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Perú: Ask the Peruvian Congress to Recognize the Right of Young Homosexuals to Non-Discrimination
12/13/2007

SUMMARY

The Peruvian Congress is debating joining the Ibero-American Convention on the Rights of Youth (Spain, 2005) that seeks to promote and safeguard the rights of young people. The Convention also seeks to remedy the inequality that thousands of young people confront for a variety of reasons, including for having a sexual orientation different from heterosexuality. But the Foreign Relations Committee of the Congress of Peru has raised concerns in this respect, and opposes the rights of lesbian, gay, bisexual and transgender (LGBT) people.

ACTION

The International Gay and Lesbian Human Rights Commission (IGLHRC) joins the Homosexual Movement of Lima (MHOL) asking that you send e-mails or faxes, urging the Peruvian Congress to ratify the Ibero-American Convention on the Rights of Youth without reservations. IGLHRC has already written to members of the Peruvian government. Feel free to cut and paste our letter (enclosed) as a sample and contact the individuals listed below.

Please send your letter to:

DR. LUIS GONZÁLES POSADA EYZAGUIRRE
President
Congress of the Peruvian Republic

lgonzales@congreso.gob.pe;
aestrada@congreso.gob.pe;
mmoyano@congreso.gob.pe;
ctorres@congreso.gob.pe

MEMBERS OF THE BOARD OF SPOKESPERSONS
Congress of the Peruvian Republic

cgalindo@congreso.gob.pe;
oluizar@congreso.gob.pe;
lnegreiros@congreso.gob.pe;
sfujimori@congreso.gob.pe;
cbruce@congreso.gob.pe

DR. ALEJANDRO AGUINAGA RECUENCO
Chairman of the Committee on Foreign Affairs
Congress of Peruvian Republic

aaguinaga@congreso.gob.pe

DR. KARINA BETETA RUBIN
Chairperson of the Committee on Women and Social Development
Congress of Peruvian Republic

kbeteta@congreso.gob.pe

Please also send a copy to:

Movimiento Homosexual de Lima

estafeta@mhol.org.pe

IGLHRC – Programa para América Latina y el Caribe

fdelio@iglhrc.org

BACKGROUND

• Article 5 and Article 14 relating to non-discrimination on the grounds of sexual orientation and subparagraph (1) of Article 20 related to the right to build a family—because they are in conflict with Article 5 of the Peruvian Constitution and Article 234 of the Civil Code both defining marriage as the stable union between a man and a woman.


• Subparagraph (2) of Article 9 with respect to the non-application of the death penalty to young people between 18 and 24 years—because it is contrary to Article 20, paragraph 2 of the Penal Code, which says that children under 18 are exempt from penal responsibility.


• Subparagraph (2) of Article 19 regarding the expression "as well as to its willingness will be decisive in the case of adoption"—because this conflicts with Article 9 of Law No. 273337, the Code of Children and Adolescents, which says that, “the child and adolescent capable of forming their own views shall have the right to express their opinion freely in all of the affairs that affect them and through the means that they elect, including the objection of conscience, and to have their opinions taken into account as a function of their age and maturity.”

Underlying the resolution is the fear that the Convention could be invoked to recognize same-sex couples unions. The resolution is therefore based on principles that are openly discriminatory toward people because of their sexual orientation and/or gender identity.

On 29 October, the full Congress discussed the reservations, and with 57 votes, returned the resolution to the Committee on Foreign Affairs and to the Women’s Committee, which will analyze the concerns and decide whether Peru should ratify the Convention, or whether the initiative will be filed.

INTERNATIONAL, REGIONAL AND DOMESTIC LEGISLATION

The right to be free from discrimination and the right to equality before the law is protected by the UDHR (Articles 2 and 7), ICCPR (Articles 2 and 26) and ICHR (Articles 1 and 24).

In 2002, the Peruvian President signed the Andean Charter to Promote and Protect Human Rights. Article 10 of this Charter reaffirms the decision of Andean states to combat all forms of racism, discrimination, xenophobia and any other form of intolerance or exclusion against individuals or groups based on race, color, sex, age, language, religion, political beliefs, nationality, sexual orientation, or migratory status, as well as their commitment to promote national legislation to criminalize racial discrimination. Section F of the Charter is devoted specifically to the rights of people whose sexual orientation differs from that of the majority. Article 52 recognizes that all people, regardless of their sexual orientation or choice, are entitled to the same human rights. In Article 52, the signatories commit themselves to combatting all forms of discrimination against individuals based on their sexual orientation or choice, paying special attention to preventing and punishing violence and discrimination against those whose sexual orientation or choice differs from that of the majority. The signatories also commit to providing legal resources for effective remedy in cases of damage caused by such crimes.

Peru ratified ICCPR on May 10, 1978; CAT on July 29, 1991 and IAHRC (Inter American Human Rights Convention) on August 9, 1977. The UDHR is considered part of customary international law, and binding on all member States of the United Nations, including Peru. Also the Inter-American Human Rights Convention binds all OAS members.

The proposed reservations are contrary to the constitutional principle of non-discrimination, which states that: “Nobody must be discriminated by origin, race, sex, language, religion, opinion, economic status, or any other reason.” The reservations therefore undermine the framework of protections that the State has established for guaranteeing the development and the full enjoyment of citizenship rights, especially for the most vulnerable groups and people in Peruvian society.
Law 28.237 (approved by the Peruvian Parliament) instituted a new Constitutional Implementation Code prohibiting discrimination based on sexual orientation, recognizing sexual minorities as a protected group, and allowing individuals to submit appeals and complaints in cases of discrimination. Law 28.237 has been in force since December 1, 2004.

The Peruvian Constitutional Court established in files 0023-2003-AI/TC, 2868-2004-AA/TC, and 2273-2005-PHC/TC, that sexual orientation is not an objective or reasonable reason to compromise individual rights: "the law does not serve the moral through the legal principles it mandates, but by the rights it guarantees; it turns towards morals via rights and not duties. It guarantees rights to individuals, so that they can better fulfill their moral duties […]. "

The Ministry of Health has created public policies to combat discrimination based on sexual orientation, including the recent approval of the Multisectoral Strategic Plan 2007-2011 for the prevention and control of STI, HIV and AIDS in Peru.

In 2006, the Ministry of the Interior adopted the Handbook of Human Rights Applied to the Civil Police. This stipulates that the police must respect human rights, especially of the most vulnerable groups, making explicit reference to the sexual orientation of lesbians, gays and travestis.