Ad hominem: justice and sexual alterities in El Salvador

Abstract

In recent historical times, after the stagnation of the recognition of Human Dignity, Equality, and Non-Discrimination of Salvadoran LGBTI+ people in the Legislative and Executive spheres, the Organ of Justice was resorted to, specifically the Constitutional Chamber, as the last resource in the search for the defense of the fundamental rights of this segment of the population. 

This text aims to analyze 18 Amparo, Pareatis, Habeas corpus, and unconstitutional processes issued by the Constitutional Chamber that intercept fundamental rights and issues of sexual orientation, identity, and gender expression between 2002 and 2022. The research methodology is based on a document review of a qualitative approach and a descriptive-explanatory perspective. The judgments and resolutions were retrieved from the Judicial Documentation Center. The results show three incidence areas: a) complaints of discrimination based on sexual orientation, gender identity, and expression; b) recognition of the gender identity of trans people and c) recognition of civil marriage for people of the same sex. The resolutions and sentences, representative of the dynamics of heteronormative power, are based on safeguarding the precepts established in the Constitution, such as due process, legal security, and job stability. Presenting deficiencies and limitations in naming discrimination based on sexual orientation, gender identity, and expression when there are unjustified dismissals, arbitrary arrests, abuse of authority, and access to civil marriage. There are legal contradictions in recognition of the gender identity of trans people.