In Cuba, 2018 went by between tests of Internet connection and meetings to consult the draft constitution. If the years are continued to be given names in Cuba, that could have been the “Year of the dispute over the Magna Carta and the wait for mobile data.”
The flour or deodorant crisis, the return of doctors from the Brazilian mission, and even the inauguration of the current president, were situations. Some, vital; but still situations.
Internet on cell phones is already a fact (at least for those who enjoy 3G, 900mz phones and money to pay similar or higher packages in cost to those of other parts of the world, expensive for Cuban pockets). The Constitution still isn’t. The full text will be taken to a referendum on February 24. The answer to the question “Do you ratify the new Constitution of the Republic?” will put an end to 2018, which has not yet finished pending this last gesture.
That moment will give a turn to the hourglass. It will start by discounting the time that the rest of the Cuban legal network has to respond to the new standard. Up to two years is the established time. According to that agenda, in 2021 the Constitution should be realized.
Unlike the repertoire of Cuban politics of the recent past, characterized by unanimity or apathy, the future constitutional order was disputed. The document received 760 amendments, which transformed 60% of the initially proposed text. Part of these amendments can be interpreted as knots of dissent.
Issues as central as education and health were modified with respect to the draft and with respect to the Constitution still in force. Others remain intact, as the role of the Communist Party as a leading and higher force of society and the State. Others return after their elimination in the draft, for example, the mention of communism. And so on.
During the debates, the star issue was Article 68 of the draft, which would ensure the possibility of equal marriage on the island. The disagreement in this regard revealed the largest unofficial mobilization of sociopolitical actors seen in the last decades. The issue articulated feminist voices and defenders of LGTBIQ rights and, on the other hand, religious denominations and groups that were active against the possibility.
Other issues intervene, directly or indirectly, in the country’s gender orders, and in the lives of women. The new constitutional text sometimes updates the Cuban norm in fundamental debates of the feminist political dispute, and sometimes raises setbacks in guarantees of rights.
Article 44 of the current Constitution ensures that the State grants working women a maternity leave before and after childbirth. In article 54 of the new constitutional draft, it is stated that the Cuban State protects motherhood and paternity. But what that protection implies is not explicit.
However, maternity leave (and paternity leave, which is legally regulated, although not very used) is one of Cuban social policy’s most notable guarantees. It is also a point in favor of the State’s efforts to encourage the increase in birthrates in a highly aging country.
In the private labor market, the guarantee and forms of regulation of maternity leave have generated debates, related to the non-fulfillment of that duty by employers or inequalities in their application with respect to the state sector. The difficulties in obtaining maternity leave and/or not losing work during or after pregnancy, is one of the unresolved issues that could affect the inequalities registered with regard to the participation of women in the private sector.
Why eliminate the mention of that right? To “economize” in the constitutional text? That it is not explicit does not mean that the policy is undone, of course; but it certainly loses space and firm ground for the future.
Children’s care and daycare centers
Something similar to the above happens with the daycare centers.
The same article 44 of the current Constitution states: “The State organizes institutions such as daycare centers, semi-boarding and boarding schools, homes for care of the aged and services to aid the working family in the performance of its responsibilities.” In the new text there is no mention of daycare centers or public policies for the socialization of care.
The daycare centers were one of the first post 1959 social projects. As early as 1961, the first collections were made throughout the country for their institutionalization, and they were expanded in the following years throughout the national territory. The so-called “incorporation of women” into wage labor forced the socialization of care, as had already happened in the socialist camp.
Today, the demand for these institutions of care in early childhood is much higher than the public offer. Consequently: 1) many women choose to stay in domestic spaces to ensure care, or 2) care has quickly started being commercialized.
In cities and rural areas, private nurseries are already common in very different formats and prices (between 10 and 120 CUC per month); they are the only alternative to family care.
The new Magna Carta eliminates the mandate to the State to socialize care in early childhood. On the international scene, this is one of the most frequent demands. And it is also one of the best legacies of the socialist experience and one of the most important gestures for the gradual dismantling of gender inequalities.
If only the market meets the need for care in the absence of public policies, the result is that it will become “familiarized”: families, and especially women, take over when they can’t pay for the service, their participation is reduced in the salaried labor market (with the corresponding consequence for their loss of autonomy and capacity to negotiate at home) or are burdened with long hours of work (paid and unpaid) to the detriment of their work or personal performance.
The traditional (and patriarchal) conception of work was not modified. For the current constitution, for the draft and for the future Magna Carta, work is only wage labor. All the domestic work, caregiving and reproduction of life carried out fundamentally by women do not qualify as such.
Actually, that was not a hard core of discussion, despite how fundamental the issue was. In the intellectual field, only two texts were dedicated specifically to the subject. There is no mention of this in the Assembly’s debates.
However, according to official data from 2017, 50% of working-age women in Cuba are outside the Economically Active Population: they do not count among those employed (with a formal labor link) or among the unemployed (without formal employment, but they recently sought to have it). It is likely that a part of them perform informally paid work. But it is certain that they are the support of the “social factory” that Cuban homes are.
According to an estimate made in 2002, the contribution to the GDP of the unpaid domestic services (fundamentally carried out by women) was 20%. However, those activities are not considered work. Doing so would mean imposing state actions.
To begin with, the State would have to recognize that unpaid domestic work and caregiving is work, and that it contributes to the national economy. Then, it would have to address questions about the possibility of retirement of those who exercise it, compensation in the event of divorce or separation, non-transferable leaves for men and women for caregiving, and so on.
Other constitutions in the region have taken steps in that direction. The Cuban text evades it and with that it opts to contribute to the reproduction of the patriarchal order in the world of work.
Sexual and reproductive rights
The Constitution still in force does not mention the sexual and reproductive rights of women. Neither did the draft. The document that will be taken to referendum on February 24 does include it. That is, in fact, one of its good news.
In its article 43, the proposed Constitution states that “The State promotes the integral development of women and their full social participation. It ensures the exercise of their sexual and reproductive rights. “
The struggle for sexual and reproductive rights is one of the central issues in the women’s and feminist movements.
Our article 43 does not specify what those sexual and reproductive rights are. The lower level regulations will have to do so. It is important that it be specified and established in law.
One of the most controversial issues in this field is the voluntary termination of pregnancies. To this is added the medical and hospital assistance to motherhood and fatherhood, the sexual education integrated into the education system, the availability of contraceptives, the surveillance and elimination of obstetric violence, and so on.
In Cuba, as in all of Latin America, religious denominations active in the social space are gaining presence and power. Being a legitimate practice in the country, the voluntary interruption of pregnancies has not yet been the target of these actors. However, it could be. If it were to happen, the law would have a weak legal guarantee, because it is not established in law. It is regulated, de facto, by the Methodological Guidelines of the Public Health System.
It is a good guarantee that the sexual and reproductive rights of women have constitutional status. Its content should be clarified in the regulation after February 24, and not remain in legally vulnerable documents or procedures, as hitherto. The future, if institutionalized, is more certain. The opposite is the dependence that it be in the hands of others who, eventually, could be anti-rights fundamentalists.
In Article 43, the proposed constitutional text adds: “The State…protects them (women) from gender-based violence in any of its manifestations and spaces, and creates the institutional and legal mechanisms for this.” The draft included a similar wording. The above ensures a novelty regarding the 1976 Constitution. Now gender-based violence has constitutional status, for the benefit of Cuban women and society.
That gender-based violence not only takes place in the family sphere (another article, 85, is dedicated to that particular issue) is implicit in that formulation. In this way, the door is left open for the legal recognition of the violence that takes place in the workplace, institutional in general, street sexual harassment, in the media, obstetricians and others.
The article’s limitation lies in the fact that it missed the opportunity to recognize femicide as a specific form of violence against women, as has been done in numerous constitutions in Latin America and the world during the last decade.
Femicide was recognized by the international community in 2013 at the session of the UN’s Legal and Social Commission for Women. Doing so recognizes that its cause is not individual, and that social power structures endorse violence against women, girls, transgender or sexually diverse people.
The available analyzes show that it is also a Cuban problem. Incorporating femicides (and obliging the Penal Code to classify it as a specific crime) had no political cost, and would have meant an important step in the realization of gender justice. But it did not happen.
Poverty and inequality
The proposed constitutional text endorses equality as one of the central principles. That is a core of continuity with the Cuban politics of the last six decades, with the rhetoric of the official discourse and with the citizenry’s expectations.
Reaffirming that equality is a guiding principle, implies the state’s commitment to fight against inequality, present and growing in the country. Inequality is not expressly mentioned throughout the constitutional text. But neither is poverty mentioned, also expanding according to estimates made in the absence of official figures.
Poverty in Cuba, as in the rest of the world, is feminized, racialized and territorialized. That means that, if you are a woman and if you are a woman with children, if you are a black person, or if you live in certain places, you are more likely to be poor.
Therefore, the non-existence in the constitutional text of the express mention of the commitment of the State in the fight against poverty, matters to the existing and/or potential feminist agenda in the country.
Equality of opportunities and affirmative action
Along the same line of reference to equality, the proposed Constitution ensures, in the mentioned article 43: “Women and men have equal rights and responsibilities in the economic, political, cultural, employment, social, family and any other sphere. The State guarantees that both are offered the same opportunities and possibilities.”
Additionally, Article 42 forbids discrimination “on the grounds of sex, gender, sexual orientation, gender identity, age, ethnic origin, skin color, religious belief, disability, national or territorial origin, or any other condition or personal circumstance that implies a harmful distinction to human dignity.”
Regarding the current constitution, the new text has the advantage of integrating the reasons for gender and sexual orientation. This not only ensures penalization in case of exclusion, but also recognizes gender-generic identities.
The commitment to guarantee equal opportunities and the recognition of gender and sexual orientation as potential areas of exclusion are vital to build more equal social structures and dynamics.
However, for this to be done effectively, it is necessary to address the existing exclusion. One of the means to do this is, for example, affirmative action.
Affirmative action is not the same as ensuring “equal opportunities.” According to the United Nations, “it is a coherent set of temporary measures aimed at correcting the situation of the group to which they are assigned in one or more aspects of their social life in order to achieve equality.” Affirmative action recognizes the existence of left-out, vulnerable or excluded groups, and ensures policies that work as heuristic practices to reduce the inequality gap.
The official discourse, in the voice of Raúl Castro, has defended the promotion of women or black people in decision-making positions. But that intention has only been institutionalized as situational “orientations.” The draft or the final proposal of Constitution don’t mention that possibility.
The existing inequality is not resolved only by ensuring “equality of opportunities.” Policies of correction and compensation of exclusions are necessary, not only in the field of institutional policy (where Cuba has one of the highest rates of women’s presence in the world) but in the economy, for example. Affirmative action policies would mean granting preferential loans to women entrepreneurs, since they represent a very low percentage compared to men who own businesses in the private sector, or to a much greater extent outside the wage market.
Near the end of this incomplete list, I mention equal marriage. Extensive analyzes have been carried out on the proposal in Article 68 of the draft. And we already have opinions, from all sides, about the political solution given. The sequence of the formulation was as follows:
Current Constitution: ARTICLE 36.- Marriage is the voluntary established union between a man and a woman, who are legally fit to marry, in order to live together. It is based on full equality of rights and duties for the partners, who must see to the support of the home and the integral education of their children through a joint effort compatible with the social activities of both. The law regulates the formalization, recognition and dissolution of marriage and the rights and obligations deriving from such acts.
Draft: ARTICLE 68. Marriage is the voluntarily established union between two persons with legal capacity to do so, in order to live together. It is based on full equality of rights and duties of the partners, who must see to the support of the home and the integral education of their children through a joint effort compatible with the social activities of both.
Constitution that will be voted in the referendum: ARTICLE 82. Marriage is a social and legal institution. It is one of the forms of family organization. It is based on the free consent and equality of rights, obligations and legal capacity of the spouses. The law determines the way it is constituted and its effects. It also recognizes the stable and singular union with legal capacity which in fact forms a common life project, which under the conditions and circumstances stipulated by law, generates the rights and obligations established in it.
The matter can be summarized as follows.
The wording proposed in the draft: 1) obliged the Civil Code to institute equal marriage, and 2) maintained the marriage indexed to the custody and care of the children. The second point was discussed in the Assembly at the proposal of Deputy Mariela Castro, who suggested thinking about marriage based on the couple’s common project, without necessarily involving the existence of offspring. The proposal was vetoed by the conservative wing of the debate, which described it as “unnecessary” for the moment.
Society became polarized during the months of popular consultation. No other topic generated so much debate. Various religious denominations organized and pronounced themselves publicly, with different repertoires, in favor of the traditional heterosexual nuclear family design. Feminist voices and rights defenders also organized and advocated an expanded and integrating concept of diverse families. The process evidenced the organizational potential of Cuban civil society in the face of catalytic issues.
The wording that appears in the final text of the Constitution does not close the possibility of equal marriage. But neither does the possibility that traditional marriage continues being the only one existing. The Magna Carta opted for a Solomonic solution; it aspired to not give or take away anyone’s reason and took the risk of neutrality. But in politics there are no Solomonic solutions.
The response to the conflict has three consequences: it ensures a moratorium on the definition of the topic, it responds positively to the question of whether it is desirable to plebiscite a right, and it conditions the right to the referendum of the Family Code, which will take up to two years to be carried out.
The actors of both sides will have to work hard in the immediate future to win voices and votes. The issue is whether civil society can self-organize ̶ with no other restriction than respect for public order, as the constitution states ̶ to dispute a content of common interest.
Lastly, something else happened that has not been much talked about. The final constitutional text eliminated the reference to the custody of offspring from the article in question. Recall that the issue was vetoed in the Assembly, but now appears in the final text. That was the exchange currency? Something nice followed by something less pleasant, as the elders would say.
The document that is hoped will become the Constitution of the Republic retains a sexist vision. It continues to speak of citizens [in Spanish nouns are masculine and feminine, for example an “o” for the masculine and an “a” for the feminine] and makes little use of inclusive language formulas.
The argument will surely be the same as that of the Royal Spanish Academy, the euphuists of the sexist language or those who exercise sexism disguised as humor or ardor: the Constitution should not be overburdened with the “os” and “as” or else the masculine is the universal.
However, other constitutional texts have tried and demonstrated fluid inclusive formulas in their rhetoric.
Even if the Constitution is approved, on February 24 the dispute will only partially end. Some topics will have a bigger breathing space. Of those mentioned here, egalitarian marriage, the legalization of the interruption of pregnancy based on the constitutional recognition of sexual and reproductive rights, the recognition of feminicide, the possibility of feminist self-organization or placing the debate around work on the national imagination.
It would be desirable that in the coming days there be a torrent of analyses of the final text, which will contribute to systematize the nature and sign of the changes. Perhaps, now that there is mobile data, these analyzes can have a greater audience.
After February 24, these topics, and others, will continue to coexist among us. While something is in dispute, it belongs to the present.