50.50: Opinion

Chile’s new constitution promises sexual rights – but can’t guarantee them

If adopted, Chile’s new constitution will be one of the most progressive in the world. But the fight’s not over yet

Claudia Dides.jpeg
Claudia Dides
2 September 2022, 2.35pm

A demonstrator passes by ‘New Constitution’, mural art by artist Claudio Caiozzi (Caiozzama) at Plaza Italia, Santiago de Chile, 4 September 2019

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Jose Giribas / Süddeutsche Zeitung Photo / Alamy Stock Photo

The sexual and reproductive rights included in the draft constitution that Chile will vote on in a referendum on 4 September are greater than the sum of their parts.

They are the first step in Chile’s long, aspirational journey towards a fairer society and a sustainable future.

The constitutions of most Latin American countries were written by oligarchies or imposed outright by dictatorships, as was the case in Chile with Augusto Pinochet's document in 1980. Only in recent decades have a handful emerged from a democratic process.

The new Chilean Constitution is the first in the world to be drafted by a special assembly that had gender parity and included designated seats for Indigenous representatives. Democratically elected, the constitutional convention represented a range of agendas and aspirations. If approved, Chile’s constitution will be one of the most progressive in the world.

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It could be said then that this is the real end of Chile’s transition from dictatorship to democracy. Pinochet’s brutal 17-year rule ended in 1990, after being defeated in a national referendum and then forced to democratic elections. However, Chile has struggled to build its democracy, hamstrung by a restrictive and distorting constitution – which bears the ideological imprint of a dictatorship that presided over grave atrocities – and an oligarchy that wanted to perpetuate a neoliberal economic and social model.

Like any historical process, the draft constitution looks to a long developmental footprint. It is no less than a draft Magna Carta, establishing a framework for the profound democratisation of Chilean society by decentralising and granting more power, autonomy and legislative capacity to the territories and regions. Autonomous territories would have their own justice systems and the senate or upper house of the legislature would be replaced by a ‘chamber of regions’.

It rebalances a very distorted political regime, which concentrated power in the presidency. In doing so, the draft constitution recognises a range of diverse rights – among them, for the first time in Chilean history, are sexual and reproductive rights. Enshrined as fundamental rights, the state will guarantee these rights for the Chilean society as a whole, as well as gender equality and respect for sexual diversity.

What does Chile’s draft constitution say on sexual and reproductive rights?

Article 61 of draft constitution enshrines sexual and reproduction protections. The text is as follows:

  1. Every person is entitled to sexual and reproductive rights. These include, among others, the right to decide freely, autonomously and in an informed manner about one's own body, about the exercise of sexuality, reproduction, pleasure and contraception.
  2. The State guarantees their exercise without discrimination and with gender perspective, inclusion and cultural relevance; as well as access to information, education, health, and to the services and benefits required for this purpose, ensuring to all women and persons who can get pregnant the conditions for pregnancy, voluntary termination, and voluntary and protected childbirth and maternity. It also guarantees their exercise free of violence and interference by third parties, whether individuals or institutions.
  3. The law shall regulate the exercise of these rights.
  4. The State recognises and guarantees the right of individuals to benefit from scientific progress in order to exercise these rights freely, autonomously and non-discriminatorily.
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Those articles are the result of long struggles, much suffering and profound changes in Chilean society. The cultural shift has come about as a consequence of long-term struggles, as well as of the transformation of mindset underway around the world.

I can’t help but think back to 2000, when I took part in the drafting of proposed legislation the on sexual and reproductive rights, alongside several lawmakers, including María Antonieta Saa and Fanny Pollarolo and civil society groups.

In 22 years, a variety of transformations have been breaking down the barriers of national conservatism, and gradually allowing recognition of rights relating to issues of privacy, sexuality and reproduction.

For example, a 2017 law decriminalised abortion if the pregnancy endangers the woman’s life, if the fetus is not viable, or if the pregnancy resulted from rape. The 2018 law on gender identity allowed transgender people over the age of 14 to change their name and gender in official records. In 2021, Chile legalised same-sex marriage. Each of these pieces of legislation were advocated by civil society groups and supported by the government in power, after a long process of ideological and political debate.

A variety of transformations have been breaking down the barriers of national conservatism

But while sweeping change was being debated, the rights of many, especially women and girls, were still being violated. Some of their cases were brought to court, as happened with the 2005 Chilean Supreme Court decision that a lesbian woman lose custody of her daughters. In the face of the Chilean state's inaction and lack of human rights guarantees, some took their case to the Inter-American Court of Human Rights.

As a result of decades of emancipatory struggle by women and feminists, these rights have finally been consolidated in the draft constitution. We can now say that the progressive shaping of individual rights has entered the private sphere in Chile; the family, sans scrutiny, is no longer the arbiter of a person’s destiny.

The emergence of sexual and reproductive rights is an expression of the demands of women's and feminist movements around the world. Since 1980, there has been a new international consensus on the recognition of these rights as human rights. Chile is catching up with the global trend.

Sexual and reproductive rights are human rights as they are based on the principle of equality of all persons. These rights enable us to build a democratic and pluralist society, anchored in the recognition of diversity and equal opportunity for all. That is what I argued when I filed an expert position paper to the constitutional convention.

If the draft constitution is approved, it will have to be translated from a foundational document to an agenda for action by a slew of laws. But the conservative majority in Congress will make it difficult for sexual and reproductive rights to be effectively guaranteed to the Chilean people.

Chile has a somewhat strange political duality, which is a consequence of the complex changes since October 2019, when anti-inequality social protests erupted rocking the political establishment. In 2021, a progressive government was voted into office, but also a Congress that is almost evenly split between opposition and pro-government political factions.

When it comes to sexual and reproductive rights, conservatives hold more weight, as has been demonstrated by the fierce campaign of misinformation urging Chileans to reject the draft constitution. The campaign has been led by both the Right and some of the centre-Left political forces that supported President Gabriel Boric in the second round of the 2021 election and were part of four governments led by the centre-Left Coordination of Parties for Democracy coalition between 1990 and 2010.

Even if Chileans approve the draft constitution, much will remain to be done.

Women activists will have to lead concerted and strong campaigns for the laws that must pass through Congress in order to protect sexual and reproductive rights – and persuade civil society groups to back them. This can be done by harnessing the power of the media and by descending on lawmakers’ constituencies to demand they live up to the principles enshrined in the constitution, and, above all, to the rights of Chilean women, violated and ignored for so long.

This will be the great challenge: to guarantee, through the law, the legal principles established in Chile’s very own Magna Carta. The new constitution, although fundamental, is just the first step in a long journey.

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