The decriminalization of homosexuality in Ecuador took place on 25 November 1997, when the Constitutional Tribunal issued a landmark decision in Case 111-97-TC declaring the first clause of Article 516 of the Penal Code – which criminalized same-sex sexual relations as a crime with a penalty of four to eight years of imprisonment – unconstitutional. The ruling put an end to more than one hundred years of criminalization of homosexuality and was the result of a claim filed by different LGBTQ groups as a response to the police abuses usually experienced by sexually diverse individuals in Ecuador.
Overview Homosexuality had been outlawed in the country in 1871, but for a long time the issue remained unaddressed. This changed in the 1970s, when LGBT people started to gain visibility thanks to an increase in the urban population and the effect of international events such as the Stonewall riots. However, this caused an increase in police repression, particularly during León Febres-Cordero Ribadeneyra's presidency (1984–1988), when human rights violations were committed against different groups of people, including LGBT populations. Police repression persisted over the following years, leading to organizations such as FEDAEPS to start exploring strategies to change the law.
In 1997, Ecuador was going through a time of social protests and citizen demands that created a favorable environment to achieve the decriminalization of homosexuality. This period was characterized by demonstrations by students, women's groups, indigenous groups and other social actors who were protesting human rights violations and torture committed by the police during the Febres-Cordero administration. Additionally, in February of the same year, the country underwent a wave of protests that led to the removal of President Abdalá Bucaram.
It was in these circumstances that the Bar Abanicos, an LGBT establishment in the city of Cuenca, was violently raided by the police on the night of 14 June 1997. People arrested in the bar were abused, tortured and raped by police officers and other inmates during their detention.
What happened at Bar Abanicos became the catalyst that prompted – for the first time in the history of the country – the organization of a front formed by different groups of people from the LGBT community to seek the decriminalization of homosexuality. This front was named the Andean Triangle and included the organizations FEDAEPS, Coccinelle, Famivida and Tolerancia.
Following preliminary discussions, the organizations decided that the best strategy was to file an unconstitutionality claim against Article 516 of the Penal Code, which required the collection of 1,000 supporting signatures. The signature collection process marked the first time in Ecuador's history that LGBT people seized streets and public spaces. One of these events was the first demonstration of LGBT people in the country, held on 27 August 1997, through the streets of Quito and ending at Plaza Grande.
On 24 September 1997, the petition was filed along with 1400 supporting signatures, of which the allegations were based on three main arguments:
That homosexuality was not a disease. That the existing law went against the constitutional principle of non-discrimination, and; That rights to sexuality were human rights.
On 25 November 1997, the Constitutional Court unanimously decriminalized homosexuality in Ecuador. The ruling went into effect two days later with its publication in the Official Registry. According to a poll conducted by the newspaper Hoy in 1997, 62% of Ecuadorians were in favor of decriminalizing homosexuality.
Historical background
Homosexuality was criminalized in Ecuador for the first time in the Penal Code of 1871, promulgated during the government of the conservative president Gabriel García Moreno. Article 401 of this legislation criminalized male homosexuality (referred to as "sodomy"), with a penalty of four to eight years of imprisonment. This penalty remained the same in the 1906 Penal Code, although it was moved to Article 364 and a subsection was added for cases in which the crime was committed by ministers of worship or teachers. Article 401 of the 1871 Code stated:In cases of sodomy, the guilty parties shall be sentenced to four to eight years of imprisonment when no violence or threats are involved; eight to twelve years when one of these circumstances is involved, and with extraordinary imprisonment when the victim is a minor.
The same penalty as to the guilty parties shall apply to anyone who consented to or aided and abetted the crime or assault of this nature.
If the assault has been committed by the parents, the guilty party will be deprived, in addition, of the rights and prerogatives that the Civil Code grants over the person and property of the offspring.In 1933, the Ecuadorian psychoanalyst and writer Humberto Salvador published the book Esquema sexual, highly successful in Latin America, in which he took a position against the criminalization of homosexuality in Ecuador based on clinical and scientific points of view. He also referred to the contradictory nature of the law prohibiting only male homosexuality (sodomy) and not female homosexuality, concluding that perhaps the authors of the Penal Code were attracted to the same sex and that "therefore, repression – speaking in Freudian terms – took on a character of maximum violence in them." He further stated: "It has been said that those who most harshly attack a sexual deviation are those who practice it or love it in secret. And this is an evident psychological truth."
The next change in legislation regarding sexual diversity occurred in the 1938 Penal Code, which changed the word "sodomy" to "homosexuality" and thus broadened the crime to cover lesbian sexual relations. However, the second subsection went on to refer only male individuals. This article was originally 491, but years later it was moved to numeral 516 of the Penal Code and remained unchanged until 1997, when homosexuality was decriminalized by the Constitutional Court. The article contained the following three subsections:1. In cases of homosexuality that do not involve rape, the two parties shall be punished with rigorous imprisonment for a term of four to eight years.
2. When homosexuality is committed by the parent or other ascendant in the person of the offspring or other descendant, the penalty shall be imprisonment for a term of eight to twelve years and deprivation of the rights and prerogatives that the Civil Code grants over the person and property of the offspring.
3. If it has been committed by ministers of worship, school teachers, professors or tutors, on the people entrusted to their direction or care, the penalty shall be rigorous imprisonment for a term of eight to twelve years.
Police repression
A considerable increase in the visibility of LGBT people in Ecuador took place in the last decades of the 20th century, influenced by the waves of migration to the big cities that occurred during the 1970s, as well as the impact of international events such as the Stonewall riots or May 1968 in France. However, this increased visibility resulted in an increase in police abuses and arrests, backed by conservative politicians. This subsequently sparked the emergence of LGBT activism in Ecuador and advocacy efforts to decriminalize homosexuality.
Police brutality intensified during the government of León Febres-Cordero (1984–1988). In May 1985, Febres-Cordero created the Escuadrones volantes,English: Mobile squads. a group of special forces police that committed systematic violations of human rights and acts of torture with government consent. Among the targeted groups were sex workers, members of the LGBT community, or any man with characteristics they considered "effeminate".
Based on the testimony of activists of the time, the Febres-Cordero government instilled panic in the LGBT community, who would run as soon as they saw a police patrol or a flying squad member approaching. After being arrested, the data and photographs of many LGBT people made it into newspapers the following Monday with discriminatory headlines such as "cayeron por depravados"English: they fell [prisoners] because they were depraved. or "cayeron por maricones."English: they fell [prisoners] because they were faggots. Other detainees died under police custody, as in the case of a young gay man whose body was found the next day tied to a tree in the park with more than twenty stab wounds, or another whose body was found with signs of torture in the Machángara River.
Persecution of LGBT people by the police continued in the 1990s. Activist Jorge Medranda testified that transgender women and gay men with characteristics considered "effeminate" received the worst treatment during raids in bars and discotheques and were often beaten and pulled by the hair to be arrested. During these raids, one of the strategies used to avoid arrest was to switch dance partners between gay men and lesbian women to appear to be heterosexual couples. In cases where raids were faster, lesbian women often confronted the police to give the men and transgender women time to flee the scene.
Beginning of the decriminalization process During the 1990s, the Fundación Ecuatoriana de Acción y Educación para la Promoción de la Salud (FEDAEPS)English: Ecuadorian Foundation of Action and Education for the Promotion of Health. – which was officially dedicated to preventing the spread of HIV but also carried out activities on behalf of LGBT rights – strengthened its links with foreign organizations, including the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), through discussions where they shared strategies for activism and started submitting complaints about abuses against people from the LGBT community.
On 7 November 1994, the organizations used the presence in the country of a delegation from the Inter-American Commission on Human Rights (IACHR) to submit a report compiling data on cases of police abuse. The IACHR welcomed the report and urged Ecuador to comply with international treaties in terms of respect and protection of LGBT people, but the government ignored the request.
Throughout this period, FEDAEPS started to focus its efforts on highlighting the importance of achieving the decriminalization of homosexuality in Ecuador. The foundation's connections with ILGA were of particular help for this purpose, since during its 1995 world conference – held 18–25 June in Rio de Janeiro – the association called for campaigns to decriminalize homosexuality in Ecuador, Chile and Nicaragua.
After the destitution of President Abdalá Bucaram in early 1997 and the installation of Fabián Alarcón as interim president, foreign LGBT organizations allied with FEDAEPS began to hold sit-ins at international forums attended by President Alarcón to demand the decriminalization of homosexuality. Simultaneously, members of FEDAEPS initiated a lobbying process in Congress to pursue the abolition of the criminalization of homosexuality, for which they held meetings with congressmen such as José Cordero, of the Popular Democracy party. During this period, the Bar Abanicos raid took place in Cuenca, an event widely acknowledged as the catalyst for the decriminalization process.
Bar Abanicos raid