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Abstract
The appeals that 11 service men filed against the Mexican Army in 2007 for unfair dismissal, on the grounds that they were living with HIV, opened an unprecedented chapter in the relationship between sexuality and the judicial system in Mexico, and in the links between biopower and the processes of democratisation and citizenship in the country. In this article, we analyse this process by looking at claimants' discourses as well as those of the Supreme Court judges. We follow three analytic axes: the relationship between biopower and human rights; the paradoxical place of sexuality in this legal process as an element that is both present and absent in legal debates; and the spectre of homosexuality as the implicit undercurrent of this tense discursive event.
Notes
1. We have translated into English all quotes from texts in Spanish.
2. Since for Foucault the terms bio-politics and biopower are synonymous, we have used the terms indistinctly in this paper. For more details about the reasons for such ambiguity, see Esposito (Citation2006, pp. 23–72), where a detailed genealogy of the concept is included.
3. It is important to note that the Mexican Army has not interfered with the political life of the country, neither has it intended to substitute civil power since the 1930s. It actually enjoys wide acceptance by the general public opinion. In a survey conducted in 2007, 71% of the respondents said that they had a ‘good impression’ of the Army (Ipsos-Bimsa Citation2007), and 75.3% answered that the military did not ‘scare’ them (CESOC Citation2008).
4. According to ONUSIDA (Citation1998), military personnel between the ages of 18 and 29 are three to five times more vulnerable to contracting HIV/AIDS than the civilian population of the same age group.
5. Following Laclau and Mouffe (Citation2006, p. 156), we understand that these positions emerge ‘within a discursive structure’, but given its open character, discourse ‘does not succeed in permanently fixing such positions in a closed system of differences’. In that regard, subject positions imply both dispersion, which rejects the notion of a subject as an ‘originative founding totality’, and ‘overdeterminations’ that prevent the mere ‘separation’ between diverse positions (Laclau and Mouffe Citation2006, p. 157).
6. Although for Foucault citizenship could be a form of disciplinary power, for our analysis we differentiated between the two positions. We believe it is necessary to consider the historical trajectory of disciplinary power, which can show us forms of functioning and other specifications that escaped Foucault's analysis. Citizenship, understood here as a subject position, has been reclaimed by some social movements and subjects that have been excluded from political representation as a means to transform disciplinary systems (Mouffe 1999, Bell and Binnie Citation2000).
7. Mouffe (Citation1999, p. 120) defines citizenship as ‘a political identity that consists of an identification with the political principles of the modern pluralistic democracy, that is, with the affirmation of liberty and equality for all’.
8. Esposito (2006, p. 53) writes, ‘Either bio-politics produces life or it produces death. Either it makes the subject its own object or it decisively objectifies it. Either it is a politics of life or a politics over life’.
9. We use here Foucault's specific connotation for ‘subject’:
There are two meanings of the word ‘subject’: someone subject to others through control and dependence, and a subject tied to his/her own identity by consciousness or self-awareness. Both meanings suggest a form of power that subjugates and subjects. (Foucault Citation1988, p. 231)
10. In August 2008, President Calderón sent a legal initiative to the Congress in order to ‘modify the terms of retirement for military personnel living with HIV, in response to the National Justice Supreme Court's resolution of March 2007’. In this same document, Calderón suggests to ‘substitute in every law the concept of “uselessness” for “inability”, in order to consecrate a terminology that better suits the respect of human rights’ (Presidencia de la República Citation2008). This event shows the tremendous impact that the courage of those who carried out these legal processes has had politically, legally and in the lives of many military personnel and their families.
11. ‘In other countries, scientific contributions to legal proceedings are so commonplace that judges don't even have to bother asking for them. Scientists themselves contribute regularly, thinking that in that way, they contribute to finding fairer solutions to concrete cases that the Courts must resolve’ (Carbonell Citation2007). The National Centre for HIV and AIDS Control and Prevention sent a public bulletin correcting the judges’ remarks by clarifying some of the myths around HIV so that the judges could discriminate between them and the scientific information they required regarding AIDS (Avilés Citation2007).
12. The judge made a mistake here, because the correct name of this institution is the Mexican Academy of Sciences.
13. One of the judges openly stated his support for the Armed Forces’ point of view: ‘I took on board the observations in the Military Prosecutor's Office's memo because they seemed very pertinent. I accepted them as my own, as though I had said them myself’ (SCJN 2007).
14. We use the term spectre in its broad sense as ‘something unpleasant or dangerous that is imagined or expected’ (Compact Oxford English Dictionary Citation2008). Spectre's meaning in English is similar to that of fantasme in French, which in psychoanalytic terms consists of an ‘imaginary script that includes the subject and represents, in a more or less deformed way because of defensive processes, the realisation of a desire and, in the last analysis, an unconscious desire’ (Laplanche and Pontalis Citation1983, p. 138).
15. The focus of this article is on the way homosexuality operates as a spectre in the judicial process and in the soldiers' experience once they know their seropositivity. Although such spectre can be related to the social organisation of homoeroticism in Mexico, the argument we develop here has to do with the discursive logic that turns sexuality into a spectre, rather than with sexual practices themselves. In any case, it is important to note that there is no research that addresses homoeroticism specifically within military institutions, and that the information available comes from indirect reference.
16. One significant example of this dispute is found in the US Congressional debate that resulted in the ‘Don't Ask, Don't Tell, Don't Pursue’ policy that prohibited the Army from expelling homosexuals as long as they did not disclose their sexual orientation (Constitutional Law Citation1998). In this specific case, hypocrisy was institutionalised and became written law.
17. The judge is talking about the novel Pantaleón y las visitadoras, by Peruvian novelist Mario Vargas Llosa, a story about Pantaleón Pantoja, an Army officer in charge of organising travelling prostitution services for isolated military bases in the Peruvian Amazon.
18. In Mexican law, there is no formal specification of ‘sexual rights’ and therefore no possibility of their legal protection (Morales Citation2008).