Activists such as Danilo Manzano of the organization Diálogo Diverso, argue that there should be more favorable conditions for the participation of the LGBTI community. Photos: Luis Argüello / Plan V
"We can now get married, but there is still violence, mistreatment and even murder."
Efraín Soria directs the Fundación Equidad. He is a landmark figure, because he was, together with Javier Benalcázar, the protagonist of the first homosexual marriage in Ecuador, after a long judicial struggle that culminated successfully in the Constitutional Court, in June 2019. In his account, two years after this conquest, which is part of a long road of struggle, he says that it is just a great moment of what remains to be done. This is his testimony:
"In Ecuador we have two identity cards".
The LGBTI community movements, since the decriminalization of homosexuality, in 1997, we have had some conquests that are very interesting in the field, specifically of formal equality. That is: changing some legal provisions or creating others.
We can see, for example, the issue of Ordinance 244 of the city of Quito, with which a norm protecting the rights of the LGBTI community was approved for the first time in the country.
We cannot fail to mention that in the 1998, Constitution there was an important advance, which was to prohibit discrimination based on sexual orientation, making the country the second that protected this type of categories.
In the 2008 Constitution we have expanded these possibilities, such as non-discrimination based on gender identity, recognition of diverse families, access to de facto unions regardless of sex and gender.
It is also very important to mention the reforms made to the Criminal Code at that time, in 2009, which typify hate crimes and discrimination crimes; the same that in the 2014 reform are ratified and maintained until today.
A very interesting milestone is the reforms made to the Identity and Civil Data Law. It is the possibility for people to change the sex field for the gender field. It seems very interesting, but in reality, what the Assembly did was to mark a type of discrimination towards trans people.
In Ecuador today we have two identity cards: one for people, if it is gender, like any of us, and another one called the pink card, which is the card that trans people have, who were born with one sex but identify with the opposite gender, then they transit and these people have the possibility to change. But they are still two ID cards. The good thing would be that all citizens have the same identity card, without the sex field and without the gender field. That should happen, but the Assembly of that time did not understand that message well.
I believe that the most important achievement we have is the access to same-sex marriage approved in 2019 in the Constitutional Court. It is also recognized, through a sentence of the same Constitutional Court, the right to filiation of sons and daughters of people of the same sex. Something that was denied for a long time.
Perhaps the last achievement, and of which little is said, is the possibility - once again through a sentence of the Constitutional Court - of changing the sex field for trans persons. It is a sentence that has to do with the Bruno Paolo case, in which the Court orders the National Assembly to make the reforms. The Assembly has played a rather mediocre role, because it has not complied with what the Constitutional Court ordered.
"In the Constitutional Court there was a great argumentation for and against".
We have to remember that at the beginning of the second decade of this century, in Argentina the issue of equal marriage was approved. At that time the need to do the same in Ecuador was raised. In 2013 a group of organizations presented this initiative. Let's remember that Pamela Troya presented her request to the Civil Registry in order to achieve this right. At that time we were already dealing with the presidency of Rafael Correa and it was very clear to us that he was totally opposed to this type of demands.
And unfortunately, and this we must always remember as citizens, is that the powers of the State have to guarantee their independence. In Correa's period there was no independence of functions, he had captured all the functions of the State and that prevented this demand from materializing.
We, the activist organizations, understood that it was not the right time to talk about this issue. And it is from 2017 that fundamental facts took place that allowed us to change this situation.
On the one hand, the Inter-American Court of Human Rights issued the Advisory Opinion 2417, in which it asked the States to make all the necessary legal reforms to guarantee the recognition of same-sex marriage and the issue of the recognition of diverse families. Also at that time we had a change of government, Mr. Moreno came to govern the country, so we saw the opportunity to take up this situation again.
This is how the organizations, mainly from the civil society, took up this initiative and brought it back to the courts. What we did was to look for more couples to support the case of Pamela Troya; some couples were formed in Cuenca, others in Quito and others in Guayaquil. One of the couples was Javier Benalcázar and me.
WHAT WE DID WAS TO LOOK FOR MORE COUPLES TO SUPPORT PAMELA TROYA'S CASE; SOME COUPLES WERE FORMED IN CUENCA, OTHERS IN QUITO AND OTHERS IN GUAYAQUIL. ONE OF THE COUPLES WAS XAVIER BENALCÁZAR AND ME.
What we ran into along the way is that the Provincial Court, where our case was discussed in second instance, did not say yes or no to us, but raised this consultation to the Constitutional Court. This allowed the cases not to be held up, but to go directly to the Constitutional Court. In Ecuador, the Constitutional Court can take the cases chronologically, that is to say, as they arrive, but in the case of a consultation to the Court, the Court only has 45 days to pronounce in favor or against.
What the current Court did was to analyze this situation and there was a great deal of argumentation for and against. In the first hearing, 46 interventions were presented by activists, organizations, human rights institutions and also a little more than 20 from opposition, conservative and religious groups that were against this regulation.
Finally, on June 12, 2019, the Court gave a ruling to this situation, approving the access to marriage to same sex people. In that sense we have to remember that most of the actions and conquests that the LGBTI community has had have been through the judicial route. In other words, neither the executive nor the legislative branch have fulfilled their promises to legislate and guarantee human rights.
The decriminalization itself, the Bruno Paolo sentence, the Satya case and equal marriage have been through the courts. This is interesting, but it does not give much food for thought about the other two functions of the State that are not fulfilling their obligation to defend and guarantee rights.
"Access to justice is for all of us a cumbersome procedure."
Efrain Soria, fought in the courts for his right to marry the person he loved.
I think that unfortunately, although we have reached almost one hundred percent of formal equality, in relation to material equality, which means enjoying those rights, there is still quite a big gap. We can now get married, but that does not mean that there is no longer violence, mistreatment, even murders.
People are still victims of homophobic bullying in the educational sector, of being mistreated in public services, especially in the health sector, where we have to work a lot more, especially on the issue of security; there is no access to justice and the operators of justice, such as the police and prosecutors, still do not have guidelines or protocols for care.
So much so that in 2020 we had the case of Javier Viteri in the city of Arenillas, who was murdered with 80 stab wounds, for the Prosecutor's Office it was a common crime and we state that it is a hate crime. Nobody is killed with 80 stab wounds. This is something that the justice operators have not understood, we need to legislate and that the Judiciary Council assumes its responsibility to monitor, train and sensitize these operators so that there is true equal access.
In principle, one of the problems that Ecuadorian institutions have is that policies are changed every time the people who hold that position are changed. So there have been changes in the Judiciary Council and despite the fact that there is a constitutional provision that requires the Council to issue the expeditious procedure in cases of discrimination, this has not yet been implemented, therefore, there is a debt, because these crimes remain unpunished.
Access to justice, we know, for all of us is a cumbersome procedure and nobody wants to follow it because there is no trust. This has to be corrected.
"Before applying the norm, some officials impose their personal criteria".
Every time people are empowering themselves with these rights, there are more marriages. But what we have observed is that the consular services, which are Ecuadorian territories in other countries, are not obeying this rule. We have a complaint that in Bolivia, an Ecuadorian who wanted to access the legalization of his common-law marriage, received a refusal from the consulate.
THE CONSULAR SERVICES ARE NOT OBEYING THIS NORM. WE HAVE A REPORT THAT IN BOLIVIA, AN ECUADORIAN WHO WANTED ACCESS TO THE LEGALIZATION OF HIS DE FACTO UNION WAS DENIED BY THE CONSULATE.
We have to remember that the structural problems of the Ecuadorian society, that is to say, the behaviors, the culture, the traditions, the thoughts, are still quite conservative and homophobic, misogynist in many cases. This sometimes takes precedence over what the law says.
Some officials, before applying the norm, apply their criteria and their very personal values. This is very bad. So there is a State weakness there, because the State has to guarantee, educate, sensitize and train public officials to understand what the Constitution says and to apply it.
We should remember that the 2008 Constitution itself, which was approved by two out of three Ecuadorians, says that no secondary regulations will be needed for its application. This is what we are sometimes told in the public services: that it is not regulated, that there is no regulation, there is no provision, there is no ministerial agreement or a specific law, when the constitution says the opposite.
"Ecuador continues to be a country that structurally discriminates against the LGBTI population"
Mateo Ruales is a lawyer, coordinator of the Pakta Foundation and was the judicial sponsor of equal marriage. He and his community continue to fight the judicial system to end discrimination and allow equal access to justice. This is his testimony:
"Trans identities are the most violated"
One thing is what is in the law and another what is in reality. The struggles and conquests are given when change is generated in real life. I believe that at the legislative and judicial level we have achieved certain conquests; there is the decriminalization of homosexuality, and in a relatively short time, until 2019 we have already achieved the approval of equal marriage, the recognition of the lesbian-parental family, as in the Satya case, and the recognition of trans identities, which are probably the most vulnerable segment.
What happens in reality? It is important to denounce it. Ecuador continues to be a country that structurally discriminates against the LGBTI population. The percentage of incidence of transgender people in the mechanisms and access to justice is practically null.
We had a trial hearing for an attempted murder against a trans person, which took us five years to investigate. There were eight prosecutors in the middle, basically because no one wants to take care of segregated and discriminated people.
WE HAD A TRIAL HEARING FOR AN ATTEMPTED MURDER AGAINST A TRANS PERSON, WHICH TOOK US FIVE YEARS TO INVESTIGATE. THERE WERE EIGHT PROSECUTORS IN THE MIDDLE, BASICALLY BECAUSE NOBODY WANTS TO TAKE CARE OF SEGREGATED AND DISCRIMINATED PEOPLE.
For me it is absolutely clear that discrimination is structural. It comes from the State in its different levels, and it also comes from society.
In the legislative branch it is absolutely evident the discrimination experienced by the LGBTI population. The Constitutional Court has ordered the National Assembly to reform certain laws for several years, since the 2008 Constitution, which obliged the issuance of an expedited procedure for hate crimes and other types of crimes; the COIP was reformed in 2019, but hate crimes were excluded.
The same happens with the Bruno Paolo case. More than five years ago the Constitutional Court already ordered to reform the Identity Law. The Assembly has not done so until now. Identical in the Satya case, in 2018 and equal marriage case in 2019. Five days after equal marriage was approved, the first draft for the reform to the Organic Law of Guarantees was presented, basically to seek the control of the judges who guaranteed the right. Evidently there is discrimination.
"We claim all discriminations in court"
Personally, I conceive this fight in two estates: one, education, education, education. I am sure that material equality comes through the education of society.
What is the practical mechanism to do so? We claim judicially all the violations, and that is precisely one of the reasons for the existence of Fundación Pakta, which is a non-profit organization, formed by several lawyers who provide legal advice and free sponsorship to people who are being discriminated against.
I think we are a highly conservative society, with a deep religious content that necessarily inherits prejudices against LGBTI populations, against women themselves. And I believe that these are social structures that remain in the collective unconscious; therefore the process of deconstruction is long, it is likely that we will not see it in this generation.
"Minorities are not profitable in a democracy that relies on the opinion of the majority."
I believe that the low access to electoral participation is due to a political calculation. It is evident that minorities are not profitable in terms of a democracy based on majorities. Beyond the fact that this election was probably a milestone or a breaking point insofar as the progressives were the ones who won the large masses of votes, in general, it is evident to me that this democracy is not designed for minorities, it is not profitable.
I don't know if one or two openly LGBTI people were candidates, there is not a single LGBTI assemblyman, no minister....
I think education should come from a core value. And it always strikes me that people who are against these conquests usually talk a lot about values. However, I think it is in values that you have to educate to improve that; and those values basically are equality and respect.
Essentially it is the democratic conscience that we do not need to be all equal to respect each other, to tolerate each other and to be able to coexist in all spaces, that is the value. I am a person who has deeply democratic convictions of freedom and respect. As long as it does not affect my vital sphere, I have no reason to impose values.
I believe that the State has a debt through the entire national education system, but above all, for me, it is a problem that has to be understood from the family nuclei, from the people. All of us who have this conviction must spread and irradiate this message of equality.
BASICALLY, IT IS THE DEMOCRATIC CONSCIENCE THAT WE DO NOT NEED TO BE ALL EQUAL TO RESPECT EACH OTHER, TO TOLERATE EACH OTHER AND TO BE ABLE TO COEXIST IN ALL SPACES, THAT IS THE VALUE.
"I fervently believe that there is an opportunity."
I had the privilege of participating in the sponsorship in the equal marriage case, which definitely marked a before and after. Above all, it taught me that these ideas of generating transcendental changes are no longer so platonic.
I fervently believe that there is an opportunity. It seems important to me that the president will materialize certain campaign promises, that this issue of equality does not remain in political slogans and that there is an approach, that there is openness.
I believe that this is part of the very concept of democracy. This is an issue that I am passionate about. It seems to me that democracy is a concept that has evolved. At the beginning we had this vox populi vox dei democracy, whatever the majorities said was the voice of God. And history began to see the abuses of these majorities, in terms of majority approvals of slavery, of not allowing access to the vote, of access to interracial marriage. And democracy evolves and says, okay, majorities are an important element, but they have limits, in terms of respect for substantive rights.
"Democracy without diversity does not exist"
Danilo was a pioneer in a systematic action for the political participation rights of the LGBTI community. Co-executor of one of the few investigations that sought evidence of how the Ecuadorian electoral system acted in the case of the gay, lesbian and trans community, he constantly works to ensure that access to political participation is transparent and equal. This is his testimony:
"In 2017 there were more than 30 candidacies, in 2021 we did not reach five"
Many people on this issue ask: why do LGBTI people want to participate, or why do they think that, because they are LGBTI, they have to have a preferential quota or they have to vote for you? It's not that I want to be a candidate and that because I'm part of a gender diverse gender people are going to vote for me. That is not the objective.
The objective of what was done in 2017: to motivate a first project, to link sex diversity in a more active way in the political work, was a clear way to send a message and a strong manifesto: democracy without diversity does not exist.
If we look at it from a historical line, we have to say: where have LGBTI people been in the elections of popular election during the history of Ecuador?
In 2017 we had very interesting results: a first list gave us ten candidacies of openly LGBTI people, and candidates within political parties who already had a place on the list for the position of assembly members. The list was much longer, it was about 30 people. But there was this other group of people who did not want to be public, and this went hand in hand with the fear of discrimination. Even because of direct positions of the political parties stating, "you can't make this public, we don't want people to know about it", which is a direct form of discrimination. It goes very much against the free development of the personality.
If we talk about this political participation in 2017, which was one of the highest peaks we have had, we were able to make visible that, first: even when we could say, cool, LGBTI people are going to participate, the position in the participation was not going to allow you anywhere near a favorable outcome.
It is not only that the political party allows you a space on the ballot, but what is the order or place in which they put you. And that is when many political spaces or parties could only involve an LGBTI person with the objective of being "inclusive". Then, this diverse quota became the discursive pretext for a party to say, "we also have LGBTI candidacies". But that LGBTI candidacy was not going to win, it had no real chance of winning.
But more deeply, we have to ask ourselves if it is not only the fact of involving an LGBTI person. It is missing women, indigenous people, peoples and nationalities, Afro-Ecuadorian people... It is that in this backbone of democracy, one of the fundamental pillars, the political parties, have to build their government plans with all these elements of diversity.
"Gender diversity is not only LGBTI people"
Sex-gender diversity is not only LGBTI people, it is all this intersectional citizenship that deserves public policy, equal access, but above all the real possibility of realizing participation.
The analysis is very interesting not only to see how many there have been, because it is not only a matter of numbers; we do not want to have hundreds of LGBTI candidates but people with probity, people with preparation. But this preparation also goes hand in hand with the political parties, which have the obligation to train in politics the citizens who want to make the leap to participation.
When a political party tells you: cool, we are going to have council elections, local governments. If you want to run for councilman in the first place you have to pay 20 thousand dollars. If you want to run in second place you must pay 15 thousand, if you want to run in third place you have to pay less. The campaign does not pay for itself. I, as an activist and political subject, do not buy that story; for me that is one of the first signs of corruption.
HOW IS IT THAT POLITICAL PARTICIPATION HAS TO HAVE AN ECONOMIC PRICE WITHIN A PARTY? WHEN THE EXERCISE SHOULD BE COMPLETELY DIFFERENT, TRANSPARENT ABOVE ALL. AND IN THE 21ST CENTURY IT SHOULD BE EVEN MORE INNOVATIVE.
How can political participation have an economic price within a party? When the exercise should be completely different, transparent above all. And in the 21st century it should be even more innovative.
There are successful campaigns that have not needed to spend a lot of money. Political parties have become electoral machines, businesses? If they charge you to participate, then what happens if there is a person who has had a process of life, of struggle, of knowledge, of tangible actions for the benefit of the citizenship, but does not have the economic resources to pay? Then, those who will be able to pay will continue to be the wealthy economic classes, with purchasing power, who are literally paying to be elected, to enjoy four or five years of salaries...
"Our motivation is that we will be able to show our capabilities"
The motivation is not that they vote for us for being a homosexual, lesbian or trans... It is to demonstrate the capabilities on equal terms so that a political party considers an opening as it does with the rest of the citizenry.
The connection of an LGBTI person who wants to be a candidate should no longer be seen as this vote of shame or that subtracts you, when the citizenry has already made it clear to us that the electorate thinks, feels, perceives and consumes politics in a different way.
In the year 2025, and I am anxious for that to happen, we are going to feel in depth the capacity of the youth electorate. If at this moment this vote of people from 16 to 18 is optional, by 2025 we will have another generational group fully involved in politics.
It is clear, in the youth groups -where politics is not talked about at a technical and ideological level, and this is important- people vote for causes, they vote for issues, they vote for the candidate who commits to take care of the environment, to reduce mining and environmental exploitation; but also, for the one who sides with the rights of women, of young people... This does not mean: I get cool and dance in tik tok, no, that is populism.
"The responsibility of civil society is enormous"
That in 2021, unlike 2017, we had fewer LGBTI candidacies is due to certain issues. First, the responsibility of political parties is immense. But on the other hand, there is also a sector that has an enormous co-responsibility, which is the civil society organizations. How do we articulate ourselves? As in the rest of the social struggles, do we or do we not leave our egos, do we or do we not leave aside even personal interests? There have been many people, not only LGBTI, who have personalized social struggles in order to obtain not only participation but also to win an elected office.
If we currently have 137 new assembly members, how many of them are of gender diversity? In the year 2019 23 prefects, 23 vice-prefects, 221 mayors, 867 urban councilors, 438 rural councilors, 4,089 principal members of parish councils... in total we have 11069 sectional authorities that were elected in the year 2019. Of this immense mass of public function, elected in popular election process, how many are LGBTI? There is not even a registry.
The only data we have on the reality of the LGBTI population in Ecuador was done in 2012. We identified in the research that in order to motivate an active and equal political participation, we must reflect on the fact that democracy is based on diversity. In this, how I interpret the thoughts of others, whether or not I generate empathy with a human group that demands rights and that, suddenly, I do not understand them. If indeed my condition of growth and education has been different, that should not make me see myself as an outsider, as a subject far from these rights.
THE RESPONSIBILITY OF THE POLITICAL PARTIES IS IMMENSE. BUT ON THE OTHER HAND, THERE IS ALSO A SECTOR THAT HAS AN ENORMOUS CO-RESPONSIBILITY, WHICH IS THE CIVIL SOCIETY ORGANIZATIONS.
Those who were able to understand the importance of creating public policy, put a direct guarantee from the State institutionality so that the work with the LGBTI population is planned and has economic resources. And part of this is to motivate a more open space for the LGBTI population to be trained in political work and even to be able to participate.
"In order for citizens to be able to participate in the political process, they must be on an equal footing"
What happened in Bogotá? The current mayor is a lesbian woman, but she did not win because she is a lesbian, she won because the electorate saw in her the capacity for governance. What a pride that she is a lesbian woman, and what a beautiful way to make the citizens understand that they are not voting for a lesbian woman and that because she is a lesbian she will govern better, but because of the preparation that an LGBTI person has.
If in 2021 the political participation of LGBTI people decreased, who is to blame? Surely the culprits have more than one name and surname: political parties, just as the civil society -that we have not finished organizing in a concrete way to fight for those spaces and, on the other hand-, highly conservative patterns that make Ecuador reject in these environments this much more inclusive look and linking on equal terms. It is undoubtedly a step backwards.
IN ORDER FOR CITIZENS TO BE ABLE TO PARTICIPATE IN THE POLITICAL PROCESS, THEY MUST HAVE EQUAL CONDITIONS. IF WE LIVED IN ECUADOR AND WE WERE A STATE THAT GUARANTEED ACCESS TO THESE RIGHTS, THE SITUATION WOULD BE DIFFERENT.
For citizens to be able to participate in the political process, they must have equal conditions. It is not enough that constitutionally they say to you: you have the right to free development of personality. In 1997 we stopped seeing you as a criminal for being homosexual, you have the right to employment, you have the right to education... If we lived in Ecuador and we were a State that guaranteed you access to those rights, the situation would be different.
If we could compare, it would be important to be able to contrast how many people of gender diversity finish high school and university.
"Trans men and women bear the brunt"
Within this same LGBTI population we are not homogeneous, because there are also people who bear the brunt, such as trans women and trans men -those people who have been pushed by discrimination, in a systematic way, to live in marginality-.
Talking about the LGBTI population also must invite us to understand that we can have a look at homogeneous needs, but we have to go to the particularity.
This political participation, in time, can be much broader, to the extent that access to rights is real. Otherwise, those who will be able to participate, even being LGBTI, will be the people who have had a situation of economic privilege, that which allows you to study, to be educated at the university, even to go out to study abroad.
The most important thing is not only that LGBTI people can participate in equal conditions as others, but that an LGBTI person who is elected can talk to you about economics, politics, finances... as we do from different spaces.
Undoubtedly, the fact that in 2017 we had a more active participation and that in 2021 must invite us to reflect on what is happening with the political parties themselves and with civil society organizations.
Translated by Manuel Novik