The new legislation is historic and was announced through the official legislative gazette. "It is the first law that recognizes sexual orientation and gender identity, protecting our physical integrity." Photos: Courtesy of Esteban Marchand and Presentes archive. From today onward, discrimination based on sex, sexual orientation, and gender identity is considered an aggravating factor in any crime in Peru. This establishes the concept of hate crime in the country's legislation by amending Article 46 of the Penal Code. It now states: "Committing the crime motivated by intolerance or discrimination, such as origin, race, religion, sex, sexual orientation, gender identity, genetic factors, parentage, age, disability, language, ethnic and cultural identity, clothing, opinion, economic status, or any other factor, is considered an aggravating factor." In Peru, there are no laws on same-sex marriage, civil unions, or gender identity. "Finally, we have effective legislation at the national level that recognizes LGBTI people." "It is the first law that recognizes sexual orientation and gender identity while protecting our physical integrity," George Hale, an LGBTI rights activist, director of the Center for the Promotion and Defense of Rights LAC (International Lesbian, Gay, Bisexual, Trans and Intersex Association for Latin America and the Caribbean), told Presentes.

"A major step forward for LGBTIQ rights"

Esteban Marchand, journalist and activist, co-founder of the Sin Etiquetas website, highlighted Presents“This law is undoubtedly a major step forward for the human rights of the LGBTIQ population in Peru and also a clear commitment from this government to minorities.” “This change comes after a historic struggle: for more than 15 years, the Peruvian LGBT movement has been calling for legislation on hate crimes, where sexual orientation and gender identity are considered aggravating factors within the Penal Code, both in serious crimes such as murder and in other crimes motivated by discrimination,” Hale said.

The law that Congress rejected

Hale and Marchand recalled that for many years, the Congress of the Republic was unwilling to innovate on this issue. Often, debates in this area expressed very strong homophobic and transphobic positions. Marchand, correspondent for Presents In Peru, he added: “In 2013, a homophobic Congress voted against the hate crimes law. It was a very sad night when Congressman Humberto Lay argued things like, ‘Only seven LGBT people have died, we can’t make a law for them.’ However, it’s important to remember that Congress then reviews all legislative decrees, and this law could be overturned. Now, the media and civil society need to start raising awareness about why a law that protects us from people who attack us simply for being who we are is so important,” he said.

Before and after: the key article

In its previous version, Article 46 addressed aggravating circumstances for crimes, but in a vague and general way. It considered as aggravating factors "committing the crime motivated by intolerance or discrimination of any kind." It did not specify motives, as it does now. The article was amended in accordance with Legislative Decree No. 1323, published today in the Official Gazette El Peruano, which publishes the laws of the country. "Since the issue of gender identity or sexual orientation was not mentioned, the interpretation was left to the judges," says Hale. "Thus, many crimes went unpunished. Even though the news reported graphically the murders of trans women and gay men by hanging, suffocation, and with brutality, with clear indications that sexual orientation was the motive, they were not considered hate crimes." In October 2016, Promsex filed a complaint against Pastor Alberto Santana for his homophobic rhetoric during the presidential campaign, alongside candidate Keiko Fujimori. "We based our case on an article that addressed the crime of discrimination and listed 'race, sex, and others' as contributing factors. Gender identity and sexual orientation were considered under 'other'. But the prosecutor's office didn't interpret it that way. Now that these issues are finally being explicitly addressed, it's a different story," Hale stated from Lima. How did a law like the hate crimes law, rejected two years ago by Congress, finally get approved today? Through a process of delegating legislative powers, which Congress itself granted to the Executive Branch. "And thanks to the efforts of LGBTI congress members who are aware of the cause and work hand in hand with human rights organizations, President Pedro Pablo Kuczynski's administration saw fit to include this crucial amendment in the legislative package delegated by Congress. While there were existing laws that penalized violence against women, this is the first step forward in addressing violence against the LGBTI community," said Hale. Activists and human rights defenders are confident that with these amendments, justice officials will be able to apply the aggravating circumstance. "This is a problem not only in Peru but throughout Latin America," Hale added.

Effective from tomorrow

The new regulations will take effect tomorrow. "As a result, hate crimes committed against the LGBTQ+ community will be identified as such and punished more severely due to the reasons of intolerance or discrimination that motivated the aggressor," explained an article by Bruno Fernández De Córdova Jaúregui published today by Sin Etiquetas, a Peruvian media outlet focused on news from the LGBTQ+ community. The article explains that the modification of the penal code "condemns the exclusion, restriction, or preferential treatment that nullifies or diminishes the recognition, enjoyment, or exercise of any right of a person, or the incitement of such actions, including through means such as the internet."

Health for LGBTIQ people deprived of liberty

"The law published today seeks to strengthen the fight against femicide, domestic violence, and gender-based violence, and modifies articles of the Penal Code on other related issues, such as minor and serious injuries. Articles 46, 108-B, 121, 121-B, 122, 124-B, 168, 208, 323, and 442 were modified," reported the newspaper El Comercio. Among the changes announced today, which cover various areas, is also "Legislative Decree No. 1325, which provides specialized healthcare to the LGBTQ+ prison population," it reported. Without Labels.

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