Sectors of the Guatemalan government are seeking to pass a bill targeting transgender children and adolescents. The proposed " Law 5940 to Guarantee the Comprehensive Protection of Children and Adolescents Against Gender Identity Disorders" would strip transgender children and adolescents of their right to self-determination of gender identity. The plan involves amending several articles of the "Comprehensive Protection of Children and Adolescents Law," among other laws in the country that have ratified international agreements.

In 2019, the government introduced the "Law for the Protection of Life and Family 5272" to appease the most conservative evangelical and Catholic sectors. Allan Rodríguez, president of the Congressional Board of Directors, publicly denounced for acts of corruption by Representative Aldo Dávila, is the main promoter of initiative 5940.

The initiative was presented to the Legislative Directorate on July 12th, and its sponsors are 16 male and three female representatives, including Lucrecia de Palomo, who last year served on the Education Committee in the Congress of the Republic and is a staunch opponent of comprehensive sexuality education. The bill is currently in three committees, but action from any one of them is sufficient. After that, it requires three readings in three separate sessions for approval.

What does the bill propose?

Initiative 5940 is being evaluated by three committees in Congress, most of whose members belong to the ruling party. Among them, the Human Rights Committee—paradoxically—seeks to “guarantee” children and adolescents “the effective fulfillment of their right to self-identity according to their sex at birth, thus safeguarding their identity and sexual integrity ” The proposal, through the reform of several articles of the aforementioned law, seeks to:

• Prohibiting transgender children and adolescents from freely expressing their gender identity. (Article 14. Identity. Comprehensive Protection of Children and Adolescents Act)

• Prohibit comprehensive sex education through printed, visual, electronic, or audio materials that address gender identity and sexual orientation. (Article 59. Protection. Comprehensive Protection of Children and Adolescents Act)

• Prohibit the dissemination to minors of information related to sexual orientation and gender identity through shows or programs. (Article 60. Media. Comprehensive Protection of Children and Adolescents Act)

It recommends: “To ensure that public or private institutions that care for children and adolescents whose rights are threatened or violated respect and restore these rights, especially their right to life, security, cultural identity , identity according to their sex at birth , customs, traditions and language, and provide them with comprehensive and dignified treatment.” (Article 76. State Obligation. Comprehensive Protection of Children and Adolescents Act)

It prohibits, in both public and private educational settings, the dissemination of content that directly or indirectly contains information on gender identity and sexual orientation. “Ensure that educational resources do not contain content that directly or indirectly promotes or depicts deviations from birth sex identity, gender reassignment . ” (Article 6)

“A medieval edict”

Presentes spoke with Otto Rivera, executive secretary of the Institutional Coordinator for the Promotion of Children's Rights (CIPRODENI), a non-governmental organization that promotes and demands the State's compliance with the rights of children and adolescents in Guatemala, based on the Convention on the Rights of the Child (1990). Rivera stated that there is clear opposition to this proposed law because it misrepresents three important instruments regarding the protection of children's and adolescents' rights:

• The Convention on the Rights of the Child
• The Comprehensive Protection of Children and Adolescents Act (Pina Law)
• National Education Law

According to Rivera, the proposed law arises from the State's persistent violation of children's right to life and food. Guatemala has high rates of chronic and acute malnutrition. One in two children aged 0 to 6 suffers from chronic malnutrition, and last year (the first year of the pandemic) 27,913 cases of acute malnutrition were recorded. This year, even before it has ended, there have already been 20,000 cases of acute malnutrition, which directly results in death.

“This bill, for us, is “an edict from the Middle Ages,” it is anti-rights, it is a totally outdated approach,” Rivera told Presentes.

The proposal alludes to the National Education Law, another right that, in the expert's opinion, is being flagrantly violated. Since the shift to online learning, Article 54 of the Political Constitution of the Republic and Article 29 of the National Education Law have been violated. These articles state that the State guarantees free, compulsory, quality education for all, because if families cannot pay for internet or electricity service, they simply cannot ensure their children can continue their online classes.

Rivera points out that in 2019, by instruction of the Ministry of Education, "no one could fail the school year," and for that reason there is no way to measure school dropout rates and the impact of the lack of access to virtual education because the students did not have access to a mobile device or the internet.

Another characteristic that Rivera mentions is the prohibition that this bill seeks to impose on media outlets that express or have messages with explicit content about acts of violence, sexual behaviors – as they say – “not natural at birth” and they continue with the issue that there should be no communication programs that are oriented towards promoting “gender nonconformity or gender reassignment” .

“Come on—nobody changes their sexual identity just by watching a program on television, listening to a program on the radio, or seeing something on the internet, but that's shortsighted.”

She argues that the proposed law once again reduces children and adolescents to objects rather than subjects of rights, as they would be forced to do whatever the legislators are proposing. Rivera believes this is a manipulation of the legislative agenda to serve partisan and personal interests, given that children and adolescents have never been a priority on the legislative agenda.

Families for diversity speak out

Presentes spoke with Anneliza Tobar, who is organized with other families for sexual diversity, about the social implications of this proposed law being approved. Anneliza is concerned because this initiative would repress the critical thinking of children and adolescents and exacerbate the fact that they are treated as objects rather than subjects of rights.

According to Tobar, the initiative would open the door to more violence because it proposes that gender nonconformity or gender identity cannot be discussed within the education system, as it restricts sex education to only talking about "responsible motherhood and fatherhood" and prohibits talking about abortion.

Prohibiting discussion of these topics promotes ignorance and perpetuates stigmas and taboos towards transgender people, and can lead to acts of violence, she indicates.

“They make harmful combinations because they talk about pornography, abortion, and include the issue of gender identity in the same package. What they do with that is generate stigma and confuse the population.”

The three committees that are reviewing this initiative for the full Congress are made up of deputies from the ruling party, and for Tobar this is a disadvantage, since there is a high degree of possibility that it will be approved.

"It has been presented in three different committees, so it could be reintroduced at any time. Congress must shelve Bill 5940, which defines transgender children as a threat and directs stigma and social hatred against an already vulnerable group," Homero Fuentes, from the organization Visibles, told Presentes.

For Anneliza, in the educational sphere, this would institutionalize stigma and taboo, although she points out that it already exists but would worsen. This initiative would provide a legal tool to prevent children from being educated, further legitimizing intolerance and perfecting the cultural mechanism of a single, fixed view of human beings.

Which international treaties does this proposal violate?

International human rights law establishes obligations that states must fulfill by ratifying international human rights treaties, to which Guatemala is a party. If these obligations are not met, mechanisms exist for filing complaints, reports, or individual communications at the regional and international levels.

This initiative would be violating the right to equality and non-discrimination as basic principles of human rights, enshrined in the Charter of the United Nations, the Universal Declaration of Human Rights, the Yogyakarta Principles and the Convention on the Rights of the Child.

What does the Office of the Ombudsman for Sexual Diversity say about this proposed law?

Henry España of the Office of the Ombudsman for Sexual Diversity of the Human Rights Ombudsman told this media outlet that the American Convention on Human Rights protects the right to gender identity, sexual orientation and gender expression of every person.

In Guatemala, the recognition of gender identity is fundamental, primarily due to the widespread human rights violations experienced by transgender people. For Spain, it is important to heed the recommendation of the Inter-American Commission on Human Rights to create campaigns that promote inclusion and non-discrimination and reduce violence against LGBTIQ+ people. 

According to the diversity advocate, these types of legislative initiatives only generate more confusion, misinformation, and create greater difficulties for LGBTQ+ people, especially trans people. They frame gender identity as a pathology.