Colombia’s LBGTI community is attempting to eliminate the existing requirement that transgender persons carry military exemption cards, in a case that is currently being looked into by Colombia’s Constitutional Court.
Grace Kelly Bermudez is the plaintiff in the suit, which alleges Colombia’s military service requirement is discriminatory insofar as it only considers assigned sex — typically determined at birth by the presence of absence of external sex organs — and not gender identity — a “lived internal and individual experience,” according to an amicus brief in the case.
By law, eligible Colombian males are required to carry a military status card proving their exemption from mandatory military service, which is provided if the individual is disabled, enrolled in higher university, or can afford to pay for an exemption, among other cases. While the military service requirement only applies to men, there is currently no statute governing cases of women, like Bermudez, who were wrongly assigned male sex at birth.
|Gender, as opposed to sex, is a “lived internal and individual experience,” according to an amicus brief filed on Bermudez’s behalf.|
A violation of rights
“Trans persons have a lived experience that does not correspond to the sex they were assigned at the moment of birth,” explains an amicus brief submitted on Bermudez’s behalf by various LGBTI and human rights groups.
In that context, trans persons’ ability to “construct their gender in a determining fashion” is an implicit part of their “individual autonomy as human beings,” an interpretation the Constitutional Court agreed with, argues the brief, when it ruled that all Colombians have the right to “freely” define their “association with any particular gender, as well as romantic orientation toward others.”
The current military exemption practice therefore violates Bermudez’s “right to gender identity and all related rights by denying her construction of identity, leading to the violation of her privacy, personhood, and right to live free of humiliations,” reads the brief.
An abusive military
Advocates say military service is traumatic for trans women, who should be exempt by law, anyway.
“We are worried that, treating transgender persons as men at the time of recruitment produces humiliating experiences, such as being required to disrobe in public for the medical exam, pathological treatment during the medical examen, abusive haircuts, a change of wardrobe not corresponding to their gender identity, insults, and degenerate treatment by members of the armed forces,” reads the brief, an assessment confirmed by the Colombian Ombudsman’s Office.
“Transgender women who approach military offices with the goal of defining their military situation are the target of ridicule and unjustified bullying in the proceedings,” read a statement released in Bermudez’s support.
In the best of cases, trans women willing to withstand the malice directed toward them are often ruled “not capable” of military service, an “exclusive stereotype” that furthers the stigmatization of the trans community, according to the Ombudsman’s Office, which declined Colombia Reports’ request for an interview.
Often, trans women are asked to pay the military’s exemption fee, which many Colombians in general struggle to pay and many in the disproportionately impoverished trans community simply cannot afford.
A “Normative Vacuum”
Even in the absence of any further abusive treatment, however, the brief argues that the very act of having to present herself before the military is an affront to Bermudez’s right to self-identify and qualifies as “a form of double victimization.”
“The fact that a trans person has to have a military card does not recognize reality, because in Colombia the only people required to give military service are men, and so it is illogical that people who construct their own identity have to have that document,” said Laura Weins, coordinator for Support Group for Trans Persons, one of the brief’s signing parties, in an interview with Colombia Reports.
“That, in itself, is very violent, because it goes against the identity constructed by us, demanding a document that speaks of a masculinity that violates the identity you have constructed for yourself,” she said.
The Ombudsman’s Office calls the lack of clarity in the legal code as to whether trans women are obligated to present themselves at all a “normative vacuum.” Wein’s assessment is more direct.
“For the judicial system, we don’t exist.”
The suit was originally filed when Bermudez, legally known as Ivan Andres Paez, was denied a nursing job in the public Bogota Humana initiative because she did not have a military exemption card, despite her acknowledged qualifications for the position and the citywide hiring policy designed to be inclusive towards members of the LGBTI community, reported the Bogota-based El Espectador newspaper.
Colombia Reports was unable to obtain information regarding other similar incidents, though advocacy groups assure that Bermudez’s case is far from unique. Under Colombian law, explained Weins, trans persons are only allowed to change their legal identity if they have undergone sexual reassignment surgery, which many members of the trans community don’t want or can’t afford.
|“For the judicial system, we don’t exist.”|
“If the national identity card gives you a gender that doesn’t correspond to yours, that document is not very real to you and can even be considered false,” she said.
Nonetheless, legally male trans persons are still required to carry a military exemption card in order to obtain government services and be hired by employers in both the public and private sectors.
The Bogota city government, for example, recognizes Bermudez’s right to self-identity, but claims it was forced to deny her job application, regardless, due to the existing statutes.
In a separate amicus brief filed in support of Bermudez, the Bogota Sub-Office of LGBT Issues explained that, while its stated mission is to “generate formal employment, education, and other opportunities for the LGBTI community,” it was unable to hire Bermudez because of her “non compliance with the totality of the requirements for [public] contracting.”
Bermudez’s ambiguous military exemption status, according to the administrative body, violates her Constitutional right to work by prohibiting her from “entering into contracts with public entities; beginning a public career track; assume control of public functions; and obtain professional standing in any institute of higher education.”
When her job application was denied on this discriminatory basis, Bermudez filed a “writ of protection,” an emergency legal option available to citizens who allege their basic rights have been infringed.
The local court that heard her case ruled against her, but Bermudez’s suit was soon accepted for review by the Constitutional Court. In the days since, Bermudez has become become a rallying point for the transgender community and broader LGBTI movement, who see her case as an embodiment of many of their daily struggles.
A Bogota Sub-Office of LGBT Issues study submitted to the Constitutional Court found that 79.3% of the city’s LGBTI community has suffered workplace discrimination and/or hiring discrimination, a figure that climbs to 92.4% in the trans community in particular.
Only 5.35% of Bogota’s trans community currently works under formal labor arrangements, according to the study. The other 94.65% do not receive benefits or protection under Colombian labor law.
It is with that in mind that the human rights brief calls military exemption cards “a form of legitimizing a vicious cycle of poverty,” “a method of exclusion and segregation,” and “a form of legal and administrative violence.”
Not just jobs: ‘exclusion and segregation,’ ‘legal and administrative violence’
Colombia’s trans community tends to face the same sort of discrimination in the classroom as it does with respect to military status.
A study performed in Bogota found that 39.5% of trans persons have only a high school diploma, while 26.7% did not make it past middle school. Less than 12% reached the level of higher education, and less than 2% obtained graduate degrees.
Almost 80% of trans persons who presented as gender alternative during their studies reported emotional and psychological abuse. Additionally, some 35% were abused physically and 12% sexually. As many of 6% of trans students were expelled for reasons they claim pertained to their gender identity.
With disproportionately low levels of academic achievement and prohibitive barriers to gainful employment, trans persons often turn to the underground economy, particularly the drug and sex trades.
Because access to appropriate medical care is also low and intimidating — 45% of trans persons in Bogota claim to have been denied medical coverage at some point in their lives — sex workers in particular are exposed to a variety of health risks.
Among these are the lengths trans women must go to in order to receive body modification procedures or medications. Not all trans women choose to alter their bodies, but in one case study of a Bogota neighborhood with high levels of trans prostitution, 96% of women interviewed said they had relied on unlicensed medical services to do so. Of those who did receive black market medical treatment in order to alter their bodies, 60% claimed to have done so multiple times.
The dangers of untrained medicine are only some of the risks the bodies of trans women, sex workers or otherwise, are exposed to. In a country in which violence against women — and impunity for violence against women — on the whole is high, trans women are victimized at rates that put them well above the general population, and even the rest of the LGTBI community.
A remarkable 100% of trans persons surveyed in Bogota reported having suffered some form of open aggression, and 90.86% reported having been attacked in public.
The recourses of public security are out of reach for these people, as many fear further abuse at the hands of police officers.
Over 40% of trans persons reported having been detained unlawfully. In 97.74% of these cases, no reason for the detention was ever provided. In almost 20%, excessive violence was employed.
Increasingly, Colombia’s LGBTI community has mobilized around the fight for equal rights and protections under the law. But social movements are hampered by one of the most obvious implications for the military exemption requirement.
Military exemption cards are required before eligible, legally recognized men can serve public office in Colombia. The country’s military service statutes serve, in that sense, not simply to exclude trans women from formal society, but also to exclude them from the political system they might otherwise use to change it.
In the absence of direct representation, public policy fails to recognize trans-specific issues, even when it does make room for LGBTI progress in general.
As a spokeswoman for Bogota’s Office on LGBT Issues told Colombia Reports, “Public policy does not contemplate different actions for the different sectors in the LGBT community but rather a special policy for the entire LGBT community.”
For Grace Kelly Bermudez, and other trans persons like her, however, a blanket solution doesn’t go nearly far enough, as the military exemption issue demonstrates. “Laws like the anti-discrimination law talks about sexual identities but not gender identities,” said Weins, “so we automatically see an exclusion of people that construct their own gender.”
It remains unclear what implications a favorable ruling would carry for other members of the gender spectrum, such as bigender individuals, who fluctuate between male and female identities, or so-called gender benders, who don’t conform to a gender binary.
NICOLAS BEDOYA AIDED EXTENSIVELY IN THE REPORTING OF THIS ARTICLE
- Interview with Laura Weins
- Interview with Daisy Johanna, Sub-Office for LGBT Issues
- Amicus Organizaciones LGBT (Various groups)
- Amicus Defensoria del Pueblo (Colombia’s Ombudsman’s Office)
- Amicus Sub Dirección para asuntos LGBTI secretaria de integración distrital (Bogota Sub-Office for LGBT Issues)
- Amicus Dirección de Diversidad Sexual (Bogota Sub-Office for LGBT Issues)
- Las trans contra la libreta militar (El Espectador)
- Corte Constitucional estudia caso de #NoLibretaMilitar para mujeres trans (Colombia Diversa)
- CUANDO EL PREJUICIO MATA: INFORME DE DERECHOS HUMANOS DE PERSONAS LGBT EN COLOMBIA- 2012 (Colombia Diversa)