(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
Peru is signatory to international treaties and human rights declarations including prohibitions of discrimination based on sexual orientation or gender identity. However, Peru refused to sign the 2008 and 2010 UN Human Rights Declarations on Sexual Orientation and Gender Identity, as emphasised in a joint report by Peruvian NGOs to the IACHR. Additionally, Peru denied firming a declaration on sexual orientation or gender identity-based human rights violations presented to the UN in 2011, as the Peruvian NGO Promsex laments. A later Promsex article explains that Peru finally voted in favour of the UN declaration on 'Human Rights, Sexual Orientation and Gender Identity' in 2014.
Peru is a member state of the Organisation of American States (OAS). This binds Peru to several resolutions on 'Human Rights, Sexual Orientation and Gender Identity' passed by the OAS General Assembly between 2008 and 2011: Resolution AG/RES. 2435 (XXXVIII-O/08), Resolution AG/RES. AG/RES. 2504 (XXXIX-O/09), Resolution AG/RES. 2600 (XL-O/10) and Resolution AG/RES. 2653 (XLI-O/11).
The Inter-American Commission of Human Rights (IACHR), an organ of the Organisation of American States, created a delegation for sexual orientation, gender identity, gender expression and corporeal diversity in order to improve the LGBT rights situation, as further explained in this OAS press release.
Peru ratified the Andean Charter in 2002. Art. 52 Section F of the Charter demands universal human rights regardless of sexual orientation, and Art. 53 commits signatory states to combatting discrimination on account of sexual orientation, as emphasized by the International Gay and Lesbian Human Rights Commission (IGLHRC) in a press release condemning discriminatory national legislation.
Peru's Constitution Art. 2.2 stipulates that 'Every person has the right to equality before the law. No person shall be discriminated against on the basis of origin, race, sex, language, opinion, economic status, or any other distinguishing feature'. Sexual orientation and gender identity can be included under 'any other distinguishing feature', but are not explicitly mentioned.
Peru's Supreme Court has issued several rulings defending LGBT rights:
- 2004: Art. 269 of Peru's Military Code labels same-sex sexual relations as 'dishonest or unnatural acts', and punishes them with expulsion or prison (Art. 269 is cited in Spanish on p. 31 of this joint report by Peruvian NGOs to the IACHR, translation mine). The 2004 Supreme Court ruling found the regulation unconstitutional, pronouncing that sexual orientation is not an objective ground for differentiation.
- 2006: A 2006 Supreme Court ruling defends the right to change one's name in national identification documents. This permitted trans person Karen Mañuca Quiroz Cabanillas to effectuate a formal name change.
- 2009: In 2003, the Puente Piedra National Police School in Lima expelled a police student based on accusations of homosexual conduct, deemed 'a grave offense to the police morale' (quoted from an article of the Spanish LGBT organization Dos Manzanas, translation mine). The 2009 Supreme Court ruling demands the student's reincorporation, emphasizing that sexual orientation ought not to be an impediment to service in the police or military.
Peru's national courts have issued several decisions protecting LGBT rights. The rulings are listed on pp. 34-35 of this joint report by Peruvian NGOs to the IACHR, including a case where the police was reprimanded for omitting to intervene in an attack against a trans person, as well as the defense of the right to legal name changes.
Peru's Penal Code contains an anti-discrimination law, passed in 2000: Chapter 4, Art. 323 prohibits discrimination based on sexual orientation, stipulating that 'discrimination due to racial, religious, sexual, or genetic factors [and other reasons]… shall be punished with imprisonment … or services to the community' (my translation). Moreover, homosexual acts are legal in Peru since 1836/37, as the International LGBTI Association ILGA states in their 2013 Report on State-Sponsored Homophobia.
A few regional and local governments issued ordinances, endowed with the force of law, to protect LGBT rights. The joint Peruvian NGO report Torture, discrimination and other forms of violence against the LGBT population in Peru counts 9 ordinances on sexual orientation, but 3 of them fail to extend protective measures to gender identity.
Despite these progressive elements in the law, many reports on LGBT rights in Peru lament the lack of effective legal protection: ILGA's 2012 Report on Lesbian and Gay Rights in the World notes that Peru lacks specific anti-discrimination laws; the 2013 US Country Report on Peru equally denounces that 'the law does not specifically prohibit discrimination against persons based on sexual orientation or gender identity'; whereas Human Rights Watch makes the slightly divergent observation that Peru has protection against sexual-orientation based discrimination in national law, but lacks similar laws protecting gender identity.
To address legal deficiencies, numerous LGBT groups have presented legislative initiatives to the Peruvian Congress:
- Proyecto de Ley Nº 3584/2009-CR: This legislative proposal to introduce hate crime legislation was presented to the National Congress in 2009, but not debated due to opposition from religious groups (Joint NGO report)
- Proyecto de Ley N° 4181/2010-CR: This 2010 demand for the legislation of civil unions was not accepted by the Justice and Human Rights Commission, on the basis of possible incongruences with Art. 5 of the Constitution defining civil unions as unions between a man and a woman (Joint NGO report)
- Proyecto de ley Nº 609/2011-CR: This 2011 law against criminal acts based on discriminatory motives is the modified version of the rejected 2009 hate crime proposal. The 2011 law was passed, but parliamentary debate eliminated sexual orientation and gender identity as specific motives for discrimination, based on the argument that 'there were only 7 murders of homosexuals in 2012, and sexual attraction can change like drug consumption or wanting to eat something else' (Promsex and LGBT network 2013-14 report, my translation).
- In April 2017 the Constitution and Regulations Committee of the Congress of the Republic of Peru repealed Legislative Decree No. 1323. The Decree would have incorporated into the Peruvian Criminal Code sexual orientation and gender identity as expressly prohibited categories of discrimination. It would also have provided more severe punishments for hate crimes against LGBTI persons by adding gender identity and sexual orientation as aggravating circumstances for crimes.
Guerrero v. Canada (Minister of Citizenship and Immigration), 2011 FC 860, Canada: Federal Court, 8 July 2011
This is the application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board by the Peruvian citizen Janet Graciela Jara Guerrero. Her refugee claim is based on persecution due to sexual orientation. The judge granted judicial review, arguing that documentary evidence was not properly considered and that the Board's findings on state protection were not reasonable.
The Peruvian national Luis Alberto Rojas Marin was arbitrarily detained and raped in 2008. The Peruvian organisations Redress, Promsex and the Coordinadora Nacional de Derechos Humanos presented the case to the IACHR through a petition. Peru's reply claims inadmissibility of the case, rebuffed in the subsequent response of the petitioners.
PUBLIC ATTITUDES AND/OR STATE'S CAPACITY TO PROTECT
Physical violence and other forms of anti-LGBT discrimination abound in Peru, combined with deficient and differential access to justice. This is emphasised in the joint NGO report on Torture, discrimination and other forms of violence against the LGBT population in Peru from 2011. The report explains that although the law decriminalises sexual orientation and gender identity (see LEGAL INFORMATION), the implementation of legal provisions is insufficiently pursued and monitored. Instead, violence and discrimination are tolerated by the state and the 'conservative and traditional' (my translation) Peruvian society. This information is corroborated by Amnesty International's 2010 Peru Country Report, stating that 'Lesbian, gay and transgender people continued to face discrimination and ill-treatment'.
Known incidences of violence and discrimination
There are no official state statistics on violence and discrimination due to sexual orientation or gender identity. However, (inter)national NGOs reliably report incidences based on information retrieved from LGBT networks, personal interviews and the media. The Peru LGBT Network and the NGO Promsex publish regular updates. Their 2013/14 Report records 17 assassinations and 40 violations of the right to personal security, the 2012 Report denounces 14 assassinations in 2012 and another 14 assassinations in 2011, the 2010 Report counts 18 assassinations, the 2009 Report 19 and the 2008 report 10.
These violent and discriminatory acts frequently exhibit direct signs of homo-lesbo-transphobia, as indicated in the joint report by Peruvian NGOs to the IACHR. The report contains detailed descriptions of cases of torture, inhuman and degrading treatment on pp. 54-58. In his statement to the IACHR, summarised in the same report, the LGBT lawyer Víctor Álvarez emphasises hate motives and describes that assassinated LGBT were found with their hands tied, half-naked, hanged, with a sign saying 'maricón' (derogatory expression for gay persons) over the dead body, or with a bottle stuck in the anus.
State and political attitudes
Numerous national and international reports criticise the Peruvian state and its institutions for producing and perpetuating discrimination through primary perpetration, secondary victimisation and continuous inaction:
- The 2013 Redress report on Justice for Torture Worldwide emphasises that LGBTI 'are at considerable risk of torture at the hands of law enforcement agencies, or private actors with the acquiescence of officials'. In a complementary 2012 report entitled Torture and the rights of LGBT persons in Peru, the same organisations describe daily violence and discrimination and condemn the state for failing 'to adopt the legal or other measures necessary to prevent and respond to such violations'.
- Corroborating the above information, the 2013 US Country Report on Peru states that 'government authorities, including police, harassed and abused lesbian, gay, bisexual, and transgender (LGBT) persons' and delineates discrimination in 'employment, housing, and access to education and health care'.
- The previously mentioned joint report by Peruvian NGOs to the IACHR similarly criticises that 'anti-LGBT violence and discrimination are tolerated and often produced by the state itself' (my translation). The report traces the durability of such practices back to the strong authoritarianism of previous regimes. Furthermore, the report contains the statement presented to the IACHR by Maribel Reyes, a lesbian activist and representative of the Peruvian LGBT network. Entitled 'Yes, state-based homolesbotransphobia exists' (my translation), the statement denounces the institutionalisation of homolesbotransphobia in Peru, manifested in rights violations at the hands of public officials, the inaccessibility of the judicial system, and the non-implementation of laws protecting LGBT rights.
Discriminatory attitudes and behaviour are particularly evident in the Police and the Serenazgo, a private security service subcontracted by the government. The 2012 shadow report Torture and the rights of LGBT in Peru, submitted to the UN Committee Against Torture by various Peruvian civil society organisations, emphasises that most of the assassinations and rights violations against LGBT in Peru were perpetrated by Police or Serenazgo personnel. This information is corroborated and contextualized in regional dynamics by the 2013 follow-up report on Torture in the Americas composed by the NGO Redress.
LGBT persons are particularly vulnerable during illegal and arbitrary detention. Pretexts for arrests include combating sex work and the so-called maintenance of public order. For instance, members of the organisation GaysinPeru reported that authorities 'invoke vague laws aiming to uphold "public morality"' and give penalties between 20 days and 20 years in jail to repress nonconformity with dominant sexual norms, as described in this Peruvian Times article. After arrests are made, 'LGBT individuals are frequently denied access to a lawyer [and other rights] … which exacerbates their vulnerability to torture and other forms of ill-treatment', states the Torture and the rights of LGBT in Peru report. The 2010 report on the Human Rights Situation of Lima's Trans Community published by Instituto Runa, exposes the particular vulnerability of the trans community: 100% of the trans women contacted report arbitrary detention by the Police or Serenazgo.
Discrimination is perpetuated due to a culture of impunity surrounding LGBT rights violations. Victims are hesitant to denounce abuse due to 'fear of retaliation, lack of trust in the system and fear of discrimination and stigma', as emphasised in the report on Torture and the rights of LGBT in Peru, and corroborated by very similar observations in the US Country Report 2013. This diagnosis is complemented with the trans-specific information collected in the yearly reports by Instituto Runa, exposing that the majority of trans rights violations are not denounced.
Official public policies purporting to defend LGBT rights exist: For instance, the National Human Rights Plan sets out programs to combat discrimination, and the Police Human Rights Manual contains guidelines condemning LGBT discrimination at the hands of the police. However, in their joint report to the IACHR, Peruvian NGOs diagnose that these policies are not implemented.
The lack of implementation of official policies is little surprising given the attitudes displayed by key political figures. As described in this RPP article, interior Minister Mercedes Cabanillas pushed for new regulations banning individuals who engage in same-sex sexual interaction from the police force, arguing that it 'affects the image of the institution' (translation mine). Accordingly, Law 29356 on the regulation of the police was adopted by the Peruvian Parliament in May 2009. This IGLHRC press release urges citizens to file an Action of Unconstitutionality with the Constitutional Court, given that Art. 34 of the code defines 'sex with people of the same gender that cause scandal or undermine corporate image' as a very serious offense with penalty of discharge.
The joint Peruvian NGO report to the IACHR highlights that LGBTI discrimination is rooted not only in law and politics, but is also expressed in stereotypes governing education, religion and economics, produced by a dominant culture seeking to impose heterosexual norms. Similarly, the US Country Report 2013 denominates LGBT discrimination as 'widespread' and 'culturally sanctioned'. A Peruvian times article adds that 'homosexuality in Peru, a devout Catholic country, is perceived as inherently flawed and often as an illness'. The pervasiveness and terrible consequences of societal discrimination violently manifest themselves in suicides of adolescents due to anti-LGBTI bullying. This IACHR press release denounces that a 15-year old boy committed suicide due to bullying by his relatives.
Numerous LGBT initiatives have emerged in Peru to respond to the state's incapacity and unwillingness to protect them:
- 2002: 2002 saw the first gay pride parade in Peru, but marchers hid their identity behind masks due to fear of repression, as Peruvian Times clarifies. An IGLHRC Action Alert denounces that the organisers were denied a permit to hold the pride parade in Miraflores district in Lima, because allegedly 'neighbours had opposed the parade'. Thus, the event had to be moved, as explained in a second IGLHRC Press Release.
- 2011: As an act against homophobia, a group of young gays and lesbians kissed openly on Lima's Plaza Mayor. However, these nonconforming public displays of affection were violently repressed.
- 2012: LGBT communities elected representatives to defend their interests against the state, with more than 800 LGBT persons participating, as explained in this 2012 US Country Report on Peru.
Please note that the report refers to LGBT and not LGBTI, given the absence of reports or organisations defending the rights of intersex persons in Peru.
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
We do not currently list any LGBTI NGOs in Peru, but we welcome suggestions.
COUNTRY OF ORIGIN SPECIALISTS
We do not currently list a specialist on LGBTI issues in Peru, but we welcome suggestions.
Researched by: Vera Wriedt
email: vera [dot] wriedtgmail [dot] com