Cuban LGBT activists participate in an annual demonstration against homophobia and transphobia in Havana, Cuba May 11, 2019. Photo: REUTERS/Stringer.
By Francisco Rodríguez Cruz – May 13, 2024
Veronica is a young trans woman from Camagüey, an elementary school teacher, who was forbidden by her school principal to dress as a woman and was constantly called by the male name she was given at birth.
This 23-year-old girl used to go to work in unisex clothing, until she decided to wear clothing in keeping with her female gender. The parents of her students always accepted her, since she lives in the same community where most of her students live, according to Yuleiski Moré Arma, legal advisor of the National Center for Sex Education (Cenesex).
«From Cenesex we talked with the official and after a long talk she understood that the teacher had the right to be respected as a trans person and, although she had not yet changed her name in the identity registry, there was no problem in calling her as she is socially recognized,» she said.
This is just one example of the most frequent conflicts that often arise in the workplace as a result of homophobia and transphobia that still exist in society.
Moré Arma pointed out that the Cenesex Legal Guidance Service is often approached by people who feel they have been discriminated against in the workplace because of their sexual orientation or gender identity.
«Many times such situations occur due to lack of knowledge about people’s sexual rights,» the jurist added, recalling that in 2023 some 15 people were treated at Cenesex for this reason alone.
«Fortunately, in all cases there has been in these administrations an understanding of the right of these people to be recognized as trans and in most cases they have expressed gratitude to the institution for having helped them to understand and provide them with tools for their work».
Clothes DO make the man
Another prominent jurist, Yuliesky Amador Echevarría, dean of the Faculty of Social and Humanistic Sciences of the University of Artemisa, and member in that province of the Legal Orientation Service (LOS) for key populations, agrees that «although cases of discrimination based on sexual orientation and gender identity have decreased in recent years, there are still disputes in the workplace».
«They occur both at the state level and in the new approved economic forms, and although in most cases they are based on ignorance of the rules and are based on stereotypes and prejudices, they end up violating citizens’ rights,» he added.
Amador Echevarria warned «that in most situations LOSs are not accessed, because the person whose right has been violated considers it better not to «denounce», and chooses to try to fit into heteronormative patterns», with an emotional cost and discomfort that can impact their job performance.
The most common occurrence of homophobia is the wearing of clothing associated with one gender or the other, an issue that, although it may seem unimportant to some, is a clear violation of the free development of personality and the right to self-determination of each citizen, he said.
«Although there are legal tools available today on the subject and trained personnel to deal with them, they are not used or, at best, not used well enough, seeing it as something unnecessary or «a fad» brought about by the Family Code.»
It is not enough to have laws, he warned. It is still needed to apply them correctly and to work on these issues from an early stage, which would allow to gain more clarity on what it means «with all and for the good of all» and how to comply with the «principle of equality and non-discrimination» included in the Constitution.
A Protocol to Act, a Law to Improve
When asked about the importance of the recent Decree 96 of 2023, called «Protocol of action in situations of discrimination, violence and harassment in the workplace», to address homophobia and transphobia in the workplace, the young academic stressed that «in law what is not said, is not supposed to be important either for the legislator or for the citizenship». «Hence, this new legislation came to keep giving life to the Constitution of the Republic and fill a gap that existed in these issues, so they were left to the free discretion of the operator of the law, managers, officials, heads of agencies and, of course, of the aggrieved person who did not recognize himself as such.»
He emphasized that the Protocol «must become the law of the land in the workplaces, both state and non-state. In the latter, there is often a false belief that their operation has nothing to do with the existing regulations in the country and, therefore, they can choose, based on their own criteria, who will or will not have access to employment».
Amador Echevarría also stated the relevance of the announced update of the Labor Code, one of the laws included in the legislative schedule of the National Assembly of People’s Power.
«Legislation must resemble the society where it is applied and respond to the demands of citizens. Although the current Labor Code included since 2014 the precept of not discriminating on the basis of sexual orientation, it is essential to add other forms of discrimination in the workplace that are not included in that body of law,» he argued.
«The Constitution, as a norm of direct application, is cited today in this matter, but being a general text, it is not up to it to go to the particulars. Therefore, having a new Code will serve as an effective guarantee to these rights».
He warned, however, that «the Law will not be enough: it will have to be backed up by training and awareness-raising actions on gender issues that involve all workers».
He insisted first of all on the training of the operators of the law themselves, be they lawyers, judges and prosecutors, as well as members of the labor justice bodies. «When analyzing the legislations that follow the 2019 Constitution, it is evident how the issues associated with gender are transversal to all of them. This shows the state interest in these problems and also the knowledge that those who apply the Law must wear – as we say – the «gender glasses» in each case.»
«The universities, the Union of Jurists in the territories, the Houses of Orientation for Women and Families today have specialists who are able to carry, explain and advise on these issues. They are not always approached, and even in the face of ignorance, many times people act incorrectly when they could receive advice».
No less important is the role that the Union must play in these situations of violence and discrimination due to homophobia and transphobia. «Union intervention must be increased in the face of these issues that not by failing to pay due attention to them, will cease to affect the rights of workers,» he insisted.
«We must turn to the norms already in place in search not only of a legal culture, but also to understand that many times actions that are seen as normal, violate rights and exclude people. The Union -he concluded- has to take these problems into account in its actions, evaluate how they behave, prevent, educate managers and workers, and avoid discrimination and the emotional damage derived from it».
