Havana Times

#AccionLGBTIQba: An Agenda for Our Rights Here in Cuba

By Isbel Diaz Torres

HAVANA TIMES — Today, a group of people who share the same tenacity to revive the national struggle to ensure the rights of lesbians, gays, bisexuals, transsexuals, intersexuals, queer and people with other non-heteronormative sexualities and genders in Cuba, have launched our #AccionLGBTIQba agenda.

Coming from different collectives, groups and projects, those of us who have come together to draw up these demands are aware of our differences (which are sometimes political/ideological too), but we are convinced that we need to contribute to shaping a real LGBTIQ community, which doesn’t exist in the country today, in my opinion.

It has been a long and arduous task to research, reach agreements and join together, which involved the active and much-needed participation of heterosexual allies who are greatly committed to the cause, as well as legal experts who gave us a better understanding about how the law works here in Cuba

The Agenda for Rights of Lesbians, Gays, Bisexuals, Transsexuals, Intersexuals and Queers in Cuba isn’t just another text online, instead we want it to be presented in front of the National Assembly of People’s Power, the Council of Ministers and those who decide national policies, plans and strategies who we believe to be relevant.

The document was drawn up entirely in Cuba, it collects a group of laws which need to be applied at different levels: the Cuban Constitution, Family Code, Penal Code, Labor Code and Child and Youth Welfare Code.

It also outlines a group of policies, plans and strategies which relate to: access to information, training and awareness, access to justice, the protection of LGBTIQ advocates, their participation in public life, recognition of this legal identity, sexuality issues being handled in prisons, prostitution, procuring and human trafficking, as well as transsexual people’s access to specialized health services.

The current proposal will act as a work guide for us over upcoming months and it’s still open to other people’s suggestions and ideas, so it can become more and more complete and comprehensive. The agenda will lead to a series of actions which won’t only be informative, but also include research and taking action, which people, collectives or institutions can join if they wish.

#AccionLGBTIQba is a completely independent starting point, but it isn’t private. I personally feel that it’s a good thing that the agenda’s launch coincides with Cuba celebrating its National Day against Homophobia and Transphobia, as many people’s efforts and energy can come together for this common cause.

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RIGHTS AGENDA FOR CUBAN LESBIANS, GAYS, BISEXUALS, TRANS, INTERSEX AND QUEERS

Based on the Yogyakarta principles[1] on the application of international human rights law in relation to sexual orientation and gender identity and on the Declaration of Sexual Rights of the World Association for Sexual Health (WAS[2]) and in view of the upcoming constitutional and legal reforms in Cuba, members of the Cuban LGBTIQ community has gathered in order to promote the current agenda.

With the conviction that all human beings are born free and equal in dignity and rights; that these rights are universal inalienable, complementary, indivisible and interdependent, equal and not discriminatory; that sexual orientation and gender identity are integral to human dignity, and as such discrimination and abuse lacerate the rights of lesbians, gays, bisexuals, trans, intersex and queer peoples and others whose sexuality and gender doesn’t conform to the heterosexual norm (LGBTIQ).

Keeping in mind that racial discrimination, xenophobia, and related forms of intolerance generally accompany discrimination based on sexual orientation and gender orientation, increasing the social exclusion of people, groups and communities:

We propose:

Placing this agenda of human rights in relation to sexual orientation and gender identity before the public for the purpose of hearing their opinion.
Requesting that the National People’s Power Assembly, the Council of Ministers, and those crucial in designing policies, plans and strategies consider the following demands.

LEGISLATIVE MEASURES:

In the Cuban Constitution:

Incorporate sexual orientation and gender identity as causes of discrimination in Articles 42 and 43, which refer to the right to equality.
In Chapter IV of the Constitution, modify the heterosexual focus of the articles relative to the formation of the family.
Modify the definition of marriage in Article 36. As an alternative, the proposed draft should read: “Marriage is the voluntary union agreed upon between people…”
Have the effects of this modification also reflected in the Family Code, the Penal Code, the Civil Registry Law, and in whatever judicial norm merits the change.
Include an article in Chapter I regarding the political, social and economic foundations, reflecting that: “The State recognizes, guarantees and respects the free expression of sexual orientation and gender identity.”

In the Family Code:

Regulate the institution of matrimony as “the voluntary union agreed upon between people…”
Guarantee equality of legal and administrative conditions, and of any other type, between people who are not married, independent of their sexual orientation and gender identity.
Include in Title II, Chapter VI, that the family is responsible for guaranteeing the support and protection of its members, notwithstanding their sexual orientation and gender identity.
Include any other articles considered necessary, with the aim of recognizing the diversity of families that exist in Cuba, the way in which these units could be organized, and the rights and responsibilities that apply to them.

Penal Code:

Repeal all provisions relative to a state of danger, and the pre-criminal or warning sanctions.
Include in Title VIII, Chapter III regarding murder, and in Chapter VII regarding injuries, the circumstances under which a hate crime is defined as a consummated delinquent act.
In Article 295.1 of Title IX, Chapter VII, regarding crimes against the right to equality, include gender, sexual orientation, and gender identities as causes of discrimination. Limit the definitions with as many aggravating factors as in the rest of the articles.
Include in Article 295.5 inciting hate, religion, political or other opinion, national origin, economic position, region origin, disability, age, marital status and family situation, state of health, place of residence, and socio-economic situation.
Remove Article 299.1, relative to pederasty with violence, and incorporate this into 298.1 as rape, without making reference to the gender of the victim or the perpetrator.
Eliminate from Articles 310.1 and 314 the explicit reference to “heterosexual or homosexual acts, or other of the dishonest conducts foreseen in this Code.”
Modify Title XI: “Crimes against the normal development of sexual relations and against the family, early childhood and youth”, for example: “Criminal offenses against sexuality, the family, early childhood and youth”. Define human sexuality as the legal good to be protected.

Labor Code:

In Article 2, paragraph b, include the prohibition of discrimination for reasons of gender identity or serological state with respect to the Human Immunodeficiency Virus (HIV) or the acquired immune deficiency syndrome (aids). These causes for discrimination were covered in the draft of the Labor Code discussed in the Assembly, but were removed.
Implement specific articles guaranteeing protection and recognition of the labor rights for LGBTIQ people. Legal labor relations should explicitly protect people with HIV/aids and trans people from workplace violence and sexual harassment or sexual abuse, and should not proscribe love relationships which do not categorize as nepotism.

Code for the protection of Children and Youth:

Incorporate the principle of non-discrimination for sexual orientation and gender identity into all family and institutional contexts and in the community where the minors grow and develop.
Recognition that minors continue to have rights in all dimensions, with explicit mention that intersex people should not be subjected to corrective medical modifications of the genitals until they have the ability to offer their free and fully informed consent regarding such practices. In these cases, as with any other concerning children, their superior interest should be taken into consideration.
Standardize the fact that the family has the duty of supporting and protecting their progeny, independent of their sexual orientation and gender identity.

POLICIES, PLANS AND STRATEGIES:

Access to information:

Implement tools to access the statistical information regarding criminality and violence that is currently in the hands of the public institutions.
Incorporate the variables of sexual orientation and gender identity of the victims into the aforementioned information.
Implement the active and systematic incorporation of information into the public domain, so as to allow the public to become educated about the enjoyment of full sexuality based on equality and non-discrimination.
Create an Information and Documentation Center that maintains a registry of cases of discrimination, as confirmed via investigations and/or through public reports by the population, organizations from civil society, state institutions or other social protagonists.
Promote the generation of public and accessible investigations that describe the reality experienced by LGBTIQ people.

Capacity building and raising awareness:

Implement a more profound training in human rights and sexual diversity for members of the National Revolutionary Police and law professionals, to prevent discrimination and stigmatization of LGBTIQ people.
Involve activists for sexual rights as trainers, without limiting the participation to groups recognized by Sexual Education National Center (CENESEX).
Adopt and implement public educational and cultural policies, and others that raise public awareness on the recognition of rights for LGBTIQ people. Among these should be campaigns to sensitize Cuban society to prevent hate crimes.
Make known and implement the National Program for Sex Education at all levels of teaching, with emphasis on the principles of equality and non-discrimination.
Build capacities among the Public Health staff with the goal of implementing policies in accordance with the needs of the LGBTIQ people.
During future campaigns and trainings, identify stigma and discrimination as risk and vulnerability factors for HIV transmission.
Develop training and sensitizing workshops with women organizations, with the aim of channeling the needs and demands of trans and lesbian women through the Federation of Cuban Women.
Train the staff of institutions within the educational system so that they recognize, respect and protect the sexual and human rights of LGBTIQ people as a guarantee of their access to education and continuity.

Access to justice:

Create norms and protocols for the State institutions that guarantee the full expression and protection of LGBTIQ people within official and public spaces, with special emphasis on the police authorities.
Demand that the Department for the Protection of Citizens’ Rights of the Attorney General’s office dedicate systematic attention, on all levels, to the cases of arbitrary detention, crimes of prejudice and other violations motivated by sexual orientation and gender identity.
Urge the Gender and Rights Division of the National Lawyer’s Union’s Office for Mediation of Violent Conflicts to become involved by accompanying LGBTIQ people whose rights have been violated due to their sexual orientation and gender identity.
Establish legal and investigative procedures to assure that victims of human rights violations due to their sexual orientation and gender identity have access to redress, compensation, rehabilitation, satisfaction and guarantees that the violations will not be repeated. Article 26 of the Constitution.
Broaden the lawyers’ capacity for action in the exercise of representation during the procedures of demands for legal redress, so as to streamline effective responses to human rights violations.
Regulate the application of the right of admission based on equal treatment and non-discrimination on the part of the state and private institutions. Every facility that claims this right must clearly display the requirements for gaining entrance to the place.

Protection for advocates of LGBTIQ rights:

Adopt a policy of protection against intimidation and violent acts committed by the private sector and public authorities, so that advocates for the rights of LGBTIQ people can exercise their rights to freedom of expression, association and meeting.
Modify the Law of Associations, so that the collectives and organizations that advocate for the recognition and protection of sexual and human rights for those with different sexualities and gender identification are able to register legally.

Programs:

Implement a program of assisted reproduction for women and men, without the need to specify their sexual orientation, gender identity or civil status.
Redefine the work of the “Houses for the Guidance of Women and the Family” to facilitate their reactivation, so that they can once again fulfill the social role that corresponds to them, especially intervention in gender violence.
Implement public policies for the improvement of the socioeconomic conditions of people who rely on sex work as their form of subsistence, without impeding their free movement or violating other inalienable rights.
Initiate programs in the Ministry of Labor and Social Security for the elaboration of a guide for best practices in business and labor relations, while seeking the creation of spaces free of homophobia and transphobia.
Promote joint programs between the Ministry of Labor and Social Security, the Cuban Workers Union, and the labor unions with the objective of opening discussion and debate spaces to move towards the eradication of harassment, violence and discriminatory practices in the place or work.
Promote equality of opportunity in access to work for trans people and people living with HIV/aids, with respect for their level of professional preparation and their profession or career, especially within State-run entities.
Request that the Federation of University Students recognizes the principle of non-discrimination for sexual orientation and gender identity, reflecting this in their ABCs and ratifying it in the General Dispositions section of their Statutes.
Request that the Ministry of Higher Education incorporates the concepts of sexual orientation, gender and gender identity into the plans of study at all levels of teaching; and redesigns the course contents and the curricular map according to PRONESS, to eliminate all vestiges of sexism, stigma, discrimination or information not based on scientific knowledge.
Establish gender perspective and the focus on sexual diversity as official State policy, with the aim of not making these dependent on the existence of sensitized individuals.

Participation in public life:

Demand that the armed forces give full protection to non-heterosexual and transgender people, protecting them against acts of discrimination for reasons of sexual orientation and gender identity.
Public and active participation of people who hold weight in decision-making in the defense and promotion of the rights of all sexualities and gender identities outside the heterosexual norm.
Free access to the media to express the postures and visions of LGBTIQ people.
Recommend that the State institutions broaden the categories regarding sexuality and gender in their official forms, for example, feminine, masculine or other.
Dismiss from the regulations of the armed forces the discharges for convenience which are motivated by sexual orientation and gender identity.

Recognition of legal status

Approve a Law of Gender Identity with full recognition of gender identity as that with which the person identifies, independent of the realization of genital reassignment surgery. This law would guarantee the process of gender identity change through administrative procedures. This should be accompanied by legal norms and effective procedures, so that birth certificates, passports, electoral registries, etc. show the gender identity the persons have defined for themselves.

Treatment of sexuality at the prison facilities

Reformulate policies for the LGBTIQ prison population and towards those who are HIV positive. These should take into account any needs derived from their sexual orientation and gender identity, including respect for their reproductive rights and access to sex reassignment if so desired.
Demand of the Interior Ministry the creation of sections for prisoners who are LGBTIQ.
Train prison staff on the principles of equality and non-discrimination based on sexual orientation and gender identity of the person who has been imprisoned.

Prostitution, pimping and human trafficking

Eliminate all manifestations of harassment and “social sanitation”, related only to the practice of prostitution, and penalize the client and the pimp when they demonstrate coercion, violence, intimidation or a consummated crime of sexual slavery or human trafficking.

Access to specialized health care services for trans people

Decentralize as much as possible the gender reassignment surgery, counselling, mental health assessment if required, hormone therapies, voice therapy, laser depilation, “feminizing” o “masculinizing” surgeries, and other treatments trans persons require.
Guarantee the access of transgender people to health treatments, without making it obligatory to submit to a psychological evaluation, undergo hormonal castration or have genital reassignment surgery.

Havana, May 2018

Signatures:

Lidia M. Romero Moreno
Isbel Díaz Torres
Yadiel Cepero Madruga
Marta María Ramírez
Juana Mora Cedeño
Jimmy Roque Martínez
Yurena M. Manfugás Terry
Deyni Terry Abreu
Roberto Ramos Mori
Alberto Roque Guerra
Yaíma Pardo la Red
Julo Antonio Fernández Estrada
Jorge Luis Casas Batista
Sandra Álvarez Ramírez
Carlos Alejandro Rodríguez Martínez
Maikel González Vivero
Yasmín Silvia Portales Machado</strong
Pedro Manuel González Reinoso