The first response came from the Cusco LGBTQI+ community, which immediately organised to support the five people under investigation, raise funds for their defence and create spaces for solidarity and support. Some civil society organisations have offered support, within a particularly difficult context for human rights organisations, which operate with limited resources and amid growing restrictions imposed by national legislation.

Proyecta Igualdad has coordinated the defence with the Legal Network Against Gender-Based Violence in the South, a network that brings together legal professionals from various regions of the southern Andes. The Network’s lawyers took on the legal defence of the five people under investigation and are currently handling the litigation in the case. We have also developed a broader strategy for institutional, media and political advocacy, aiming to ensure that what’s happening in Cusco becomes known outside the region, reaches national human rights organisations and is brought to the attention of the inter-American system and United Nations bodies.

This work hasn’t been easy. On top of the usual lack of resources, the case is taking place outside the capital, Lima. This means less institutional attention, less media coverage and far greater difficulties in generating sustained public concern. A criminal case against LGBTQI+ activists does not generate the same level of public outcry in Cusco as it does in Lima, and a large part of our work has consisted precisely of trying to break down this inequality in terms of the opportunity to be heard.

The main obstacle is that the investigation is giving the appearance of legal justification to openly reactionary prejudices. Sexual diversity has been portrayed as an ideological trend alien to Cusco, and clothing, dancing, drag and expressions of affection are treated as if they were inherently obscene. None of this proves a crime has been committed. These are moral judgements about which bodies, identities and expressions may occupy public space.

This is particularly serious because prejudice ends up taking the place of the charge. Criminal law requires identifying what each person did and explaining why that conduct fulfils the elements of the offence. Here, the aim is to replace these with an alleged incompatibility with an arbitrary and subjective notion of ‘Cusco morality’.

These shortcomings led the defence to question the legal validity of the proceedings. At a 4 September hearing, it lodged a motion to dismiss the case on the grounds that the alleged acts do not constitute a criminal offence. The defence argued that the charge does not identify any specific obscene act nor establish what criminally relevant conduct each of the five people is alleged to have committed.

The Seventh Preparatory Investigation Court of Cusco rejected the motion and ordered the proceedings to continue. The defence has appealed and the decision will be reviewed by a higher court.

Meanwhile, as the investigation period was nearing its end, the Public Prosecutor’s Office announced a 60-day extension. This means there’s still no final decision on an indictment and the five individuals will continue, at least during that period, to be subject to the uncertainty of a criminal investigation.

It reveals, first and foremost, that although the Pride March has become firmly established in recent years, in Cusco, publicly identifying as an LGBTQI+ person still has consequences.

It also highlights the fragility of progress that seemed secure. Standards relating to equality, identity and protection against discrimination, and some court rulings civil society secured through great effort, are vulnerable to reactionary groups who manage to ensure that hate speech begins to operate within the framework of a law, a prosecution or a court ruling.

The case also reflects a deeply unequal view of who can occupy the public sphere without having to justify their presence. There are people who can express affection, celebrate their identities, form families and participate politically without it being seen as a provocation. In contrast, LGBTQI+ people are required to keep that part of their lives out of the public eye. The idea they can live as they please provided they do so in private is often presented as a neutral stance, but it perpetuates another form of the closet. They are no longer asked to deny who they are, but to accept that their existence is only tolerable as long as no one can see it.

That’s why the effects of criminalisation can’t be measured solely by the possibility of a conviction. Criminal proceedings have consequences from the moment they begin because they force people to find resources for their defence, attend court hearings, reorganise their daily lives and live for months under the threat of a conviction. Even if the investigation is eventually dropped, the toll has already been taken and extends to the rest of the community, who observe what has happened and begin to weigh up the risks of taking part in a march, performing in drag, expressing affection or simply appearing in public.

At the same time, there’s something about the response from the Cusco community that I find very important and greatly admire. I am from Cusco and for many years I didn’t feel there was a space in Cusco where I could meet people like me and feel that I belonged. Seeing what has been built up since then moves me deeply. Today there’s a community that comes together, looks out for one another and is able to organise itself when its members face proceedings such as these. Exhaustion and fear remain very real, but the state no longer finds isolated individuals. Instead, it faces networks that offer support, secure resources, seek legal defence and bring what is happening to public attention.

The first change would be to review paragraph 4 of article 183 of the Criminal Code, introduced in 2025, which increases the penalty when an obscene act is committed in the presence of a minor. The problem is very specific. An aggravating circumstance drafted in the language of child protection may end up making the mere presence of minors the element that triggers criminal prosecution, even when no obscene conduct has been proven to have taken place.

We must also scrutinise how those who apply the law act. Prosecutors and judges cannot use their moral judgements to make up for what a charge fails to prove nor assume that a work of art acquires sexual content simply because it involves LGBTQI+ people. If the state intends to use its most severe tool, criminal law, it must identify a specific act, pinpoint who committed it and demonstrate it meets the elements of the offence.

We must challenge the political exploitation of child protection, because much of the anti-rights offensive has found in this a particularly effective way of legitimising restrictions that, if directed specifically against LGBTQI+ people, would be far more difficult to justify. It is no coincidence that groups opposing comprehensive sex education or downplaying real forms of physical, psychological and sexual violence against children simultaneously portray the LGBTQI+ community as a threat the state must intervene against. The debate is not about whether we should protect children, which goes without saying, but what we want to protect them from, and why the visible presence of LGBTQI+ people is considered one of those dangers.

Finally, we must reclaim our history. To present sexual and gender diversity as an imported ideology amounts to deliberately erasing the ways in which bodies, expressions and identities that transcend the binary have long been part of Andean territories. Reclaiming the stories of the huaylacas, imillas, qhariwarmis and other figures allows us to challenge the political manoeuvre that labels the gender order imposed by colonisation as tradition, while treating the diversity that this order sought to discipline as foreign.

Only in this way will we achieve justice free from prejudice.