Human Rights

Being transgender in Venezuelan Constitution: “…and etc.”

Tuesday, December 24, 2013
Tamara Adrian is a law professor in 3 different universities in Venezuela. In addition to her academic battle, she is also a passionate voice for better working and housing conditions for trans society in her country and all over the globe. She recently added a new massive role to her list of responsibilities: Chairperson of the International IDAHO-T Committee --an opportunity which gives me the chance to work with her directly.
Venezuela is actually one of the very first countries in the world to legally recognize trans identity, in 1977. However, in practice, trans people are still facing enormous legal problems and Tamara is here to picture it for us.
This is also a good time to invite those who would like to listen to Tamara in person to Ankara in May 2014. She will be among the main guests of the 9th IDAHO-T events hosted by Kaos GL in Turkey.
Are you still working at the University of Católica Andrés Bello, which is also where you have studied? How are your working conditions?
I have been teaching at the Universidad Católica Andrés Bello, where I graduated as a lawyer with highest honors over three decades ago. I also teach at the Universidad Central de Venezuela and recently at the Universidad Metropolitana. I was a well-known lawyer and professor by the time I started my transition. That helped me in maintaining my working conditions and having an adequate status of life. I know I am privileged for that, but at the same time it shows that prejudices act in both ways. Therefore we have to push forward for the change of minds: Your ability to have a profession has nothing to do with your sexual orientation or your gender identity.

Of course, laws against labor discrimination are indispensable for achieving this goal. But what is more important is to implement effective affirmative action aiming at overcoming the lack of professional training for most of trans population, which conducts to poverty and deeper exclusion.
Venezuelan Constitution calls you “and etc.”, just like the Turkish Constitutions call us. Here nothing has changed since we spoke the last time. Anything new over there?
No, nothing has really changed. For the time being, my case for the legal recognition of my legal identity according to my gender identity, is before the Inter American Commission of Human Rights. Venezuela had presented arguments against this petition that are totally out of the scope of my petition, pretending to affirm that the change of name –but not sex- as theoretically permitted by the Organic Civil Registry Law, had to be requested before any other recognition of identity. Of course this is a nonsense argument and pretends to create confusion in the Commission. But the Commission is very clear with regard to what “gender identity” means, and had even appointed a Special Rapporteur for LGBT issues, and therefore this position of the Venezuelan State is only aiming to delay the resolution.
This is unfortunate, as in the rest of the countries of the South American region, huge advancements had been achieved. This is particularly the case for Argentina, where the Gender Identity Law permits the change of name and sex, and the issuance of a new birth certificate before the Civil Registry Officer, without any medical requirements nor of any kind of surgery. This is a new international standard with regard to the recognition of gender identity, and is being promoted in other countries of the region.
In housing and employment, Venezuela does offer protection; however it is almost impossible to prove the means of discrimination. As a lawyer, please tell us a bit more about your struggle.
In order to make effective rules of law concerning discrimination, it is necessary for them to be accompanied by the inversion of the burden of proof. This means that in the presence of an action or omission that a person considers to be discriminatory against him or her, it is the responsibility of the person incurring in this action or omission to proof that the act was not based on a discriminatory consideration.
In the absence of this rule of law, to proof discrimination is almost impossible. This is the reason why there are no precedents whatsoever in Venezuelan courts concerning discrimination on any grounds, including some very well described grounds of discrimination such as racism.
Once you said “They are not in a fight with us, but they also pretend not to see us.” in regard to the state position on LGBT reality. Has this changed much after the death of Hugo Chávez?
After the death of Chavez, nothing had really changed in the law. Furthermore, many persons consider the new President, Mr. Maduro, to be much more homophobic or transphobic than Chavez. Nevertheless, during the recent electoral campaign some candidates did mention LGBT population and struggles but without specific commitments.
Much more recently the so called “Plan for the Country” was approved by the National Assembly, and there you may find some mentions of LGBT populations, although not having specific commitments towards it. It mainly states that the “new country” needs the participation of everybody, and then mention women, workers, students, and a number of other groups of persons. This includes persons belonging to “sexual diversity” as if they were not part of the other groups.
In the last few months, a large number of South American countries have witnessed mass numbers of protests and sit-ins. Over here we also had the most vocal demonstrations. How has this effected the visibility and the life conditions of South American LGBTs?
I do not think those protests had any specific impact with regard to LGBT population’s quality of life, besides the general impact it may have had –if any- on the general population. This is, for instance, the case of the protests in Brazil: As they were general protests, I cannot detect any specific impact with regard to LGBTI issues.
We are hosting you in Ankara for the 9th annual IDAHO-T actions in May 2014. We are very excited! Can you give us hints about what you will underline the most in your contribution?
I am very excited too to be there for IDAHO-T actions in Ankara. This year actions would be organized by local organizations taking into account the idea of “freedom of expression”. This idea came to us because we wanted to have a common idea that may, at the same time, encompass the actions against homophobic laws enacted in Russia and other countries, but also actions in countries where greater equality had been achieved.
In this latter case, the idea is to emphasize that “freedom of expression”, as a human right, cannot be limited to or confused with freedom of speech. In our view, and this is what we are trying to achieve with this year’s campaign, freedom of expression includes the right to express yourself through your clothes, attitudes, manners, hair, etc., and therefore clearly covers the right to express your sexual orientation or your gender identity. We believe that this is a very powerful idea that may have strong potential to push forward the developments of existing international documents concerning freedom of expression. In Ankara, I will be contributing about this topic.  
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