FROM: PROMSEX

TO: United Nations Office of the High Commissioner for Human Rights
Special Rapporteur on freedom of religion or belief

DATE: 26 May 2021

SUBJECT: Information on sexual and reproductive rights, including LGBT rights, and religious discourse

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Outline

I. Context

II. Reproductive health and rights in Peru and religious discourse

A. Emergency contraception (Plan B)

B. Therapeutic abortion

C. Gender equality approach in education

III. LGBT rights in Peru and religious discourse

A. Hate speech from an evangelical pastor

IV. Conclusions and recommendations

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 I. Context

Peruvian citizens are religious. The latest census available shows that 76 % of Peruvians are Catholic, while 14.1 % are evangelical and 4.8 % are
from other religions (christians, adventists, Jehova’s witness, mormons, muslims, jews and others). Only 5.1 % of Peruvians said they did not
profess any religion.1 While this document does not intend to describe extensively the complexities of religion in Peru, it is worth noting that
the religions listed above coexist with traditional beliefs and practices from pre-Incan and Incan cultures.2

Religious groups have directly or indirectly engaged in political participation in Peru. One example of direct political participation can be the
case of FREPAP, the political wing of the Asociación Evangélica de la Misión Israelita del Nuevo Pacto Universal, an evangelical movement with
members easily identified by the robes they wear, the long hair and beard in men and the veils with which women typically cover their heads.3
In the complementary congressional elections in 2020, FREPAP was elected the second majority in Congress, obtaining 16 out of 130 seats.4 In
the more recent 2021 Congressional elections, FREPAP did not obtain sufficient votes to be assigned seats in Congress (less than 5%).5

We consider that religious organizations have engaged in indirect political participation when prominent members or leaders of religious
organizations run for office with a political party that is not directly linked to their religious organization. As an example, we can mention the
case of Rafael Lopez Aliaga, a former presidential candidate who publicly admitted to using a cilice or sackcloth.6 Mr. Lopez proposed to send
underage pregnant victims of rape to 5-star hotels to discourage them from getting an abortion.7 In Peru, therapeutic abortion is legal during

1
Instituto Nacional de Estadística e Informática. Perú. Resultados definitivos de los censos nacionales 2017. Tomo 1, Lima, p. 58. Disponible en:
<https://www.inei.gob.pe/media/MenuRecursivo/publicaciones_digitales/Est/Lib1544/>.
2
Bravo Guerreira, María Concepción. “Evangelización y sincretismo religioso en los Andes”. En: Revista Complutense de Historia de América. N° 19, Madrid, 1993, pp. 11-19. Disponible en:
<https://revistas.ucm.es/index.php/RCHA/article/download/RCHA9393110011A/29290/>.
3
More information on this religious/political organization can be found here: Ráez Suárez, Carlos Ernesto. Liderazgos y legitimación. La organización y la congregación israelitas (2001-2014).
Tesis para optar por el título profesional de Licenciado en Antropología. Universidad Nacional Mayor de San Marcos, Lima, 2016.Disponible en:
<https://cybertesis.unmsm.edu.pe/bitstream/handle/20.500.12672/4987/Raez_sc.pdf>.
4
<https://www.bbc.com/mundo/noticias-america-latina-51312078>.
5
<https://www.resultados.eleccionesgenerales2021.pe/EG2021/EleccionesCongresales/GenRl>
6
<https://peru21.pe/politica/rafael-lopez-aliaga-sobre-la-autoflagelacion-en-mi-caso-tengo-hasta-callos-tras-40-anos-elecciones-2021-nndc-noticia/>.
7
<https://caretas.pe/politica/rafael-lopez-aliaga-propone-poner-en-un-hotel-cinco-estrellas-a-menores-que-queden-embarazadas-tras-ser-victimas-de-violacion/>.

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the first 22 weeks of pregnancy, when the physical and/or mental health of the woman or child is in grave danger.8 Mr. Lopez ran with the
Renovación Popular political party, which is not formally affiliated with any religion, but publicly rejects the gender equality approach and sexual
and reproductive rights, like abortion and integral sexual education.9

One consequence of religious ideas having space in the debate over public policies is the rejection of advances in sexual and reproductive
health and rights, including LGBT rights. While politicians are very outspoken about their religious beliefs and how these are the basis for their
public policy stance, when it comes to judicial action against public policies, Promsex has observed that the discourse from conservative groups
has shifted, from using religious arguments, to using pseudo-scientific information to support their position and, in occasions, to using
conspiracy theories as basis for their claims.

II. Reproductive health and rights in Peru and religious discourse

Public policies in Peru regarding reproductive health and rights have been subjected to questioning before the national courts by conservative
groups affiliated with religious movements. We would like to bring the Special Rapporteur’s attention to three relevant cases:

A. Emergency contraception (Plan B)

The emergency contraception pill (ECP) was first included in Peruvian public policies in 1999. However, its distribution was not guaranteed. This
motivated a group of citizens to bring legal action against the government. This resulted in a decision by the Peruvian Constitutional Court in
2006 ordering the government to assure the distribution of the ECP.10

8
Ministerio de Salud. Guía Técnica Nacional para la Estandarización del Procedimiento de la Atención Integral de la Gestante en la Interrupción Voluntaria por Indicación Terapéutica del
embarazo menor de 22 semanas con consentimiento informado en el marco de lo dispuesto en el artículo 119° del Código Penal, aprobada por Resolución Ministerial Nº 486-2014/MINSA.
Disponible en: <http://bvs.minsa.gob.pe/local/MINSA/3795.pdf>.
9
<https://es.wikipedia.org/wiki/Renovaci%C3%B3n_Popular>.
10
<https://www.tc.gob.pe/jurisprudencia/2006/07435-2006-AC.pdf>.

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Two years before that decision was issued, a catholic group called Acción de Lucha Anticorrupción Sin Componenda (ALA Sin Componenda)11
brought another lawsuit against the Peruvian government claiming, under pseudo scientific arguments, that the ECP was in fact an abortion pill
and, considering that in Peru only therapeutic abortion is legal, its distribution should be banned. This lawsuit resulted in a 2009 decision, also
by the Peruvian Constitutional Court (with different judges than in 2006), stating that because there was “reasonable doubt” about a potential
third effect by the ECP, as a precautionary measure, free distribution of the ECP should be banned. However, private pharmacies were still
allowed to sell the pill with a warning.12

It should be noted that the ECP can cost between 15 and 20 soles (about 5 to 7 USD). In Peru, about 30% of the population live under the line of
poverty, meaning that they live with 1 USD or less per day.13 Therefore, the cost of an ECP is prohibitive for women and girls living in poverty.

The 2009 decision stated that, if presented with new information, the Constitutional Court could change its decision about the free distribution
of the ECP. Based on this, in 2014, a private citizen represented by Promsex filed a lawsuit against the Peruvian Ministry of Health to present
scientific evidence produced after 2009 that concludes definitively that the ECP is not an abortion pill, since it can only be effective before
fertilization occurs. ALA Sin Componenda, the conservative group that started the legal proceedings that led to the 2009 decision, requested to
be included in the new proceedings claiming to be the representative of the unborn. Its request was granted. In 2019, the first instance ruled in
favor and ordered the Ministry of Health to secure the free distribution of the ECP. The Ministry of Health agreed with the decision and did not
appeal this aspect of the decision14. Due to their inclusion in the proceedings, ALA Sin Componenda was able to appeal and the case was sent to
a three-judge panel, which decided in turn to send the case to the Constitutional Court. For the third time in 20 years, the Peruvian
Constitutional Court will have to decide whether it is constitutional to distribute the ECP for free.15

It should be noted that, thanks to a precautionary measure obtained by Promsex in 2016, the Ministry of Health is obligated to distribute the
ECP for free until the courts reach a final decision in this case. Although the Ministry of Health has affirmed that it will continue to distribute the
11
<https://www.sincomponenda.org/>.
12
<https://tc.gob.pe/jurisprudencia/2009/02005-2009-AA.pdf>.
13
<https://www.inei.gob.pe/prensa/noticias/pobreza-monetaria-alcanzo-al-301-de-la-poblacion-del-pais-durante-el-ano-2020-12875>.
14
The Ministry of Health did appeal the judge’s order to reimburse Promsex for legal fees and other expenses.
15
Case number 00238-2021-AA. Please visit: <https://www.tc.gob.pe/consultas-de-causas/detalles-consulta/?id_exp=473105>.

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ECP, there have been reports of medical personnel refusing to give the ECP to women despite having it available.16 In addition to this, the
closing of first-level health care facilities due to the pandemic has impacted the ability to distribute the ECP and other contraceptives to
women.17

In its interventions in the proceedings from the 2014 lawsuit, ALA Sin Componenda has used both pseudo-scientific arguments and conspiracy
theories to support its stance on the ECP.

- Pseudo-scientific arguments: these are mainly referred to the supposed third effect of the pill, and are based on information obtained
from medical organizations with a clear religious affiliation.

- Conspiracy theories: ALA Sin Componenda has affirmed that Covid-19 was created by the World Health Organization (WHO) to eliminate
elder people and that the ECP has been created to eliminate babies. This would be the action of those in charge of establishing the New
World Order (NWO).

However far-fetched the conspiracy theory arguments can be perceived, the national courts have not categorically rejected them, but have
prefered to ignore them. On the other hand, the pseudo-scientific arguments do have the prospect of convincing the courts, similarly to what
happened with the Constitutional Court decision from 2009.

B. Therapeutic abortion

Therapeutic abortion in Peru is legal since 1924, when the Criminal Code was reformed to specifically state that it is not a crime to have an
abortion when the life or the health of the mother is in danger. 100 years after this, the Peruvian government approved the medical protocol
unifying the criteria that allowed for the procedure to be performed through a ministerial resolution. This happened after two different UN

16
<https://wayka.pe/cronica-pildora-negada/>.
17
<https://peru.unfpa.org/sites/default/files/pub-pdf/factsheet_peru._impacto_del_covid_19_en_el_acceso_a_los_anticonceptivos_2.pdf>.

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committees decided the KL and LC cases and declared that the Peruvian government had violated KL and LC’s human rights when it did not
guarantee their right to an abortion.

KL was 17 years old and had not planned on getting pregnant. The fetus was anencephalic and would not live more than a few hours or days
outside the womb. KL was denied a therapeutic abortion and, after childbirth, she was forced to breastfeed the newborn who died four days
later. This caused severe mental suffering to KL, and Peru’s legal system did not offer legal remedies for her, so she took her case to the UN
Human Rights Committee.18

LC was 13 years old when she was raped by a neighbour. As a result, she became pregnant and decided to commit suicide by jumping from a
building. The fall did not kill her, but caused severe damage to her spine, for which the doctors recommended emergency surgery. Upon
learning about her pregnancy, the surgery was cancelled until an abortion was performed. 42 days after LC’s mother requested for a
therapeutic abortion, her petition was denied. LC had a miscarriage and a surgery to repair the damage was performed almost 4 months after
her attempted suicide. Because of the delayed surgery, to this day LC is paralized and requires permanent professional assistance for everyday
tasks. Due to the lack of legal remedies, LC took her case to the Committee on the Elimination of Discrimination Against Women (CEDAW).19

Both cases led to UN committee decisions stating that the violation of rights could be remedied by the approval of a medical protocol that
unifies the criteria for therapeutic abortions in Peru. The medical protocol was approved in 2014 and, almost 5 years after its approval, two
lawsuits were brought against it.

- Protective measure (writ of amparo): ALA Sin Componenda filed a lawsuit against the Ministry of Health demanding that it stopped
implementing the medical protocol for therapeutic abortion, arguing that the medical reasons established for a therpeutic abortion had
been imposed arbitrarly and that medical professionals have been trained to save lives. In 2019, a first level judge dismissed the lawsuit
based on the UN committees decisions on the KL and LC cases. ALA Sin Componenda appealed the decision, but a three-judge panel

18
<https://reproductiverights.org/wp-content/uploads/2020/12/KL-HRC-final-decision.pdf>.
19
<https://reproductiverights.org/wp-content/uploads/2020/12/CEDAW-C-50-D-22-2009-English-clean-copy.pdf>.

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 refused to examine the appeal and dismissed the lawsuit. The organization failed to request that the case be sent to the Constitutional
Court, so the dismissal is now res iudicata.

- Abstract control of constitutionality (proceso de acción popular): In Peru it is possible to question the constitutionality of rules approved
by any level of government (national, regional or local). As the medical protocol for therapeutic abortion was approved by a ministerial
resolution, it was susceptible to be challenged through a proceso de acción popular. The lawsuit was brought by the Asociación Centro de
Estudios Jurídicos Santo Tomás Moro,20 arguing that in Peru abortion is a crime and that therapeutic abortion, though it is not punishable,
is still a criminal offense, so it cannot be legally regulated. The first instance, composed of a three-judge panel, dismissed the lawsuit,
much like in the writ of amparo, because of the UN committees decisions in the KL and LC cases. Furthermore, the panel considered that
the medical protocol had been approved after legal and medical experts had voiced their opinions and that it was in accordance with both
domestic and international law. The association which filed the lawsuit appealed the decision and the final judgement from the Supreme
Court is pending. In Peru, the procesos de acción popular are not sent to the Constitutional Court, so the final decision will come from the
Supreme Court.

In both cases, the lawsuits were brought by civil society organizations with a clear religious affiliation. However, the arguments presented in the
lawsuits are both pseudo-scientific and legal, with the latter focusing primarily on the state’s obligation to protect the right to life of the embryo
and that the woman does not have the right to decide to terminate the pregnancy.

The lawsuit brought by the Asociación Centro de Estudios Jurídicos Santo Tomás Moro included legal arguments explaining how abortion is a
crime and that therapeutic abortion, while it is not punishable, it is still a criminal offense and that it cannot be legally regulated. When the
association appealed, the legal arguments were also referred to the unconstitutionality of the medical protocol because it limits abortions to 22
weeks of pregnancy. Based on this, the plaintiff requested that the medical protocol be repealed, ignoring that the Peruvian Constitutional
Court has established that unconstitutionality by omission is remedied by expanding the challenged regulation to all matters that fall under its
scope.21

20
<https://www.facebook.com/CEJSTM/>. The “about” section only indicates that they are “lawyers, doctors, dentists and other professionals defending the Natural Order”.
21
<https://www.tc.gob.pe/jurisprudencia/2003/00010-2002-AI.html>.

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Once again, organizations with a clear religious affiliation are challenging public policies under legal arguments that either ignore precedents
from domestic courts and UN committees, or allege the defense of basic human rights without due consideration for women’s rights.

C. Gender equality approach in education22

Similarly to the previous cases, a civil society organization with no evident link to a religious organization, called Padres en accion (Parents in
action) filed a lawsuit against the Ministry of Education for the inclusion of the gender equality approach in education arguing that it had not
been consulted with the parents, that it distorted nature and that it was, in reality, the imposition of “gender ideology” in the education system.
The strategy, in this case, included public demonstrations and impeachment hearings to the sitting ministers of Education, promoted by
conservative congress people from different political parties.

In August 2017, a three-judge panel ruled in favor of the plaintiffs, partially annulling the ministerial resolution that approved the inclusion of
the gender equality approach in education. Specifically, the panel annulled the section that defined “gender equality” and stated that “Si bien
aquello que consideramos femenino o masculino se basa en una diferencia biológica y sexual, estas son nociones que vamos construyendo día a
día, en nuestras interacciones”. This can be translated as follows: Even though what we consider feminine or masculine is based on biological
and sexual differences, these are concepts that we construe daily with our interactions.

The Peruvian government appealed the decision and, because this was a proceso de accion popular, the case was sent to the Supreme Court,
which issued the final 4-2-1-123 decision on April 2019, dismissing the lawsuit and declaring that the gender equality approach in education is
constitutional and that it seeks to eliminate the cultural conceptions that allow for gender-based discrimination to occur. This decision is res
iudicata.
22
<https://promsex.org/wp-content/uploads/2019/02/CNEBsistematizacion.pdf>.
23
The Peruvian Supreme Court has multiple chambers composed of 5 judges each. A 4 vote majority is required to reach a decision and, in this case, due to the dissenting votes, 3 more judges
were called to vote on the matter. Finally, 4 judges voted to dismiss the lawsuit, while 2 dissented and proposed to affirm. The other 2 judges considered different interpretative decisions
should be issued. A summary of the decisión can be found here: <https://lpderecho.pe/caso-curriculo-nacional-resumen-votos-conformaron-sentencia/> and the full decision is available here:
<https://static.legis.pe/wp-content/uploads/2019/04/Exp.-23822-2017-Lima-Legis.pe_.pdf>.

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Promsex requested to be included in the proceedings, but our petition was denied. No amici curiae were included.

III. LGBT rights in Peru and religious discourse

The Inter-American Court on Human Rights (IACHR) stated in the matter of Azul Rojas Marin v. Peru that there is a generalized context of
structural violence and discrimination against LGBT people in the country.24 Similarly to what happened in the cases previously examined, the
arguments against the recognition of LGBT rights in Peru are legal, pseudo-scientific and find support in conspiracy theories25.

- The legal arguments are usually referred to the fact that the domestic law already recognizes fundamental rights for everyone without
distinction and that, therefore, it is not necessary to adopt any specific measures regarding LGBT people.

- The pseudo-scientific arguments are typically explanations of how human nature and sexuality are binary, meaning that men and women
have certain “natural” characteristics that distinguish them from each other. These arguments are usually supported by information
provided from medical organizations with a clear religious affiliation, and have the intention of portraying sexual orientations and gender
identities as “unnatural” and, subsequently, undeserving of legal recognition or protection.

- The conspiracy theory arguments have been evident in the gender equality approach case. Groups opposing to protection for LGBT
people argue that matters related to sexual orientation, gender identity or expression, or sex characteristics (SOGIESC) are a part of the
“gender ideology”, which can be portrayed as a form of cultural imperialism, intended to contamine native beliefs or customs.

Though not exclusively, rejection towards LGBT rights recognition usually comes from persons or groups affiliated with religious organizations
that rely on these types of arguments to support their stance.

24
Full decision in Spanish available here: <https://www.corteidh.or.cr/docs/casos/articulos/seriec_402_esp.pdf>.
25
Please visit: <https://www.nytimes.com/es/2017/07/11/espanol/opinion/la-verdadera-ideologia-de-genero.html> and <https://promsex.org/columnistas/significa-la-ideologia-genero/>.

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 A. Hate speech from an evangelical pastor

Alberto Santana is an evangelical pastor who runs the “El Aposento Alto” (“The High Chamber”) church and promises his congregation that he
can cure homosexuality.26 In May 2016, at a public event, he said to his congregation that “there is no right to a sexual aberrance. According to
scripture, homosexuality is against nature”27 and that LGBT people are responsible for STI and for HIV/Aids, to which he referred as the “gay
plague”.28

Because of these discriminatory statements, Promsex pressed charges against Mr. Santana for discrimination and incitement to discriminate
based on sexual orientation, since they were uttered to his congregation as a leader and constituited a direct call to treat LGBT people
differently based on their identity.29

The accusation was dismissed by the Public Ministry (equivalent to a prosecutor’s office) arguing that:

“Even though the defendant uttered the questioned expressions by the appellant in his capacity as president of the Coordinadora Civica
Cristiana Pro Valores; nonetheless, we must consider that the defendant is a pastor of the ‘El Aposento Alto’ church. Meaning he professes a
christian religion and, as such, that implies the adhesion to a set of beliefs and dogmas related to divinity, from which he explains himself the
world and each person’s lifestyles, as per established by the Constitutional Court, so we must understand that his behaviour is
predetermined according to those convictions and beliefs. Therefore, his expressions cannot be considered a case of ‘incitement to
discriminate’, but the practice of his freedom of religion and speech, with the latter being a guarantee to the ability to spread one’s thought
and opinion, which is protected by the Constitution.”

26
<https://elcomercio.pe/lima/iglesia-promete-curar-homosexualidad-259796-noticia/>,
<https://www.americatv.com.pe/noticias/actualidad/pastor-que-apoya-fujimori-reitera-que-homosexualidad-enfermedad-n231128>.
27
<https://elpais.com/internacional/2016/05/10/actualidad/1462832476_269719.html>.
28
<https://peru21.pe/politica/keiko-fujimori-desmarca-pastor-evangelico-firmo-compromiso-video-217311-noticia/>.
29
<https://reflexionesperuanas.lamula.pe/2016/07/19/el-juicio-al-pastor-santana/reflexionesperuanas/>,
<https://peru21.pe/lima/promsex-denuncio-pastor-alberto-santana-referirse-homosexualidad-aberracion-sexual-223059-noticia/>.

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Though Promsex attempted to pursue legal action against the dismissal, it was not successful and, unfortunately, it is not uncommon to
encounter such expressions from religious leaders or prominent political figures with a strong religious stance.

IV. Conclusions and recommendations

We observed that religious groups oppose the advance in sexual and reproductive rights and LGBT rights based on their beliefs. However, when
these groups take on legal actions against public policies, the arguments shift from religious to legal, pseudo-scientific and conspiracy theories.

While the conspiracy theory arguments can be easily disproved, the pseudo-scientific arguments have the potential to convince the courts, as
what happened with the Peruvian Constitutional Court in 2009. In addition to that, the legal arguments can also be used to deny sexual and
reproductive rights or LGBT rights through a biased analysis of the subject matter at hand.

Promsex respectfully asks the Special Rapporteur to recommend the States to set clear criteria for limits on fundamental rights like freedom of
speech and freedom of religion in a such a way that people can freely determine their lives according to their beliefs and voice their opinions,
without incurring in acts of discrimination of any kind.

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