In a twist that raises concerns about LGBTQ and intersex rights in Chile, the body charged with writing the country’s new constitution is now under the control of a far-right political coalition that former presidential candidate José Antonio Kast leads.

Compared to the progressive approach that had characterized the previous Constitutional Convention, the change in the composition and the Republican Party’s control of the constitutional council raises serious concerns. 

The former council demonstrated a willingness to address equality and nondiscrimination, including the rights of LGBTQ and intersex people. With the Republican Party in control, however, there have been warnings of potential pushback on hate speech and constitutional protections for queer people.

“The current constitutional process is the last effort to replace the current constitution, which, with all the modifications it has undergone, is still the one built during the dictatorship and reformed with the rules established by the dictatorship,” Gaspar Domínguez, an openly gay man who was the vice president of the previous Constitutional Convention, told the Washington Blade.

Chile’s LGBTQ and intersex community for years has been fighting for recognition and equal right, and it is increasingly fearful the Republican Party could thwart these efforts. Marriage equality, nondiscrimination and recognition of gender identity could be at risk.

Chileans in December will have to return to the polls to approve or reject the constitutional council’s proposal. If rejected, the current constitution that dates back to Gen. Augusto Pinochet’s dictatorship and caused widespread social upheaval in 2019 will remain in force.

Domínguez explained “the text that will be submitted to plebiscite at the end of the year will be the result of the deliberation and voting on the amendments of the constitutional council, which is composed mostly by conservative sectors of the Chilean society that opposed the decriminalization of sodomy in 1999, opposed the divorce law in 2004, that have opposed same-sex marriage bills over the last two decades and that have been linked to the most conservative sectors of the right, to the Catholic and Evangelical churches.”

“Considering this political scenario, it is a real option that the proposal to be voted on at the end of the year constitutes a threat to the civilizational advances that have allowed the LGBTIQ+ community to grow in equality,” he noted.

María Pardo, a constitutional lawyer with “Unity for Chile,” the pro-government bloc within the council that champions queer issues, told the Blade “we are in a political context that has led us to write a shorter constitution and with a much more conservative and majority opposition than the previous period that wants to go backwards or not to advance on these issues for different reasons that they use. They consider, for example, that historically oppressed groups enjoy privileges. Faced with sectors (that have) a clear anti-women and anti-sexual diversity agenda, we have to confront them.”

Pardo’s coalition did not present amendments with explicit references to LGBTQ and intersex people because “we did not present aspects as specific as in the convention, but we did present aspects tending to nondiscrimination and recognition of historically vulnerable groups. In this sense, we consider fundamental the development of the so feared, by the right wing, Comprehensive Sexual Education (ESI), as the basis for children and adolescents to feel integrated in safe spaces of development and conversation, leaving out discriminatory stereotypes. In this sense, we insist that comprehensive sexual education is a human right and not a sole and exclusive responsibility of families.” 

Gloria Hutt, a constitutional advisor for Evópoli, a center-right political party that supports LGBTQ and intersex rights, indicated the nondiscrimination amendment is not at risk. 

“My impression is that it should indeed be approved in the plenary, because it is an obvious right the protection of people’s rights and an element of nondiscrimination,” she told the Blade. “At least, I don’t have the impression that it is at risk.” 

Hutt, who was a former minister in President Sebastián Piñera’s government, argues the “lack of mention of specific groups” in the draft constitution “has to do mainly with the fact that the identification of elements of inclusion or nondiscrimination are very many. So, in the constitution, what is left is the general principle and not the specific mention of each one of the groups. That is why nondiscrimination is maintained as a principle, but without specifying the type of discrimination, but of course, sexual orientation.”

Fundación Iguales, a Chilean LGBTQ and intersex rights organization, said they are closely watching the debate over the new constitution and how it will impact queer people.

“We are monitoring the work with concern,” Mauricio Henríquez, the group’s legal director, told the Blade. “Extreme conservative discourses could directly harm the rights of LGBTI+ people.”

Henríquez added “historically, the conservative ultra-right has opposed the recognition and protection of the rights of sexual and gender diversity. They were against the Civil Union Agreement, equal marriage, the regulation of gender Identity, etc. So, given this background and the harsh comments expressed by some councilors regarding rights and freedoms in the last weeks, it would not be surprising that the constituent drafting would take the same course as the aforementioned rights.”

Henríquez finally pointed out that “more than a setback, there is a kind of invisibilization of historically discriminated groups, including LGBTI+ people.” 

“Here it is important to make clear that the state of Chile and the inhabitants of this country already have a commitment to sexual and gender diversity that no political sector, no matter how conservative or extremist it may be, can deny,” he said. “For this reason, the call we make from Fundación Iguales is that the constitutional advisors legislate looking at the reality of a country that day by day advances in freedom, development and protection of human rights.”