Javier A. de Belaunde*

Versión en español aquí.

Can discrimination be committed in the act of approval of an international anti-discrimination regulation? A few days ago, the Peruvian Judiciary notably achieved a contradictory result of this nature. This happened with the accession to the 2018 updated version of the «Brasilia Regulations Regarding Access to Justice for Vulnerable People” (Brasilia Rules). The Judiciary Executive Committee (CEPJ in its Spanish acronym), one of the highest bodies of judicial governance –composed of 5 judges of all levels– decided to exclude Peru from adherence to those aims that consider sexual orientation and gender identity as a cause of vulnerability (002-2020-CE-PJ  and 011-2020-CE-PJ).

Although CEPJ’s decision lacked a proper motivation that would permit an understanding of its reasoning, the opinion of a supreme court judge left no place for doubt about the reasons behind the exclusion. It was an overtly homophobic and transphobic act. His vote reflects common themes of ignorance and hate speech: «biologically, male (man) and female (woman) are the only genders accepted», «under normal circumstances, sexual orientation can only be heterosexual», «those persons who, for psychological or social reasons, have sexual orientation towards people of their same gender or who identify with a sex that, biologically, does not belong to them». This is nothing less than a new attempt to erase the LGBTI+ community. But it is a tragic one, as it came from those precisely expected to protect that community by fulfilling the counter majoritarian role of upholding rights.

CEPJ’s discriminatory exclusion of the LGBTI+ community was a clear betrayal of the Brasilia Rules. These rules are one of the most successful products of the Ibero-American Judicial Summit that periodically brings together judges from 23 countries. The latest update incorporates the advances of International Human Rights Law, and the guidelines for judicial personnel have been substantially clarified and improved. All these changes have been made with the purpose of achieving the service of justice without discrimination, in a way that respects diversity and responds differently to those facing greater barriers to their rights. «A justice system that protects the weakest,» is the motto that inspires it.

Some years ago, CEPJ’s decision could have passed unnoticed. Not now. It was immediately condemned by organizations at the frontline of the LGBTI+ community’s defense in Peru, such as Más Igualdad (“More Equality”) and Flora Tristán. The Inter-American Commission on Human Rights swiftly issued a statement expressing concern. The Parliamentary Justice Committee approved a motion to call in the head of the Supreme Court for explanations. The Ministry of Justice and the Human Rights Ombudsman issued statements reproving the exclusion as discriminatory and in breach of the Constitution and Human Rights obligations.

Moreover, there was a remarkable reaction within the judiciary, which was nothing short of an uprising. Two judges’ associations, Asociación Peruana de Juezas Mujeres (“Peruvian Association of Female Judges”) and the Asociación de Jueces para la Justicia y la Democracia  (“Association of Judges for Justice and Democracy”) -the latter renowned for its leadership and resistance during the Fujimori era-, published a joint statement rejecting the exclusion and lamenting «the pain that measures like these may cause to millions of Peruvians». In the same vein, two judicial commissions –the Access to Justice Judiciary Commission and the Gender Justice Judiciary Commission, chaired  with brilliance  by justices Janet Tello and Elvia Barrios, respectively– filed reconsideration briefs, based on the equality and non-discrimination standards set by the Peruvian Constitutional Court and the Inter-American Court of Human Rights. Barrios stated that, even if the CEPJ did not reconsider the exclusion, «the Gender Justice Judiciary Commission will not implement the decision taken by CEPJ in the extent that it excludes adherence to Brasilia Rule No. 4, because it is contrary to the American Convention on Human Rights, Law No. 30364 and the Inter-American Court of Human Rights caselaw».

In face of this opposition, CEPJ backed off. It announced that the reconsideration had been accepted and that the updated version of the Brasilia Rules will be applied in full. Congratulations are in order. The Rules are very important for achieving access to justice without discrimination, by making judicial operators aware of and providing them with training on how to deal with causes of vulnerability. This is particularly important in societies such as Peru with multiple inequality factors. At the same time, it is key not to disseminate homophobic and transphobic messages to the community with a judicial seal of approval and through the state official norms bulletin.

There is a long way to equality (De Belaunde, 2019). Peru remains a country where 71% of the population identifies LGBTI+ as the most discriminated against community (IPSOS); where 56% of this group is afraid to express their sexual orientation and/or gender identity (INEI, 2018); where «the violence against LGBTI people is a problem that remains off the State´s agenda» (Ombudsman, 2018, p. 27); and where horrific crimes continue to occur, such as Azul Rojas Marín, a trans woman, raped, beaten and verbally abused by the police, and the subject of a recent judgment of the Inter-American Court of Human Rights. Nevertheless, the CEPJ’s change of direction is a small victory. It represents processes of positive institutional change and the incorporation of human rights standards by Peruvian judges. Certainly, the changes are still insufficient, but they represent an important step forward compared to the general state of the Peruvian justice system 20 years ago, just before the democratic transition. Changes such as these allow progressives to keep up hope.

*LL.M. King’s College London and M.A. In Human Rights University College London.

Photo: Poder Judicial Perú/Twitter