Brazilian representative rejected the language of sexual and reproductive rights, and stated that gender should be understood as biological sex
Last Friday (22), during a meeting of the 63rd meeting of the United States Commission on the Status of Women (CSW), the Brazilian government began to put in place the conservative turn in its foreign policy, which had been announced by foreign minister Ernesto Araújo and by the minister of Woman, Family, and Human Rights, Damares Alves.
During the meeting, Brazil joined the consensus around the draft of the declaration – which has no binding power over states – but pointed out important points which reflect some of the main demands by conservative jurists and countries non-aligned with the agenda of the promotion of abortion and gender ideology.
“We are concerned with the inappropriate use of key issues in the text, which seeks to advance an agenda with which we do not agree. The Brazilian government will no longer support the inappropriate use of dubious terms and expressions that cause confusion and misunderstandings,” said the Brazilian representative. “Brazil considers it is necessary to protect a healthy family environment for women and children without the intrusion or interference of the state, which aims at dissolving or weakening the structure of the traditional family,” he added.
Brazil has dissociated itself specifically, according to the diplomat, from “the alternative use of the expressions ‘gender’ and ‘sex’, [because] we consider that, for these purposes, gender is synonymous with sex, and sex is defined biologically as man and woman”, and also from the attempt to “ensure the universal access to sexual and reproductive health services, because [Brazil] consider that such expressions may also foster the promotion of abortion. Brazil reaffirms the need to protect women during their pregnancies, and to protect the intrauterine lives of women and men.”
On Wednesday (20), during a press conference at the Itamaraty Palace, foreign minister Ernesto Araújo had already stated that Brazil’s human rights policy should be altered to reflect the will of the Brazilian people. Although Araújo did not provide further details on what the Itamaraty intended to do along with the Ministry of Woman, Family, and Human Rights, the minister sent the message that Brazilian efforts will be focused on the defense of life since its conception, the valorization of family, and the fight against gender ideology.
“What we are trying to do is to problematize a series of things which were presented as right, that the world was going towards a particular direction, a direction in which you no longer have a nation, a family, in which you no longer have men and women. And Brazil, today, is against that,” declared Araújo. “We have been discussing a lot, especially with minister Damares, to update our agenda on these issues,” he added. During two occasions last month, minister Damares Alves had already declared in international organisms that life begins at conception.
According to Stefano Gennarini, a Ph.D. in Law and vice-president of the Center for Family and Human Rights (C-Fam), the statement made by the Brazilian government on Friday was a good start, but there is still a long way ahead. C-Fam has a consultative status in the United Nations (UN), and is one of the most prolific centers for research and advocacy of human rights through a conservative perspective in the world.
Gennarini, who is the main responsible for C-Fam’s agenda in the UN, points out that pro-life activists and organizations are excited with Jair Bolsonaro’s (PSL) election and the rapprochement between Brazil and the United States, but emphasizes that, although the United States has advanced on the issue during Donald Trump’s presidency, Brazil could lead the world efforts in this path, since the UN is not a priority for the Americans, with the exception of issues involving Israel – for Brazil, on the contrary, the human rights agenda has been a central foreign policy issue since the country’s redemocratization.
Genarini emphasizes this as a central point, because he recognizes that when diplomats find themselves without clear orientations, they tend to care more with the agenda of the international institution than the position of the country they represent. Brazilian foreign minister Araújo has also expressed this concern, when he said, more than once, that “the Itamaraty cannot be an embassy of the UN in Brazil.”
Recent statements by minister Damares Alves in international institutions that life begins at conception have been seen as positive, but Genarini points out that, in order be successful, “diplomats should take care of the daily routine of international organisms”, in which policies are made, and, little by little, sometimes through the course of decades, fundamental changes are made in the international law.
The vice-president of C-Fam suggests, for instance, Brazil should set up a commission with jurists, pro-life activists, and diplomats aligned to the cause who had experience with the UN and the Inter-American Human Rights systems, to present a plan of actions in a debate which congregated pro-life and pro-family ministers and members of parliament. The country could then present a platform of action, and lead a group of countries and the international arena.
In this plan, Gennarini, who is an interlocutor for diplomats in international organizations, considers that Brazil’s main allies in the agenda for the defense of life are the United States, Poland, Hungary, Malta, and Chile, as well as, in a smaller scale, around 60 countries which still have legislations extremely protective of life, especially in Africa and Asia. “The United States have legalized abortion since the 1970s, which makes things harder, but Brazil is a country where it is prohibited, and is, therefore, a natural leader to hold this banner,” he ponders.
In January 2017, the Trump administration launched the initiative “Protecting Life in Global Health Assistance” (PLGHA). The PLGHA extended to other federal agencies in the country the “Mexico City policy”, which forbids the United States Agency for International Development (USAID) to fund organizations which perform or defend abortions – but did not go beyond that. “Unfortunately, Trump has done very little in this issue. Brazil could launch a world campaign, perhaps even along with the United States, organizing international panels and events, and providing orientation to diplomats,” he says.
Among the actions pointed out by the jurist as primordial within the scope of the UN, actions which Brazil could have the initiative to lead and then obtain allies for its cause, are a reaction against the dissemination of the language of sexual and reproductive rights; the fight against General Comment No. 36 of the Human Rights Committee; and the active promotion of the rights of unborn human beings, through an interpretation of the human rights treaties; and the fight against the ambiguous gender language in the documents of UN committees and agencies. This is the step the government began to take last Friday (22).
Qualifying the language of sexual and reproductive rights
The main challenge in the international organs, currently, does not concern human rights treaties per se, but the creative interpretation made by the UN follow-up committees and administrative agencies and the resolution of judges who, although are not binding to the states, end up pushing the consensus in this or that direction. Almost everything that is not binding to the states in the international arena is considered “soft law”, a sort of harbinger of future international law.
One such example of this expedient is the language of health and reproductive and sexual rights, which entered the international area within the scope of the World Health Organization (WHO) in 1972, associated with family planning initiatives, at a time in which population control was a major international concern. After the 1960s, there was a growing effort to legalize abortion in Western countries – until then, it was only a reality in the former Soviet Union. That effort has been accompanied, in the international area, by an attempt to make abortion an international right.
The agenda created in the 1960s culminated in two international conferences in the mid-1990s – the International Conference on Population and Development, held in Cairo in 1994, and the 4th World Conference on Women, held in Beijing in 1995. The latter changed the term “sex” by the term “gender” in UN documents. The statements and platforms of actions established between countries are not binding on states, but they eventually served as a basis for the assessment of human rights in UN organisms.
In the preparatory document prepared by the WHO for the Cairo Conference, the “interruption” of pregnancy was included in “fertility regulation”, which led several countries – many of them in Latin America – to present reservations or qualifications to these terms, in order to clarify that the right to abortion did not derive from expressions such as “reproductive health”, “reproductive rights”, “fertility regulation”, “pregnancy interruption”, and “undesired children”. Without a consensus, the platform ended with very bad results for those who defended the legalization of abortion.
But danger lies in the details. International movements which supported the legalization of abortion then began to litigate strategically in national courts – a chapter of which is the Action Against the Violation of a Constitutional Fundamental Right (ADPF) 442, in the Federal Supreme Court – and the creative interpretation of the existing treaties through UN committees and agencies. The strategy drawn by them has three stages: interpreting the criminalization of abortion as unjust discrimination against women, and making this position prevail in the committees for the monitoring of treaties, made up by experts and activists, as well as inserting it in the judicial decisions of the member countries.
One example of what conservatives have considered an abuse of the attributions of a committee is the General Comment No. 36 (CCPR/C/GC/36) of the Human Rights Committee, which supervises – in a non-mandatory way – the implementation of the International Covenant on Civil and Political Rights, one of the nine human rights treaties which make up what is called the “UN system”.
In this 2018 general comment, specific on the right to life, members of the committee understood that “State parties [of the treaty] may not regulate pregnancy or abortion in all other cases [besides rape and risk to the mother’s life] in a manner that runs contrary to their duty to ensure that women and girls do not have to undertake unsafe abortions, and they should revise their abortion laws accordingly.”
But the Human Rights Committee is not the only one to interpret the human rights system this way. The committee which supervises the Convention on the Elimination of All Forms of Discrimination Against Women, another treaty of the UN system, also established the same understanding – mentioned even by Colombia’s Supreme Court, in the decision which legalized abortion in the country in 2006. As if that wasn’t enough, the committee also wrote a report on the country requesting it to point out “which measures have been taking or are being planned to ensure that judges in lower instances take into account the decision of the Constitutional Court.”
A similar case, although in another context, has already mobilized the Brazilian public opinion. In August last year, the Human Rights Committee issued an “interim measure” recommending that former president Luiz Inácio Lula da Silva should be able to keep his political rights until the organ issued a definitive ruling on his complaint, which was pending evaluation. Lula’s defense team appealed to the Brazilian courts, and six justices of the Electoral Superior Court (TSE) reaffirmed the standard understanding that the Human Rights Committee does not have the authority to issue binding decisions on Brazil – but one of them, justice Edson Fachin, argued precisely the opposite.
Promoting the rights of unborn human beings
As well as the strategy to react against the language of sexual and reproductive rights, conservative activists and jurists have been making an affirmative effort in the agenda of the defense of life. Unlike the tendency which has been developed by the committees, conservatives argue that the entire system of human rights protection acknowledges, as a general rule, the right to life of all human being since conception. This is also the perception of some members of the Ministry of Woman, Family, and Human Rights, like National Family secretary Angela Gandra Martins, and Global Protection joint-secretary Alexandre Magno.
The main legal argument of the conservatives in this field is that the interpretation in good faith of the Convention would lead to the acknowledgment that all human beings, without any distinction – therefore, without distinction between those who were born and the unborn – are protected by the international human rights instruments. This argument has been built on the “originalist” reading of the treaties, after the original meaning the terms had when these agreements were signed and ratified.
The Vienna Convention of the Law of Treaties, the treaty that regulates the signature and interpretation of other treaties, says, in its article 31, that “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” and that “for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes”.
It just so happens that the Convention on the Rights of the Child, issued in 1989, promulgated in Brazil in 1990, and which serves as the base for the Child and Adolescent Statute (ECA), says in its preamble that “as indicated in the Declaration of the Rights of the Child [a resolution of the 1959 UN General Assembly], ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth’”. Besides, the ICCPR forbids the application of death sentences on pregnant women in its article 6.5, “implicitly acknowledging that children have the right to life, independently of their mothers”, points out Gennarini.
This understanding became crystallized in the San José Articles, a nine-article statement made by specialists of several areas signed in 2011 in San José, Costa Rica. “All human beings, as members of the human family, are entitled to recognition of their inherent dignity and to the protection of their inalienable human rights. This is recognized in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and other international instruments,” says the statement. “There exists no right to abortion under international law, either by way of treaty obligation or under customary international law. No United Nations treaty can accurately be cited as establishing or recognizing a right to abortion,” it also says.
Qualifying the expression “gender” in international documents
The qualification or suppression of the term “gender” in international documents is another banner held by conservative movements, ever since the word became a sort of mantra, after the 4th UN Conference on Woman in Beijing, in 1995. It was in this conference that the multilateral system accepted to change the term “sex” for the term “gender”.
The UN Women website says that “[the] fundamental transformation that took place in Beijing was the recognition of the need to shift the focus from women to the concept of gender, recognizing that the entire structure of society, and all relations between men and women within it, had to be re-evaluated.”
Aware of the radical feminist literature being developed since the late 1940s, many countries have declared their opposition against this transformation, which led to the addition of Annex IV to the declaration and the Beijing workgroup, according to which the term “gender” should be understood in its common meaning. “The contact group reaffirmed that the word ‘gender’, as used in the Action Platform, should be interpreted and understood according to the ordinary and generally accepted use,” says the text.
But that is not what happened. Just as committees and agencies began to interpret informally sexual and reproductive rights as including the right to abortion – or using the term strategically, according to the context – the gender agenda began to include, under the umbrella of protection of women, biological men who identify themselves as women, which, in the LGBT official terminology, are called “trans women”.
The changes in the UN are a reflex of the dissemination of gender ideology in international mechanisms. According to philosopher Ryan Anderson, author of a book on the subject, “at the core of the [gender] ideology is the radical claim that feelings determine reality. From this idea come extreme demands for society to play along with subjective reality claims.” It was against this understanding that the Brazilian government reacted by criticizing the alternative use of the expressions “gender” and “sex”, and stating that “we consider that, for these purposes, gender is synonymous with sex, and sex is defined biologically as man and woman.”
READ IT IN PORTUGUESE:
Na última sexta-feira (22), durante reunião plenária do 63º encontro da Comissão sobre o Status da Mulher (CSW, na sigla em inglês), o governo brasileiro começou a operar a guinada conservadora na política externa já anunciada pelo chanceler Ernesto Araújo e pela ministra da Mulher Família e Direitos Humanos, Damares Alves.