Artists Art Issues Exhibitions About Us Search

Art & Social Space
The first gay marriage in Ecuador: An Art-Law Collaboration. Part 1
by Marí­a Amelia Viteri

Bookmark and Share

An interview with Elizabeth Vásquez and Joey Hateley by Marí­a Amelia Viteri, Ph.D., Professor/Researcher at FLACSO-Ecuador.(1,2,3)

Marí­a Amelia Viteri: Joey and Elizabeth, what I would like to have first is a brief background of your work. Tell me a little bit about it. We will use it as the introduction to the interview.

Joey Hateley: TransAction Theatre Company creates 'Performance from the Periphery’ that responds to, and reflects the diversity within contemporary culture. Based in London, TransAction Theatre Company creates innovative, issue-based, experimental performance projects of the highest quality through the creation of inclusive culturally diverse multi-art-form performance. TransAction collaborates with diverse communities, artists and organizations to create a multi-disciplined program of socio-political cutting edge theatre projects. TransAction runs artistic and participatory cultural exchange projects that explore the ways in which we understand our own identity community and our place in the world. Its work focuses on issues of identity, empowerment and inclusion utilizing theories of social change, theatre of liberation and politics of allegiance. We use creative exchange and exploration to build interconnection and understanding between different disciplines contexts and people. I run a wide variety of projects for theatres, conferences, cultural events, and training for organizations, specific interest groups, artists, actors and university students.

Marí­a Amelia: Ellie, I’m going to ask the same about ProyectoTransgénero.

Elizabeth Vásquez: Project Transgender is both a political proposal and an organization that defines itself as transfeminist, intercultural and alternativist.(4) We work on strengthening trans identities in Ecuador through sociocultural, political, legal, community, artistic and collaborative strategies, through the exercise and enforcement of rights and spaces from which trans and intersex people have historically been excluded. The project was born in 2002 with the launch of the Legal Patrol -a street legal advocacy experience with communities of trans sex workers in Quito, which is still one of the components of the project. In 2006, we established the second component, Casa Trans, which is also the project’s headquarters. Other components are the artistic proposal TransTango and the Transfeminist Activist Training Program. In addition, Project Transgender promoted the creation of the Ecuadorian Confederation of Trans and Intersex Communities -CONFETRANS.

Marí­a Amelia: How did this idea start, the “gay wedding”, what’s the story behind it?

Elizabeth: In 2007, I began to theorize an “alternative use of the law”(AUL) that would involve the celebration of a marriage between two men. In order to accomplish what, in principle, would be impossible under Ecuadorian law, one party would have to be a trans man—that is, assigned female at birth—who retained a female legal sex on his documents despite a social identity as a man. The other man would have to have been assigned male at birth, with a corresponding male legal sex and male social identity. A gay marriage in these terms would have to be allowed, as the couple would be entering a contract outside the imagination of “the Legislator”—and “his”prohibitions.

I have been doing “AULs”for eight years. The creative process begins with the design of an “alternativist technique”which is then carried out in a case study. The technique must intend to “subvert from within”the legal system; if possible at various levels, including the level of underpinning logic.

In 2004, I designed and executed an AUL that I consider a precursor to the gay marriage in question. It was the implementation of a de facto gay union at a time when the Ecuadorian legal framework still did not make such legal figure available for same sex couples. The technique I used in this AUL was the “subversive redesign”of another institution already in existence: I kept the outline of a business corporation, removed the contents (the regulation of rights and obligations between business partners), and replaced them with different contents: the regulation of rights and obligations between two gay partners (in the marital sense). The principle of “autonomy”was useful in structuring this private law contract: “anything not expressly prohibited by law is permitted”. I then emulated the style of the forbidden institution—marriage— through introducing clauses that provided for the appearance of witnesses and contained “moral”obligations that the parties wrote themselves. And by virtue of the aforementioned principle, “the contract is law for the parties”, Alex Carrillo and David Bermeo entered this very peculiar contract by saying their vows and love in the terms agreed upon by them in the 32nd Notary in Quito. The notary could not object to the celebration of this union, including the exchange of rings, because we played with his role in the system: as the “giver of public trust”, his role had to be limited to the attestation that this gay experience existed.

In 2008, I had the historic opportunity to work as a consultant to Assemblywoman Tania Hermida in the Constituent Assembly of Ecuador [2008], which allowed me to contribute to the constitutional norms about families. The assimilationist, or “corporate”gay sector focused on same sex unions while we as transfeminists concentrated on achieving recognition of “several types of families,”a broad concept that would include same sex couples under the umbrella of family diversity, but which also included many other alternative family ties and kinships historically not protected by law. And we did achieve it. At the same time, my Assemblywoman and I worked to implement the “non-discrimination based on gender identity”and “aesthetic freedom”clauses, which we knew would set important parameters for the development of trans rights.

In the context of this cutting-edge constitutional conception of “family”and gender, but also in the stressful context of a constitutional specification of the heterosexuality of marriage which didn’t exist in the previous Constitution (and which from a formal point of view could be considered a setback, so closely following these advances), we arrive at our gay marriage.

Turning now to the discussion of the alternativist technique, I named it “creating a legal paradox,”and it consists of putting the judge in a dead-end situation in which, in order to maintain the historical legal denial of trans rights—that is, to officially label a trans man as a “wife”—the judge has to make a progressive interpretation of gay rights and allow this marriage between two masculine gender identities. And conversely, in order to maintain the historical legal denial of gay rights—that is, to prevent a homosexual marriage—the judge has to progressively interpret trans rights and admit that a trans man is a man and that is precisely why he can’t marry another man. Both legal interpretations are possible,(5) and what’s interesting about this paradox is that in either case, there is a positive outcome for sexual diversity. Of course, we knew it was more likely that the marriage would be allowed under the argument that the trans man is “a woman in the eyes of the law”because civil authorities are less afraid to allow a slightly odd marriage than to admit that the plasticity of gender touches everything, including the law. And so two men in tuxedos ended up getting married: in our judgment, a “legally male man”and a “legally female man.”

1 of 3 pages     next page

back to issues