the Andean Triangle, which gained enough signatures to challenge the law (Gonzalez 1997b; Gonzalez 1997a; Wockner 1997). Their app lication for repeal of the law was accompanied by a petition that contained 6,000 signatures in support of overturning the law. In June of the following y ear, then president Fabian Alarcn Creek issued an Executive Decree, the National Plan of Huma n Rights of Ecuador, Executive Decree No. 1527 (1998) ( Plan Nacional de Derechos Hu manos, Decreto Ejecutivo No. 1527 ), which explicitly prohibits discrimination, violen ce, and persecution on the basis of sexual orientation (Arts. 25 and 26; AI 2001b).21 Shortly thereafter, in August of 1998, Ecuador’s government reformed its Constitu tion, (AI 1998), at which time Article 23, Section 3, an anti-discrimination provision that explicitly includes sexu al orientation, was 20The Constitutions of South Africa and Fiji also includ e explicit prohibitions of sexual orientation-based discrimination (Sanders 2003: 35-36). Significantly “[a]n amendment to the constitution of Switzerland bans discrimination on the basis of ‘form of life,’ a phrase intended to include sexual life” (2003: 36). 21 Artculo 25. Garantizar el derecho de las personas a no ser discriminadas en razn de su opcin sexual, creadndo a travs de leyes y reflamentos no discriminatorios, que faciliten las demandas socials, econmicas, culturales de esas personas. Artculo 26. Velar porque los mecanismos y agents de seguridad del Estado no ejecuten acciones de persecucin y hos tigamiento a las personas por sus opciones sexuales (translation provided by Kirsten Anderson).

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40 included. Under that provision entitled Equa lity Before the Law, “All persons shall be considered equal and shall en joy the same rights, freedom s, and opportunities, without discrimination due to birth, age, ethnicit y, color, social orig in, language, religion, political affiliation, economic position, sexual or ientation, health status, disability, or difference of any other kind” (Art. 23, § 3, Constitucin Poltica de la Repblica del Ecuador ).22 Consistent with these inclusions of pr otection for GLBT persons, in July of 2002, Ecuador joined with four other Andean nations—Venezuela, Per, Colombia, and Bolivia—to adopt a multilateral agreement called the Andean Charter for the Promotion and Protection of Human Rights ( Carta Andina para la Promocin y Proteccin de los Derechos Humanos ) which included explicit protections for sexual minorities. Specifically, it reaffirms the governments’ commitment to combat all forms of discrimination and intolerance, including that based on sexual orientat ion (Section II, Art. 10). The Andean Charter also contains a subsection entitled Rights of People With Different Sexual Orientation ( Derechos De Las Personas Con Diversa Orientacion Sexual ), in which the government s recognize that all people, regardless of their sexual orientation or sexual option, are entitled to equal human rights (Art 52), and they commit to combat all forms of discrimination and violence against sexual minorities and to provide remedial processes fo r such offenses (Art. 53). Despite the impressive legal progress explained above, little has changed 22 La iguadad ante la ley. Todas personas sern consideradas iguales y gozarn de los mismos derechos, libertades y oportunidades, sin discriminacin en razn de nacimiento, edad, sexo, etnia, color, origin social, idioma, religion, filiacin poltica, posicin econmica, orientacin sexual; estado de salud, discapacidad, o diferencia de cualquier otra ndole (translation provided by Andrew Reding) (Reding 2003: 36-37).

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41 (Fundacin Ecuatoriana Equidad 2003: 12; Gal ecio 2003). As a recent report indicated, “there is a serious gap betw een law and enforcement” when it comes to sexual minorities (Reding 2003: 37; Fundacin Ecuatoriana Equi dad 2003: 12). Since promulgation of the antidiscrimination provision, human rights or ganizations have documented continued human rights abuse including torture, polic e intimidation, attempted extrajudicial executions, and arbitrary arrests (AI 2002a). Additionally, in the private sphere, GLBT people face discrimination in school, at work, and at home (Galecio 2003). According to one Ecuadorian gay rights advocate who is now working on human rights and social justice issues in his native country thr ough a U.S. based non-profit organization, the constitution is not being followed or respec ted and human rights violations continue (Galecio 2003). To be sure, he stated that “article 23 of the constitution has not been applied as it should be because the government has not established concrete sanctions for people who discriminate against [sexual minor ities]” (Galecio 2003). In his experience, such abuse, coupled with continued antip athy towards homosexuality, has encouraged people to repress their sexuality or stay in the closet. While the lion’s share of the reports concern incidents in Quito and Guayaquil, a GLBT rights group, Quitogay, warns tourists that “[o]utside Quito and Guayaquil the two largest cities, values are still intensely conservative and there remains a general bi as, even hostility, against gay people” (Quitogay 2004). Thus, it is reasonable to infe r that the human rights abuses and sexual orientation-based discrimination is even grea ter in the cities, villages, and rural areas outside Quito and Guayaquil. Generally, in Ecuador, “[h]omosexuality c ontinues to be considered a sin or an illness, a crime, a social or ideological de viation or a betrayal of one’s culture” (AI

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42 2001a: 3; Gonzalez 1997b). In fact, some docto rs in Ecuador continue to argue that “homosexuality is a public health risk” (G onzalez 1997b). “Whereas most human rights violations are usually denied by governments the repression that GLBT people face [in Ecuador] is often justified in the name of cu lture, religion or public health” (AI 2001a: 3). In 1997, The United States Department of St ate (USDOS) reported th at “[a]s in most Latin American countries, homosexuality is not generally practiced openly in Ecuador because of cultural antipathy and social di sapprobrium” (USDOS 1997: 4). It also acknowledged that, although it found no evidence of an official police policy of mistreatment of sexual minorities, homophobic attitudes may influence police behavior and their treatment of GLBT people. Despite the USDOS’s conclusion that no offici al police policy exists with regard to sexual minorities, in many cases of docum ented human rights abuse the Ecuadorian police were responsible for the abuse. Repor tedly, sexual minorities face arbitrary arrest under a Penal Code provision that “sanctions ‘those who publicly offend against modesty by means of indecent acts or speech’” (Redi ng 2003: 37). In Guayaquil alone, human rights organizations documented at least sixt y arbitrary arrests of sexual minorities in early 2001 (AI 2001b). Since then, reports of such arrests have continued. While detained, several sexual minorities have been tortured, abused, and harassed by Ecuadorian police (AI 2003a). “T hese abuses appear to reflec t institutionalized prejudice on the part of certain authorities and law en forcement officials” (AI 2002b: 3). Also, police commonly extort money from sexual mi norities by threatening to publicly reveal their sexual orientation (Galecio 2003; AI 2002b: 2). The follow ing are a few, of several, specific examples of actual abuse repor ted to human rights organizations:

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43 At midnight on June 15, 2001, six members of the National Police approached Henry Rodrguez Lozano, pres ident of the Fundacin Ec uatoriana de Minoras Sexuales (FEMIS), at an intersection in Guayaquil. After forcing him into a van with “license plates indicating that th e vehicle belonged to the Guayas Province Police Administration,” the officers inform ed Lozano that “he was being detained because of his repeated filings of complaints against [the] police” for sexual orientation-based abuse (Reding 2003: 38). In October of 2000, at around 3 a.m., National Police and Guayquil municipal officers burst into a GLBT disco and de tained the employee who was working in the disco’s ticket office. Once detaine d, police insulted him, beat him, and took him to their police truck. Thereafter, the police returned to the disco and arrested another el hombre gay who inquired into why the police were there. The second man also was insulted for being un hombre gay and was physically beaten. Both men were taken a few blocks from the di sco and forced to lie face down in the vehicle while police kicked one of them un til his face bled. At police headquarters, the man was forced to stand with his legs spread while police repeatedly hit him with a broomstick. During the beat ing, police reportedly made homophobic comments and threatened him with death if he reported the abuse. The following day, both men were released without charges (AI 2001a: 4). In November of 2000, there were two separa te reports made, one by a transvestite and one by four los hombres gay who were detained by Guayaquil police and taken to the 5 Junio Bridge, where officers attempted to extrajudicially execute them. While the transvestite did not jump, the four los hombres gay were forced off the bridge. Fortunately, all four could swim and they survived the fall into the water below (AI 2001a). Compounding such abuse of sexual minorities by police officers, police impunity is a major problem throughout Ecuador. Such im punity, although particularly evident in complaints by sexual minorities, is a problem that is not unique to issues concerning GLBT people (AI 2005; AI 2004c; AI 2003b). In Ecuador, there are two kinds of police forces: (1) National Police, which are under the authority of the Mini stry of Government, and (2) metropolitan police, which are employed by local governments in some municipalities. Under Ecuador’s Constitution, members of the National Police Force who are accused of offenses committed during the exercise of their professional duties are entitled to special jurisdiction under which they are tried in a police court rather than in ordinary civilian courts (AI 2003b). Unde r the police court system, judges are chosen

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44 from existing and retired police office rs (AI 2003b). According to Amnesty International, the use of police courts to try members of the police force for alleged human rights violations fac ilitates and, in some cases, causes impunity (AI 2005; AI 2003b). Police officers who are tr ied in these courts for crim es such as torture and illtreatment usually are not punished (AI 2004a). Despite recent promises by authorities that such cases would be h eard in civil court, “[p]oli ce courts continued to claim jurisdiction over cases involving human rights violations” (AI 2005). Additionally, sexual minorities in Ec uador face discrimination by private individuals. For instance, in September of 2001, in Guayaquil, a el hombre gay reported that he was “abducted by five hooded armed men whilst walking in the street” and was forced into a van where he was beaten, for ced to undress, and raped with a piece of a cane (AI 2002b: 12). Thereafte r, the men threatened to kill him if he reported the incident to authorities and they indicated that he would not be the first person they killed. Even in the face of this kind of blatan t human rights abuse, however, Ecuadorean police and government officials usually do not pursue or investig ate reports of such abuse. For example, in a recent incident in Quito, a la lesbiana couple who lived together were repeatedly physically abused, th reatened with sexual a nd physical violence, and harassed by two men who demanded that they leave the ne ighborhood (AI 2002b: 78). Although they informed the Quito police and national authorities, nothing was done to protect the women or to i nvestigate the identity of the perpetrators. Even after the Human Rights Ecumenical Committee wrote to th e Minister of Interi or informing him of the incidents and asking for a proper inve stigation, nothing was done. According to Amnesty International, although some governme nt officials have “called for an end to

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45 discrimination against the [GLBT] community, in particular to practices that lead to grave human rights abuses, the authorities co ntinued to ignore many of the complaints they received” (AI 2003a). GLBT human rights advocates and organizations have also faced human rights abuses (AI 2002b: 4). Ecuador’s first ga y pride march was held on August 27, 1997 in Quito, and marches have subsequently taken pl ace in Cuenca and Guayaquil. However, such events have not occurred without incide nt. For instance, on th e evening of June 28, 2000, Guayaquil police tear-ga ssed approximately 300 people as they attempted to peacefully march in the city’s first Lesbia n and Gay pride March, effectively preventing them from marching (Simo 2000; AI 2001b). Under scrutiny for violating the antidiscrimination provision in the Constituti on, the police chief subsequently publicly “denounced local transgender se x workers as dangerous AIDS carriers” and made several arrests thereof. Many of those arrested were co erced or forced into taking a HIV test as a condition of release; then, the police chief used positive HIV results of seven of the arrestees to justify his tear-gassing of the Pr ide March participants. Nothing was done to contest the police chief’s actions. Similarly, the next year in June of 2001, GLBT organizations requested permission to hold a Pride March in Guaya quil and their requests were in itially denied (AI 2002b: 4). Just two hours before the parade was to begin, police granted the request, giving the organization inadequate time to publicize the event. Later that year, another group made a similar request and the Mayor of Guayaquil denied it, stating that “it would obstruct traffic” (AI 2002b: 4). These police and governmental practi ces make organizers’ goals of awareness and visibility of the GLBT movement difficult at best.

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46 Finally, further impeding the effectiveness of the movement, GLBT rights defenders and organizations have received mu ltiple death threats. In early 2001, a Quitobased human rights group that advocated for GLBT rights received threats to its members and to the local GLBT community (AI 2001a : 7-8; AI 2001b). “The message called [GLBT] people mentally disturbed, queers and human rubbish” and threatened countrywide social cleansing of sexua l minorities (AI 2001c). Due to widespread violence and police impunity, Amnesty International conclude d that such reports might be carried out and that GLBT people in Ecuador might be in grave danger. The next month, another GLBT organization reported receiving email threats, which likened Quito and Guayaquil to Sodom and Gommorah in the Christian Bibl e and threatened to kill GLBT people in Ecuador (AI 2001c). By May of 2001, many of Ecuador’s GLBT rights organizations had received similar telephone or email death threats. Co llectively, a number of human rights organizations in Ecuador presented author ities with a letter, informing them of the threats and requesting that ac tion be taken. There is no evidence that any action was taken by authorities (AI 2001a: 9).

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47 CHAPTER 4 ANALYSIS The Use of Human Rights Law to Address Sexual Orientation-Based Discrimination and Violence Against Sexual Minorities in Ecuador The use of human rights law to address sexual orientation re lated issues is a relatively new phenomenon; however, its use has proven viable in the international realm through developing case law and interpretations of existing human ri ghts treaties. As a member of the UN and Inter-American systems, Ecuador is subject to such laws. Thus, it could be useful in addressing discriminati on and abuse of GLBT people in Ecuador. Similar national human rights laws in Ecua dor could provide addi tional protections. International Human Rights Law in the UN System None of the UN human rights instruments explicitly mention “sexual orientation” or “gender identity”; however, significant st rides have been made in the UN system to establish equality under the law for sexual mi norities. As will be shown, lesbians and gay men have gained recognition in hu man rights law through the invocation of provisions of human rights docum ents pertaining to personal privacy and equality and by some UN participants and officials who r ecognized GLBT persons as a minority group entitled to protections. Such legal precedents and formal recognition in the UN help support a legal basis for human rights claims by sexual minorities against Ecuador. In the UN Human Rights system, recognition of equal rights of sexual minorities has occurred on various levels. GLBT pers ons gained some recognition in human rights

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48 law through the invocation of provisions of the ICCPR conc erning personal privacy and equality. In 1994, the UN Committee on Huma n Rights, the UN “treaty body” charged with monitoring state compliance with the ICCPR, determined that the protections against discrimination embodied in the ICCP R should be understood to include sexual orientation as a protected st atus (Sanders 2003: 16, 20; Toonen v. Austrailia [1994]23) In Toonen a gay male citizen of Tasmania, challenged a criminal law prohibiting consensual same-sex sexual activities between men, arguing that it violated his privacy and equality rights. Followi ng similar cases in the European Court of Human Rights, the Committee held that the law violated Mr. Toone n’s right to privacy under paragraph 1 of Article 17 of the ICCPR, which states that “[ n]o one shall be subjected to arbitrary or unlawful interference with his privac y, family, home or correspondence” ( Toonen v. Austrailia para. 8.6; ICCPR Art. 17). Briefly dealing with th e issue of equality, the Committee held that sexual orientation falls within the ICCPR’s reference to “sex” in its equal protection provisions in Arti cle 2, paragraph 1 and Article 26 ( Toonen v. Australia para. 8.7; ICCPR Art. 2, 26). Bo th Articles contain an anti -discrimination provision that extends equal protection to all individuals “wit hout distinction of a ny kind such as race, colour, sex, language, religion, political or other opinion, na tional or social origin, property, birth or other status ” (ICCPR: Arts. 2 and 26). A lthough the parties argued that sexual orientation fell within the references to “other status” within those articles, the Committee limited its finding to its interpreta tion that “sex” included “sexual orientation” (Sanders 2003: 21). This interpretation ha s been heavily debated and has yet to be retested before the Committee (Sanders 2003: 22). Nonetheless, Toonen clearly laid an 23 CCPR/C/50/D/488/1992, views of 31 March 1994.

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49 important foundation for the recognition of e qual rights based on sexual orientation, as the Committee’s interpretation of the ICCPR in Toonen will guide it in future decisions when it considers the same or similar issues.24 The “other status” language also remains open to be interpreted as including sexual orientation. Since Toonen GLBT persons have gained additional recognition by UN participants and officials, who have exhibited an increased in terest in issues concerning sexual orientation. Indeed, in 1998, th e High Commissioner for Human Rights, a position created pursuant to recommendations in the 1993 Vienna World Conference, met with GLBT leaders and expressed an intere st in “receiving info rmation on human rights violations against lesbians and gay me n” (Sanders 2003: 24). In 2001, the High Commissioner for Human Rights announced th at “six Special Rapporteurs of the UN Commission on Human Rights ‘w ere interested in receiving information on sexual minority issues falling within their respective mandates,’” which included extrajudicial, summary, or arbitrary executions, violence ag ainst women, torture, the independence of judges and lawyers, freedom of expression, and human right s defenders (Sanders 2003: 25). Several of the special reports included violations ba sed on sexual orientation. For instance, the Special Rapporteur on torture re ported to the UN General Assembly that “‘members of sexual minorities are disproportio nately subject to torture and other forms of ill-treatment, because th ey fail to conform to socially constructed gender expectations’” (HRW 2004a). Then, in 2003, “the Commission’s resolution on extrajudicial, summary, or ar bitrary executions (Resoluti on 2003/53) called upon ‘States 24 “Being decisions on individual complaints, this case law is a very important guide to the specific meaning in concrete circumstances of what the Covenant requires, and is thus a valuable point of reference for courts and decision-makers in all State parties when considering the same or similar issues” (UN 2005a).

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50 concerned to investigate promptly and thoroughly … all killings committed for any discriminatory reason, including sexual orient ation’” (HRW 2004a). More recently, the “2004 report of the Special Rapporteur on the righ t to health notes th at ‘discrimination on the grounds of sexual orientation is impermissi ble in international law’” (HRW 2004b). These measures are evidence of the UN’s con cern for, and recognition of, the rights of GLBT persons. UN member states also recently made efforts to get the United Nations Commission on Huma n Rights (UNCHR)25 to formally include sexual orientation as a protected class under international human ri ght law. At the 59th Session of the UNCHR, which took place in 2003, the Brazilian gove rnment proposed a resolution on “Human Rights and Sexual Orientation” which claims that “sexual diversity is an integral part of Universal Human Rights as reflected in th e Universal Declaration of Human Rights” (ILGA 2004b; AI 2003c: 1). In so doing, Brazil affirmed the impermissibility of discrimination based on sexual orientation as a fundamental principle of human rights law and expressed “deep concern at the occurr ence of violations of human rights all over the world against persons on the grounds of their sexual orientation” (ILGA 2004b). Brazil’s resolution “did not attempt to create a new body of rights, but sought to reaffirm existing non-discrimination principles estab lished under internationa l human rights law” (AI 2004d). The resolution was publicly e ndorsed by human rights organizations and 25 The UNCHR was established in 1946. “It currently consists of 53 member governments elected for three-year terms by ECOSOC. It meets annually for six weeks in Geneva from mid-March to late April” and for emergency sessions (Steiner and Alston 2000: 600). To “promote geographical and political balance,” a system of regional groupings has been es tablished, including “Asia, Africa, Eastern Europe, Latin America, and Western Europe and others–the last category include[es] Canada, Australia, New Zealand, and, in practice, the United Stat es (Steiner and Alston 2000: 600).

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51 advocates including, Human Rights Watch, Amnest y International, a nd the International Lesbian and Gay Association (ILGA) (HRW 2004a; IA 2004d; ILGA 2004a). Consistent with previous efforts to exp licitly include sexual orientation within the UN’s human rights protections, the issue pr oved extremely controversial (Lynch 2004: A15). As such, the UNCHR decided by a na rrow vote to postpone c onsideration of the proposal until its next session, which be gan in March of 2004 (ILGA 2004b). Due to intense pressures from the Vatican and its alli ance with the Islamic Conference of States (Lynch 2004: A15), however, Brazil announced duri ng the 60th Session that it decided to keep the resolution under consultation and requested postponement of consideration of the resolution (ILGA 2004d; ILGA 2004c). The resolution has been tabled since that time, and it was not considered during th e 61st Session in 2005. Nevertheless, the possibility remains that official recognition of lesbian and gay rights as human rights will soon be realized within the UN system. If of ficial recognition is obtained, GLBT persons in Ecuador and throughout the world woul d enjoy greater latitude upon which to challenge sexual orientation-based disc rimination, violence, and persecution. In light of Toonen and recognition of GLBT persons ’ rights within the UN, sexual minorities in Ecuador have a promising basis upon which to challenge human rights violations. Specifically, the Ecuadorian poli ce violate the anti-discrimination provisions in the ICCPR by using laws and regulations to target GLBT persons and by arbitrarily arresting and detaining them.26 Indeed, when such laws ar e applied to single out GLBT persons to punish them for, or prevent them from, being a member of a particular social class, they violate the equal protection guara ntees of Articles 2 and 26 of the ICCPR as 26 Ecuador is a party to the ICCPR (See the UN web site at http://www.untreaty.un.org).

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52 interpreted by the Committee in Toonen ( Toonen v. Australia [1994], interpreting the category “sex” in the equal protection provisi ons in Articles 2 and 26 of the ICCPR to include sexual orientation). GLBT people are also entitled to equal prot ection and treatment in accordance with the UDHR. Although there is no explicit mention of sexua l orientation or gender identity, the UDHR states that all member s of the human family have equal and inalienable rights, and that al l are entitled to the rights a nd freedoms contained within the declaration “without distincti on of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, pr operty, birth or other status” (UDHR: Art. 2). While the UDHR does not ha ve binding authority in international law, some argue that it “remains the most widely recognized statement of the rights to which every person on the planet is entitled,” (B riceno 1998: 49), and it provides the foundation upon which all other human rights documents ar e based. As such, its utility as an instructional and persuasive human rights doc ument cannot be ignored. Moreover, some scholars and human rights advocates argue that the Universal Declaration is customary international law. It establishes that hu man rights are inalienabl e and universal and it reinforces that GLBT persons are entitled to equal rights a nd protections under the law. Other human rights instrument s can be used to provide additional protections to sexual minorities in Ecuador. The ICCPR contai ns explicit protecti ons to which sexual minorities, like all other Ecuadorian citizens, are entitled. Specifically, police actions, including arbitrary arrest and detenti on, physical and sexual abuse, attempted extrajudicial executions, and to rture can be challenged under provisions in the ICCPR. Those protections include the right to self-determination (Art. 1) the right to life (Art. 6),

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53 the freedom from torture and other cruel, i nhuman or degrading tr eatment (Art. 7), and the rights to liberty and securi ty of person and due process of law (Art. 9). Torture—pain and suffering inflicted upon a person by an o fficial state actor due to discrimination—is also prohibited by the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Torture Convention) (Art. 1).27 Murder, torture, and prolonged arbitrary detention also vi olate customary international law if the Ecuadorian government or its o fficial actors, as a matter of policy, practices, encourages, or condones such behavior (Steiner and Alston 2000: 233). Here, the evidence demonstrates that this is the case. Moreover, impunity and refusal of the Nati onal Police to investig ate the violations of human rights of sexual minorities, as well as the government’s reluctance to address such issues within the police department, also likely amounts to a violation of customary international law. The failure of police o fficers and government officials to pursue and investigate violations against GLBT persons at the hands of private individuals, can also be challenged as a violation of Article 2(3) of the ICCPR, which obligates governments to ensure “that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy” (ICCPR Art. 2). Human rights organizations and defenders are also entitled to protection under international human rights laws. First, unde r the ICCPR, individua ls are entitled to freedom of association (Art. 22). As such, police raids of GLBT bars and successful attempts by police to keep GLBT persons from participating in organized marches violates their clearly defined right to peaceful assembly. Additionally, the United 27 Ecuador is a party to the Torture Convention (See the UN web site at http://www.untreaty.un.org).

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54 Nations Declaration on the Right and Responsibility of Indi viduals, Groups and Organs of Society to Promote and Protect Un iversally Recognized Human Rights and Fundamental Freedoms calls on member states to protect defenders of human rights. Consistent with its obligation under those hum an rights treaties, Ecuadorian officials should take the death threats received by GL BT organizations seriously, and actively investigate such claims. Finally, GLBT persons in Ecuador are en titled to the right to attend school and work without discrimination based on thei r sexual orientation. Such rights fall under economic, social, and cultural rights, whic h are receiving increased recognition under human rights law. Under the ICESCR, all pe ople are guaranteed the right to work (Art. 6) and to have access to an education (A rt. 13) (ICESCR; Ro senbloom 1996: xiii).28 Accordingly, these provisions can be us ed to protect GLBT persons from being arbitrarily fired from their jobs and from be ing harassed at work and at school. Although human rights claims can only be brought against the state, those states that fail to provide protections ensured within the treaty may be indirectly accountable by virtue of their failure to address widespread abuse that is brought to their attention. While such protections are more ambitious than pursui ng protections of civ il and political rights, Ecuador is a party to the ICESCR an d is therefore bound by its provisions. Within the UN human rights system, there ar e mechanisms in place to allow GLBT individuals or other states to file complaints (also called communications) before quasijudicial bodies against Ecuador for the human rights violations described above.29 In the 28 Ecuador is a party to the ICESCR (See the UN web site at http://w ww.untreaty.un.org). 29 Each of these mechanisms requires that individuals exhaust domestic remedies before bringing a claim (UN 2005b).

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55 case of Ecuador, a complaint a lleging violations of the ICCPR could be filed with the Committee on Human Rights,30 and a complaint alleging violations of the Torture Convention could be filed with the Committee Against Torture.31 If complaints were filed, each Committee would consider the comp laint in accordance w ith its procedure, and it would issue an opinion accordingly (UN 2005b). These Committees also monitor human rights violations thr ough a reporting process and it is generally useful for individuals and NGOs to inform the UN a bout violations (UN 2005b). The Committee on Economic, Social, and Cultural Rights m onitors implementation of the ICESCR through a reporting process, but it does not currently accept i ndividual complaints.32 Individuals and states can al so file complaints with the Commission on Human Rights against Ecuador for gross and systemic human rights violations under a process known as the “1503 procedure” (UN 2005b). Under thes e procedures and mechanisms, GLBT persons may be able to hold Ecuador account able to its ob ligations under UN treaties for individual and systemic violations against sexual minorities in Ecuador. Regional Human Rights Law: The Inter-American System Regional human rights instruments within the Inter-American system can be used in similar ways to address discrimination against GLBT persons in Ecuador. The law concerning sexual minorities is largely unde veloped in the Inter-American system; 30 Ecuador is a party to the ICCPR and the First Optional Protocol to the Convenant on Civil and Political Rights, and is therefore subject to the jurisdiction of the Committee on Human Rights (See the UN web site at http://www.ohchr.org/english/ countries/ratification/5.htm). 31 Ecuador is a party to the Torture Convention and Ecuador made a declaration to the Convention, recognizing the Committee Against Torture’s competence and jurisdic tion under Art. 22 (See the UN website at http://www.ohchr.org/english/c ountries/ratification/9.htm#reservations). 32 The Committee on Economic, Social, and Cultural Rights is currently considering a draft Optional Protocol that would give it the power to accept individual complaints (See the UN website at http://www.ohchr.org/english/bodies/CESCR/index.htm). Thus, GLBT individuals may eventually be able to submit human rights complaints for violations of the ICESCR.

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56 however, the provisions in its primary documen ts are very similar to those in the UN human rights documents, and they can be us ed in the same ways within the InterAmerican system (Steiner and Alston 2000: 869). Although the UN human rights instruments are not binding within the Inte r-American system, cases from the Committee can be used as persuasive authority where provisions of the UN and the Inter-American human rights treaties are the same.33 Like the UN human rights documents, there are no explicit references to sexual orientation in any of the human rights inst ruments in the Inter-American system. However, the American Declaration, which is similar to the UDHR in terms of rights, (Steiner and Alston 2000: 869), st ates that “[a]ll persons are equal before the law and have the rights and duties established in this Declaration, without di stinction as to race, sex, language, creed, or any othe r factor” (American Declarati on Art. 2). The American Convention on Human Rights also guarantees eq ual treatment of all persons before the law (Art. 24), and it states that state part ies must ensure every human being within its jurisdiction “the free and full ex ercise of [the rights and freedoms recognized therein], without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or soci al origin, economic status, bi rth, or any other social condition” (Art. 1). In accordance with the UN Committee on Human Rights’ interpretation in Toonen the language “sex” arguably in cludes sexual orientation. One could also argue that the language “any othe r factor” in Article 2 of the American 33 According to Art. 27 of the Rules of Procedur e for the Inter-American Commission on Human Rights, “The Commission shall consider petitions regarding alleged violations of the human rights enshrined in the American Convention on Human Rights and other applicable instruments, with respect to the Member States of the OAS, only when the petitions fulfill the requirements set forth in those instruments, in the Statute, and in these Rules of Procedure” (IACHR Rules of Procedure 2002: Art. 27).

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57 Declaration or “any other social condition” in Article 1 of the American Convention includes sexual orientation. GLBT persons could challenge unequal treatment or discrimination by state actors wi thin Ecuador on either ground. Other provisions of the American Conventi on can be used to protect the civil and political rights of sexual minorities in Ecuador. Indeed, the American Convention ensures civil and political rights (Ch. 2) in cluding freedom from tort ure or other cruel, inhuman, or degrading punishment or treatm ent (Art. 5); personal liberty and security, including freedom from arbitrary arrest a nd imprisonment (Art. 7); the right to due process (Art. 8); and the right to dignity (Art. 11). These provisions can be used to address the widespread violence against se xual minorities as well as discrimination and torture that they face at the hands of police and other state actors. Arbitrary arrests, physical and sexual abuse, and harassment by police officers are also unlawful under the above listed human rights provisions. A dditionally, international customary law prohibitions of torture, murder, and prol onged arbitrary detenti on can be invoked to protect GLBT people (Steiner and Alston 2000: 233). Furthermore, GLBT organizations ar e entitled to freedom of thought and expression (Art. 13), the right to assemble peacefully (Art. 15), and the right to free association (Art. 16) under the American C onvention. Police interf erence with marches and other GLBT events is clearly a violation of those guarantees. Human rights defenders should be afforded protection in accordance with the OAS General Assembly’s adoption of a resolution stating its intention to implement the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universall y Recognized Human Rights and Fundamental

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58 Freedoms (AI 2001d). “The resolution called on member states to provide ‘human Rights Defenders with the necessary guarantees and facilities to c ontinue freely carrying out their work of promoting and protecti ng human rights’” and to adopt necessary measures to ensure their sa fety (AI 2001d). Accordingly, Ecuador, as a member of the OAS, should abide by the resolution and provi de necessary protection to human rights defenders working on GLBT issues. GLBT people may also have additional hum an rights protections of their economic, social, and cultural rights. The American Declaration, the American Convention, and the Protocol of San Salvador34 provide protections of such rights (American Declaration; American Convention Ch. 3, Art. 26; Protocol of San Salvador; St einer and Alston 2000: 870). The Protocol of San Sa lvador provides for the right to work (Art. 6) in just, equitable and satisfactory conditions (Art. 7) and the right to education (Art. 13). Similarly, the American Declaration states that all people are entitled to the right to work (Art. 14) and the right to education (Art. 12) The American Convention also provides a brief, general recognition of such rights (American Convention Ch. 3, Art. 26). These provisions can be used to address the disc rimination that GLBT persons face in the private sector, if it can be proven that th e Ecuadorian government is complicit or has intentionally failed to protect and uphold such rights. Because this argument is more attenuated and depends on the state’s knowledge of the actions of nonstate actors and its ability to adopt or enact measures to provide such protections (American Convention Art. 1), it is less likely to be successful. 34 Ecuador is a party to the Protocol of San Salvador (See the OAS website at http://www.oas.org/juridico/english/Sigs/a-52.html).

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59 Under the Inter-American st ructure, claims can be brought either by individual parties or by states before the Inter-Am erican Human Rights Co mmission, which is an adjudicatory body tasked with promoting a nd protecting human rights within the OAS (American Convention Arts. 44 through 51).35 Once the adjudicatory proceedings are complete, the Commission issues a report ( OAS 2005). If human rights violations are found, the Commission provides recommendations and would give Ecuador a period of time to correct the violations. The Commissi on can also independently investigate the existence of the human rights violations that GLBT persons face in Ecuador. If it found human rights violations, it could issue an advisory opinion instru cting the Ecuadorian government to comply with human rights la w (American Convention Art. 41; Stein and Alston 2000: 873). Under either procedure, if the government of Ecuador did not comply, the Commission could i ssue a second report or it coul d send the case to the InterAmerican Court of Human Rights for review (OAS 2005). Although a few cases concerning sexual orie ntation have been brought before the Inter-American Commission on Human Rights, it has yet to reach a decision on any of them. In each of the cases, the parties were able to reach amicable settlements with the government at issue before the Commission reached a decision. Nevertheless, parties have been able to use human rights law a nd the petition process to achieve favorable outcomes in their cases, (Sanders 2003: 31)—e vidence that human rights law is already being used to protect GLBT citizens and an indication that some Latin American 35 Before submitting a complaint, individuals must exhaust their domestic remedies, unless the individual showed that “the victim tried to exhaust domestic remedies but failed because: 1) those remedies do not provide for adequate due process; 2) effective access to those remedies was denied, or; 3) there has been undue delay in the decision on those remedies.” (OAS 2005).

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60 governments recognize their obligation under hu man rights law to respect the rights of sexual minorities. Human Rights Protections in an Andean Regional Agreement and in Ecuadorian National Law Human rights protections for Ecuadorian ci tizens also exist un der Andean regional and national human rights law. Unlike inte rnational and Inter-American human rights instruments, these three instruments—Ec uador’s National Plan of Human Rights Executive Decree No. 1527 (1998), its Constitution (1998), and the Andean Charter (2002) (a multi-lateral agreement it entered into with four other countries in the Andean Region)—explicitly recognize sexual minoritie s as a protected class and afford protections based on sexual orientation. Thus, GLBT persons in Ecuador can bring human rights claims in local courts and tribunals. The Human Rights Plan explicitly pr ohibits discrimination, violence, and persecution on the basis of sexual orientati on (Human Rights Plan: Arts. 25 and 26).36 The Constitution contains an equal protec tion provision that prohi bits discrimination based on sexual orientation (Constitution: Art. 23(3)).37 In the Andean Charter, Ecuador reaffirmed its decision to combat all forms of discrimination and intolerance, including that based on sexual orientation (And ean Charter: Section II, Art. 10).38 It also 36 Artculo 25. Garantizar el derecho de las personas a no ser discriminadas en razn de su opcin sexual, creadndo a travs de leyes y reflamentos no discriminatorios, que faciliten las demandas socials, econmicas, culturales de esas personas. Artculo 26. Velar porque los mecanismos y agents de seguridad del Estado no ejecuten acciones de persecucin y hos tigamiento a las personas por sus opciones sexuales (translation provided by Kirsten Anderson). 37 La igualdad ante la ley. Todas personas sern consideradas iguales y gozarn de los mismos derechos, libertades y oportunidades, sin discriminacin en razn de nacimiento, edad, sexo, etnia, color, origin social, idioma; religion, filiacin poltica, posicin econmica, orientacin sexual; estado de salud, discapacidad, o diferencia de cualquier otra ndole (translation provided by Kirsten Anderson). 38 Artculo 10. Reafirman su decision de combater toda forma de racismo, discriminacon, xenophobia y cualquier forma de intolerancia o de exclusion en contra de individuos o colectividades por rezones de raza,

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61 recognized that all people, regardless of thei r sexual orientation, are entitled to equal human rights (Andean Charter: Art. 52), a nd it agreed to combat all forms of discrimination and violence against sexual minor ities and to provide remedial processes for such offenses (Andean Charter: Art. 53).39 Under these provisions, GLBT persons can challenge violence, harassment, and intimid ation by Ecuadorian police, as well as the impunity that most reports of such human right s violations receive, in domestic courts. Complaints against the government of Ecuador can also be brought in domestic courts under the Andean Charter for its failure to co mbat widespread discri mination or to create a remedial process for such offenses. In addition to the protections described above, these local human rights instruments also incorporated international and regi onal human rights law into national law. Specifically, the Human Rights Plan recogni zes the universality, indivisibility, and interdependence of all human rights and the government of Ecuador committed to adopting, upholding, and enforcing internationa l, regional, and subr egional human rights law (Human Rights Plan: Preamble, para. 5; Art. 35). The government also agreed to observe and comply with the decisions of the different international bodies for the protection of human rights (Hum an Rights Plan: Art. 35(3)). Furthermore, the government incorporated international and re gional law into its color, sexo, edad, idioma, religion, opinin poltica, n acionalidad, orientacin sexual, condicin migratoria y por cualquier otra condicin; y, deciden promover legislaciones nacionales que penalicen la discriminacin racial (translation provided by Kirsten Anderson). 39 Artculo 52. Reconocen que las personas, cualesquiera sean su oreintacin u opcin sexuales, tienen iguales derechos humanos que todas las dems. Artculo 53. Combatirn toda forma de discriminacin a individuos por motives de su orientacin u opcin sexuales, con arreglo a las legislaciones nacionales y, para ello, prestarn especial atencin a la prevencin y sanction de la violencia y discriminacin contra las personas con diversa orientacin y opcin sexual, y la garatna de recursos legales para una efectiva reparacin u opcin daos y perjuicios derivados de tales delitos (translation provide by Kirsten Anderson).

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62 constitution, which guarantees to all inhabi tants without discrimination, the free and effective exercise and enjoyment of the hum an rights established therein and in the declarations, pacts, treaties, and internationa l instruments that are enforced (Constitution: Art. 17). It also states that all rights enumerated therein will be directly applicable before any judge, court, or authorit y, and it directs the government to adopt, through plans and programs, means for the effective enjoyment of these rights (Constitution: Art. 18). The Andean Charter affirmed that all hu man rights and fundamental liberties are universal, indivisible, interd ependent, and interrelated (Andean Charter: Art. 3), and it incorporated and committed to applying intern ational, regional, and Andean sub-regional human rights instruments (Andean Charter: Pr eamble). Ecuador and the other Andean signatories also pledged to defend the pr inciples in the UDHR and the American Declaration (Andean Charter: Pr eamble para. 6). The parties agreed to adopt all of the legal and administrative means necessary to prevent and investigate the acts that could constitute violations of human rights and to assure the efficacy of the constitutional and judicial recourses to judge and sanction those responsible for violations (Andean Charter: Art. 2). In light of Ecuado r’s adoption of these human right s instruments, GLBT persons could bring claims in nationa l tribunals and courts, challe nging the government’s failure to adhere to national law as well as its in ternational, regional, and subregional human rights obligations. Should Human Rights Law Be Used to Address Sexual Orientation-Based Discrimination in Ecuador? The Univers alist/Cultural Relativist Debate While, as suggested above, human rights instruments can be used to address discrimination against GLBT persons in Ecua dor, it is necessary to determine whether such instruments should be used in light of the strongly held religious and cultural beliefs

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63 concerning homosexualidad (homosexuality) that underlie Latin American society. In other words, in light of widesp read homophobia and antipathy towards homosexualidad in Ecuador, is the use of human rights law appropriate or does it amount to cultural and moral imperialism? These questions get at the heart of the cultural relativist and universalist debate among human rights advocates. Universalists argue that cer tain human rights such as “the rights to equal protection, physical se curity, free speech, freedom of religion, and free association” are universal and thus “m ust be the same everywhere” (Steiner and Alston 2000: 366-67). Following in the tradit ion of John Locke and the UDHR, they “maintain that universal huma n rights are based on the inhere nt dignity of human kind” (Magnarella 2002: 16). In th is context, GLBT indivi duals facing discrimination, persecution, and violence at the hands of Ecuadorian officials ar gue that they are entitled to basic fundamental human rights such as e qual protection and due pr ocess, regardless of their sexual orientation (Fundacin Ecuatoriana Equidad 2002). Cultural relativists, on the othe r hand, argue that “the wo rld contains an impressive diversity in views about ri ght and wrong that is linked to the diverse underlying cultures”40 (Steiner and Alston 2000: 367). In its strictest sense, rela tivists argue that human rights law is essentially a Western imperialist tool th at “imposes the vision of a few on everyone” (Hernndez-Truyol 2002: 357). In considering the issues discussed herein, many Ecuadorians raise traditional cu ltural and religious norms which reject homosexualidad and argue that, by extending huma n rights protections to GLBT 40 The term “culture” oftentimes is interpreted by relativists to include “political and religious ideologies and institutional structures” (Steiner and Alston 2000: 367).

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64 individuals, Western politi cal will and culture is being imposed on Ecuador. 41 Recognizing the validity of the concerns underlying both universalist and relativist arguments, Hernndez-Truyol offers an alternative view, suggesting a methodology under which cultural practices and traditions ar e respected, but are not allowed to “create, reinforce, and perpetuate the subordination, enslavement, or exclusion of individuals within their particul ar cultures” (Hernndez-Truyol 2002: 357). Where, as here, a minority group (GLBT individuals) is dissenti ng within the majority culture (traditional Ecuadorian cultural), the “human rights pa radigm” effectively balances competing perspectives to determine the extent to which human rights should be applied and enforced (Hernndez-Truyol 2002: 366). Noting th at this approach must remain flexible and objective, the following considerations serve as a methodologica l guideline for this analysis: (1) the claim or right being asserted; (2) the circumstances that gave rise to the claim; (3) the person or group that is claimi ng the alleged breach—a cultural insider or outsider; (4) the person, group, or entity that is violating the right(s ) at issue; (5) the “impact of enforcing the group norm as comp ared to the impact of protecting the individual right”— (e.g. “the level of intrusion of the group norm on individual freedoms” and “the consequences of eros ion of the norm on the community” (HernndezTruyol 2002: 366-67). Each of these c onsiderations is addressed below. Here, the competing rights or interests at stake are the human rights of GLBT Ecuadorians to be free from discriminati on, violence, and persecution on the one hand and the traditional religious and cultural norms in Ecuador concerning appropriate 41 Western European and Canadian countries afford the greatest protections and rights to GLBT persons. The United States also provides sexual minorities protections (and in some states rights), however such provisions recently have come under fire by conservative political and religious groups.

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65 sexuality and gender on the other. Specifica lly, GLBT individuals within Ecuador argue that, as members of the human race, they are en titled to the protection of their most basic human rights. Notwithstanding the cultural a nd religious beliefs in Ecuador concerning homosexualidad GLBT people are members of Ecuador ian society and should be treated with respect and afforded freedoms equal to all other citizens (Fundacin Ecuatoriana Equidad 2002). They should be allowed to live openly without fear of discrimination, violence, or arbitrary treatment by police. Moreover, if they are subjected to violence or discrimination in the private sector, their co mplaints to police and government officials should be properly investigated and pursu ed by authorities (Fundacin Ecuatoriana Equidad 2002). Proponents of traditional cultural and religious institutions within Ecuador, however, argue that homosexualidad is a Western concept that is antithetical to their cultural and religious beliefs a nd that the “gay rights agenda” should not be forced onto them by extending formal recognition and rights to GLBT individuals. To be sure, within Ecuador, “[h]omosexuality continues to be considered a sin or an illness, a crime, or a social or ideological deviation or a betr ayal of one’s cultur e” (AI 2001a: 3; Fundacin Ecuatoriana Equidad 2002; Gonzalez 1997b). Indeed, Ecuadorian society is heavily influenced by the Catholic Church, which recently publicly opposed efforts in the UN that “called on all states to protect and promote the human rights of all people, regardless of their sexual orientatio n” (Capdevila 2003; Lynch 2004: A15). Supporters of the Church argued that explicit pr otections of and for GLBT individuals would force them to validate a lifestyle that they view as mo rally wrong, and it would open the Church and those who adhere to its traditi onal teachings to claims for hu man rights violations if they

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66 continue to advocate and practice their longs tanding religious beli efs (Catholic Family and Human Rights Institute 2003). A dditionally, many Ecuadorians view homosexualidad as contrary to the traditional cultural constructions of gender and sexuality inherent in machismo culture (Fundacin Ecuatoriana Equidad 2002). For these reasons, many Ecuadorians classify GLBT i ndividuals as a sec ond class population and not as citizens (Fundacin Ecuatoriana Equidad 2002). Some people also view recognition and protection of GL BT individuals as “homosexua l activism” or furtherance of a particular (Western) social agenda that is contrary to their culture. As explained in depth in ch apter 3, widespread violence and discrimination against and persecution of GLBT people in Ecuador has led human rights advocates both inside and outside Ecuador to consider human rights law as a source of protection for sexual minorities against such abuse (Fundacin Ecuatoriana Equidad 2002; AI 2002b; AI 2001a). In Ecuador, GLBT individuals are a subordinated group, and th ey routinely face discrimination and ill-treatment. In many cas es, government officials are responsible for such transgressions; and, even where private individuals ar e responsible for human rights violations, complaints to po lice are oftentimes ignored a nd rarely investigated. A small GLBT movement already exists in Ecuador, and many in that movement are looking to human rights law (in the intern ational, regional, and national contexts) and international GLBT rights organizations fo r assistance (Fundacin Ecuatoriana Equidad 2002). International human rights organizatio ns and GLBT rights groups have begun to take notice of the discriminati on and violence that sexual mino rities in Ecuador face, and have even reported human rights violations to local and national authorities (Fundacin Ecuatoriana Equidad 2002; AI 2002b; AI 2001a). In a few cases, cour ts in Ecuador have

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67 considered complaints of physical maltr eatment and sexual violations of GLBT individuals while in cust ody of the police (Fundacin Ec uatoriana Equidad 2002). However, for the most part, little has been done to address these issues and no formal human rights complaints against Ecuador have been filed in intern ational or regional human rights systems. Invariably, intervention by international organizations will be viewed by some as imperialistic and unwarra nted. In this case, however, human rights law could be invoked by GLBT i ndividuals themselves, with or without the assistance of outside organizations. Such actions are warranted, because the ha rms to GLBT are great. In the worst cases involving torture and phys ical abuse, the life and physical integrity of sexual minorities are at stake. These types of atro cities at the hands of government officials, albeit on a much larger scale, were the impetus for creating human rights law and a process by which individuals could bring claims against their government for human rights abuses. At the very least, such disc rimination and violence keep GLBT individuals in the closet, forcing them to forgo happi ness, dignity, and full personhood for fear of social and economic repercussions (Fundacin Ecuatoriana Equidad 2002). From an objective standpoint application of human righ ts to GLBT individuals would likely have an impact on both sexua l minorities in Ecuador and on Ecuadorian culture. However, the level of intrusion on th e majority culture and societal norms would be minimal. Although, as with the challenge to any cultural or soci etal norm, “there w[ould] come a time when one additional person following or refusing to follow the norm w[ould] have an impact on the norm itself” (Hernndez-Truyol 2002: 367), the overall integrity of Ecua dorian culture does not depend on the continuation of

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68 discrimination and persecution of GLBT individu als. To be sure, the use of human rights law by GLBT individuals in Ecuador would not threaten or erode the Catholic Church, and a formal recommendation by an interna tional or regional human rights body or a local court would not displace or destroy machismo culture. Instead, the majority culture would continue to exist (with modifications as to the treatment of GLBT individuals within Ecuadorian society), and neither re ligion nor gender norm s would significantly change. While religious beliefs and cultura l constructions of gender and sexuality may underlie much of sexual orientation-based discrimination and violence, discrimination and violence are not inherent to the survival of these beli efs and cultural constructions. Furthermore, as a backdrop to this docu mented discrimination and abuse, over the last seven years, the Ecuadorian governmen t has adopted the core international and regional human rights documents into its nati onal law, and it ha s provided explicit protections to GLBT individuals in its cons titution and Human Rights Plan and in the Andean Charter. In so doing, it already formally recognized sexual minorities as a protected group of citizens, and it formally extended rights and protections to GLBT people (Fundacin Ecuatoriana Equidad 2002). One Ecuadorian GLBT advocacy organization interpreted the governments’ adopti on of these various protections as a “new focus on the recognition of human rights, that is based in recogni zing the well being of individuals and/or the recogniti on of citizenship,” which aims to create fair and just societies characterized by “equality, accepta nce, governability, and inclusiveness,” and that satisfy the individual and collective need s of all sectors and social groups in Ecuador

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69 (Fundacin Ecuatoriana Equidad 2002).42 Arguably, there is minimal intrusion on Ecuadorian society and culture as the Ecuadorian government its elf has, at least on paper, adopted the rights and recognitions that GLBT people seek to invoke. Even if these constitutional recognitions and rights were aspirational at the onset, the changes themselves stemmed from “the exis tence of problems that [were] serious and pervasive, and for which solutions” are “li nked to bringing about reforms in difficult areas such as … culture and globalization” (Garcia-Villegas 2003: 147-48). In this case, in 1997, Ecuadorian GLBT rights organizations joined forces with the strong existing indigenous movement and gained enough support to get the existing sodomy law, Article 516 of the Penal Code, which applied penalties of four to twelve years imprisonment to adult men engaged in consensual same-sex sexual relations, reviewed and repealed (Fundacin Ecuatoriana Equidad 2002; Gonzalez 1997b; Gonzal ez 1997a; Wockner 1997). Thereafter, they were apparently able to obtain enough political support to secure explicit protections in the Human Rights Plan and the constitution. At that time, the Ecuadorian government also recognized the indivisibility and universality of human rights, and incorporated the core human rights documents into its constitution and national law. At the very least, these events were an important step for GLBT individuals in the recognition of their most basic and fundame ntal human rights and they created public recognition and visibility for GLBT i ndividuals and organizations (Fundacin Ecuatoriana Equidad 2002). It is reasonable to expect that, at some point, GLBT 42 Este nuevo enfoque del reconocimiento de los dere chos humanos, que se fund amenta en reconocer el bienestar de los individuos y/o el r econocimiento de la ciudadana, … equilibrio, aceptas, gobernables, e incluyentes (translation provided by Kirsten Anderson).

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70 individuals would seek to hold the g overnment accountable for the rights and recognitions that the legislators and constitutional framers adopted, by demanding investigation of human rights vi olations and the application of justice that the national Human Rights Plan and Andean Charter guara ntee. Such efforts are attainable in Ecuadorian society, and bringing the legislators who adopted these legal protections to task would likely strengthen the constitution and democracy itself (Garcia-Villegas 2003: 147-48). As the above analysis reveals, human ri ghts law should be used to address sexual orientation-based discrimination, violence a nd persecution in Ecuador. The rights that GLBT individuals seek to invoke are fundame ntal human rights to equal protection, due process, and physical protection—rights to whic h all individuals are entitled regardless of their sexual orientation. The recognition of GLBT rights “is a democratic signal—as is the fight against discrimination, exclusion a nd violence and for inclusion and equality” (Roth 2003: 4).

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71 CHAPTER 5 CONCLUSION Summary of Findings On paper, Ecuador looks to be a champion of equality and human rights, especially as they pertain to GLBT indi viduals; however, reality reveal s a much different picture. As the case study in chapter 3 showed, t hose who are, or are perceived to be homosexualidad face widespread discrimination, vi olence, persecution, and harassment by police and other individuals wi thin society. Complaints of such abuse are oftentimes met with indifference, creating an environm ent where human rights violations of GLBT people generally go unreported or unpunished. Ov er the last few years, international and national human rights organizations and GL BT advocacy groups have begun to record such abuses and to look toward human rights la w as an avenue of addressing such human rights violations. As explained herein, human rights law can be used to address the violations that GLBT individuals in Ecuador face. Ind eed, human rights protections for sexual minorities exist under the UN Human Rights system, the Inter-American Human Rights system, and national law. Under the ICCPR, sexual minorities ar e clearly entitled to equal protection, which gives GLBT Ecua dorians the ability to challenge the discrimination, harassment, and unequal treatme nt that they are subjected to by police officers and other government of ficials. GLBT persons can al so use additional provisions of the ICCPR to challenge the widespread vi olence, impunity, and arbitrary treatment that

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72 they suffer at the hands of police officers. Additional protections for sexual minorities exist in the Torture Convention, the ICESCR, and customary international law. As explained herein, GLBT citizens have simila r recourse in the Inter-American Human Rights system under the American Declar ation, the American Convention, and the Protocol of San Salvador. Mo st important, GLBT individuals in Ecuador have explicit protections and rights unde r Ecuadorian national law a nd the Andean Charter. Accordingly, to the extent that sexual minorities have fair and impartial judicial recourse, challenges can also be brought within the Ecuadorian judicial system. Although, as this thesis showed, human righ ts law can be used to challenge sexual orientation-based discrimination, violence, and persecution, the more difficult question was whether it should be used. Wide spread homophobia and antipathy towards homosexualidad underlie discrimination and abuse of sexual minorities in Ecuador. Specifically, homosexualidad is seen by the majority in Ecuador as a rejection or abandonment of their culture and/ or traditional religious belief s. Like most other Latin American countries, strong cu ltural constructions of appr opriate gender and sexuality exist. In this machismo culture, defiance of appropriate gender and sexuality is oftentimes met with violence and resistance. Moreover, traditional Catholic teachings deem homosexualidad as a sin and an unacceptable way of life. As such, some would argue that the use of human rights law to protect GLBT persons is inappropriate and amounts to cultural and moral imperialism. Notwithstanding these cultural and religious constructions, GLBT individuals are human beings who are suffering real and eg regious violations of their fundamental human rights. The majority culture should not be used to facilitat e or further oppression

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73 or to disentitle sexual minorities of basi c human rights simply because they fail to conform. Accordingly, this thesis engaged the ongoing debate between universalists and cultural relativists, and used Hernndez-Truyo l’s human rights paradigm to determine the extent to which human rights law should be used to protect GLBT individuals in Ecuador. As the analysis revealed, human right s law should be used to its fullest extent to protect GLBT persons from discriminati on, violence, and persecution that they suffer at the hands of police officer s and other government official s. Despite cultural and religious norms, all individua ls are entitled to fundamental human rights such as equal protection, due process, and physical integrity, regardless of their sexual orientation. Here, human rights abuses are widespread and harmful and must be addressed. GLBT individuals do not seek to create new rights, but rather they simply seek to invoke existing law. The use of human rights law to address these violations will not have an adverse impact on Ecuadorian cultu re and religion. Rather, it will simply prohibit discrimination and violence against sexu al minorities. After all, the extension of human rights law to sexual minorities is not a foreign concept that is being imposed on Ecuador by outsiders. Indeed, the government of Ecuador vis--vis legislators and the drafters of the constitution recognized GLBT people as a protected class and adopted explicit human rights protections for them Even if the Ecuadorian government’s adoption of those provisions was aspirationa l, the government’s inclusion of them represents its acknowledgement of the voice of a minority group within Ecuador which faces serious and pervasive abuses that need to be addressed.

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74 Future Research This thesis has only scratched the surface on a very complex topic. Because there are no previous social science studies in English concerning GL BT individuals and human rights in Ecuador, this thesis broke new ground. Accordingly, additional research is necessary to build on and challenge the information and conclusions herein. Field research would be extremely beneficial, as is sues pertaining to cult ure and human rights are ever changing. There are many issues concerning GLBT i ndividuals in Ecuador that could be studied in future research. Field resear ch on the cultural constructions of sex and sexuality focusing specifically on Ecuador would be helpful. More field research should also be done to further in vestigate the circumstances that led to the Ecuadorian government’s adoption of such apparently strong human rights le gislation for GLBT persons. Furthermore, because most reports of se xual orientation-based discrimination and violence concern los hombres gay and los transgneros further research on the situation of las lesbianas is needed, because las lesbianas also face discrimination based on sex and sexual orientation. Do they face incr eased discrimination or do they actually experience less overt discrimination than other sexual minorities? More research on the issues raised in this thesis is needed. For example, it would be particularly beneficial to research enforceability issues How likely is it that the Ecuadorian government would comply with opinions and recommendations by international and regional human rights judici al bodies? If huma n rights adjudicatory bodies render decisions in favor of GLBT individuals, what can be done to ensure that the government of Ecuador would comply?

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75 In Ecuador, where human rights and democr acy are central to the constitution, the time is long overdue to address human right s concerns facing GLBT persons. Although many amongst the majority regard such abus es as a consequence of nonconformity to religious ideals and cultural constructions of gender and sexua lity, the othering of individuals who fall within the minority is co ntrary to the human rights regime. While culture must be respected, it ca nnot be an excuse to relega te a minority to second class citizenship and render them de fenseless against human right s abuses by the majority. Democratic principles require equality of all people.

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76 LIST OF REFERENCES Books, Articles, and Reports Amnesty International (AI) 2005 Amnesty International Report 2005. Ecuador. Electronic document, http://web.amnesty.org/report2005/e cu-summary-eng, accessed July 23, 2005. 2004a Amnesty International Report 2004. Ecuador. Electronic document, http://web.amnesty.org/report2004/e cu-summary-eng, accessed July 10, 2004. 2004b Ecuador: Fear for Safety (AMR 28/010/2004). Electronic document, http://web.amnesty.org/library /index/engamr280102004, accessed June 14, 2004. 2004c Ecuador: Police courts permit impunity. Electronic document, http://web.amnesty.org/librar y/print/ENGAMR280212004, accessed July 23, 2005. 2004d Human Rights and Sexual Orientat ion and Gender Identity, Electronic document, http://web.amnest y.org/library/pr int/ENGACT790012004, accessed June 20, 2005. 2003a Amnesty International Report 2003. Ecuador. Electronic document, http://web.amnesty.org/report2003/e cu-summary-eng, accessed July 10, 2004. 2003b Ecuador: With no independent and impar tial justice there can be no rule of law (AMR 28/010/2003). Electronic document, http://web.amnesty.org/librar y/print/ENGAMR280102003, accessed July 14, 2004. 2003c Honduras: Human Rights Violations Against Lesbian, Gay, Bisexual, and Transgender People (AMR 37/014/ 2003). September 2003. Electronic document, http://web.amnesty.org/librar y/Index/ENGAMR370142003?open&of=EN G-ECU, accessed February 12, 2004. 2002a Amnesty International Report 2002. Ecuador. Electronic document, http://web.amnesty.org/web/ar2002.nsf/amr/ecuador!Open, accessed July 10, 2004.

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77 2002b Ecuador: Pride and Prejudice: Time to break the vicious circle of impunity for abuses against lesbian, gay, bise xual and transgendered people (AMR 28/001/2002). Electronic document, http://web.amnesty.org/libr ary/index/engamr280012002, accessed February 12, 2004. 2001a Ecuador: Continued torture and illtreatment of lesbian, gay, bisexual and transgender people (AMR 28/009/ 2001). Electronic document, http://web.amnesty.org/library/index/engamr280092001, accessed February 12, 2004. 2001b Fear for safety/Death Threats (A MR 28/010/2001). Electronic document, http://web.amnesty.org/librar y/print/ENGAMR280102001, accessed July 18, 2004. 2001c Further information on UA 73/ 01 (AMR 28/012/2001). Electronic document, http://web.amnes ty.org/library/print/ENGAMR280122001, accessed July 18, 2004. 2001d Crimes of Hate, Conspi racy of Silence: Torture and Ill-Treatment Based on Sexual Identity (ACT 40/016/ 2001). Electronic document, http://www.ai-lgbt.org/ai_report_ torture.htm, accessed May 17, 2004. 1998 Amnesty International Report 1998. Ecuador. Electronic document, http://web.amnesty.org/ailib/airepo rt/ar98/amr28.htm, accessed July 10, 2004. Arboleda G., Manuel 1995 Social Attitudes and Sexual Variance in Lima. In Latin American Male Homosexualities. Stephen O. Murray, ed. Pp. 100-10. Babb, Florence 2003 Out in Nicaragua: Local and Transn ational Desires After the Revolution. Cultural Anthropology 18(3): 304-328. 1998 Gender and Sexuality in LAP. Latin American Perspectives 25(6): 28-29. Boswell, John 1980 Christianity, Social Tolerance, and Homosexuality. Chicago: The University of Chicago Press. Briceno, Rosa 1998 Reclaiming Women’s Human Rights. In Women in the Third World: An Encyclopedia of Contemporary Issues. Nelly P. Stromquist, et al, eds. Pp. 49-58. Garland Reference Library of Social Science.

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79 Espn, Oliva M 1997 Latina Realities: Essays on Heali ng, Migration, and Se xuality. Boulder: WestviewPRess. Fuller, Norma 1996 The Cultural Constitution of Mascul ine Identity Among Peruvian Urban Middle Class Men. Ph.D. dissertatio n, Department of Anthropology, University of Florida. Fundacin Ecuatoriana Equidad 2005a Creo que tal vez sea bisexual, Y ahora qu hago? Electronic document, http://www.equidadecuador.or g/es/todo/ATT1111955400-1.pdf, accessed July 30, 2005. 2005b Creo que tal vez sea gay…Y ahora qu hago? Electronic document, http://www.equidadecuador.or g/es/todo/ATT1111612647-1.pdf, accessed July 30, 2005. 2005c Creo qu tal vez sea lesbiana. Electronic document, http://www.equidadecuador.or g/es/todo/ATT111613015-1.pdf, accessed July 30, 2005. 2005d 25 Cuestiones sobre la orientaci n sexual. Electronic document, http://www.equidadecuador.or g/es/todo/ATT1118440334-1.pdf, accessed July 30, 2005. 2005e Transexualidad. Electronic document, http://www.equidadecuador.or g/es/todo/ATT1122138078-1.pdf, accessed July 30, 2005. 2003 La impunidad por homophobia y discri manactin que sufre la comunidad GLBT en Amrica Latina y Caribe: Analisis De La Situacin en el Ecuador (Edwin Ariza Bracho, ed), Electronic document, http://www.equidadecuador.or g/es/todo/ATT1112472747-1.pdf, accessed July 30, 2005. 2002 Anlisis de law Situacin Social-pol tica y juridical de Gays, lesbianas, bisexuals, transgneros y transexual es. La diversidad sexual GLBTT. Texto Anlisis para la Defensora del Pueblo. Electronic document, http://www.equidadecuador.org, acce ssed July14, 2004 (on file with author). Galecio, Franco 2003 Fausto Paez, A Gay Ecuadorian Activi st in New York. Gotham Gazette’s The Citizen, January 2003. Electronic document, http://www.gothamgazette.com/citizen /jan03/spanish_activist.shtml, accessed July 13, 2004.

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86 United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, March 8, 1999, A/RES/53/144. Vienna Convention on the Law of Treatie s, May 23, 1969, U.N. Doc. A/CONF. 39/27. entered into force on January 27, 1990. reprinted in International Law: Selected Documents, 2001-2002 Edition. Barry E. Carter and Phillip R. Trimble, eds. Aspen Law and Business: New York.

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87 BIOGRAPHICAL SKETCH I am a native of Missouri, and I receiv ed my Bachelor of Arts degree from Missouri State University, where I graduated magna cum laude I received my law degree from the University of Fl orida Levin College of Law with high honors in May of 2002. While in law school, I was a research assistant to human rights professor Berta Hernndez-Truyol, with whom I coauthored tw o articles that used human rights law to address domestic issues. Duri ng the Summer of 2001, I studied in San Jose, Costa Rica, where I worked on a human rights project with an attorney from Bogot, Colombia. I also received a certificate in Inte rnational Legal Studies. Upon graduation from law school, I clerked for the Honorable Charles R. Wilson in the United States Court of Appeals for the Elev enth Circuit. I am licensed to practice law in the State of Florida, and I am currently an Equal Justice Works Fellow at Southern Legal Counsel, where I work on civil righ ts and constitutional law issues. I am particularly interested in human rights legal issues —both domestic and abroad. The focus of my graduate studies was human rights in Latin America. Where possible, I concentrated specifically on human rights issues concerning women and sexual orientation. Upon graduation I will receive a Graduate Certficate in Women’s Studies and Gender Research. To further my academic abilities, I also studied Spanish in Ecuador during the Summer of 2004.


Permanent Link: http://ufdc.ufl.edu/UFE0013124/00001

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Title: Sexual Orientation and Human Rights: the Use of Human Rights Law to Address Sexual Orientation-Based Discrimination and Violence in Ecuador
Physical Description: Mixed Material
Copyright Date: 2008

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SEXUAL ORIENTATION AND HUMAN RIGHTS: THE USE OF HUMAN RIGHTS
LAW TO ADDRESS SEXUAL ORIENTATION-BASED DISCRIMINATION AND
VIOLENCE IN ECUADOR















By

SHELBI D. DAY


A THESIS PRESENTED TO THE GRADUATE SCHOOL
OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT
OF THE REQUIREMENTS FOR THE DEGREE OF
MASTER OF ARTS

UNIVERSITY OF FLORIDA


2005

































Copyright 2005

by

Shelbi D. Day

































This document is dedicated to my mentor, for her guidance and for sharing her wisdom
throughout my academic career, and to Mandy for her support and encouragement.















ACKNOWLEDGMENTS

I thank my parents for their encouragement, Kirsten Anderson for her assistance

with translations, Dr. Anthony Oliver-Smith for his guidance, and my thesis committee

for all of their assistance.
















TABLE OF CONTENTS



A C K N O W L E D G M E N T S ................................................................................................. iv

ABSTRACT ............... ....................... ......... .............. vii

CHAPTER

1 IN TR OD U CTION ............................................... .. ......................... ..

Significance of the Study ...................................... ................ .. ........ ..
Purpose and D esign of the Study............................................................................ 4
R research Q questions ............................................................ 5
L im stations .................................................................................................. ........ 5
D definition of Term s ..................................... ...................... .... ....
Structure of Thesis ................................................ ...... .................

2 BA CK GR OU N D ................................................... ...... ... .............. 12

L literature R eview ................................................. .... .... ......... .... .. ... 12
Social and C cultural C ontext........................................................ .......................12
Cultural and religious origins of homophobia and sexual orientation-based
d iscrim in atio n ............................................. ................ 12
Cultural context-the machismo complex................ ...............15
The Lesbian and Gay Rights Movement........................... ...........................22
Background on Hum an Rights Law ........................................ ....................... 23
Sexual Orientation and Human Rights Law.......... ..................................23
Overview of Human Rights Systems, Structures, and Laws.............................25
The Universalism and Cultural Relativism Debate...........................................32

3 STATEMENT OF THE PROBLEM.................................................. ...............36

Overview of Human Rights Abuses of Sexual Minorities in Latin America.............36
Case Study: Violence and Discrimination Against Sexual Minorities in Ecuador ....39

4 A N A L Y SIS ...................................................... ................. 47

The Use of Human Rights Law to Address Sexual Orientation-Based Discrimination
and Violence Against Sexual Minorities in Ecuador........... ....... ............ 47
International Human Rights Law in the UN System ..................................47









Regional Human Rights Law: The Inter-American System.............................55
Human Rights Protections in an Andean Regional Agreement and in Ecuadorian
N national L aw ................... .... .. .............. .. ....... ....... ...... ................60
Should Human Rights Law Be Used to Address Sexual Orientation-Based
Discrimination in Ecuador? The Universalist/Cultural Relativist Debate.............62

5 C O N C L U SIO N ......... ......................................................................... ........ .. ..... .. 7 1

Summary of Findings ....................................... ......... ...............71
F utu re R research ................................................................74

L IST O F R E FE R E N C E S ......... .. ............... ................. ....................... ......................... 76

B ooks, A articles, and R reports ............................................. ............................. 76
Constitutions and N national Law ........................................ ........................... 84
H um an R ights Instrum ents ........................................ ...................... .....................84

B IO G R A PH IC A L SK E TCH ..................................................................... ..................87















Abstract of Thesis Presented to the Graduate School
of the University of Florida in Partial Fulfillment of the
Requirements for Master of Arts

SEXUAL ORIENTATION AND HUMAN RIGHTS: THE USE OF HUMAN RIGHTS
LAW TO ADDRESS SEXUAL ORIENTATION-BASED DISCRIMINATION AND
VIOLENCE IN ECUADOR

By

Shelbi D. Day

December 2005

Chair: Paul Magnarella
Major Department: Latin American Studies

On paper, Ecuador looks like a champion of human rights-especially with respect

to gay men, lesbians, bisexuals, and transgendered persons (GLBT persons or sexual

minorities). It is one of only three countries in the world that explicitly includes sexual

orientation in an anti-discrimination provision in its constitution, and it has adopted

additional protections for GLBT persons in national and subregional legal instruments.

Despite these progressive steps, however, sexual orientation-based discrimination and

persecution ranging from physical violence and murder at the hands of the police to

harassment and less overt forms of discrimination is widespread throughout Ecuador.

Homophobia and antipathy towards homosexuality oftentimes underlie these actions.

Homosexualidad (homosexuality) is seen as a rejection of the majority culture and the

strong social and cultural constructions of appropriate gender and sexuality.

In some cases, sexual orientation-based discrimination, persecution, and

harassment violate the human rights of sexual minorities. As human rights abuse has









been documented, national and international GLBT and human rights organizations have

begun to look to human rights law as a tool to address human rights violations. An

examination of international, regional, and subregional human rights treaties and

documents shows that human rights law can be used to address these issues. Specifically,

GLBT persons or other States could submit human rights complaints to quasi-judicial

bodies in the United Nations or Inter-American human rights systems. Likewise,

protections for GLBT individuals exist in Ecuadorian national law, and legal challenges

of human rights violations and discrimination can be brought in national courts.

Nevertheless, consistent with the ongoing universalist/relativist debate amongst

human rights advocates, it is essential to consider the extent to which human rights law

should be used to protect GLBT persons in a society that has deeply embedded cultural

and religious norms that are antithetical to homosexualid. After considering a variety of

factors and employing a human rights paradigm, it is apparent that human rights law

should be used to address violations of the fundamental human rights of GLBT

individuals living in Ecuador. While culture must be respected, it cannot be an excuse to

relegate a minority to second class citizenship and to render them defenseless against

human rights abuses by the majority. As the government of Ecuador has already adopted

explicit protections for sexual minorities, there would likely be minimal intrusion on

Ecuadorian society and culture. Even if these national protections were aspirational at

the onset, it is reasonable to expect that, at some point, GLBT persons would seek to

invoke their rights. Afterall, democratic principles require equality of all people.














CHAPTER 1
INTRODUCTION

On March 12, 2004, Patricio Ord6hez Maico, a gay man and a member of

Fundaci6n Amigos por la Vida, an Ecuadorian NGO that campaigns for the rights of los

homosexuals (homosexuals), was stabbed in the chest and the back by an intruder while

inside the NGO's office (AI 2004b). The intruder gained entry into the building and then

attacked Maico from behind with a knife. When Maico managed to wrestle the knife

away, the intruder drew a pistol and threatened to shoot Maico, saying "I am going to kill

you queer son of a bitch"' (AI 2004b). After further struggle ensued, the intruder

dropped the gun and fled, leaving both weapons behind. A week before the incident,

Maico, who had previously filed three complaints against the Quito Judicial police for

arbitrary arrest and detention, physical and sexual abuse, and retaliatory threats for

reporting abuse, presented his case at an international human rights meeting in Quito. As

in most cases, Maico's reports of the previous incidents went uninvestigated and

unpunished.

Although this case is just one example of what human rights advocates say is

widespread human rights abuses against sexual minorities (also referred to los hombres

gay [gay men], las lesbians [lesbians], las bisexuals [bisexuals], and los transgineros

transgenderr] hereinafter GLBT people/persons or sexual minorities) in Latin America,

this true account incorporates elements common to the widespread abuse and


1 Translation by Amnesty International (Amnesty International 2004). The intruder, who spoke Spanish,
said "te voy a matar maric6n hijo de puta" (Amnesty International 2004).









discrimination experienced by those who are, or are perceived to be, sexual minorities in

Ecuador and other Latin American countries. Indeed, throughout Latin America, when a

man or a woman is known to be un homosexual (a homosexual), s/he oftentimes faces a

variety of human rights abuses ranging from physical abuse and torture to economic and

social discrimination. The homophobia and gender discrimination that underlie such

abuse has deep historical roots in Latin America, dating back to pre-colonial indigenous

beliefs and to the religious beliefs that were imposed on the New World by European

colonizers during the conquest and colonization periods. Such discrimination is

reinforced by existing traditional cultural constructions of appropriate gender and

sexuality that stigmatize the defiance thereof. Most laws explicitly outlawing same-sex

sexual relations were repealed during the independence period in Latin America,

however, the discrimination underlying such laws is still evident in many places

throughout the region, including Ecuador.

While sexual minorities in some countries, including Argentina, Mexico, and

Brazil, have recently made significant legal gains and protections, in many areas

throughout Latin America discrimination and violence are common (Reding 2003).

Indeed, throughout much of the region, widespread antipathy towards homosexuality has

transcended history and continues to pervade government offices, the church, and society

at large. In many Latin American countries, sexual minorities "face country-wide

discrimination, persecution, violence, and murder" (Reding 2003: 1). However, today, as

has historically been the case, such abuse largely goes undocumented and it is addressed

with "acquiescence or indifference on the part of the authorities, and impunity for the









perpetrators, who are in many instances the police themselves" (AI 2004b; Reding 2003:

1; ICCHRLA 1996: 8).

As the focus in Latin America has shifted over the past two-and-a-half decades to

include democracy and human rights (McCoy 1997: 58), regional and international

human rights organizations have begun to document the widespread abuse against sexual

minorities throughout Latin America. In other regions of the world, human rights law has

proven useful in addressing similar kinds of discrimination and persecution against

sexual minorities.

Since GLBT people in many parts of Latin America face varying forms of human

rights abuse on account of their sexual orientation, any number of countries could serve

as a focal point for analysis of this problem. However, this thesis focuses on Ecuador

because: (1) it is the only Latin American country whose constitution includes an explicit

prohibition of discrimination based on sexual orientation, and (2) despite this protection,

political and human rights reports indicate the existence of widespread violence and

discrimination against GLBT people (AI 2004b; Reding 2003: 1, 2; AI 2002b; AI 2001a).

Additionally, issues pertaining to human rights and sexual orientation in Ecuador have

received little academic attention.

Significance of the Study

Human rights law purports to protect individuals from human rights abuse at the

hands of their government and other actors. A greater understanding of existing human

rights abuse is instrumental in the promotion of peace and justice within a given society,

country, or region. As such, the identification, research, and discussion of human rights

abuse of individuals and groups within various cultures is imperative (Magnarella 1994:

7). In conducting such research, however, the culture at issue must not be forgotten and









must also be studied and considered. Only then, is it possible to determine, the viability

of applying and enforcing human rights laws against those responsible for human rights

violations.

Despite the existence of widespread violence and discrimination that sexual

minorities in Ecuador face, there is little identifiable social science or legal scholarship on

human rights and sexual orientation in Ecuador. Rather, existing information on Ecuador

is limited to human rights reports and news articles documenting changes made to

Ecuador's Constitution in 1998 and the continuing violence, repression, and

discrimination against sexual minorities. A synthesis of this information is helpful in

beginning to understand the political and social reality of sexual minorities in Ecuador, to

identify the violence and abuses that they face, and to determine how human rights law

can be utilized to protect and defend them from such abuse.

Purpose and Design of the Study

I propose to analyze how human rights law can be used to address the widespread

discrimination, persecution, and violence that sexual minorities in Ecuador face and to

then assess the feasibility of using human rights law to address such abuse. To conduct

my case study, I synthesized the available human rights reports and news articles on

Ecuador and then analyzed that information in light of pertinent social science and legal

scholarship. This information suggests that sexual minorities in Ecuador face widespread

and systemic discrimination on account of sexual orientation, which is largely attributable

to deeply rooted homophobia, underlying gender norms, and religious ideology.

In other regions of the world, such as Canada and the European Union, human

rights law has proven useful in addressing various kinds of discrimination and

persecution against sexual minorities. Even in other Latin American countries such as









Argentina, Brazil, and Mexico, progress has been made on behalf of GLBT people in the

name of human rights. As a member of both the United Nations (UN) and the

Organization of American States (OAS), Ecuador is subject to various human rights

treaties and customary international human rights norms, and it can be held accountable

for violations thereof. Moreover, by adopting explicit protections for sexual minorities in

national law and including an antidiscrimination provision which explicitly prohibits

discrimination based on sexual orientation in its constitution, Ecuador formally

recognized the rights of sexual minorities within its borders. Accordingly, I will address

the following research questions:

Research Questions

* How can human rights law be used to address sexual orientation-based
discrimination and related human rights abuses against sexual minorities in
Ecuador?

* Whether, in light of the deeply rooted cultural, religious, and moral beliefs in
Ecuador regarding homosexuality, using human rights law to address these issues is
a feasible option or whether it is an inappropriate imposition of Western,
androcentric culture and solutions.

Limitations

This study is library-based and does not rely on any original data. It serves only to

synthesize existing human rights data and anthropological and legal literature to

determine how human rights law can be used to address discrimination against a

subordinated minority group-GLBT people, and whether the use of human rights law to

create change and protect sexual minorities is a feasible option. Due to language

limitations of the author, the research upon which this study is based is solely that which

is available in, or was translated into, English. As such, it is limited in its scope.










Definition of Terms

For purposes of this thesis, it is necessary to reduce complicated terms and

concepts to finite definitions. Without doing so, it would be impossible to engage in

meaningful analysis of the questions at issue. It is important to note, however, that the

terms defined below are subject to various interpretations in the English language, and

definitions vary according to culture and language.2 At the risk of oversimplifying

complex terms, the following definitions are used for purposes of this paper.

* Sex: refers to "the biological designation of an individual as a male or female"
(Wilets 1997: n.1).

* Gender: refers "to the socially constructed roles of 'female,' 'male,' or
combination thereof' (Wilets 1997: n. 1).

* Sexuality: "in broad terms describes a spectrum of behavior that extends from the
procreative to the erotic, and encompasses ideals, desires, practices, preferences
and identities" (Chant and Craske 2003: 128).

* Sexual orientation: "refers to a person's sexual and emotional attraction to people
of the same gender (homosexual orientation), another gender (heterosexual
orientation) or both genders (bisexual orientation)" (AI 2001d: 4).

* Homosexualidad: is the Spanish word that describes the sexual orientation of
people who are physically and emotionally attracted to people of their same gender
(Fundaci6n Ecuatoriana Equidad 2005c).3


2 Anthropologist Deborah Elliston noted that the cross-cultural application of Western notions of
homosexuality in anthropological research yields limited results, because ideals, practices, norms, and
understandings may vary according to culture (Elliston 2002: 289). Theorists "have noted that lesbian and
gay are not context-free categories but express subjective understandings of gender, sexuality, and social
location closely linked to the historical emergence of North Atlantic capitalism and to the politics of
cultural pluralism during the late modernist period" (Lewin and Leap 2002: 8). Using such terms risks the
invocation of "cross-cultural parallels and equivalences that are fictional and often distort the details of
situated gendered construction that the research is trying to [understand]" (Lewin and Leap 2002: 8). As
Rosenbloom recognized, "there are undoubtedly women [and men] in every part of the world who have
intimate and sexual relationships with [persons of their same sex]," however, reducing those varied
relationships to the finite Western terms "lesbian" and "gay" is grossly inadequate (Rosenbloom 1996:
xxiii). In attempt to utilize definitions that most accurately reflect the cultural being studied, Spanish terms
and definitions were derived from Ecuadorian resources where appropriate.

3"Es la orientatci6n sexual de las personas que se sienten atraidas afectiva y sexualmente por las personas
de su mismo g6nero." (Fundaci6n Ecuatoriana Equidad 2005c) (translation provided by Kirsten Anderson).










* El hombre gay: refers to men that feel sexually attracted to other men and fall in
love with men. For these men, having sexual feelings towards men feels normal
and natural. Sometimes these men may feel attracted to women also, but in general
they say that they have stronger and more significant feelings for men (Fundaci6n
Ecuatoriana Equidad 2005d; Fundaci6n Ecuatoriana Equidad 2005b).4 As
discussed further in Chapter 2, in Latin American culture, sexual orientation is not
necessarily determined by sexual activity. Rather, it is determined by adherence to
or deviation from culturally constructed male gender norms.

* Lesbiana: refers to women who love and feel sexually attracted to other women.
They can feel emotionally and spiritually connected to other women and they prefer
to partner with women (Fundaci6n Ecuatoriana Equidad 2005c; Fundaci6n
Ecuatoriana Equidad 2005d).5

* Bisexual: refers to people who have the capacity to love people of their same sex
or the opposite sex. They are capable of being physically, sexually, and
emotionally attracted to women, men, and transgendered people (Fundaci6n
Ecuatoriana Equidad 2005a).6

* Transgenero: is someone who belongs genetically to one sex but feels, acts, and
wishes to be a member of the opposite sex (Fundaci6n Ecuatoriana Equidad
2005e).7

* Homophobia: "the irrational fear of homosexuality and persons of homosexual
orientation" (ICCHRLA 1996: 8).

* International human rights law: "refers to the body of international law aimed at
protecting the human dignity of the individual. ... it principally seeks to guarantee
the rights of persons vis-d-vis their own government, but also protects them against

4 "A los hombres que se sienten atraidos por otros hombres" (Fundaci6n Ecuatoriana Equidad 2005d).
"Los hombres que se llaman a si mismos gay se sienten atraidos sexualmente por otros hombres y se
enamoran de ellos. Sus sentimientos sexuales hacia los hombres son normales y naturales para ellos. Si
bien algunos hombres gay pueden sentirse atraidos tambidn por las mujeres, por lo general dicen que sus
sentimientos por los hombres son mis fuertes y mis importantes para ellos" (Fundaci6n Ecuatoriana
Equidad 2005b) (translation provided by Kirsten Anderson).

5 Lesbiana refiere a las "mujeres que aman a otras mujeres," "mujeres que se sienten atraidas sexualmente
por otras mujeres," "mujeres que podemos sentimos vinculadas mis estrechamente a las mujeres emotional
y espiritualmente," y "mujeres que preferimos a otras mujeres como pareja" (Fundaci6n Ecuatoriana
Equidad 2005c; Fundaci6n Ecuatoriana Equidad 2005d) (translation provided by Kirsten Anderson).

6 Los bisexuals son "personas que tienen la capacidad de amar a personas de su propio sexo y de otro sexo.
Esta capacidad puede incluir la atracci6n fisica, sexual y emotional o relaciones con hombres, mujeres y
transg6neros" (Fundaci6n Ecuatoriana Equidad 2005a) (translation provided by Kirsten Anderson).

El transg6nero refiere a algo de lo "que es aquel que siendo gen6ticamente de un sexo, para este caso el
masculine, siente, actua y desea como perteneciente al otro" (Fundaci6n Ecuatoriana Equidad 2005e)
(translation provided by Kirsten Anderson).









other actors in the international community that might violate those rights" (Ratner
and Abrams 2001: 10).

* Universalism: the notion in the human rights context that claims[] that
international human rights like rights to equal protection, physical security, free
speech, freedom of religion and free association are and must be the same
everywhere" (Steiner and Alston 2000: 366).

* Cultural relativism: the notion in the human rights context which claims[] that
(most, some) rights and rules about morality are encoded in and thus depend on
cultural context, the term 'culture' often being used in a broad and diffuse way that
reaches beyond indigenous traditions and customary practices to include political
and religious ideologies and institutional structures" (Steiner and Alston 2000: 366-
67).

Structure of Thesis

In chapter 2, this thesis provides background information that is necessary to fully

understanding the issues discussed herein. Specifically, it provides a review of the

pertinent social science literature on the norms and cultural constructions of gender and

sexuality that exist in Latin America. An understanding of these cultural norms is

imperative in identifying and fully understanding the discrimination and human rights

violations that sexual minorities in Ecuador face as deviants from normative sexuality. I

will also review the literature explaining the origins of the deeply rooted religious and

cultural beliefs underlying homophobia and sexual orientation-based discrimination in

Latin America. In so doing, I will examine the role of the Catholic Church in imposing

its doctrine before, during, and after the conquest and colonization of what is now known

as Latin America and its continuing influence on Latin American culture today.

Although, progressive steps on behalf of sexual minorities have been made over time,

antipathy towards homosexuality is still evident throughout the region and discrimination

exists in both the public and the private spheres. Oftentimes, such deep rooted cultural,









social, and religious beliefs result in, or contribute to, violations of the human rights of

those who are, or are perceived to be, sexual minorities.

Then, chapter 2 presents an overview of the GLBT movement in Latin America

generally. It shows that, despite the repression that sexual minorities throughout Latin

American face, they have cultivated a movement dedicated to recognition and rights.

Ecuador is a good example of how such a movement can join together to effect change,

even in a country ripe with antipathy towards homosexuality.

Finally, it presents an overview of human rights. It begins by examining how, and

to what extent, human rights law has been used to address issues related to sexual

orientation. To facilitate a better understanding of the human rights system, structure,

and laws, it then provides an overview of both the United Nations (UN) and the Inter-

American human rights regimes. Because Ecuador is a member of both the UN and the

Organization of American States (OAS), it can be held accountable for human rights

violations under either system. While the human rights instruments and organs under

both systems are similar, a brief overview of each system and its primary structure and

instruments is essential for a clear understanding of the analysis. In conclusion, it

addresses the role that human rights play in anthropology, explaining the underlying

arguments in the ongoing debate between relativists and universalists as it pertains to

human rights.

In chapter 3, I first present an overview of the problems that sexual minorities in

Latin America commonly face; then, I provide a case study of Ecuador, highlighting

documented instances of discrimination, persecution, and violence that GLBT people in

Ecuador face on account of their sexual orientation. To do so, I synthesized existing data









such as newspaper articles and human rights reports, documenting actual instances of

violence and discrimination against sexual minorities

Chapter 4 analyzes how human rights law can be used to address violence,

persecution, and discrimination against sexual minorities in Ecuador. Although sexual

orientation is not explicitly mentioned in any human rights instrument under the UN or

Inter-American human rights systems, human rights law has proven to be a viable option

to protect sexual minorities in the international realm through developing case law and

interpretations within the UN system. While the use of human rights law to address

violations based on sexual orientation is a relatively novel approach in the Inter-

American system, I will argue that human rights instruments can be used to address the

oppression that sexual minorities face in Ecuador. Ecuadorian law and a subregional

human rights agreement also provide protections for GLBT persons.

After establishing that human rights law can be used to address discrimination

against sexual minorities in Ecuador, I will discuss the appropriateness and feasibility of

using human rights law to address these issues in a country with deeply rooted religious

and cultural beliefs contrary to homosexualidad (homosexuality). To do so, I will engage

the ongoing debate between universalists and cultural relativists and consider arguments

on both sides of the debate as they pertain to the human rights violations at issue in

Ecuador. Using a human rights paradigm created by Hemrndez-Truyol, I will balance

cultural considerations against the rights of sexual minorities, and consider the impact

that the use of human rights law to protect GLBT individuals would have on the existing

majority cultural and societal norms. I will also consider the effect of the Ecuadorian

Government's adoption of explicit protections for sexual minorities in its constitution, an









executive decree, and a subregional agreement. After doing so, I will determine whether

(and to what extent) the application of human rights law is appropriate or if it essentially

amounts to the imposition of androcentric, Western ideas and strategies on a developing

nation.

Finally, chapter 5 summarizes the main findings of this study. I find that, despite

cultural and religious beliefs concerning homosexualidad (homosexuality), the

discrimination and persecution of sexual minorities violates fundamental human rights

and therefore should be addressed through the use of human rights law. While human

rights law can be an effective tool to address such discrimination, it is important to

consider the underlying cultural context to find the most useful approaches and strategies

to ensure the protection of sexual minorities. Additionally, I will suggest that future

research should be done to better understand the plight of sexual minorities in Ecuador

and I will raise specific questions that should be addressed in future social science

research.















CHAPTER 2
BACKGROUND

Literature Review

There is no article or body of literature that addresses the precise questions raised

here. Rather, there are several articles and books, in both law and the social sciences,

which underlie and inform this thesis. To date, the bulk of the social science academic

work done on homosexuality "has focused more on men than on women," especially in

anthropology (Babb 1998: 29). Work focusing specifically on human rights and sexual

orientation has been done in the context of law, and much of it has focused either

generally on the topic or specifically on legal progress or the lack thereof. In an attempt

to be comprehensive, the most pertinent aspects of those works are reviewed below.

Social and Cultural Context

Cultural and religious origins of homophobia and sexual orientation-based
discrimination

In Latin America, there is a long history of homophobia and sexual orientation-

based discrimination and attacks directed towards GLBT persons. However, anxietyey

about or social restriction on same-sex desire and eroticism are, of course, nothing new or

particularly limited to Latin America" (Green and Babb 2002: 5).8 Although, in Latin

America, the social and legal restrictions that were placed on same-sex desire were

largely a product of the Spanish conquest and colonization of the New World, such ideals


8 It is worth noting that, in some ways, the history of the treatment of sexual minorities in Latin America is
the same as the United States, and in some cases developments in Latin America have been more
progressive than elsewhere.









originated long before that time. Prior to the arrival of European colonists, some

indigenous societies, including the Aztecs and the Incas, punished same-sex sexual

activity (Mejia 2000: 43; Murray 1995: 280, 281).9 In the case of the European colonists,

as Green and Babb explained in their brief historical overview of homophobia in Latin

America, such restrictions date back to proscriptions under Jewish law that were

reaffirmed in the New Testament by Saint Paul, "adding the notion of sin to sexual

activities between people of the same sex" (Green and Babb 2002: 5). Although there is

conflicting evidence concerning the Catholic Church's stance on same-sex activities prior

to the twelfth century, it is clear that after that time, especially during the Holy

Inquisition, the Church took a hard stance against same-sex sexual activity. At that time,

the Church "included sodomy among the transgressions that it punished by death through

public burnings" (Green and Babb 2002: 5; Boswell 1980: 281).10

"As part of the conquest of the Americas, the Catholic Church imposed its ban

against sodomy on indigenous cultures while monitoring the sexual behavior of Spanish

and Portuguese colonizers" (Green and Babb 2002: 5). Although there is no official tally

of how many people died by flames during the conquest and early colonial period, two

things are certain. First, several Spanish and Portuguese conquistadores reported

9 As Max Mejia explained the Aztecs of "pre-Hispanic Mexico, the dominant culture at the time the
Spanish arrived" had harsh laws against same-sex sexual activity (Mejia 2000: 43). They punishede] the
practice severely with public execution for those who were caught" (2000: 43). Similarly, Stephen O.
Murray relayed that, in the Andean region, the Incas also severely punished sexual activity between
individuals of the same sex (Murray 1995: 280, 281). It is noteworthy, however, that same-sex sexual
relations and activity was not punished in all indigenous cultures in which it existed, and in some it was
even tolerated (Murray 1995: 282-288; Mejia 2000: 44-46).

10 The word sodonl has held different meanings at different times throughout history (Boswell 1980).
"At some points in history it has referred almost exclusively to male homosexuality and at others almost
exclusively to heterosexual excess" (Boswell 1980: 93 n.2). Generally, the English word sodonm has its
origins in interpretations of the Christian Biblical story of Sodom and Gomorrah (Boswell 1980). During
the time of the Holy Inquisition, sodoinl or "sodomite" referred to male same-sex activity (Boswell
1980: 281-285).









encountering same-sex sexual practices amongst indigenous peoples throughout the

region, in places including Mexico, Panama, Brazil, and the Andean nations. Second, the

conquistadors reacted to those engaged in such activities with punishment, in accordance

with Catholic law and doctrine (ICCHRLA 1996: 3).

"In the years immediately following Latin American independence from Spain and

Portugal, most new states rewrote their criminal codes, eliminating sodomy from the list

of legal prohibitions" (Green and Babb 2002: 5). Although consensual same-sex sexual

activity was no longer considered a crime in most Latin American countries, deeply

engrained antipathy towards homosexuality remained and was reflected in public decency

codes and laws targeting those people and activities that fell outside the normative ideals

of appropriate sexuality. While "the influence of Roman Catholicism was by no means

uniform across the New World, there is little doubt that religious conquest played a

significant role in determining what sexual behavior was, or was not, permissible" (Chant

and Craske 2003: 134).

In more recent times, throughout Latin American, antipathy towards homosexuality

has been evident in various ways, including the "killing of homosexuals under military

regimes in Argentina, Chile and Guatemala, to less draconian, but still powerful,

attempts" to eliminate homosexuality during the Cuban revolution (Chant and Craske

2003: 154). In the early twentieth century, eugenicistss, physicians, psychiatrists, and

jurists in Argentina, Brazil, and other Latin American countries engaged in campaigns to

'medicalize' what increasingly became known as homosexuality" (Green and Babb 2002:

6). During this time, homosexuality was deemed a personal and social disease and efforts










aimed to "cure" those suffering from this affliction.ll

Despite the emergence of lesbian and gay rights movements throughout Latin

America, homophobia and social ostracism persists today and the Catholic Church

continues to view homosexuality as "unnatural and intrinsically bad" (Chant and Craske

2003: 133, 135). Although the notion of "homosexuality as abomination shows no sign

of abating in most quarters of the Catholic Church in Latin America," the Vatican

maintains that it is against discrimination against GLBT people (Chant and Craske 2003:

136). Nonetheless, it has continued its active role in denouncing homosexuality and it

has systematically interfered with advocates' efforts to gain legal protections for GLBT

persons. In Ecuador, like much of Latin America, Catholicism is the predominant

religion (Embassy of Ecuador in Washington, D.C. 2004),12 and its traditional ideals are

deeply embedded in Ecuadorian culture. Throughout Ecuador and much of Latin

America, antipathy and traditional religious beliefs concerning homosexuality are

evident.13

Cultural context-the machismo complex

In Latin American culture, there are strong constructions of gender and sexuality.

Consistent with the persistent gender hierarchy that is evident throughout Latin American


1 Significantly, as compared to criminalization, the medicalization of homosexuality was generally
presented, and sometimes experienced, as progressive. In retrospect, however, it can be seen as being
another way that sexual minorities were oppressed and treated inequitably.

12 However, many indigenous communities "still preserve their ancient beliefs of worship of the earth, the
mountains, and the sun" (Embassy of Ecuador in Washington, D.C. 2004).

13 Rebutting the notion that religion "has been the cause of intolerance" of gay people, Boswell explained,
religiousos beliefs may cloak or incorporate intolerance, especially among adherents of revealed religions
which specifically reject rationality as an ultimate criterion of judgment or tolerance as a major goal in
human relations. But careful analysis can almost always differentiate between conscientious application of
religious ethics and the use of religious precepts as justification for personal animosity or prejudice" (1980:
6-7).









history, males are relegated to the public sphere and females to the private sphere.

Moreover, men play the role of the authoritarian boss and females are subordinate (Green

and Babb 2002: 9). Although women have gained some rights and recognition in the last

two decades, in many places, traditional norms continue to exist. Despite a growing

spectrum of representations of sexuality in Latin America, two extremes stand out-one

of "sexual repression, associated with religion, and particularly, Roman Catholicism, in

which notions of guilt, sin, and restraint preponderate" and another of "exoticism and

sensuality" (Chant and Craske 2003: 131). While the "respectable" woman is expected to

maintain the former, it is acceptable for men to indulge in the latter.

Today, Latin American constructions of gender and sexuality reflect the markedly

racialized and sexualized power relations assumed during the conquest and colonization

of the New World. According to traditional Catholic ideals, the "only legitimate arena

for sex was monogamous, heterosexual marriage" (Chant and Craske 2003: 134).

Although the influence of Catholicism was not uniform throughout Latin America, its

"proscriptions concerning sexuality have been remarkably persistent, and have played a

major part in influencing hegemonic sexual discourses," both past and present (Chant and

Craske 2003: 134). In contemporary Latin America, the Catholic Church's legacy is

evident in a variety of spheres, "including dualisms between male and female sexuality"

and gender norms (Chant and Craske 2003: 135). Specifically, today, while women are

still expected to adhere to monogamy and to fulfill the reproductive role, men are

encouraged, or expected, to engage in pre- and extra-marital affairs (Hemrnndez-Truyol

1997: 917).









Underlying these ideals is the cultural notion of hyper-masculinity that is

commonly referred to as the machismo complex. As explained by Joseph Carrier in the

context of mestizos in Mexico, under the machismo ideal, "men are expected to be

dominant and independent and females to be submissive and dependent" (1995: 3). The

machismo complex "molds men as cold, intellectual, rational, profound, strong,

authoritarian, independent, and brave" (Hernandez-Truyol 1997: 916; Espin 1997: 89).

In addition to being hyper-masculine, Latinos are expected to have uncontrollable sexual

urges and to engage in sex for pleasure, both before marriage and after (Chant and Craske

2003: 141; Espin 1997: 89-90; Hernandez-Truyol 1997: 917). Deeply embedded in the

notion of machismo are sexism, racism, and classism, under which the dominant male is

controller and conqueror of all. However, research has shown that in some countries

such as Mexico and Peru, depending on one's social class, manhood is also tied to

marriage, reproduction, and being a dependable and engaged father (Fuller 1996: 52, 53,

301, 311-12). In fact, "paternity is one of the main axes of masculine identity of

Peruvian Middle class men" (Fuller 1996: 312).

Latinas, on the other hand, are socialized to be submissive and feminine, to be

mothers and wives. They are expected to be subordinate to their brothers, husbands, and

fathers. Marianismo, the ideal role of women, as reinforced by family, church, and

society is modeled after the idealization of the Virgin Mary. Under this cultural

construction, women are taught to be subordinate, self-sacrificing, and chaste. They are

the keepers and protectors of Latino culture and family and are treated as second class to

men and to family (Hernandez-Truyol 1997: 915-16). This idealization of the ideal

woman as "mother expressed in references to madrecita santa (holy [little] mother), el









sagrado deber de ser madre (the sacred duty to be a mother), and la mujer sufrida y

sacrificada (the suffering and self-sacrificing mother) makes it difficult for women not

to see motherhood as their destiny" (Chant and Craske 2003: 135). Arguably, those who

do not maintain the normative sexuality are shunned and relegated to the category of

"whores" (Chant and Craske 2003: 142).

As Lancaster explained, however, the machismo complex "is not exclusively or

even primarily a means of structuring power relations between men and women. It is a

means of structuring power between and among men" (Lancaster 1992: 236). "The

conquest of women," he explained, "is a feat performed with two audiences in mind:

first, other men, to whom one must constantly prove one's masculinity and virility; and

second, oneself, to whom one must also show all the signs of masculinity" (Lancaster

1992: 236-37). The machismo complex demands constant proof, assertion, and

reinforcement of one's masculinity. In fact, as Murray explained, toppingig other men

(usually verbally or symbolically, but occasionally physically) is central to machismo,

perhaps as important as maintaining the subordination of women" (1995: 55).

The machismo ideal has significant implications on the construction of

homosexuality throughout Latin America. As Murray explained, throughout Latin

America, homosexuality oftentimes is defined by gender, not sexual activity (1995: 49).

In other words, under the machismo complex, distinctions for men

(heterosexual/homosexual) are not necessarily made according to the biological sex of

one's sexual partner; instead, there exists an activo/pasivo dichotomy which distinguishes

the position that one assumes during sexual relations (Fuller 1992: 57). "[M]asculine

insertors (activos) ... are not considered homosexuals [and] feminine insertees (pasivos)









... are" (Murray 1995: 49; Fuller 1992: 57). Another Peruvian anthropologist explained

that "[a]ctivos consider insertor behavior part of a male's prerogative. Adherence to this

belief permits activos to gratify sexual needs without compromising a masculine, even

heterosexual identity" (Arboleda G. 1995: 105; Mott 1995: 224).

While Fuller noted that recent research indicates that young Peruvian women are

beginning to question the norms dictating or ignoring their sexuality, there is no

indication of similar diversity in sexual types for men-according to men, males are

either considered men or "faggots" (Fuller 1996: 52, 53). As such, although there is a

degree of acceptance of male to male sexual activity especially during adolescence, in

part due to the unacceptability of female premarital sex, men who engage in same-sex

sexual activities must clearly be in the active sexual role and must reinforce their

preference for women if they are to be considered "men" (Murray 1995: 55). Gender

conformity (or the deviation therefrom) is key, because the cultural assumption is that

gender roles are consistent with sexuality (Murray 1995: 63). As Fuller explained in the

context of Peru, "[t]he domain of the abjected acts as the limits of the masculine; the

point at which someone loses or endangers his masculine condition. This is related to the

loss of the symbols of social recognition and ultimately with feminization" (Fuller 1996:

302). The most extreme example of feminization, she posits, is "occupying a passive

position in [a] homosexual relationship" (Fuller 1996: 302). Lancaster similarly

concluded that passive homosexuals are "feminine men, or more accurately, feminized

men, not fully male men" and, therefore they are stigmatized (Lancaster 1992: 242;

Carrier 1995: 17).

In addition to the stigmatization of effeminate or passive gay men, the cultural









emphasis on hyper-masculinity and the requirements to constantly prove and reinforce

one's manhood have consequences-homophobia, discrimination, rejection, and related

violence. As Murray explained, it is not uncommon for the passive man in same-sex

sexual relations with a "heterosexual" man to "get beaten up after sexually servicing 'real

men' or just for the hell of it if there's nothing better to do and one comes into the view

of 'real men,' or (frequently, in the case of policemen), because effeminacy and/or

homosexuality are affronts to public morality" (1995: 57). Carrier also described how

insecurity or cultural pressures to adhere to the machismo ideal can lead to murder and

violence (Carrier 1995: 83-84). Similarly, according to Brazilian anthropologist Luiz

Mott, "discrimination and violence against lesbians and gays is a daily tragedy for

millions of homosexuals in [Brazil]" (Mott 1995: 224). Additionally, homosexuals are

commonly rejected by their families, theirjobs, or even their school. Carrier explained

that, in Mexico, people generally disapprove of homosexuality, and most of the gay men

that he encountered did not want their families or heterosexual friends to know for fear of

stigmatization, and in some cases rejection or violence (Carrier 1995: 13; 65).

While a lot has been written on male homosexuality, little has been written on

lesbianism in Latin America. Ostensibly, there are several reasons for the lack of

information. First, because the machismo culture is by definition male-orientated, some

scholars have concluded that "lesbian relationships are generally perceived as less

threatening to society" (Reding 2003: 16). Alternatively, some scholars believe that

lesbian relationships tend to be less visible, and are therefore understudied. As Lancaster

explained, "[i]n Nicaragua, as in many peasant societies throughout the world, there is

little popular interest in categorizing or regulating female same-sex relations, and little









exists in the popular lexicon to account for it" (1992: 271). In fact, Lancaster stated that

in the course of his field research, there were only scattered references to lesbians in

newspaper articles and "the subject of lesbianism never came up [in conversations with

his research subjects] unless [he] raised it" (1992: 271). Third, female sexuality is

traditionally not recognized under the machismo complex, and lesbian sexual activity

falls outside of the normative notions of sexual intercourse. Under marianismo ideals,

Latinas are expected to be the dispensers (not the receivers) of care and pleasure and for

women, sex continues to be linked only to reproduction and marriage (Chant and Craske

2003: 135; Hernandez-Tryol 1997: 915; Espin 1997: 89). As explained by Claudia

Hinojosa, "[o]ne of the cultural factors that has had the greatest impact in making lesbian

women invisible is the notion that we women do not have our own sexuality" (Hinojosa

1998). She explained that people "don't understand what happens sexually between two

lesbian women" (Hinojosa 1998).

In reality, however, some research suggests that, when lesbians fail to conform to

normative gender roles, they too face discrimination. Brazilian scholars reported that,

although lesbians are "not as easily identified" because they "are generally more discreet

and less overt in their behavior," they face severe discrimination when they are overt, or

open about their sexuality (Goncalves de Freitas 1998: 203). In fact, once a woman's

lesbianism is known, she generally faces a dominant/submissive dichotomy and

discrimination similar to that experienced by gay men (Goncalves de Freitas 1998: 202;

Mott 1995: 224-225). Two lesbian activists in Mexico explained that womenmn who do

not fulfill the roles of mother and spouse-single mothers, prostitutes, lesbians-are seen

as posing a threat to society. Women are educated from a young age to become wives









and mothers; they are under pressure to marry" (Perez and Jimenez 1996: 114).

Consistent with these notions, it is common for men to think that the cure for lesbianism

is sex with a "real man"; thus, lesbians are oftentimes threatened with and subjected to

sexual violence.

The Lesbian and Gay Rights Movement

Despite these restrictions and historical responses to same-sex relations, sexual

minorities have found ways to circumvent such restrictions, creating social spaces that

have ranged from clandestine gatherings to enclaves in urban centers throughout Latin

America. To be sure, because, as men, gay men enjoy greater access to sexual partners

and public space, they were able to create clandestine enclaves in urban areas that

sheltered them from social ostracism (Babb 2003: 311, 313). Lesbians, on the other

hand, were generally limited to small social circles and covert organizing due to the

social restraints placed on women (Babb 2003: 311, 313). From the creation of such

spaces, lesbian and gay rights movements have emerged in many Latin American

countries (Green and Babb 2002: 3). Over the last two decades, GLBT rights movements

have made varied progress in countries throughout Latin America, and many have

successfully "triggered national political debates about sexuality, discrimination, and the

meaning of full democratic participation of all sectors in political process" (Green and

Babb 2002: 3).

Collectively, GLBT organizations throughout Latin America, though small and

politically modest, "have managed to shift the political discussions about the persons]

and the political" and, in some places, the "issue of discrimination against homosexuals

in Latin America is" now subject to debate (Green and Babb 2002: 4). Significantly,

social scientists have recently noted connections between local movements and the larger









international movement. For instance, Brown, attributed the emergence and expansion of

the Argentine lesbian and gay rights movement, which is politically modest and at times

disjointed yet alive and well, to both "the earlier international diffusion of lesbian and

gay identity and models of activism" and the "political opportunities afforded by concrete

financial support" (2002: 125-26). Similarly, Babb recently noted that, in Nicaragua,

many men and women identify with the transnational lesbian and gay rights movement

(2003:306). Moreover, Mott posited that, in Brazil, lesbian and gay rights defenders and

activists welcome the support and assistance in defending their rights (1995: 225).

Background on Human Rights Law

Sexual Orientation and Human Rights Law

The lesbian and gay rights movement and the human rights movement merge at the

employment of human rights law to address GLBT rights (Sanders 2003: 1). While none

of the human rights documents make any reference to "sexual orientation" or "gender

identity," gays and lesbians have gained some recognition under the UN system through

the invocation of "provisions on personal privacy and certain general provisions on

equality" (Sanders 2003: 2). By the end of the twentieth century, "concern with

discrimination on the basis of sexual orientation had gained sufficient recognition in

national legal systems, in the various European institutions, in actions of the United

Nations Human Rights Committee, in initiatives of the UN High Commissioner on

Human Rights and in the work of important Non-Governmental Organizations that it had

become realistic to say that the issue was now part of a broad international human rights

agenda" (Sanders 2003: 2).

After conducting a comprehensive review of the pertinent legal developments

throughout the international and regional human rights systems, Sanders concluded that,









while there have been both victories and defeats in attempts to invoke international law to

address issues pertaining to sexual orientation, it is becoming an increasingly viable

option. This, he suggests, is evident from several things, including favorable outcomes in

the judicial processes, the participation by lesbians and gay men in important UN

sponsored human rights meetings, and increasing, albeit limited, support by governments

willing to speak out on behalf of sexual minorities (Sanders 2003: 35). Significantly,

Sanders noted that international law developments generally occur only if reforms occur

at the domestic level. He pointed to several State-level developments throughout the

world, such as explicit constitutional prohibitions of discrimination based on sexual

orientation in South Africa, Fiji, and Ecuador and the interpretation of general

constitutional equality provisions to include sexual orientation in other countries (Sanders

2003: 36). In so doing, he highlighted the fact that State-level protection for sexual

minorities, at least on paper, is no longer limited to Western/Northern States. While the

most significant progress in lesbian and gay legal issues has occurred in the European

Regional System, Sanders concluded that continued State-level developments will

"permit sexual orientation issues to be openly addressed at the United Nations and in

regional organizations in years to come" (2003: 36).

While in many regions of the world lesbians and gay men have gained recognition

and made notable progress in human rights laws, many legal scholars have argued the

need to recognize and address gender-based discrimination and biases (Dorf and Careaga

1995; Rosenbloom 1996). Legal scholars and human rights advocates have begun to call

attention to the importance of the human rights issues of lesbians specifically, especially

since lesbians face discrimination on account of both sex and sexual orientation.









Although much of the discrimination that lesbians and gay men face is similar, lesbians

historically have been less visible than gay men. Because of this "invisibility," some

people "believe that lesbians face less severe persecution than gay men;" however,

Rosenbloom argued that such "invisibility" in the law is actually an indication of deeper

underlying discrimination-namely the denial of lesbians' existence by society and

governments-and merely makes discrimination more difficult to document

(Rosenbloom 1996: xiii-xiv). Accordingly, the invisibility of lesbians from human rights

documentation in Ecuador should not be mistaken for a lack of discrimination. Instead, it

may indicate underlying discrimination that needs to be further studied and addressed.

Overview of Human Rights Systems, Structures, and Laws

International human rights law is a body of international law that was "born

principally in the ashes of' the atrocities that occurred during World War II (Ratner and

Abrams 2001: 5). The post-war Nuremberg trials were effectively a "springboard for the

development of international human rights law, as much of the international community

came to conclude that a government's treatment of its citizens in peacetime was

appropriate for general international regulation" (Ratner and Abrams 2001: 7). While the

notion that "human beings are inherently entitled to certain fundamental rights and

freedoms has roots early in human thinking" (Carter and Trimble1999: 844), prior to that

time, states had almost absolute sovereignty over that which occurred within their

borders. Plainly, with only a few exceptions, human rights issues were within the

jurisdiction of individual states and were not regulated by international law (Ratner and

Abrams 2001: 4; Carter and Trimble 1999: 845). After World War II the status of human

beings slowly evolved from being objects to subjects of international law, prompting









states to "reaffirm people's faith in human rights and dignity of the human person"

(Nowak 2003: 23).

The human rights regime that emerged from World War II is both rich and complex

(Hernandez-Truyol 2002: 353). International human rights law, at its core, is based

around the concept that "every nation has an obligation to respect the human rights of its

citizens, and that other nations [i.e., states not individuals] and the international

community have a right, and responsibility, to protest if this obligation is not lived up to"

(Carter and Trimble 1999: 844). To implement this concept, a body of international

rules, procedures, and organizations was developed (Carter and Trimble 1999: 844). The

principal organization tasked with promoting human rights and fundamental freedoms

was the United Nations (UN), which was founded immediately after World War II

(Carter and Trimble 1999: 845). Since the inception of the UN, several regional systems

have taken up concern with human rights issues and have created regional human rights

systems which make nations accountable on a regional and international level (Carter and

Trimble 1999: 846). One such system, which is especially pertinent here, is the Inter-

American system, which was created by the Organization of American States (OAS), a

collective of 34 countries in North, Central, and South America.

In the UN, the founding document, the Charter of the United Nations (UN Charter),

"established general obligations requiring UN member states to respect human rights and

provided for the creation of a Human Rights Commission to protect and advance those

rights" (Carter and Trimble 1999: 845). Although the UN Charter has only scattered

references to human rights, it established the structure of the UN system and it "states the

UN's basic purpose of securing and maintaining peace" (Steiner and Alston 2000: 137).









It also put in place the Economic and Social Council (ECOSOC) to "set up commissions

in economic and social fields and for the promotion of human rights" (U.N. Charter: Art.

68). In 1946, ECOSOC established the Commission on Human Rights (UNCHR) "which

has evolved over decades to become the world's single most important human rights

organ" (Steiner and Alston 2000: 138). Thereafter, the UNCHR began drafting a bill of

rights for the UN system. There are three instruments that, together, compose what is

known as the International Bill of Rights: the Universal Declaration of Human Rights of

1948 (UNDR) and two principal covenants that entered into force in 1976, the

International Covenant on Civil and Political Rights (ICCPR) and the International

Covenant on Economic, Social and Cultural Rights (ICESCR) (Briceno 1998: 52).

The UNDR is a nonbinding instrument that covers both civil and political rights as

well as economic and social rights, and it was designed to "exert a moral and political

influence on states" (Steiner and Alston 2000: 138). The ICCPR and the ICESCR are

equally binding instruments, however the ICCPR receives more resources and "civil and

political rights have received the lion's share of attention by the international human

rights community" (Briceno 1998: 52). Additionally, the obligations of the ICCPR and

the ICESCR are quite different. The ICCPR calls for relatively quick compliance, but the

ICESCR allows for a gradual approach depending on a country's resources. Consistent

with the vision of the UN Charter, the UN has subsequently adopted additional human

rights treaties that expand upon the rights articulated in the founding documents. 14




14One such treaty is the Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW), which is a major treaty that was formed several decades after the ICCPR. CEDAW, which has
165 state parties, prohibits discrimination based on sex, and entitles women to the equal enjoyment of civil
and political rights as well as social, cultural, and economic rights (Briceno 1998: 52; CEDAW).









While the UN system is a universal system in that it "is based on treaties that aim at

worldwide membership," the Inter-American System is a regional system that is "based

on treaties whose membership is restricted to states" in the OAS (Steiner and Alston

2000: 136). Although the origins of the Inter-American System date back to 1889, the

basic constitution of the OAS, the Charter of the Organization of American States (the

OAS Charter), was not approved until 1948 at the ninth Inter-American Conference held

in Bogota, Colombia (1989: 210, 212; Steiner and Alston 2000: 868). "The OAS was

established [to]... strengthen[en] regional peace and security, promote] and

consolidate[e] representative democracy, ensure] the pacific settlement of disputes,

achieve] arms reduction, and promote] economic, social, and cultural development"

(Melish 2002: 8).

The OAS Charter, which is a legally binding instrument, sets forth the basic

structure of the OAS and it embodies general human rights obligations (Melish 2002:

8).15 The American Declaration of the Rights and Duties of Man (American Declaration)

is "considered the founding instrument of the Inter-American human rights system"

(Melish 2002: 9). Like the UNDR, the American Declaration is nonbinding, and its

purpose is the "international protection of the rights of man" (American Declaration:

preamble). Aiming to serve as "the principal guide of an evolving American law," it sets

forth a long list of rights that member states commit themselves to respect (American

Declaration: preamble). These include both civil and political rights as well as economic,

social and cultural rights (American Declaration: preamble).



15 The OAS Charter also includes a strict nonintervention clause which provides that "No State or group of
States has the right to intervene, directly or indirectly, for any reason whatsoever in the internal or external
affairs of any other States" (OAS Charter: Art. 18).









The other framework document, the American Convention on Human Rights

(American Convention), sets forth "protected rights" and it created the Inter-American

Court of Human Rights to hear cases referred to it by a lower judiciary body, the Inter-

American Commission (Melish 2002: 11). The American Convention is legally binding

on those states that ratify it.16 It is considered the "most important legal instrument for

vindicating rights through the Inter-American system" (Melish 2002: 10). At its core, it

requires state parties to "respect the rights and freedoms recognized [t]herein and to

ensure that all persons subject to their jurisdiction the free and full exercise of those

rights and freedoms, without any discrimination" (American Convention: Art. 1(1)). It

also sets forth protected rights, which are separated into civil and political rights and

economic, social, and cultural rights (American Convention: Chapters II and III).

Throughout the history of the Inter-American System, focus has been almost exclusively

on civil and political rights (Dulizky 2003: 18). Several additional protocols and treaties

have been enacted to clarify and expand existing rights and protections, including the

Additional Protocol to the American Convention on Human Rights in Matters of

Economic, Social and Cultural Rights (Protocol of San Salvador) which "aims to fill the

[economic, social, and cultural rights] gap in regional treaty law" (Melish 2002: 12).

In addition to multilateral treaties and declarations, human rights law, in both the

international and the regional systems, is derived from sources including customary

international law; international resolutions and recommendations; decisions and actions

of UN organs and other international bodies; and national laws, regulations, court

decisions and policy pronouncements (Carter and Trimble 1999: 846-849; See the Statute


16 Twenty four countries, including Ecuador, have ratified the American Convention.









of the International Court of Justice: Art. 38). While treaties "create legally binding

obligations for the nations that are parties" thereto, international declarations, resolutions,

and recommendations have only persuasive (non-binding) authority (Carter and Trimble

1999: 846-47). According to underlying principles of international law, countries are

bound only by those treaties and agreements to which they consent (Vienna Convention

on the Law of Treaties: preamble and Arts. 11-15).

Customary international law is also an important body of international human

rights law. It refers to "conduct [of states], or the conscious abstention from certain

conduct [by states]" which, over time, may dictate what actions or inactions are legally

permitted, prohibited, or obligatory (Steiner and Alston 2000: 69). Customary law results

both from the objective actions of states and the subjective evidence of their motivation

(Steiner and Alston 2000: 69, 70). Some scholars argue that the elements embodied in

treaties and declarations that have been ratified or adopted by a large number of UN

member States may be considered part of customary international law (Magnarella 1994:

4).

As the real subjects and beneficiaries of human rights law, individuals have some

ability to assert the rights granted to them under certain human rights instruments. Under

some human rights treaties, individuals or NGOs (in addition to member states) can bring

claims against a state directly before an international or regional judicial body (Carter and

Trimble 1999: 849). Actual enforcement of human rights laws depends largely upon the

consent and compliance of the nations involved (Carter and Trimble 1999: 849).

Oversight mechanisms to assist in enforcement have grown both within international

organizations and in non-governmental organizations (NGOs) (Ratner and Abrams 2001:









7). For instance, in the UN, there are seven human rights treaty bodies (committees that

are created by the treaty that they monitor) that are tasked with the duty to "monitor

implementation of the core international human rights treaties"-the ICCPR, the

ICESCR, the Torture Convention, the Convention on the Elimination of All Forms of

Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination

Against Women, Convention on the Rights of the Child, and the International Convention

on the Protection of the Rights of All Migrant Workers and Members of their Families

(UN 2005). The Inter-American Commission on Human Rights was created by treaty to

monitor states' compliance with human rights treaties in the OAS. A number of

international non-governmental organizations (NGOs) like Human Rights Watch and

Amnesty International investigate and prepare reports on human rights violations

throughout the world and distribute them to the UN Committees and the Inter-American

Commission on Human Rights (Magnarella 1994: 6).

Over the last two to three decades, the human rights regime has proven useful in

addressing human rights abuses in Latin America. In the 1980s, in the wake of

massiveie and systemic violations of human rights" throughout the "region as State

policy, including disappearances, extra-judicial executions, torture, forced exile, and

illegal and arbitrary arrests," human rights efforts were focused on "preserving the right

to life, physical freedom and integrity, the prohibition against torture, freedom of

expression or the minimum and most basic rules of due process" (Dulitzky 2003: 18). As

conditions have improved over the last twenty years, "some sectors of the human rights

movement have timidly begun to direct their attention towards the guarantee of

economic, social and cultural rights destined to achieve a more just, equitable, and









fraternal society" (Dulitzky 2003: 19). In March of 2004, Human Rights Watch reported

that "some of the most positive human rights initiatives have now come from Latin

America," citing Mexico's "efforts to safeguard human rights in the fight against

terrorism" and Brazil's creation and promotion of a "new resolution to tackle violence

and discrimination against people on the basis of their sexual orientation" (Mungoven

2004).

In addition to being a subfield of international law, human rights also is a subfield

of anthropology. According to Paul Magnarella, the role of anthropologists in human

rights is to use their knowledge, experience, theoretical skills, and practical research

abilities to further the causes of human rights and justice (1994: 7). Although admittedly

anthropologists can do little in the way of human rights on an individual basis, by

combining their efforts with lawyers, NGOs, humanists, and other social scientists, they

have the ability to "accomplish a great deal" by contributing to "further development of

human rights norms, international investigative procedures, fact-finding, the reporting

and publicizing of human rights abuses, and the formal filing of complaints before

judicial and quasi-judicial bodies" (Magnarella 1994: 7). Because anthropologists

oftentimes are in the unique position to document and report human rights issues among

the cultures they study, Magnarella concludes that they must not turn a blind eye to such

abuse (1994: 7).

The Universalism and Cultural Relativism Debate

Anthropologists have historically struggled with the appropriateness of altering,

influencing, or interfering with individual cultures. Central to anthropology is the notion

of cultural relativism, under which the primary practice of anthropologists is to "describe,

explain, and understand the alien culture, within the framework of one or another









theoretical perspective" (Steiner and Alston 2000: 368). From an anthropological stand

point, the principle of cultural relativism "means that [anthropologists] approach each

new culture with an open mind, on the presumption that it constitutes a potentially ethical

and humane design for living" (Magnarella 1994: 3). This age-old debate was

reinvigorated in the human rights context as some anthropologists have reconsidered their

role in light of the human rights movement.

Contrary to the traditional relativistic approach, some anthropologists have argued

that the traditional relativist presumption may be abandoned when thorough investigation

reveals, as it sometimes does, that "segments of the society seriously abuse the human

rights of others by torturing helpless people, murdering the innocent, denying due process

to the accused, depriving the weak of their property, and the like" (Magnarella 1994: 3).

In those cases, anthropologists must make the difficult ethical decision of whether getting

involved risks altering the authentic culture and is therefore inappropriate or whether

"there is a universal morality binding the fate of all people" (Magnarella 1994: 3).

Adopting the view of the latter, Magnarella argues that "everyone, anthropologists

included, shares an obligation to protect the weak and innocent from the unjustified and

immoral treatment of the powerful" (1994: 3).

Since the inception of the human rights movement, similar arguments have

emerged amongst legal scholars with regard to the application and implementation of

human rights law. Those adhering to cultural relativist philosophies argue that "the world

contains an impressive diversity in views about rights and wrong that is linked to the

diverse underlying cultures," (Steiner and Alston 2000: 367); and, in its strictest sense,

argue that human rights is essentially a Western imperialist tool that "imposes the vision









of a few on everyone all the time" (Hernandez-Tryol 2002: 357). This argument was

reflected in the early reactions of postcolonial states in the South to "the Western impetus

to universalize" human rights norms (2002: 356). Advocates of universalism argue that

certain human rights are universal "and must be the same everywhere" (Steiner and

Alston 2000: 367). The universalist philosophy is based on the notion that "all humans

are entitled to human rights because all people possess human dignity" (Magnarella 2002:

16). According to Magnarella, ideallyll, universalism combined with democracy means

that people everywhere are entitled to equal dignity-each person is inviolate, each is

entitled to enjoy certain rights and to be free from certain abuses" (Magnarella 2002: 18-

19). This debate is ongoing in the context of human rights, as legal scholars and

anthropologists consider the implementation and enforcement of various human rights

laws and norms.

Recognizing the validity of the concerns underlying both arguments, Hernandez-

Truyol offered an alternative view that is consistent with human rights standards. She

suggests that, while notions of universality should not be "used as a sword to eviscerate

traditional cultural practices," cultural practices and the power of tradition should not "be

accepted as a shield to protect so-called traditional cultural practices that create,

reinforce, and perpetuate the subordination, enslavement, or exclusion of individuals

within their particular cultures" (2002: 357). To effect this balance of protecting the

human rights of individuals while respecting diverse cultures, Hernandez-Tryol

proposed a human rights paradigm. At the heart of the human rights model is the

principle of personhood, which embraces the ideal of the indivisibility and

interdependence of the rights envisioned in the Universal Declaration, including civil and









political rights as well as social, economic, and cultural rights. She explained that these

basic principles ensure respect for the rights of individuals, and are integral in

"interpreting and translating within, between, and among cultures, by creating a context

that embraces the value of diverse peoples" and cultures (Hernandez-Truyol 2002: 357).

This paradigm can be used to protect "individuals from denial of personhood

simply because they take a differently charted path" or fail to conform to the majority

views in their culture (Hernandez-Truyol 2002: 366). Culture must be taken into

consideration, however, it is necessary to determine the viability of employing human

rights by considering both group and individual rights. This can be done under the

human rights paradigm by identifying and balancing the competing interests of the

human rights at issue against the "context of social, economic, political, and individual

circumstances" (2002: 366). The following questions can serve as a methodological

guideline: (1) what is the claim or right being asserted; (2) what circumstances gave rise

to the claim; (3) who is claiming the alleged breach-a cultural insider or outsider; (4)

who is violating the right at issue; (5) "what is the impact of enforcing the group norm as

compared to the impact of protecting the individual right"-"what is the level of

intrusion of the group norm on individual freedoms" and "what are the consequences of

erosion of the norm on the community" (Hernandez-Truyol 2002: 366-67). To be

effective, this approach must remain flexible and objectively consider both sides of the

issue at stake (2002: 367).















CHAPTER 3
STATEMENT OF THE PROBLEM

Overview of Human Rights Abuses of Sexual Minorities in Latin America

Today, sexual minorities throughout Latin America face widespread homophobia

and discrimination.17 They are subjected to abuse, persecution, and discrimination

ranging from economic and social exclusion to physical abuse, torture, and, in some

cases, death. In fact, in some places throughout the region, "social cleansing" is an ideal

that still exists and is acted upon (ICCHRLA 1996: 4; IGLHRC 2001: 7). For instance,

in Brazil, activists estimate that between 1980 and 2000, paramilitary groups and others

killed close to 2000 GLBT persons (ICCHRLA 1996: 4; IGLHRC 2001: 7). In some of

those cases, they were aided and abetted by police. Furthermore, arbitrary arrests and

detention, torture, and assassination of GLBT people is common (ICCHRLA 1996: 4).

Such cases have been documented in many countries throughout Latin America,

including Mexico, Colombia, and Argentina.

Although only one Latin American country-Nicaragua, explicitly prohibits

consensual same-sex sexual activities between consenting adults,18 police in other

countries often arrest and detain GLBT persons under vaguely worded laws that are



17As indicated herein, some Latin American countries have made significant strides with regard to rights
and protections for sexual minorities. In recent years, for instance, rapid progress has been made in Brazil,
Argentina, and Mexico in establishing rights of sexual minorities (Reding 2003: 19, 23, 55). While human
rights abuses have continued, such legal and political strides are significant and should not be overlooked.

18Nicaragua, Article 204 of Law No. 150 in the Law of Penal Code Reforms, explicitly prohibits
consensual same-sex sexual activities between consenting adults. Although the law is rarely enforced, it
criminalizes the most intimate aspects of same-sex relationships (IGLHRC 1996: 127).









arbitrarily enforced against sexual minorities. Once detained, GLBT persons are

oftentimes subjected to various forms of abuse, including physical violence, rape, and

extortion (Sarda 1998: 41; ICCHRLA 1996: 4; IGLHRC 1996: 3). In 2001, in a report to

the UN Special Rapporteur on Torture, the International Gay and Lesbian Human Rights

Commission reported that "torture is an extreme but widespread means for regulating

sexuality, and enforcing gender norms" (IGLHRC 2001: 2). Amnesty International

recently reported that, in Honduras, GLBT persons "have been subjected to grave human

rights violations for many years, including killings and discrimination in exercise of

their civil, political, social and economic rights" (AI 2003c: 1).

In the private sphere, sexual minorities in Latin America face other forms of

discrimination that prevent them from being equal participants in the workplace and at

school, from obtaining adequate healthcare, and from benefits equal to heterosexual

families. For example, in Argentina, Peru, Brazil, Mexico, and Nicaragua, sexual

minorities have reportedly been fired for admitting their homosexuality even where they

did so in an effort to obtain partner benefits (Chant and Craske 2003: 155; Sarda 1998:

41, 130). While some countries and provinces have recently enacted legislation

outlawing discrimination based on sexual orientation, in most Latin American countries

there are no laws prohibiting discrimination, and thus sexual minorities who are fired

from their jobs because of their sexual orientation have no legal recourse (IGLHRC 1996:

130). Even in places where anti-discrimination legislation exists, however, proving

discrimination solely on the basis of sexual orientation is difficult (as it is on other bases

such as race, sex, and ethnicity). Furthermore, under the current definition of family,

same-sex families are denied benefits and protections equal to those received by









heterosexual families. Significantly, in some provinces in countries such as Brazil and

Argentina some protections and familial rights recently have been enacted.19

Although the discrimination and abuse discussed above is widespread and is no

secret to authorities, in most countries throughout Latin America, little has been done to

protect GLBT persons. Moreover, many sexual minorities do not report human rights

violations for fear of further discrimination and retaliation. Even when abuse is reported,

however, reports oftentimes go undocumented or uninvestigated. Widespread societal

discrimination and impunity leave GLBT persons without protection, and, in many cases,

with no where to turn. For example, in Mexico, when a twenty-five year old lesbian told

her family that she was homosexual, they got extremely angry and her father beat her and

then sent three men to rape her. Her reports to authorities were not taken seriously and

she continues to live in fear (IGLHRC 1996: 115). In most countries, there are no

explicit legal protections for sexual minorities, and where such measures do exist, they

are rarely enforced. For instance, in Brazil, although progressive legal strides have been

made, human rights advocates report that at least one GLBT person is killed every five

days due to homophobia (Reding 2003: 25). In the absence of local and national

protections, or adequate enforcement thereof, sexual minorities throughout Latin

America, and elsewhere, are beginning to look to human rights law and regional and

international judicial bodies for protection.







19For example, in Brazil, the government granted same-sex couples "the right to inherit each other's
pension and social security benefits," (Rohter 2000), and in Buenas Aires, Argentina, same-sex couples can
enter into civil unions (Reding 2003: 19).









Case Study: Violence and Discrimination Against Sexual Minorities in Ecuador

Ecuador is the only country in the Western Hemisphere, and one of only three in

the entire world, whose constitution explicitly forbids discrimination based on sexual

orientation (Reding 2003: 36).20 Indeed, on November 25, 1997, Ecuador repealed its

anti-sodomy law, Article 516 of Ecuador's Criminal Code (AI 1998), after its

Constitutional Tribunal decided unanimously that the anti-sodomy law, which punished

consensual same-sex sexual relations with imprisonment, was unconstitutional. The

repeal came after Ecuadorian GLBT activists organized a national group, the Andean

Triangle, which gained enough signatures to challenge the law (Gonzalez 1997b;

Gonzalez 1997a; Wockner 1997). Their application for repeal of the law was

accompanied by a petition that contained 6,000 signatures in support of overturning the

law.

In June of the following year, then president Fabian Alarc6n Creek issued an

Executive Decree, the National Plan of Human Rights of Ecuador, Executive Decree No.

1527 (1998) (Plan Nacional de Derechos Humanos, Decreto Ejecutivo No. 1527), which

explicitly prohibits discrimination, violence, and persecution on the basis of sexual

orientation (Arts. 25 and 26; AI 2001b).21 Shortly thereafter, in August of 1998,

Ecuador's government reformed its Constitution, (AI 1998), at which time Article 23,

Section 3, an anti-discrimination provision that explicitly includes sexual orientation, was


20The Constitutions of South Africa and Fiji also include explicit prohibitions of sexual orientation-based
discrimination (Sanders 2003: 35-36). Significantly, "[a]n amendment to the constitution of Switzerland
bans discrimination on the basis of 'form of life,' a phrase intended to include sexual life" (2003: 36).

21 Articulo 25. Garantizar el derecho de las personas a no ser discriminadas en raz6n de su opci6n sexual,
creadndo a trav6s de leyes y reflamentos no discriminatorios, que faciliten las demands socials,
econ6micas, culturales de esas personas. Articulo 26. Velar porque los mecanismos y agents de seguridad
del Estado no ejecuten acciones de persecuci6n y hostigamiento a las personas por sus opciones sexuales
(translation provided by Kirsten Anderson).









included. Under that provision entitled Equality Before the Law, "All persons shall be

considered equal and shall enjoy the same rights, freedoms, and opportunities, without

discrimination due to birth, age, ethnicity, color, social origin, language, religion,

political affiliation, economic position, sexual orientation, health status, disability, or

difference of any other kind" (Art. 23, 3, Constituci6n Politica de la Reptublica del

Ecuador).22

Consistent with these inclusions of protection for GLBT persons, in July of 2002,

Ecuador joined with four other Andean nations-Venezuela, Peri, Colombia, and

Bolivia-to adopt a multilateral agreement called the Andean Charter for the Promotion

and Protection of Human Rights (Carta Andina para la Promoci6n y Protecci6n de los

Derechos Humanos) which included explicit protections for sexual minorities.

Specifically, it reaffirms the governments' commitment to combat all forms of

discrimination and intolerance, including that based on sexual orientation (Section II, Art.

10). The Andean Charter also contains a subsection entitled Rights of People With

Different Sexual Orientation (Derechos De Las Personas Con Diversa Orientacion

Sexual), in which the governments recognize that all people, regardless of their sexual

orientation or sexual option, are entitled to equal human rights (Art. 52), and they commit

to combat all forms of discrimination and violence against sexual minorities and to

provide remedial processes for such offenses (Art. 53).

Despite the impressive legal progress explained above, little has changed



22 La iguadad ante la ley. Todas personas serin consideradas iguales y gozarin de los mismos derechos,
libertades y oportunidades, sin discriminaci6n en raz6n de nacimiento, edad, sexo, etnia, color, origin
social, idioma, religion, filiaci6n political, posici6n econ6mica, orientaci6n sexual; estado de salud,
discapacidad, o diferencia de cualquier otra indole (translation provided by Andrew Reding) (Reding 2003:
36-37).









(Fundaci6n Ecuatoriana Equidad 2003: 12; Galecio 2003). As a recent report indicated,

"there is a serious gap between law and enforcement" when it comes to sexual minorities

(Reding 2003: 37; Fundaci6n Ecuatoriana Equidad 2003: 12). Since promulgation of the

antidiscrimination provision, human rights organizations have documented continued

human rights abuse including torture, police intimidation, attempted extrajudicial

executions, and arbitrary arrests (AI 2002a). Additionally, in the private sphere, GLBT

people face discrimination in school, at work, and at home (Galecio 2003). According to

one Ecuadorian gay rights advocate who is now working on human rights and social

justice issues in his native country through a U.S. based non-profit organization, the

constitution is not being followed or respected and human rights violations continue

(Galecio 2003). To be sure, he stated that "article 23 of the constitution has not been

applied as it should be because the government has not established concrete sanctions for

people who discriminate against [sexual minorities]" (Galecio 2003). In his experience,

such abuse, coupled with continued antipathy towards homosexuality, has encouraged

people to repress their sexuality or stay in the closet. While the lion's share of the reports

concern incidents in Quito and Guayaquil, a GLBT rights group, Quitogay, warns tourists

that outsideie Quito and Guayaquil the two largest cities, values are still intensely

conservative and there remains a general bias, even hostility, against gay people"

(Quitogay 2004). Thus, it is reasonable to infer that the human rights abuses and sexual

orientation-based discrimination is even greater in the cities, villages, and rural areas

outside Quito and Guayaquil.

Generally, in Ecuador, homosexualityiy continues to be considered a sin or an

illness, a crime, a social or ideological deviation or a betrayal of one's culture" (AI









2001a: 3; Gonzalez 1997b). In fact, some doctors in Ecuador continue to argue that

"homosexuality is a public health risk" (Gonzalez 1997b). "Whereas most human rights

violations are usually denied by governments, the repression that GLBT people face [in

Ecuador] is often justified in the name of culture, religion or public health" (AI 2001a: 3).

In 1997, The United States Department of State (USDOS) reported that "[a]s in most

Latin American countries, homosexuality is not generally practiced openly in Ecuador

because of cultural antipathy and social disapprobrium" (USDOS 1997: 4). It also

acknowledged that, although it found no evidence of an official police policy of

mistreatment of sexual minorities, homophobic attitudes may influence police behavior

and their treatment of GLBT people.

Despite the USDOS's conclusion that no official police policy exists with regard to

sexual minorities, in many cases of documented human rights abuse the Ecuadorian

police were responsible for the abuse. Reportedly, sexual minorities face arbitrary arrest

under a Penal Code provision that "sanctions 'those who publicly offend against modesty

by means of indecent acts or speech'" (Reding 2003: 37). In Guayaquil alone, human

rights organizations documented at least sixty arbitrary arrests of sexual minorities in

early 2001 (AI 2001b). Since then, reports of such arrests have continued. While

detained, several sexual minorities have been tortured, abused, and harassed by

Ecuadorian police (AI 2003a). "These abuses appear to reflect institutionalized prejudice

on the part of certain authorities and law enforcement officials" (AI 2002b: 3). Also,

police commonly extort money from sexual minorities by threatening to publicly reveal

their sexual orientation (Galecio 2003; AI 2002b: 2). The following are a few, of several,

specific examples of actual abuse reported to human rights organizations:









* At midnight on June 15, 2001, six members of the National Police approached
Henry Rodriguez Lozano, president of the Fundaci6n Ecuatoriana de Minorias
Sexuales (FEMIS), at an intersection in Guayaquil. After forcing him into a van
with "license plates indicating that the vehicle belonged to the Guayas Province
Police Administration," the officers informed Lozano that "he was being detained
because of his repeated filings of complaints against [the] police" for sexual
orientation-based abuse (Reding 2003: 38).

* In October of 2000, at around 3 a.m., National Police and Guayquil municipal
officers burst into a GLBT disco and detained the employee who was working in
the disco's ticket office. Once detained, police insulted him, beat him, and took
him to their police truck. Thereafter, the police returned to the disco and arrested
another el hombre gay who inquired into why the police were there. The second
man also was insulted for being un hombre gay and was physically beaten. Both
men were taken a few blocks from the disco and forced to lie face down in the
vehicle while police kicked one of them until his face bled. At police headquarters,
the man was forced to stand with his legs spread while police repeatedly hit him
with a broomstick. During the beating, police reportedly made homophobic
comments and threatened him with death if he reported the abuse. The following
day, both men were released without charges (AI 2001a: 4).

* In November of 2000, there were two separate reports made, one by a transvestite
and one by four los hombres gay who were detained by Guayaquil police and taken
to the 5 Junio Bridge, where officers attempted to extrajudicially execute them.
While the transvestite did not jump, the four los hombres gay were forced off the
bridge. Fortunately, all four could swim and they survived the fall into the water
below (AI 2001a).

Compounding such abuse of sexual minorities by police officers, police impunity is

a major problem throughout Ecuador. Such impunity, although particularly evident in

complaints by sexual minorities, is a problem that is not unique to issues concerning

GLBT people (AI 2005; AI 2004c; AI 2003b). In Ecuador, there are two kinds of police

forces: (1) National Police, which are under the authority of the Ministry of Government,

and (2) metropolitan police, which are employed by local governments in some

municipalities. Under Ecuador's Constitution, members of the National Police Force

who are accused of offenses committed during the exercise of their professional duties

are entitled to special jurisdiction under which they are tried in a police court rather than

in ordinary civilian courts (AI 2003b). Under the police court system, judges are chosen









from existing and retired police officers (AI 2003b). According to Amnesty

International, the use of police courts to try members of the police force for alleged

human rights violations facilitates and, in some cases, causes impunity (AI 2005; AI

2003b). Police officers who are tried in these courts for crimes such as torture and ill-

treatment usually are not punished (AI 2004a). Despite recent promises by authorities

that such cases would be heard in civil court, policeie courts continued to claim

jurisdiction over cases involving human rights violations" (AI 2005).

Additionally, sexual minorities in Ecuador face discrimination by private

individuals. For instance, in September of 2001, in Guayaquil, a el hombre gay reported

that he was "abducted by five hooded armed men whilst walking in the street" and was

forced into a van where he was beaten, forced to undress, and raped with a piece of a

cane (AI 2002b: 12). Thereafter, the men threatened to kill him if he reported the

incident to authorities and they indicated that he would not be the first person they killed.

Even in the face of this kind of blatant human rights abuse, however, Ecuadorean

police and government officials usually do not pursue or investigate reports of such

abuse. For example, in a recent incident in Quito, a la lesbian couple who lived

together were repeatedly physically abused, threatened with sexual and physical violence,

and harassed by two men who demanded that they leave the neighborhood (AI 2002b: 7-

8). Although they informed the Quito police and national authorities, nothing was done

to protect the women or to investigate the identity of the perpetrators. Even after the

Human Rights Ecumenical Committee wrote to the Minister of Interior informing him of

the incidents and asking for a proper investigation, nothing was done. According to

Amnesty International, although some government officials have "called for an end to









discrimination against the [GLBT] community, in particular to practices that lead to

grave human rights abuses, the authorities continued to ignore many of the complaints

they received" (AI 2003a).

GLBT human rights advocates and organizations have also faced human rights

abuses (AI 2002b: 4). Ecuador's first gay pride march was held on August 27, 1997 in

Quito, and marches have subsequently taken place in Cuenca and Guayaquil. However,

such events have not occurred without incident. For instance, on the evening of June 28,

2000, Guayaquil police tear-gassed approximately 300 people as they attempted to

peacefully march in the city's first Lesbian and Gay pride March, effectively preventing

them from marching (Simo 2000; AI 2001b). Under scrutiny for violating the anti-

discrimination provision in the Constitution, the police chief subsequently publicly

"denounced local transgender sex workers as dangerous AIDS carriers" and made several

arrests thereof. Many of those arrested were coerced or forced into taking a HIV test as a

condition of release; then, the police chief used positive HIV results of seven of the

arrestees to justify his tear-gassing of the Pride March participants. Nothing was done to

contest the police chief s actions.

Similarly, the next year in June of 2001, GLBT organizations requested permission

to hold a Pride March in Guayaquil and their requests were initially denied (AI 2002b: 4).

Just two hours before the parade was to begin, police granted the request, giving the

organization inadequate time to publicize the event. Later that year, another group made

a similar request and the Mayor of Guayaquil denied it, stating that "it would obstruct

traffic" (AI 2002b: 4). These police and governmental practices make organizers' goals

of awareness and visibility of the GLBT movement difficult at best.









Finally, further impeding the effectiveness of the movement, GLBT rights

defenders and organizations have received multiple death threats. In early 2001, a Quito-

based human rights group that advocated for GLBT rights received threats to its members

and to the local GLBT community (AI 2001a: 7-8; AI 2001b). "The message called

[GLBT] people mentally disturbed, queers and human rubbish" and threatened country-

wide social cleansing of sexual minorities (AI 2001c). Due to widespread violence and

police impunity, Amnesty International concluded that such reports might be carried out

and that GLBT people in Ecuador might be in grave danger. The next month, another

GLBT organization reported receiving email threats, which likened Quito and Guayaquil

to Sodom and Gommorah in the Christian Bible and threatened to kill GLBT people in

Ecuador (AI 2001c). By May of 2001, many of Ecuador's GLBT rights organizations

had received similar telephone or email death threats. Collectively, a number of human

rights organizations in Ecuador presented authorities with a letter, informing them of the

threats and requesting that action be taken. There is no evidence that any action was

taken by authorities (AI 2001a: 9).

















CHAPTER 4
ANALYSIS

The Use of Human Rights Law to Address Sexual Orientation-Based Discrimination
and Violence Against Sexual Minorities in Ecuador

The use of human rights law to address sexual orientation related issues is a

relatively new phenomenon; however, its use has proven viable in the international realm

through developing case law and interpretations of existing human rights treaties. As a

member of the UN and Inter-American systems, Ecuador is subject to such laws. Thus, it

could be useful in addressing discrimination and abuse of GLBT people in Ecuador.

Similar national human rights laws in Ecuador could provide additional protections.

International Human Rights Law in the UN System

None of the UN human rights instruments explicitly mention "sexual orientation"

or "gender identity"; however, significant strides have been made in the UN system to

establish equality under the law for sexual minorities. As will be shown, lesbians and

gay men have gained recognition in human rights law through the invocation of

provisions of human rights documents pertaining to personal privacy and equality and by

some UN participants and officials who recognized GLBT persons as a minority group

entitled to protections. Such legal precedents and formal recognition in the UN help

support a legal basis for human rights claims by sexual minorities against Ecuador.

In the UN Human Rights system, recognition of equal rights of sexual minorities

has occurred on various levels. GLBT persons gained some recognition in human rights









law through the invocation of provisions of the ICCPR concerning personal privacy and

equality. In 1994, the UN Committee on Human Rights, the UN "treaty body" charged

with monitoring state compliance with the ICCPR, determined that the protections

against discrimination embodied in the ICCPR should be understood to include sexual

orientation as a protected status (Sanders 2003: 16, 20; Toonen v. Austrailia, [1994]23)

In Toonen, a gay male citizen of Tasmania, challenged a criminal law prohibiting

consensual same-sex sexual activities between men, arguing that it violated his privacy

and equality rights. Following similar cases in the European Court of Human Rights, the

Committee held that the law violated Mr. Toonen's right to privacy under paragraph 1 of

Article 17 of the ICCPR, which states that "[n]o one shall be subjected to arbitrary or

unlawful interference with his privacy, family, home or correspondence" (Toonen v.

Austrailia, para. 8.6; ICCPR Art. 17). Briefly dealing with the issue of equality, the

Committee held that sexual orientation falls within the ICCPR's reference to "sex" in its

equal protection provisions in Article 2, paragraph 1 and Article 26 (Toonen v. Australia,

para. 8.7; ICCPR Art. 2, 26). Both Articles contain an anti-discrimination provision that

extends equal protection to all individuals "without distinction of any kind such as race,

colour, sex, language, religion, political or other opinion, national or social origin,

property, birth or other status" (ICCPR: Arts. 2 and 26). Although the parties argued that

sexual orientation fell within the references to "other status" within those articles, the

Committee limited its finding to its interpretation that "sex" included "sexual orientation"

(Sanders 2003: 21). This interpretation has been heavily debated and has yet to be

retested before the Committee (Sanders 2003: 22). Nonetheless, Toonen clearly laid an


23 CCPR/C/50/D/488/1992, views of 31 March 1994.









important foundation for the recognition of equal rights based on sexual orientation, as

the Committee's interpretation of the ICCPR in Toonen will guide it in future decisions

when it considers the same or similar issues.24 The "other status" language also remains

open to be interpreted as including sexual orientation.

Since Toonen, GLBT persons have gained additional recognition by UN

participants and officials, who have exhibited an increased interest in issues concerning

sexual orientation. Indeed, in 1998, the High Commissioner for Human Rights, a

position created pursuant to recommendations in the 1993 Vienna World Conference, met

with GLBT leaders and expressed an interest in "receiving information on human rights

violations against lesbians and gay men" (Sanders 2003: 24). In 2001, the High

Commissioner for Human Rights announced that "six Special Rapporteurs of the UN

Commission on Human Rights 'were interested in receiving information on sexual

minority issues falling within their respective mandates,'" which included extrajudicial,

summary, or arbitrary executions, violence against women, torture, the independence of

judges and lawyers, freedom of expression, and human rights defenders (Sanders 2003:

25). Several of the special reports included violations based on sexual orientation. For

instance, the Special Rapporteur on torture reported to the UN General Assembly that

"'members of sexual minorities are disproportionately subject to torture and other forms

of ill-treatment, because they fail to conform to socially constructed gender

expectations'" (HRW 2004a). Then, in 2003, "the Commission's resolution on

extrajudicial, summary, or arbitrary executions (Resolution 2003/53) called upon 'States

24 "Being decisions on individual complaints, this case law is a very important guide to the specific
meaning in concrete circumstances of what the Covenant requires, and is thus a valuable point of reference
for courts and decision-makers in all State parties when considering the same or similar issues" (UN
2005a).









concerned to investigate promptly and thoroughly ... all killings committed for any

discriminatory reason, including sexual orientation'" (HRW 2004a). More recently, the

"2004 report of the Special Rapporteur on the right to health notes that 'discrimination on

the grounds of sexual orientation is impermissible in international law"' (HRW 2004b).

These measures are evidence of the UN's concern for, and recognition of, the rights of

GLBT persons.

UN member states also recently made efforts to get the United Nations

Commission on Human Rights (UNCHR)25 to formally include sexual orientation as a

protected class under international human right law. At the 59th Session of the UNCHR,

which took place in 2003, the Brazilian government proposed a resolution on "Human

Rights and Sexual Orientation" which claims that "sexual diversity is an integral part of

Universal Human Rights as reflected in the Universal Declaration of Human Rights"

(ILGA 2004b; AI 2003c: 1). In so doing, Brazil affirmed the impermissibility of

discrimination based on sexual orientation as a fundamental principle of human rights

law and expressed "deep concern at the occurrence of violations of human rights all over

the world against persons on the grounds of their sexual orientation" (ILGA 2004b).

Brazil's resolution "did not attempt to create a new body of rights, but sought to reaffirm

existing non-discrimination principles established under international human rights law"

(AI 2004d). The resolution was publicly endorsed by human rights organizations and




25 The UNCHR was established in 1946. "It currently consists of 53 member governments elected for
three-year terms by ECOSOC. It meets annually for six weeks in Geneva from mid-March to late April"
and for emergency sessions (Steiner and Alston 2000: 600). To "promote geographical and political
balance," a system of regional groupings has been established, including "Asia, Africa, Eastern Europe,
Latin America, and Western Europe and others-the last category include[es] Canada, Australia, New
Zealand, and, in practice, the United States (Steiner and Alston 2000: 600).









advocates including, Human Rights Watch, Amnesty International, and the International

Lesbian and Gay Association (ILGA) (HRW 2004a; IA 2004d; ILGA 2004a).

Consistent with previous efforts to explicitly include sexual orientation within the

UN's human rights protections, the issue proved extremely controversial (Lynch 2004:

A15). As such, the UNCHR decided by a narrow vote to postpone consideration of the

proposal until its next session, which began in March of 2004 (ILGA 2004b). Due to

intense pressures from the Vatican and its alliance with the Islamic Conference of States

(Lynch 2004: A15), however, Brazil announced during the 60th Session that it decided to

keep the resolution under consultation and requested postponement of consideration of

the resolution (ILGA 2004d; ILGA 2004c). The resolution has been tabled since that

time, and it was not considered during the 61st Session in 2005. Nevertheless, the

possibility remains that official recognition of lesbian and gay rights as human rights will

soon be realized within the UN system. If official recognition is obtained, GLBT persons

in Ecuador and throughout the world would enjoy greater latitude upon which to

challenge sexual orientation-based discrimination, violence, and persecution.

In light of Toonen and recognition of GLBT persons' rights within the UN, sexual

minorities in Ecuador have a promising basis upon which to challenge human rights

violations. Specifically, the Ecuadorian police violate the anti-discrimination provisions

in the ICCPR by using laws and regulations to target GLBT persons and by arbitrarily

arresting and detaining them.26 Indeed, when such laws are applied to single out GLBT

persons to punish them for, or prevent them from, being a member of a particular social

class, they violate the equal protection guarantees of Articles 2 and 26 of the ICCPR as


26 Ecuador is a party to the ICCPR (See the UN web site at Ihp "\ \ \ .untreaty.un.org).









interpreted by the Committee in Toonen (Toonen v. Australia, [1994], interpreting the

category "sex" in the equal protection provisions in Articles 2 and 26 of the ICCPR to

include sexual orientation).

GLBT people are also entitled to equal protection and treatment in accordance with

the UDHR. Although there is no explicit mention of sexual orientation or gender

identity, the UDHR states that all members of the human family have equal and

inalienable rights, and that all are entitled to the rights and freedoms contained within the

declaration "without distinction of any kind, such as race, colour, sex, language, religion,

political or other opinion, national or social origin, property, birth or other status"

(UDHR: Art. 2). While the UDHR does not have binding authority in international law,

some argue that it "remains the most widely recognized statement of the rights to which

every person on the planet is entitled," (Briceno 1998: 49), and it provides the foundation

upon which all other human rights documents are based. As such, its utility as an

instructional and persuasive human rights document cannot be ignored. Moreover, some

scholars and human rights advocates argue that the Universal Declaration is customary

international law. It establishes that human rights are inalienable and universal and it

reinforces that GLBT persons are entitled to equal rights and protections under the law.

Other human rights instruments can be used to provide additional protections to

sexual minorities in Ecuador. The ICCPR contains explicit protections to which sexual

minorities, like all other Ecuadorian citizens, are entitled. Specifically, police actions,

including arbitrary arrest and detention, physical and sexual abuse, attempted

extrajudicial executions, and torture can be challenged under provisions in the ICCPR.

Those protections include the right to self-determination (Art. 1), the right to life (Art. 6),









the freedom from torture and other cruel, inhuman or degrading treatment (Art. 7), and

the rights to liberty and security of person and due process of law (Art. 9). Torture-pain

and suffering inflicted upon a person by an official state actor due to discrimination-is

also prohibited by the Convention Against Torture and Other Cruel, Inhuman, or

Degrading Treatment or Punishment (Torture Convention) (Art. 1).27 Murder, torture,

and prolonged arbitrary detention also violate customary international law if the

Ecuadorian government or its official actors, as a matter of policy, practices, encourages,

or condones such behavior (Steiner and Alston 2000: 233). Here, the evidence

demonstrates that this is the case.

Moreover, impunity and refusal of the National Police to investigate the violations

of human rights of sexual minorities, as well as the government's reluctance to address

such issues within the police department, also likely amounts to a violation of customary

international law. The failure of police officers and government officials to pursue and

investigate violations against GLBT persons at the hands of private individuals, can also

be challenged as a violation of Article 2(3) of the ICCPR, which obligates governments

to ensure "that any person whose rights or freedoms as herein recognized are violated

shall have an effective remedy" (ICCPR Art. 2).

Human rights organizations and defenders are also entitled to protection under

international human rights laws. First, under the ICCPR, individuals are entitled to

freedom of association (Art. 22). As such, police raids of GLBT bars and successful

attempts by police to keep GLBT persons from participating in organized marches

violates their clearly defined right to peaceful assembly. Additionally, the United


27 Ecuador is a party to the Torture Convention (See the UN web site at http://www.untreaty.un.org).









Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs

of Society to Promote and Protect Universally Recognized Human Rights and

Fundamental Freedoms calls on member states to protect defenders of human rights.

Consistent with its obligation under those human rights treaties, Ecuadorian officials

should take the death threats received by GLBT organizations seriously, and actively

investigate such claims.

Finally, GLBT persons in Ecuador are entitled to the right to attend school and

work without discrimination based on their sexual orientation. Such rights fall under

economic, social, and cultural rights, which are receiving increased recognition under

human rights law. Under the ICESCR, all people are guaranteed the right to work (Art.

6) and to have access to an education (Art. 13) (ICESCR; Rosenbloom 1996: xiii).28

Accordingly, these provisions can be used to protect GLBT persons from being

arbitrarily fired from their jobs and from being harassed at work and at school. Although

human rights claims can only be brought against the state, those states that fail to provide

protections ensured within the treaty may be indirectly accountable by virtue of their

failure to address widespread abuse that is brought to their attention. While such

protections are more ambitious than pursuing protections of civil and political rights,

Ecuador is a party to the ICESCR and is therefore bound by its provisions.

Within the UN human rights system, there are mechanisms in place to allow GLBT

individuals or other states to file complaints (also called communications) before quasi-

judicial bodies against Ecuador for the human rights violations described above.29 In the


28 Ecuador is a party to the ICESCR (See the UN web site at http://www.untreaty.un.org).

29 Each of these mechanisms requires that individuals exhaust domestic remedies before bringing a claim
(UN 2005b).









case of Ecuador, a complaint alleging violations of the ICCPR could be filed with the

Committee on Human Rights,30 and a complaint alleging violations of the Torture

Convention could be filed with the Committee Against Torture.31 If complaints were

filed, each Committee would consider the complaint in accordance with its procedure,

and it would issue an opinion accordingly (UN 2005b). These Committees also monitor

human rights violations through a reporting process and it is generally useful for

individuals and NGOs to inform the UN about violations (UN 2005b). The Committee

on Economic, Social, and Cultural Rights monitors implementation of the ICESCR

through a reporting process, but it does not currently accept individual complaints.32

Individuals and states can also file complaints with the Commission on Human Rights

against Ecuador for gross and systemic human rights violations under a process known as

the "1503 procedure" (UN 2005b). Under these procedures and mechanisms, GLBT

persons may be able to hold Ecuador accountable to its obligations under UN treaties for

individual and systemic violations against sexual minorities in Ecuador.

Regional Human Rights Law: The Inter-American System

Regional human rights instruments within the Inter-American system can be used

in similar ways to address discrimination against GLBT persons in Ecuador. The law

concerning sexual minorities is largely undeveloped in the Inter-American system;

30 Ecuador is a party to the ICCPR and the First Optional Protocol to the Convenant on Civil and Political
Rights, and is therefore subject to the jurisdiction of the Committee on Human Rights (See the UN web site
at http://www.ohchr.org/english/countries/rtification/5.htm).

31 Ecuador is a party to the Torture Convention and Ecuador made a declaration to the Convention,
recognizing the Committee Against Torture's competence and jurisdiction under Art. 22 (See the UN
website at ht p \ \ "\ .ohchr.org/english/countries/ratification/9.htm#reservations).

32 The Committee on Economic, Social, and Cultural Rights is currently considering a draft Optional
Protocol that would give it the power to accept individual complaints (See the UN website at
htp %\ \ \ .ohchr.org/english/bodies/CESCR/index.htm). Thus, GLBT individuals may eventually be able
to submit human rights complaints for violations of the ICESCR.









however, the provisions in its primary documents are very similar to those in the UN

human rights documents, and they can be used in the same ways within the Inter-

American system (Steiner and Alston 2000: 869). Although the UN human rights

instruments are not binding within the Inter-American system, cases from the Committee

can be used as persuasive authority where provisions of the UN and the Inter-American

human rights treaties are the same.33

Like the UN human rights documents, there are no explicit references to sexual

orientation in any of the human rights instruments in the Inter-American system.

However, the American Declaration, which is similar to the UDHR in terms of rights,

(Steiner and Alston 2000: 869), states that "[a]ll persons are equal before the law and

have the rights and duties established in this Declaration, without distinction as to race,

sex, language, creed, or any other factor" (American Declaration Art. 2). The American

Convention on Human Rights also guarantees equal treatment of all persons before the

law (Art. 24), and it states that state parties must ensure every human being within its

jurisdiction "the free and full exercise of [the rights and freedoms recognized therein],

without any discrimination for reasons of race, color, sex, language, religion, political or

other opinion, national or social origin, economic status, birth, or any other social

condition" (Art. 1). In accordance with the UN Committee on Human Rights'

interpretation in Toonen, the language "sex" arguably includes sexual orientation. One

could also argue that the language "any other factor" in Article 2 of the American



33 According to Art. 27 of the Rules of Procedure for the Inter-American Commission on Human Rights,
"The Commission shall consider petitions regarding alleged violations of the human rights enshrined in the
American Convention on Human Rights and other applicable instruments, with respect to the Member
States of the OAS, only when the petitions fulfill the requirements set forth in those instruments, in the
Statute, and in these Rules of Procedure" (IACHR Rules of Procedure 2002: Art. 27).









Declaration or "any other social condition" in Article 1 of the American Convention

includes sexual orientation. GLBT persons could challenge unequal treatment or

discrimination by state actors within Ecuador on either ground.

Other provisions of the American Convention can be used to protect the civil and

political rights of sexual minorities in Ecuador. Indeed, the American Convention

ensures civil and political rights (Ch. 2) including freedom from torture or other cruel,

inhuman, or degrading punishment or treatment (Art. 5); personal liberty and security,

including freedom from arbitrary arrest and imprisonment (Art. 7); the right to due

process (Art. 8); and the right to dignity (Art. 11). These provisions can be used to

address the widespread violence against sexual minorities as well as discrimination and

torture that they face at the hands of police and other state actors. Arbitrary arrests,

physical and sexual abuse, and harassment by police officers are also unlawful under the

above listed human rights provisions. Additionally, international customary law

prohibitions of torture, murder, and prolonged arbitrary detention can be invoked to

protect GLBT people (Steiner and Alston 2000: 233).

Furthermore, GLBT organizations are entitled to freedom of thought and

expression (Art. 13), the right to assemble peacefully (Art. 15), and the right to free

association (Art. 16) under the American Convention. Police interference with marches

and other GLBT events is clearly a violation of those guarantees.

Human rights defenders should be afforded protection in accordance with the OAS

General Assembly's adoption of a resolution stating its intention to implement the UN

Declaration on the Right and Responsibility of Individuals, Groups and Organs of

Society to Promote and Protect Universally Recognized Human Rights and Fundamental









Freedoms (AI 2001d). "The resolution called on member states to provide 'human

Rights Defenders with the necessary guarantees and facilities to continue freely carrying

out their work of promoting and protecting human rights'" and to adopt necessary

measures to ensure their safety (AI 2001d). Accordingly, Ecuador, as a member of the

OAS, should abide by the resolution and provide necessary protection to human rights

defenders working on GLBT issues.

GLBT people may also have additional human rights protections of their economic,

social, and cultural rights. The American Declaration, the American Convention, and the

Protocol of San Salvador34 provide protections of such rights (American Declaration;

American Convention Ch. 3, Art. 26; Protocol of San Salvador; Steiner and Alston 2000:

870). The Protocol of San Salvador provides for the right to work (Art. 6) in just,

equitable and satisfactory conditions (Art. 7), and the right to education (Art. 13).

Similarly, the American Declaration states that all people are entitled to the right to work

(Art. 14) and the right to education (Art. 12). The American Convention also provides a

brief, general recognition of such rights (American Convention Ch. 3, Art. 26). These

provisions can be used to address the discrimination that GLBT persons face in the

private sector, if it can be proven that the Ecuadorian government is complicit or has

intentionally failed to protect and uphold such rights. Because this argument is more

attenuated and depends on the state's knowledge of the actions of nonstate actors and its

ability to adopt or enact measures to provide such protections (American Convention Art.

1), it is less likely to be successful.



34 Ecuador is a party to the Protocol of San Salvador (See the OAS website at
Ihp "\ \ \ .oas.org/juridico/english/Sigs/a-52.html).









Under the Inter-American structure, claims can be brought either by individual

parties or by states before the Inter-American Human Rights Commission, which is an

adjudicatory body tasked with promoting and protecting human rights within the OAS

(American Convention Arts. 44 through 51).35 Once the adjudicatory proceedings are

complete, the Commission issues a report (OAS 2005). If human rights violations are

found, the Commission provides recommendations and would give Ecuador a period of

time to correct the violations. The Commission can also independently investigate the

existence of the human rights violations that GLBT persons face in Ecuador. If it found

human rights violations, it could issue an advisory opinion instructing the Ecuadorian

government to comply with human rights law (American Convention Art. 41; Stein and

Alston 2000: 873). Under either procedure, if the government of Ecuador did not

comply, the Commission could issue a second report or it could send the case to the Inter-

American Court of Human Rights for review (OAS 2005).

Although a few cases concerning sexual orientation have been brought before the

Inter-American Commission on Human Rights, it has yet to reach a decision on any of

them. In each of the cases, the parties were able to reach amicable settlements with the

government at issue before the Commission reached a decision. Nevertheless, parties

have been able to use human rights law and the petition process to achieve favorable

outcomes in their cases, (Sanders 2003: 31)-evidence that human rights law is already

being used to protect GLBT citizens and an indication that some Latin American




35 Before submitting a complaint, individuals must exhaust their domestic remedies, unless the individual
showed that "the victim tried to exhaust domestic remedies but failed because: 1) those remedies do not
provide for adequate due process; 2) effective access to those remedies was denied, or; 3) there has been
undue delay in the decision on those remedies." (OAS 2005).










governments recognize their obligation under human rights law to respect the rights of

sexual minorities.

Human Rights Protections in an Andean Regional Agreement and in Ecuadorian
National Law

Human rights protections for Ecuadorian citizens also exist under Andean regional

and national human rights law. Unlike international and Inter-American human rights

instruments, these three instruments-Ecuador's National Plan of Human Rights

Executive Decree No. 1527 (1998), its Constitution (1998), and the Andean Charter

(2002) (a multi-lateral agreement it entered into with four other countries in the Andean

Region)-explicitly recognize sexual minorities as a protected class and afford

protections based on sexual orientation. Thus, GLBT persons in Ecuador can bring

human rights claims in local courts and tribunals.

The Human Rights Plan explicitly prohibits discrimination, violence, and

persecution on the basis of sexual orientation (Human Rights Plan: Arts. 25 and 26).36

The Constitution contains an equal protection provision that prohibits discrimination

based on sexual orientation (Constitution: Art. 23(3)).37 In the Andean Charter, Ecuador

reaffirmed its decision to combat all forms of discrimination and intolerance, including

that based on sexual orientation (Andean Charter: Section II, Art. 10).38 It also


36 Articulo 25. Garantizar el derecho de las personas a no ser discriminadas en raz6n de su opci6n sexual,
creadndo a trav6s de leyes y reflamentos no discriminatorios, que faciliten las demands socials,
econ6micas, culturales de esas personas. Articulo 26. Velar porque los mecanismos y agents de seguridad
del Estado no ejecuten acciones de persecuci6n y hostigamiento a las personas por sus opciones sexuales
(translation provided by Kirsten Anderson).

7 La igualdad ante la ley. Todas personas sernn consideradas iguales y gozarin de los mismos derechos,
libertades y oportunidades, sin discriminaci6n en raz6n de nacimiento, edad, sexo, etnia, color, origin
social, idioma; religion, filiaci6n political, posici6n econ6mica, orientaci6n sexual; estado de salud,
discapacidad, o diferencia de cualquier otra indole (translation provided by Kirsten Anderson).

38 Articulo 10. Reafirman su decision de combater toda forma de racism, discrimination, xenophobia y
cualquier forma de intolerancia o de exclusion en contra de individuos o colectividades por rezones de raza,









recognized that all people, regardless of their sexual orientation, are entitled to equal

human rights (Andean Charter: Art. 52), and it agreed to combat all forms of

discrimination and violence against sexual minorities and to provide remedial processes

for such offenses (Andean Charter: Art. 53).39 Under these provisions, GLBT persons can

challenge violence, harassment, and intimidation by Ecuadorian police, as well as the

impunity that most reports of such human rights violations receive, in domestic courts.

Complaints against the government of Ecuador can also be brought in domestic courts

under the Andean Charter for its failure to combat widespread discrimination or to create

a remedial process for such offenses.

In addition to the protections described above, these local human rights instruments

also incorporated international and regional human rights law into national law.

Specifically, the Human Rights Plan recognizes the universality, indivisibility, and

interdependence of all human rights and the government of Ecuador committed to

adopting, upholding, and enforcing international, regional, and subregional human rights

law (Human Rights Plan: Preamble, para. 5; Art. 35). The government also agreed to

observe and comply with the decisions of the different international bodies for the

protection of human rights (Human Rights Plan: Art. 35(3)).

Furthermore, the government incorporated international and regional law into its



color, sexo, edad, idioma, religion, opinion political, nacionalidad, orientaci6n sexual, condici6n migratoria
y por cualquier otra condici6n; y, decide promover legislaciones nacionales que penalicen la
discriminaci6n racial (translation provided by Kirsten Anderson).

39 Articulo 52. Reconocen que las personas, cualesquiera sean su oreintaci6n u opci6n sexuales, tienen
iguales derechos humans que todas las demas. Articulo 53. Combatirin toda forma de discriminaci6n a
individuos por motives de su orientaci6n u opci6n sexuales, con arreglo a las legislaciones nacionales y,
para ello, prestarin especial atenci6n a la prevenci6n y sanction de la violencia y discriminaci6n contra las
personas con diverse orientaci6n y opci6n sexual, y la garatina de recursos legales para una efectiva
reparaci6n u opci6n dafios y perjuicios derivados de tales delitos (translation provide by Kirsten Anderson).









constitution, which guarantees to all inhabitants without discrimination, the free and

effective exercise and enjoyment of the human rights established therein and in the

declarations, pacts, treaties, and international instruments that are enforced (Constitution:

Art. 17). It also states that all rights enumerated therein will be directly applicable before

any judge, court, or authority, and it directs the government to adopt, through plans and

programs, means for the effective enjoyment of these rights (Constitution: Art. 18).

The Andean Charter affirmed that all human rights and fundamental liberties are

universal, indivisible, interdependent, and interrelated (Andean Charter: Art. 3), and it

incorporated and committed to applying international, regional, and Andean sub-regional

human rights instruments (Andean Charter: Preamble). Ecuador and the other Andean

signatories also pledged to defend the principles in the UDHR and the American

Declaration (Andean Charter: Preamble para. 6). The parties agreed to adopt all of the

legal and administrative means necessary to prevent and investigate the acts that could

constitute violations of human rights and to assure the efficacy of the constitutional and

judicial recourses to judge and sanction those responsible for violations (Andean Charter:

Art. 2). In light of Ecuador's adoption of these human rights instruments, GLBT persons

could bring claims in national tribunals and courts, challenging the government's failure

to adhere to national law as well as its international, regional, and subregional human

rights obligations.

Should Human Rights Law Be Used to Address Sexual Orientation-Based
Discrimination in Ecuador? The Universalist/Cultural Relativist Debate

While, as suggested above, human rights instruments can be used to address

discrimination against GLBT persons in Ecuador, it is necessary to determine whether

such instruments should be used in light of the strongly held religious and cultural beliefs









concerning homosexualidad (homosexuality) that underlie Latin American society. In

other words, in light of widespread homophobia and antipathy towards homosexualidad

in Ecuador, is the use of human rights law appropriate or does it amount to cultural and

moral imperialism?

These questions get at the heart of the cultural relativist and universalist debate

among human rights advocates. Universalists argue that certain human rights such as

"the rights to equal protection, physical security, free speech, freedom of religion, and

free association" are universal and thus "must be the same everywhere" (Steiner and

Alston 2000: 366-67). Following in the tradition of John Locke and the UDHR, they

"maintain that universal human rights are based on the inherent dignity of human kind"

(Magnarella 2002: 16). In this context, GLBT individuals facing discrimination,

persecution, and violence at the hands of Ecuadorian officials argue that they are entitled

to basic fundamental human rights such as equal protection and due process, regardless of

their sexual orientation (Fundaci6n Ecuatoriana Equidad 2002).

Cultural relativists, on the other hand, argue that "the world contains an impressive

diversity in views about right and wrong that is linked to the diverse underlying

cultures"40 (Steiner and Alston 2000: 367). In its strictest sense, relativists argue that

human rights law is essentially a Western imperialist tool that "imposes the vision of a

few on everyone" (Hernandez-Truyol 2002: 357). In considering the issues discussed

herein, many Ecuadorians raise traditional cultural and religious norms which reject

homosexualidad, and argue that, by extending human rights protections to GLBT




40 The term "culture" oftentimes is interpreted by relativists to include "political and religious ideologies
and institutional structures" (Steiner and Alston 2000: 367).









individuals, Western political will and culture is being imposed on Ecuador. 41

Recognizing the validity of the concerns underlying both universalist and relativist

arguments, Hernandez-Truyol offers an alternative view, suggesting a methodology

under which cultural practices and traditions are respected, but are not allowed to "create,

reinforce, and perpetuate the subordination, enslavement, or exclusion of individuals

within their particular cultures" (Hernmndez-Truyol 2002: 357). Where, as here, a

minority group (GLBT individuals) is dissenting within the majority culture (traditional

Ecuadorian cultural), the "human rights paradigm" effectively balances competing

perspectives to determine the extent to which human rights should be applied and

enforced (Hernandez-Truyol 2002: 366). Noting that this approach must remain flexible

and objective, the following considerations serve as a methodological guideline for this

analysis: (1) the claim or right being asserted; (2) the circumstances that gave rise to the

claim; (3) the person or group that is claiming the alleged breach-a cultural insider or

outsider; (4) the person, group, or entity that is violating the rights) at issue; (5) the

"impact of enforcing the group norm as compared to the impact of protecting the

individual right"- (e.g. "the level of intrusion of the group norm on individual

freedoms" and "the consequences of erosion of the norm on the community" (Hernandez-

Truyol 2002: 366-67). Each of these considerations is addressed below.

Here, the competing rights or interests at stake are the human rights of GLBT

Ecuadorians to be free from discrimination, violence, and persecution on the one hand

and the traditional religious and cultural norms in Ecuador concerning appropriate


41 Western European and Canadian countries afford the greatest protections and rights to GLBT persons.
The United States also provides sexual minorities protections (and in some states rights), however such
provisions recently have come under fire by conservative political and religious groups.









sexuality and gender on the other. Specifically, GLBT individuals within Ecuador argue

that, as members of the human race, they are entitled to the protection of their most basic

human rights. Notwithstanding the cultural and religious beliefs in Ecuador concerning

homosexualidad, GLBT people are members of Ecuadorian society and should be treated

with respect and afforded freedoms equal to all other citizens (Fundaci6n Ecuatoriana

Equidad 2002). They should be allowed to live openly without fear of discrimination,

violence, or arbitrary treatment by police. Moreover, if they are subjected to violence or

discrimination in the private sector, their complaints to police and government officials

should be properly investigated and pursued by authorities (Fundaci6n Ecuatoriana

Equidad 2002).

Proponents of traditional cultural and religious institutions within Ecuador,

however, argue that homosexualidad is a Western concept that is antithetical to their

cultural and religious beliefs and that the "gay rights agenda" should not be forced onto

them by extending formal recognition and rights to GLBT individuals. To be sure, within

Ecuador, homosexualityiy continues to be considered a sin or an illness, a crime, or a

social or ideological deviation or a betrayal of one's culture" (AI 2001a: 3; Fundaci6n

Ecuatoriana Equidad 2002; Gonzalez 1997b). Indeed, Ecuadorian society is heavily

influenced by the Catholic Church, which recently publicly opposed efforts in the UN

that "called on all states to protect and promote the human rights of all people, regardless

of their sexual orientation" (Capdevila 2003; Lynch 2004: A15). Supporters of the

Church argued that explicit protections of and for GLBT individuals would force them to

validate a lifestyle that they view as morally wrong, and it would open the Church and

those who adhere to its traditional teachings to claims for human rights violations if they









continue to advocate and practice their longstanding religious beliefs (Catholic Family

and Human Rights Institute 2003). Additionally, many Ecuadorians view

homosexualidad as contrary to the traditional cultural constructions of gender and

sexuality inherent in machismo culture (Fundaci6n Ecuatoriana Equidad 2002). For these

reasons, many Ecuadorians classify GLBT individuals as a second class population and

not as citizens (Fundaci6n Ecuatoriana Equidad 2002). Some people also view

recognition and protection of GLBT individuals as "homosexual activism" or furtherance

of a particular (Western) social agenda that is contrary to their culture.

As explained in depth in chapter 3, widespread violence and discrimination against

and persecution of GLBT people in Ecuador has led human rights advocates both inside

and outside Ecuador to consider human rights law as a source of protection for sexual

minorities against such abuse (Fundaci6n Ecuatoriana Equidad 2002; AI 2002b; AI

2001a). In Ecuador, GLBT individuals are a subordinated group, and they routinely face

discrimination and ill-treatment. In many cases, government officials are responsible for

such transgressions; and, even where private individuals are responsible for human rights

violations, complaints to police are oftentimes ignored and rarely investigated.

A small GLBT movement already exists in Ecuador, and many in that movement

are looking to human rights law (in the international, regional, and national contexts) and

international GLBT rights organizations for assistance (Fundaci6n Ecuatoriana Equidad

2002). International human rights organizations and GLBT rights groups have begun to

take notice of the discrimination and violence that sexual minorities in Ecuador face, and

have even reported human rights violations to local and national authorities (Fundaci6n

Ecuatoriana Equidad 2002; AI 2002b; AI 2001a). In a few cases, courts in Ecuador have









considered complaints of physical maltreatment and sexual violations of GLBT

individuals while in custody of the police (Fundaci6n Ecuatoriana Equidad 2002).

However, for the most part, little has been done to address these issues and no formal

human rights complaints against Ecuador have been filed in international or regional

human rights systems. Invariably, intervention by international organizations will be

viewed by some as imperialistic and unwarranted. In this case, however, human rights

law could be invoked by GLBT individuals themselves, with or without the assistance of

outside organizations.

Such actions are warranted, because the harms to GLBT are great. In the worst

cases involving torture and physical abuse, the life and physical integrity of sexual

minorities are at stake. These types of atrocities at the hands of government officials,

albeit on a much larger scale, were the impetus for creating human rights law and a

process by which individuals could bring claims against their government for human

rights abuses. At the very least, such discrimination and violence keep GLBT individuals

in the closet, forcing them to forgo happiness, dignity, and full personhood for fear of

social and economic repercussions (Fundaci6n Ecuatoriana Equidad 2002).

From an objective standpoint, application of human rights to GLBT individuals

would likely have an impact on both sexual minorities in Ecuador and on Ecuadorian

culture. However, the level of intrusion on the majority culture and societal norms would

be minimal. Although, as with the challenge to any cultural or societal norm, "there

would] come a time when one additional person following or refusing to follow the

norm would] have an impact on the norm itself" (Hernandez-Truyol 2002: 367), the

overall integrity of Ecuadorian culture does not depend on the continuation of









discrimination and persecution of GLBT individuals. To be sure, the use of human rights

law by GLBT individuals in Ecuador would not threaten or erode the Catholic Church,

and a formal recommendation by an international or regional human rights body or a

local court would not displace or destroy machismo culture. Instead, the majority culture

would continue to exist (with modifications as to the treatment of GLBT individuals

within Ecuadorian society), and neither religion nor gender norms would significantly

change. While religious beliefs and cultural constructions of gender and sexuality may

underlie much of sexual orientation-based discrimination and violence, discrimination

and violence are not inherent to the survival of these beliefs and cultural constructions.

Furthermore, as a backdrop to this documented discrimination and abuse, over the

last seven years, the Ecuadorian government has adopted the core international and

regional human rights documents into its national law, and it has provided explicit

protections to GLBT individuals in its constitution and Human Rights Plan and in the

Andean Charter. In so doing, it already formally recognized sexual minorities as a

protected group of citizens, and it formally extended rights and protections to GLBT

people (Fundaci6n Ecuatoriana Equidad 2002). One Ecuadorian GLBT advocacy

organization interpreted the governments' adoption of these various protections as a "new

focus on the recognition of human rights, that is based in recognizing the well being of

individuals and/or the recognition of citizenship," which aims to create fair and just

societies characterized by "equality, acceptance, governability, and inclusiveness," and

that satisfy the individual and collective needs of all sectors and social groups in Ecuador









(Fundaci6n Ecuatoriana Equidad 2002).42 Arguably, there is minimal intrusion on

Ecuadorian society and culture as the Ecuadorian government itself has, at least on paper,

adopted the rights and recognition that GLBT people seek to invoke.

Even if these constitutional recognition and rights were aspirational at the onset,

the changes themselves stemmed from "the existence of problems that [were] serious and

pervasive, and for which solutions" are "linked to bringing about reforms in difficult

areas such as ... culture and globalization" (Garcia-Villegas 2003: 147-48). In this case,

in 1997, Ecuadorian GLBT rights organizations joined forces with the strong existing

indigenous movement and gained enough support to get the existing sodomy law, Article

516 of the Penal Code, which applied penalties of four to twelve years imprisonment to

adult men engaged in consensual same-sex sexual relations, reviewed and repealed

(Fundaci6n Ecuatoriana Equidad 2002; Gonzalez 1997b; Gonzalez 1997a; Wockner

1997). Thereafter, they were apparently able to obtain enough political support to

secure explicit protections in the Human Rights Plan and the constitution. At that time,

the Ecuadorian government also recognized the indivisibility and universality of human

rights, and incorporated the core human rights documents into its constitution and

national law.

At the very least, these events were an important step for GLBT individuals in the

recognition of their most basic and fundamental human rights and they created public

recognition and visibility for GLBT individuals and organizations (Fundaci6n

Ecuatoriana Equidad 2002). It is reasonable to expect that, at some point, GLBT


42 Este nuevo enfoque del reconocimiento de los derechos humans, que se fundamental en reconocer el
bienestar de los individuos y/o el reconocimiento de la ciudadania, ... equilibrio, aceptas, gobernables, e
incluyentes (translation provided by Kirsten Anderson).









individuals would seek to hold the government accountable for the rights and

recognition that the legislators and constitutional framers adopted, by demanding

investigation of human rights violations and the application of justice that the national

Human Rights Plan and Andean Charter guarantee. Such efforts are attainable in

Ecuadorian society, and bringing the legislators who adopted these legal protections to

task would likely strengthen the constitution and democracy itself (Garcia-Villegas 2003:

147-48).

As the above analysis reveals, human rights law should be used to address sexual

orientation-based discrimination, violence and persecution in Ecuador. The rights that

GLBT individuals seek to invoke are fundamental human rights to equal protection, due

process, and physical protection-rights to which all individuals are entitled regardless of

their sexual orientation. The recognition of GLBT rights "is a democratic signal-as is

the fight against discrimination, exclusion and violence and for inclusion and equality"

(Roth 2003: 4).















CHAPTER 5
CONCLUSION

Summary of Findings

On paper, Ecuador looks to be a champion of equality and human rights, especially

as they pertain to GLBT individuals; however, reality reveals a much different picture.

As the case study in chapter 3 showed, those who are, or are perceived to be

homosexualidad face widespread discrimination, violence, persecution, and harassment

by police and other individuals within society. Complaints of such abuse are oftentimes

met with indifference, creating an environment where human rights violations of GLBT

people generally go unreported or unpunished. Over the last few years, international and

national human rights organizations and GLBT advocacy groups have begun to record

such abuses and to look toward human rights law as an avenue of addressing such human

rights violations.

As explained herein, human rights law can be used to address the violations that

GLBT individuals in Ecuador face. Indeed, human rights protections for sexual

minorities exist under the UN Human Rights system, the Inter-American Human Rights

system, and national law. Under the ICCPR, sexual minorities are clearly entitled to

equal protection, which gives GLBT Ecuadorians the ability to challenge the

discrimination, harassment, and unequal treatment that they are subjected to by police

officers and other government officials. GLBT persons can also use additional provisions

of the ICCPR to challenge the widespread violence, impunity, and arbitrary treatment that









they suffer at the hands of police officers. Additional protections for sexual minorities

exist in the Torture Convention, the ICESCR, and customary international law. As

explained herein, GLBT citizens have similar recourse in the Inter-American Human

Rights system under the American Declaration, the American Convention, and the

Protocol of San Salvador. Most important, GLBT individuals in Ecuador have explicit

protections and rights under Ecuadorian national law and the Andean Charter.

Accordingly, to the extent that sexual minorities have fair and impartial judicial recourse,

challenges can also be brought within the Ecuadorian judicial system.

Although, as this thesis showed, human rights law can be used to challenge sexual

orientation-based discrimination, violence, and persecution, the more difficult question

was whether it should be used. Widespread homophobia and antipathy towards

homosexualidad underlie discrimination and abuse of sexual minorities in Ecuador.

Specifically, homosexualidadis seen by the majority in Ecuador as a rejection or

abandonment of their culture and/or traditional religious beliefs. Like most other Latin

American countries, strong cultural constructions of appropriate gender and sexuality

exist. In this machismo culture, defiance of appropriate gender and sexuality is

oftentimes met with violence and resistance. Moreover, traditional Catholic teachings

deem homosexualidad as a sin and an unacceptable way of life. As such, some would

argue that the use of human rights law to protect GLBT persons is inappropriate and

amounts to cultural and moral imperialism.

Notwithstanding these cultural and religious constructions, GLBT individuals are

human beings who are suffering real and egregious violations of their fundamental

human rights. The majority culture should not be used to facilitate or further oppression









or to disentitle sexual minorities of basic human rights simply because they fail to

conform.

Accordingly, this thesis engaged the ongoing debate between universalists and

cultural relativists, and used Hernandez-Truyol's human rights paradigm to determine the

extent to which human rights law should be used to protect GLBT individuals in

Ecuador. As the analysis revealed, human rights law should be used to its fullest extent

to protect GLBT persons from discrimination, violence, and persecution that they suffer

at the hands of police officers and other government officials. Despite cultural and

religious norms, all individuals are entitled to fundamental human rights such as equal

protection, due process, and physical integrity, regardless of their sexual orientation.

Here, human rights abuses are widespread and harmful and must be addressed.

GLBT individuals do not seek to create new rights, but rather they simply seek to

invoke existing law. The use of human rights law to address these violations will not

have an adverse impact on Ecuadorian culture and religion. Rather, it will simply

prohibit discrimination and violence against sexual minorities. After all, the extension of

human rights law to sexual minorities is not a foreign concept that is being imposed on

Ecuador by outsiders. Indeed, the government of Ecuador vis-d-vis legislators and the

drafters of the constitution recognized GLBT people as a protected class and adopted

explicit human rights protections for them. Even if the Ecuadorian government's

adoption of those provisions was aspirational, the government's inclusion of them

represents its acknowledgement of the voice of a minority group within Ecuador which

faces serious and pervasive abuses that need to be addressed.









Future Research

This thesis has only scratched the surface on a very complex topic. Because there

are no previous social science studies in English concerning GLBT individuals and

human rights in Ecuador, this thesis broke new ground. Accordingly, additional research

is necessary to build on and challenge the information and conclusions herein. Field

research would be extremely beneficial, as issues pertaining to culture and human rights

are ever changing.

There are many issues concerning GLBT individuals in Ecuador that could be

studied in future research. Field research on the cultural constructions of sex and

sexuality focusing specifically on Ecuador would be helpful. More field research should

also be done to further investigate the circumstances that led to the Ecuadorian

government's adoption of such apparently strong human rights legislation for GLBT

persons.

Furthermore, because most reports of sexual orientation-based discrimination and

violence concern los hombres gay and los transgeneros, further research on the situation

of las lesbians is needed, because las lesbians also face discrimination based on sex

and sexual orientation. Do they face increased discrimination or do they actually

experience less overt discrimination than other sexual minorities?

More research on the issues raised in this thesis is needed. For example, it would

be particularly beneficial to research enforceability issues. How likely is it that the

Ecuadorian government would comply with opinions and recommendations by

international and regional human rights judicial bodies? If human rights adjudicatory

bodies render decisions in favor of GLBT individuals, what can be done to ensure that the

government of Ecuador would comply?









In Ecuador, where human rights and democracy are central to the constitution, the

time is long overdue to address human rights concerns facing GLBT persons. Although

many amongst the majority regard such abuses as a consequence of nonconformity to

religious ideals and cultural constructions of gender and sexuality, the othering of

individuals who fall within the minority is contrary to the human rights regime. While

culture must be respected, it cannot be an excuse to relegate a minority to second class

citizenship and render them defenseless against human rights abuses by the majority.

Democratic principles require equality of all people.















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86




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Vienna Convention on the Law of Treaties, May 23, 1969, U.N. Doc. A/CONF. 39/27.
entered into force on January 27, 1990. reprinted in International Law: Selected
Documents, 2001-2002 Edition. Barry E. Carter and Phillip R. Trimble, eds. Aspen Law
and Business: New York.















BIOGRAPHICAL SKETCH

I am a native of Missouri, and I received my Bachelor of Arts degree from

Missouri State University, where I graduated magna cum laude. I received my law

degree from the University of Florida Levin College of Law with high honors in May of

2002. While in law school, I was a research assistant to human rights professor Berta

Hernandez-Truyol, with whom I coauthored two articles that used human rights law to

address domestic issues. During the Summer of 2001, I studied in San Jose, Costa Rica,

where I worked on a human rights project with an attorney from Bogota, Colombia. I

also received a certificate in International Legal Studies.

Upon graduation from law school, I clerked for the Honorable Charles R. Wilson in

the United States Court of Appeals for the Eleventh Circuit. I am licensed to practice law

in the State of Florida, and I am currently an Equal Justice Works Fellow at Southern

Legal Counsel, where I work on civil rights and constitutional law issues.

I am particularly interested in human rights legal issues-both domestic and

abroad. The focus of my graduate studies was human rights in Latin America. Where

possible, I concentrated specifically on human rights issues concerning women and

sexual orientation. Upon graduation I will receive a Graduate Certficate in Women's

Studies and Gender Research. To further my academic abilities, I also studied Spanish in

Ecuador during the Summer of 2004.