The Process of Decree 56 in El Salvador “Its existence is an achievement. The problem is that discrimination continues.”

Executive Decree 56 is the first public policy that protects the citizens of El Salvador based on gender identity and sexual orientation. In the interviews that I did about the decree, there was one word that appeared multiple times in every conversation: process.
The different meanings this word has for the various groups of people affected by Decree 56 is best explained with a brief overview of the history and present of the LGBTI1 movement in El Salvador. And, as happens on the porches and in the markets of day-to-day El Salvador, in order to convey the real meaning of process, we must pepper this analysis with a few stories.

The History

Tania Refuses to Hide

Tania is 15 years old. She was born a boy, but even at her young age she has realized that she identifies as a female. She finds the strength to live her transgender identity openly. But Tania is from a small rural community in western El Salvador named Chalchuapa, and her difference costs her: she is kicked out of school, and out of her family.
By the time Tania was 17, she moved to the capital, San Salvador. She continued to live openly. However, as a transgender woman, she was unable to get a job or enroll in school. She must earn her living like the other transgender women in the capital: as a sex worker.
Of course, the men who perpetuate the closed society in the light of day embrace Tania’s difference by midnight. She is underage; she is pretty. The clients arrive in droves.
On the evening of Wednesday, June 10, 2009, Tania goes to work with two companions. Catherine is 28, and Maria* is 35. They sit on a concrete curb, legs stretched, chatting idly. A car rolls up. Three 20-something men with closely cropped hair step out and strike up a conversation, which quickly deteriorates. The men wrap their arms around Tania and Catherine and force them into the car. Maria manages to escape.
San Salvador awakens to the news of a 28 year-old sex worker found dead in a wooded area called El Espino. Catherine’s body shows signs of strangulation and torture, her neck broken and an object of “considerable size” protruding from her anus. The criminal investigation team on the scene remarks that the perpetrators are clearly professionals in torture and extermination.
The search continues for Tania. Her friends call her cell phone, and a woman answers. “Tania cannot remain alive,” she says. Then, her friends hear Tania’s screams in the background. At 10am on Monday, June 15th, Tania’s body is found in El Espino. She, too, had been systematically tortured.
A local sexual diversity organization, Entre Amigos, leads a modest fundraiser to be able to give Tania a proper burial. They call Tania’s family, but the family replies that they don’t care what is done with the body; Tania chose her fate, they say, and it is thanks to God that she has died (Rodríguez 2013).
Tania and Catherine were two of 17 members of the Salvadoran LGBTI community who were kidnapped, tortured and assassinated within the first six months of 2009.
On June 27th of that year, LGBTI and Allied Salvadorans gather for the most populated Pride Parade in Salvadoran history. The march extends for more than one kilometer. They sing, dance, bang drums, and celebrate their existence along the same downtown avenue where Tania and Catherine were kidnapped (Rodríguez 2009).
Among the throng, a young man carries a poster with a message scrawled in marker: “Why do you obligate me to hide?”
*Maria is a pseudonym. The survivor chose to remain anonymous.
The history of the Salvadoran LGBTI movement began more than twenty years before 2009’s “Bloody June.” The community first began to organize in response to an earlier massacre, in 1985, during the country’s civil war. (The Salvadoran Civil War officially began in 1980 and ended with the signing of the UN-sponsored Peace Accords in 1992.) “The story… involves two battalions (of the government army), both trained in the School of the Americas in torture techniques,” explained lesbian activist Andrea Ayala in an interview with GLAAD. “One night, the battalions rounded up transgender sex workers on the street and kidnapped between 10 and 15 of them. They were ‘disappeared’, tortured and raped by members of the battalion, then assassinated, and their bodies were left in an area next to a highway” (Grit and Grace Blog 2012).

Soon, a gay men’s group, Entre Amigos (Among Friends), and a lesbian group, Media Luna (Half-Moon), had formed as a coordinated response to the violence (Entre Amigos El Salvador). The groups performed HIV/AIDS prevention work, and gathered for meetings and marches. Other collectives and groups cropped up in the following years, and the movement slowly grew. However, as a leader of the transgender organization ASPIDH Arco Iris explains, none of these groups were officially recognized by the Salvadoran government. “We began organizing in the post-war years, and in 1999, we applied for official legal standing as an organization. We were told that we were an attack on morality and good customs, and our request was denied,” explains Edwin “Paty” Alberto Hernandez, ASPIDH co-founder. “So we filed an appeal, which we won in 2000. But it was until 2009 that we were actually awarded legal standing.”

El Salvador’s political and economic elite has long been closely tied to fundamentalist religious sects, especially from the Roman Catholic and Evangelical Christian churches. (This is despite the existence of a law separating Church and State.) LGBTI groups’ struggle for visibility threatened these powerful interests. Heterosexism permeated the exercise of power and manifested itself in discriminatory, often violent reactions to the LGBTI struggle for visibility. This happened both through direct attacks and a refusal to treat non-heterosexual individuals as full citizens, leaving violations against them in impunity. It is a pattern that continues in present-day El Salvador. “One of the cases that most impacted me was that of a gay man who was raped by a group of policemen,” says Lesbian activist and investigator Marielos Olivo, who authored a 2005 report on human rights violations against the LGBTI population. “He was in the street waiting for his partner when the police arrived, made fun of him, took him away by force and raped him” (Olivo  2007). This abuse of authority was tacitly condoned: the case was never resolved in court, the perpetrating officers never brought to justice.

Authorities’ behavior helps perpetuate a generally homophobic, heterosexist society. The way that Tania’s parents reacted to their child’s murder is not the exception. “Culturally, there is much discrimination, bullying and hatred directed at LGBTI individuals,” says Gerardo Alegria, then the Adjunct Attorney General for Individual and Civil Rights, in the office of the Human Rights Ombudsman of El Salvador. “Your average Salvadoran doesn’t look upon these people positively.”

In the early 2000’s, activists began to build a relationship with one of the two largest political parties, the leftist Farabundo Marti National Liberation Front (FMLN). This lobby became especially important in early 2009, when right-wing senator Rodolfo Parker proposed a Constitutional Amendment to define marriage as between one man and one woman. Heated debate within the National Assembly spilled into the media and onto the streets. Conservative support for the amendment came from groups like the Pro-Life “Si a la Vida” (“Yes to Life”), along with the Roman Catholic Archdiocese, both of whom rallied 10,000 signatures on a petition submitted to the government. The religious coalition pressured politicians concerned about morality to approve the amendment. Meanwhile, FMLN senators did not publicly profess their position; however, activists explain, the politicans told them behind closed doors that they would not allow it to be ratified. They honored this agreement, and the amendment died without altering the Constitution.
This debate came during a tumultuous time for El Salvador: the 2009 presidential elections, in which the FMLN showed a good chance of winning for the first time in the country’s history of right-wing dictatorships and presidencies. Traditional power sectors’ strong fear of political and social change rose to a crescendo. “The electoral campaign… and the initiatives to prohibit marriage between people of the same sex… coincided with a wave of assassinations,” explains Attorney Alegria. “Some groups and media outlets use subjects like ‘the defense of the family’ or religious principles as strategies for success, and in doing so, they create an environment in which it is more likely that extremist groups will attack people, and that impunity will reign. Gays and lesbians during this time were often vulnerable, because they were defending themselves in the street,” he continues. “We cannot establish a direct relationship between the messages of these conservative groups and the hate crimes, but there is a connection. We even received denouncements of death squads acting against the LGBTI population; fliers in the street announcing their existence during this time.”
Catherine and Tania were two among the list of losses from the assassination wave. “We buried twenty-three of our peers that year,” says Ana Cisneros, who is a feminist lesbian activist, and Media Luna founding member. “That was a year of lobbying, protesting, coming out of the closet, speaking together as a movement (LGBTI spectrum-wide) not only about HIV prevention or the organizing social activities; instead, we all had a common interest: Survival.” Cisneros continues: “This is when the LGBTI movement became aware of its own political importance.”

The 2009 elections left the executive branch in the hands of the FMLN. The LGBTI population now had an ally in a powerful position—a speck of hope amidst the overwhelming violence. They needed concrete advances if their homeland was to go from a place of merely struggling for survival, to one that recognized their human rights.

In 2010, the LGBTI movement joined forces with other social groups, including indigenous populations, youth, and environmentalists. They began bilateral talks with the newly-inaugurated President Mauricio Funes. The coalition demanded representation in the new government.

As a response to the LGBTI’s petition, President Funes issued Executive Decree 562, which prohibits public sector employees from discriminating because of sexual orientation and gender identity. Article 5 of the Decree declares that a Sexual Diversity Directorate be established to guide the decree’s implementation. It places the Directorate within the administration’s Social Inclusion Secretariat, headed by First Lady Vanda Pignato.

Given the refusal of previous administrations to even award legal standing to LGBTI organizations, representation within the presidency was truly a historic event for the community. “But let us be clear: Decree 56 was not a gift from anyone,” declares Cisneros. “There were many deaths that drove this public policy.”

Decree 56 and the Sexual Diversity Directorate

Executive Decree 56 begins with the declaration that, “in conformity with Article 3 of the Constitution of the Republic, all people are equal before the law.” It continues by citing the various international agreements that the country has signed which mandate government protection of citizens from discrimination. It then states, “Despite (this), in El Salvador there are still situations that display discrimination against people, and even intolerance, due to their gender identity and/or sexual orientation. It is the obligation of the Government of the Republic to generate conditions that allow for the personal development and protection of the citizens of the country.”

Therefore, the decree demands “regulations to avoid all forms of discrimination in public administration, for reasons of gender identity and/or sexual orientation.” In Article 3, it obligates public administration offices to “implement an exhaustive revision” of all programs and policies they carry out, making any changes necessary so as to root out all “direct or indirect” forms of discrimination. It exhorts public organisms to “generate a culture of respect and tolerance.” The Social Inclusion Secretariat (SIS) is charged with ensuring the fulfillment of Article 3, and offering any counseling or training necessary to public administration staff so that they are able to abide by the decree. To accomplish this responsibility, the Sexual Diversity Directorate (DDS) came into being.

Among the Decree’s many declarations, there are some things that it leaves unsaid. Perhaps most importantly, there are no consequences for violating the decree. It is enforceable only in the public sector. Nor does it set a clear agenda for how to accomplish its aims. “This is just the government setting standards for itself. The private sector remains completely unregulated,” explains Allison Davenport, law professor at the University of California-Berkeley, and lead author of a 2012 Report on LGBTI Human Rights in El Salvador.3 “The president is the head executive of his administration, so he can create internal policies and standards; but in order for something to be an enforceable, judiciable right in a Salvadoran court, there would have to be a law on the books.” Davenport continues, “Also, in the U.S., our policies often include a detailed implementation plan. That is not the case with 56. It is more ad-hoc.”

The Berkeley report found that the areas where LGBTI human rights are most violated in Salvadoran society are in health care, education, job opportunities and the workplace, and due to generalized violence and impunity. The DDS has concentrated its efforts in the public arms of these sectors. It has tried to use Decree 56 as a tool to make in-roads with them, and to offer education and sensitivity training where this is needed.

Cruz Torres is the current Director of the Sexual Diversity Directorate. Torres, a former gay rights activist has been at the helm since 2012. His staff consists of a secretary and a chauffeur. He has no budget directly assigned to him; instead, the SIS occasionally funds small Directorate projects from its coffers. “Our overriding goal is institutional strengthening within the government, not financial sponsorship,” explains Torres. He adds that about 40-50% of the human and financial resources to which the DDS has access are dedicated to educational processes about LGBTI sensitivity and Decree 56, for “any governmental entity that solicits them.”

In just over two years of existence, the DDS has given workshops to over 1,000 governmental employees. Eight hundred and sixty employees of the prison system were trained about specific issues that affect inmate members of the sexual diversity community. Two hundred and fifty Ministry of Labor employees, from managers to technical staff and rural departmental offices, received a workshop on the decree. The Institute for Children and Adolescents and the Ministry of Foreign Affairs also received trainings, along with the members of the National Youth Symphonic Orchestra and their parents. Two groups from the National Public Security Academy were also trained in the Decree, and two more are soon to follow suit, along with the personnel of the Civilian National Police’s Offices for Citizen Attention. The United Nations Development Program is helping to fund the latter training.

One concrete result from these trainings are the new regulations passed by the Ministry of Health, which fulfills Decree 56 by requiring that LGBTI individuals receive equal treatment in all public medical facilities. They also install a training program for healthcare providers in the specific concerns for the sexual diversity community.

In addition to trainings, the DDS also gathers information about the reality for the sexual diversity population. Statistical information covering the occurrence of everything from hate crimes, drug addictions and suicide attempts, to careers and religious affiliations, is rare in LGBTI El Salvador. This lack of information makes it difficult to identify the population’s main concerns with certainty. It makes it difficult to know which public administration offices continue to discriminate, violating the decree. In recent years, the activist community has been scraping together resources to produce as much trustworthy information as possible4, and the DDS has tried to add to existing knowledge. One such project is a report called the “National Consultation of the LGBTI Population.” (As of January 2013, the report is in the final stages of editing.) Another is the “The State of LGBTI Population: Health Report,” produced in concert with the Pan American Health Organization, a regional office of the World Health Organization. (This report is also pending publication.)

An LGBTI support hotline is the next DDS initiative, slated to begin in February 2013. It will be staffed by lawyers and health professionals who can offer answers to a range of questions, from “How do I know that I am gay?” to “Where do I file a complaint about a human rights violation?”  In addition to dispensing information, they will also gather it, recording and analyzing the data that they receive through the community’s phone calls.

When an employee from a public institution does violate Decree 56, there is a procedure which a victim can follow to seek justice. First, the victim must turn in a formal complaint to the Office of the Human Rights Ombudsman (PDDH). The PDDH has the obligation to oversee these cases, which it does from the 2010-established Permanent Observatory for LGBTI Rights. The Observatory is headed by the Attorney General for Civil and Individual Rights, Gerardo Alegria. Attorney Alegria explains the procedure:

“For instance, if we receive a complaint about a police officer, we let the police administration know about it. We ask them to investigate the matter themselves. We also ask for the information regarding the matter: which officers were involved, etc. Generally, they have a different version of the events than the victim does. If the situation classifies as a crime, we send the case to the Attorney General of the Republic to open a case. We then ask the police administration to adopt measures to avoid repeating the situation in the future.”

Meanwhile, the DDS can accompany this process, using Decree 56 as a tool to engage the offending public institution, to remind it of its responsibilities, and to offer training to prevent future discrimination. “The cases that we hear about enable us to be able to go to the entity and make an agreement with it, to develop a plan for a specific protocol in terms of treatment of the LGBTI community,” says Torres.

This is a partial list of the ways that the DDS—a three-employee Directorate without a budget—has tried to use Decree 56 as a tool to begin to change norms within public administration. “For the first time, there is an office that offers specialized services to the LGBTI population, with employees that LGBTI civil society already knows,” affirms Torres. “We have State organisms that have assumed the responsibilities the Decree gives them. This is only the beginning of a process; and logically, there are many steps ahead. The challenge is to continue opening (LGBTI-friendly) spaces, and teaching about Decree 56.”

However, when one ventures outside the white government walls and asks long-time LGBTI activists about the effectiveness of Decree 56, there is an immediate litany of criticism. The debate is whether this public policy has actually begun a process of creating concrete change. Is it written strongly enough to be useful? Is public administration implementing new protocol after human rights violations among its ranks, or does it leave open the possibility of committing future violations? And if a process has begun on an institutional level, is it affecting individuals fast enough—before the murder rate rises?

Lissa Alfaro was a friend of Catherine and Tania. She is one young woman who has tried to use Decree 56 to overcome discrimination, and her experience is revelatory.

The Controversy

Lissa Refuses to Hide

“I only knew about three things: beer, cocaine, and making a deal with a man,” says Lissa Alfaro.. “Once, the police rounded us up and put us in a cell with gang members. ‘Fill your craving,’ the officers said to the gang men, laughing. They raped us…. I realized that I was stuck in life, and if I didn’t do anything about it, the situation wouldn’t change.”
Lissa’s saga began when she was 14, and her family and school kicked her onto the streets because she was too effeminate. For the next 15 years, she would survive as a sex worker. One day, she came across Monica Hernandez and Edwin “Paty” Hernandez from ASPIDH Arco Iris. They were teaching her peers about health and safety in sex work. The three struck up a friendship. “Monica and Paty believed in me,” says Lissa. “That made me want to do something more.” She kicked the drugs, began to work with ASPIDH, and soon, enrolled in a GED program.
“The problems began in social studies class, my sophomore year,” explains Lissa. “It’s uncommon to see a transgender woman in a public school, and some people didn’t know what to do. My teacher started to lecture incessantly in class about sexuality, that the anus is not appropriate for sexual relations, that men who have sex with men are not kindly looked upon by God, that men dressed as women are a disease in society. I told the principal that I wanted to drop his class because he disrespected me, but they said I had to pass this class in order to graduate.”
Lissa maintained her focus on graduation. Her dream was to become a news anchor, and she knew she would need not only a high school degree, but also a college degree, to make this a reality. Her hard work and ability to concentrate despite open ridicule from school authorities paid off: she soon qualified to graduate. Along with her friend Yamileth, also a transgender student, Lissa prepared for the big day by snapping a photograph of herself in a smart ponytail, a button-up blouse and light makeup. This would be the image to adorn her diploma.
“When we turned in our photographs, the principal and the Ministry of Education told us that they couldn’t give us our diplomas, because our feminine appearance did not match our masculine legal names,” Lissa recounts. “They said that we also weren’t welcome at graduation unless we were dressed as males. So we couldn’t go to our own graduation ceremony.”
But Lissa and Yamileth worked with ASPIDH. They knew about Decree 56. “Public officials denied us our diplomas based on our feminine gender expression,” says Lissa. “After we made a formal complaint in the PDDH, the principal of the school called me one night. He told me that I needed to rescind the case, because there was no way I was going to win; that I was being difficult and was creating big problems for myself.”
The women maintained their resolve, and ten months later, at the May 17th March against Transphobia in San Salvador, representatives from the Sexual Diversity Directorate and the Ministry of Education called Yamileth and Lissa onto a float in the middle of the parade. In front of the cheering crowd, they held up two high school diplomas sporting the young women’s smiling faces. The officials held two pens out to them. Their signatures would end the nearly year-long struggle. (ASPIDH Arco 2012).
At this point in the story, Lissa pauses. Her voice lowers like someone about to confess in church, or the dark corner booth of a bar. “I felt forced. I shouldn’t have signed.”
She continues, “There was no formal apology, no recognition that our human rights had been violated. I was on a float in the street; I never got a graduation ceremony like any other student.” She sighs. “And maybe if I had refused to sign, we would have been able to keep pushing for real changes, for regulations to be put into place so that this would never happen to anyone else.”
Lissa needed her diploma to continue studying communications at the private university in which she had enrolled in San Salvador on scholarship. She worked hard in high school, and, despite great odds, satisfactorily completed everything needed to graduate. She deserved the piece of paper in her hands. But in her mind, it didn’t fixthe real cause of the suffering that she and so many peers experience. It didn’t include any concrete changes in the Ministry of Education; it didn’t ensure that this wouldn’t happen again to someone else.
Yet, this document was the one thing that stood between her and her future as a news anchor.
Few would criticize her decision to sign. In fact, it is perhaps only Lissa that blames herself.
Of her graduation day, Lissa Alfaro now says, “It is not something I’m proud of.”

Depending on who you ask, Lissa Alfaro’s story is either evidence of the success or the weakness of Decree 56.
Cruz Torres argues that, before Decree 56, Lissa and Yamileth would never have received their diplomas. The DDS “stretched the Decree as far as it would go” in negotiating with the Ministry of Education; after all, there are no sanctions for violating the Decree, so a solution can only come from the PDDH and the DDS applying ethical pressure on their peers in government. When it comes to the process of addressing deeply-rooted societal stigma, this was a solid first step. Lissa and Yamileth are two transgender women who are creating alternatives to sex work. And given the reality of the streets that sex workers walk, alternatives save lives.
Activists argue that Decree 56 was written poorly from the beginning, on purpose, in a way that led to Lissa’s dilemma. It nominally demands that public administration avoid discrimination and carry out an exhaustive revision of policies, implementing new ones when existing ones allow for discrimination, but it does not offer a procedure to do so, nor consequences for refusing to do so. The result is what happened in Lissa’s case. The burden fell on her as an individual to reject the legal document she needed, in order to force authorities to prevent future cases of discrimination in public education.

Activists think that the weaknesses in the Decree were purposely created, due to the presidential administration’s lack of political will to force uncomfortable changes in society. Their first argument to prove this point is the use of the word “avoid” in the formal language of the decree, instead of “eradicate”. Ana Cisneros explains:

“Merely using the word ‘eradicate’ would have generated a new universe of possibilities—it would have allowed them to create regulations and an implementation plan,” explains Cisneros. “We fought for (that word) during the drafting, but the government began to receive pressure from the political right, and they found themselves like a belly-up cat, not knowing how to react. It’s not bad that they took a step forward with this decree; the bad thing is that they let themselves be pressured; they were afraid of the consequences of a politically inconvenient topic. They co-opted some LGBTI leadership into accepting the less strong word… Some say that we should applaud this administration, because it’s the first time this has been done, it’s only the beginning of a process, etc. But in the end, [the decree] is not strong enough to promote affirmative policies that protect LGBTI human rights. It doesn’t commit the government to eradicating discrimination…. It could have been different. I believe that it was only created to quiet us, to demobilize us, to make us believe that we live in Alice in Wonderland.”

If a clear plan to eradicate discrimination would have been included in Decree 56, Lissa’s experience would have meant that hers was the last case of discrimination in Salvadoran public schools. However, as it is now, “this decree does not solve our problems,” Paty Hernandez sums up. “It’s like a letter to Santa Claus: a list of all these things that would be nice to have, someday.” In fact, ASPIDH already reports another case of a rural public school district refusing to award a diploma for reasons of gender identity. They say they have turned in a formal complaint and are waiting for a response.

Activists also point out that Lissa’s case was one of very few where the victims happened to know about Decree 56. They argue that in most cases that come to their attention, neither victim nor victimizer knows about the decree. “We sometimes joke that it’s not Decreto 56, but Secreto 56,” laughs Paty.
Another experience that Lissa Alfaro had in late 2012 exemplifies the problems that arise when a public policy is not well known. One afternoon, Alfaro accompanied a friend who had been threatened to the downtown police station to place a complaint. She sat in the waiting room as police officers milled around the front desk. They began to ask her questions. When she referred to herself as a female, they asked which “she” she was referencing, since Alfaro “was clearly a man.” One officer began to joke with another: “Hey, go ahead and have your way with her, she’s here to fill your craving.”
Alfaro had already lived too many experiences of police abuse. She’d had enough. She told him that she worked in a human rights organization, and that she knew he had to respect Decree 56. “He told me that he wasn’t interested in human rights. He said he’d never heard about the decree, and frankly, didn’t give a shit what it said.” As the tension grew, Alfaro began to get the impression that she may be in trouble. She was able to note the identification number emblazoned on one of the officer’s uniforms, but then left in a rush. She later placed a formal complaint with the PDDH but says she has yet to hear any results of the case.
“The important thing about the decree is that it’s supposed to be a broad educational awareness initiative, which is something that has to happen to enable long term change,” explains Professor Davenport. “It establishes a bottom line for public employee behavior, regardless of where an individual employee might be at in their thinking.” The problem activists emphasize, and Alfaro’s experience shows, is that the theoretical impact of the decree does not seem to exist in interactions between individuals in the LGBTI population and public employees. Decree 56 does not protect them.
“No civil servant can claim to be unaware of a governmental regulation. It is the responsibility of both individual employees and of the designated authorities to educate people about this,” explains Attorney Alegria. “This administration has tried, but it’s still insufficient. We haven’t seen a massive internal campaign to educate public administration about the Decree. Especially in the daily routine of public institutions—in jails, hospitals, public schools—what has been done just isn’t enough to combat discrimination.”
Clearly, this sort of re-education was going to be a serious job. One question that activists are asking is why the Funes Administration appointed three people to the task, arming them only with a weak policy tool and no budget.
This hesitancy that they see from the Administration may contribute to a concerning reality: in the two years of the Decree’s existence, the PDDH has record of only three cases reported5 under Decree 56. Two of them come from Lissa Alfaro. This evidence does not make for a convincing argument in terms of whether the Decree improves the lives of individual activists.
In addition, there is generalized cynicism about the functioning of the legal system in El Salvador. 3% of crimes in El Salvador are solved, leaving an impunity rate of 97% (Equipo POLJUVE El Salvador 209). “One thing we heard over and over (during the research for the report) is ‘there is no culture of denouncement,’” says Professor Davenport. “This is either because most people don’t know what their rights are, or because they’re scared of the stigma of reporting if they do, or they just don’t believe in the system enough to do it. What seems certain is that when your average person’s rights are violated, victims don’t often react publically.”
This is particularly true for the LGBTI population, which learned throughout its history that pushing at power brings grave consequences. Even recently, Alfaro felt threatened in the police station—one office of public administration where she should feel safe, but never has. The LGBTI population, especially the transgender community, already faces overwhelming violence on the streets of this country with the world’s second highest homicide rate, according to the U.S. State Department.6 Furthermore, this is a population that has suffered at least 128 extrajudicial executions since 1998, according to a report being compiled by the Anti-Homophobia Legal Clinic of El Salvador (ALDES).7 For an LGBTI individual to directly challenge power sectors to release a long-held stigma is not merely a matter of personal ethics; it may mean risking your life.
“When we show the decree to the police, they laugh at us,” says Paty Hernandez. “It does nothing in terms of generating jurisprudence. So, it’s existence is an achievement. The problem is that discrimination continues.”
For over 30 years, activists have struggled for visibility and equality. They have lost many loved ones along the way. They now have support in the executive branch of the Republic. So, they ask, how much longer must this process last before they are protected?

The Present

The Community Refuses to Hide

Early January 2013: Graffiti appears on the wall beside the front gates of the National University of El Salvador: “Defend your homeland. Kill a lesbian or a gay.”
January 29, 2013, 5 p.m.: Nearly 40 LGBTI activists gather for a candlelight vigil against homophobia at the university’s front gates. They wave rainbow flags, hand out fliers to passing traffic, and paint over the graffiti in white. Ana Cisneros takes the loudspeaker: “Peace and democracy are built by respecting the human rights of all people, including all of those we think are different from us. That’s why we’re here. We won’t hide… we are gathered in favor of dignity, together as a community.”
When the sun has set, they hold candles and stand together in a semi-circle, observing one minute of silence in honor of their peers who didn’t survive to see this day.8
From its perspective, the DDS has been spinning its wheels to change attitudes within the government. The impact of their trainings will only be visible over the long-term, and is nearly impossible to measure. Concrete, immediate results in the lives of individuals—three cases in the Ombudsman’s files—is not convincing. This leads to the question: Even if history shows that the Decree didn’t have much immediate impact, can it make room for something else that will?

Torres hints at this possibility:
“Expectations are overflowing (for the DDS and the decree), because it is also the place where, for the first time, people can come to turn in a complaint to a governmental office…. This is a social process that is completely valid and understandable given the length of time that the population has been forced to be invisible. But the reason that we chose a Decree instead of trying right away for a law is because we’d have exhausted all of our resources on lobbying the Legislative Assembly to pass that law, and it probably wouldn’t have passed. We were perfectly aware of the limitations of an executive decree, and we never claimed that it would be the magic answer. What it did do is raise awareness about the need for something more forceful—a law. And this, indeed, was the purpose of the decree.”

Torres argues that a proposal for a law must come from a well-supported, multi-sector citizen movement. A proposal that came only from the DDS would be “very fragile,” he claims. “We must recognize that any movement for social change must have civil society as its protagonist.”

Activists universally agree that a law is necessary. The problem is that it is a complicated process, and must be a strategic one. “The concern we heard voices is that any other kind of legislative reform would have to happen during the Funes Administration,” adds Professor Davenport. “There is momentum and the clock is ticking.” ASPIDH Arco Iris says that plan to propose a law to prohibit discrimination based on gender identity, which they are drafting now.

The past few years have been historic ones for the Salvadoran LGBTI population. From funerals to formal representation in the government, every shake-up leaves cracks in the barrier between the community and equality. “(The country) stands at the brink of opportunity to solidify the human rights of LGBT individuals, thus strengthening all of its institutions and distinguishing itself as a model in the region,” observes the Berkeley report.

Paty Hernandez affirms her continued commitment to this decades-long process. “This struggle has only just begun,” she states. “We aren’t going anywhere, we won’t disappear, and we won’t rest until we have a law that protects us.”

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