A Lawsuit for Danay Suárez

Foto: Danay Suárez/Facebook

by Gretchen Sanchez Higuera

In the same way that George Floyd’s death was the catalyst for protests against racism in the United States, the homophobic comments of singer Danay Suárez in Cuba were the spark that reignited debate about the rights of the LGBT+ community. This dissatisfaction didn’t begin with the constitutional debate in late 2018, but much earlier. Some believe that the Danay Suárez phenomenon is the beginning of a series of actions by the Evangelical churches, intended to sabotage the right to same-sex marriage, one year before debate of the new Family Code begins.

In Cuba, it’s positive that the President himself has expressed his support for same-sex marriage. But this is not enough when the decision is up to a society which proves to be more conservative than one may think, and with a government which devotes more airtime to the eradication of the giant African snail than to raising awareness of the rights of the LGBT+ community.

Of almost 30 countries that recognize same-sex marriage in the world, only Ireland carried out a plebiscite about that right, and there’s a reason for that. There’s a nearly generalized consensus that this is a right that must be legislated and not voted on. It’s strange that, in an island where law decrees are the norm, the government should decide to stay out of this debate.

It’s paradoxical that even a religious state such as Israel should recognize same-sex marriages and a secular socialist state in the Caribbean should deny them. There are no civil weddings in Israel, and same-sex marriage is not accepted on a religious level. But if you get married abroad, both marriage and adoption are recognized when you return. The same precept does not apply in Cuba, although a few days ago the blog Q de Cuir announced encouraging news. After one year of waiting for a decision, the Ministry of Foreign Relations and the Ministry of Justice agreed to issue a birth certificate which named two female parents, rather than a different-sex couple. The baby, who was born to a Cuban mother and was registered in the United States, was recognized as having two mothers before Cuban law. However, the legal marriage of the two women is not recognized in the island. It’s undoubtedly only a partial decision.

Sectors of Cuban civil society try to advance a progressive legality.

On June 15, 2020, the United States Supreme Court interpreted that discrimination on the basis of sex should also be understood to mean sexual orientation or gender identity. The Civil Rights Act of 1964 will now protect workers from arbitrary dismissals due to discrimination.

One day later, on June 16, the 11M Cuba Movement began to gather signatures on the change.org online platform with the purpose of informing public opinion, reflecting and multiplying solidarity with the LGBTQ+ community in Cuba. The petition is addressed to the National Assembly of People’s Power, the body which, in the absence of a Constitutional Court, shall interpret and draw up the country’s laws. Until now, about 2000 people have signed it, a not inconsiderable amount if we keep in mind that the online platform is blocked for Cuba and that Cubans must use a VPN to subscribe to the petition.

Since there’s no Constitutional Court in Cuba, the decisions concerning basic rights must wait for a legislative schedule in which there are other priorities, so one idea that the 11M Cuba Movement highlights in its petition is that the rights should not go to a referendum and that the adoption of same-sex marriage or civil unions should be a decision in the hands of the National Assembly.

The text Danay shared on her Facebook profile is not only implicitly homophobic but also the scorn of the feminist movement and of people who are pro-choice regarding abortions. Perhaps because of what will be at stake in about a year, the popular reaction has focused its repudiation on the homophobia, and not so much on the attempt to unify pedophilia with feminism and abortion rights.

I’m not sure that the post shared by Danay Suárez is an attempt by some religious denominations in Cuba to manipulate public opinion, and ultimately the results of the 2021 plebiscite with respect to the Family Code. In case this theory is verified, and the goal should be to have an influence on a legal process such as the plebiscite, inquiries should be made regarding the legality of that action. The Cuban State should also make a pronouncement about that.

On June 19, the doctor and activist for LGBTIQ+ rights Alberto Roque Guerra published on his Facebook profile the lawsuit or legal action he started against rapper Danay Suárez for defamation.

There are many diverging opinions. Some argue that the plaintiff is an extremist, in the same way Danay was when she related pedophilia, or the MAP movement (Minor-Attracted Persons) with the LGBT+ community. One might even consider that the lawsuit violates the singer’s freedom of expression. It is also not kept in mind that Danay shared a post she didn’t create, and if we follow the policy adopted by many Twitter users that sharing is not the same as endorsing (RT ≄ endorsement), there’s no legal way to connect Danay with the views laid out in the post.

This said, we must reanalyze the consequences of adopting homophobic stances in a socialist society, in which, above all, equality among human beings is sought. Danay uses her public position to advance agendas that limit the rights of social minorities, and she justifies her stance with the Christian faith that cannot be predominant or authoritative in a secular society.

I believe celebrities have the right to defend certain values and policies, but this cannot be translated into limiting other people’s rights. It’s incorrect to allow, out of respect for the freedom of expression of others, comments that damage the integrity and reputation of movements accumulating decades of struggle for the obtainment of rights many of us take for granted.

Danay Suárez’s behavior was, at the very least, VERY irresponsible.

And although she offered a public apology and tried to clarify her point against pedophilia, libel is a criminal offense. In this case, some legal instruments could be applied, although all of them would ultimately depend on the interpretation of a judge. Article 295 of the Penal Code, in force since 1987, imposes sanctions of six months to two years’ imprisonment to anyone who discriminates or incites discrimination, but it does not specify whether this applies to discrimination on the basis of sexual orientation or gender.

Danay’s stance also violates Article 42 of the Constitution of the Republic of Cuba, which refers to equal treatment of all persons by the Law. This Article does recognize discrimination on the basis of sexual orientation or gender identity as an offense.

If we continue down the logical path of the Constitution, the Cuban State should take on the responsibility of guaranteeing the equality of its citizens, in this case by legislating in favor of same-sex marriage. Article 44 of the Constitution says that: ‘The State puts into effect the right to equality with the implementation of public policies and laws to promote social inclusion and the safeguarding of the rights of the people whose conditions so require’. This Article should be used by the LGBT+ community in Cuba to demand legislation without having to wait for a Family Code and a subsequent plebiscite.

For Roque Guerra, Danay Suárez also violates Article 45, which refers to the limitation of rights (in this case to expression and creed) when they infringe upon the rights of other people with a sexual orientation other than heterosexual. Roque uses the legal framework provided in Article 99 of the current Constitution, which establishes the right to demand in court the restitution of rights and the consequent moral reparations.

On the other hand, Decree 370 of 2018, in its Article 68, item i), establishes as an offense: ‘to disseminate, through the public data transmission networks, information contrary to the social interest, morals, decency and the integrity of persons’. However, it doesn’t mention violations associated with discrimination or incitement to hate, as the laws which regulate freedom of expression usually specify.

Having said this, it’s not prudent either to yield to the temptation of applying Decree 370. Danay made a mistake and then tried to rectify and offer apologies. This must also be taken into account. This lawsuit may alienate people of Evangelical faith, instead of making them relate to the struggle of the LGBT+ community. An internal war could break out between Evangelicals and the rest of society, which doesn’t favor the climate for a future Family Code. If we don’t estrange or further radicalize social groups within a society, it will be easier to attain the common good.

This is a complex phenomenon, and it is necessary to mention all of its elements. The girl, who is also a public personality, made a mistake and apologized. We’re approaching a debate about the Family Code which won’t be simple or unanimous. Ambiguity and a discretionary use of Law Decree 370 threaten fundamental rights such as freedom of expression. Are we going to justify its application now because there’s damage to the reputation of a legitimate movement such as the one in favor of rights for the LGBT+ community in Cuba? And then what? Will we also justify its application against stances that are critical of the Cuban government?

Regulating social media is a debate that’s ongoing in many countries. Facebook and other social networks must be regulated in order to avoid the dissemination of hate messages and other forms of violence and discrimination. We already know how social media can be used to construct enemies which later attract real violence. I believe Cuba must keep an eye on what is regulated in this regard. The most important thing is to control in time a problem that’s rapidly growing worldwide.

Danay’s case has to serve as a wake-up call for the Cuban government. When religious fundamentalism takes over and dominates debate in a society which identifies as secular, the State must come into play and put a stop to it. The Cuban State, so sensitive to the negative propaganda the US government spreads about religious liberties in Cuba, should pronounce on this heated topic in the national public agenda, and which concerns the freedoms of its citizens, all the more so on the eve of a legislative debate on the subject. On this occasion, and no matter how complicated it may be, it should step in and show its revolutionary nature.

* Correction: the lawsuit is not related to defamation but insult.

Contact the author: gretchensh93@gmail.com