Global Health

Global Public Health
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Subject, Sexuality, and Biopower: Legal Defense of Soldiers

Living with HIV and Sexual Rights in Mexico
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Journal: Global Public Health

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Manuscript ID: RGPH-2009-0048
Manuscript Type: Original Article

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Keywords: subjectivity, sexuality, human rights, Mexico, biopower

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URL: http:/mc.manuscriptcentral.com/rgph Email: gph-msph@columbia.edu

Page 1 of 27 Global Public Health
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3 Subject, Sexuality, and Biopower:
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6 Legal Defense of Soldiers Living with HIV and Sexual Rights in Mexico
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15 ABSTRACT
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20 The appeals that eleven service men filed against the Mexican Army in 2007 for unfair
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22 dismissal on the grounds that they were living with HIV opened an unprecedented
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chapter in the relationship between sexuality and the judicial system in Mexico, and in
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27 the links between biopower and the processes of democratization and citizenship in the
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29 country. In this article we analyze this process by looking at claimants’ discourses as

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32 well as the Supreme Court judges’. We follow three analytic axes: the relationship
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34 between biopower and human rights, the paradoxical place of sexuality in this legal
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process –as an element both present and absent in said discourses-, and the spectre of
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39 homosexuality as the foundation of this tense discursive event that deals with rights,
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41 health, equality and democracy.
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46 Keywords: sexuality, subjectivity, human rights, Mexico, biopower
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Global Public Health Page 2 of 27
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3 Subject, Sexuality, and Biopower:
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6 Legal Defense of Soldiers Living with HIV and Sexual Rights in Mexico
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In the first volume of The History of Sexuality, Foucault states that sexuality was
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13 the locus through which power had access “(…) to both the life of the body and the life
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15 of the species” (Foucault, 1978:1761). This movement would mark the transformation of
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power in modern times: a shift from sovereign to disciplinary power and the creation of
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20 what he calls bio-politics or biopower.2 This was nothing less than the entry of life into
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22 history, that is, the entry of phenomena peculiar to the life of the human species into the
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order of knowledge and power, into the sphere of political techniques” (Ibid. 171). Thus
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27 life entered history, and power became embedded in bodies in order to both produce and
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29 regulate them in accordance with the logic of maximizing their strength, performance,
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32 and uses. In this process, sexuality allowed the creation and control of populations as
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34 well as the production and direction of individuals.

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Giorgio Agamben says that one of Foucault’s last concerns was to study the
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39 place where the modern State performs a "genuine political double bind constituted by
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41 individuation and simultaneous totalization of the structures of modern power"
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(Foucault, cited in Agamben, 2006: 14). Thus, a permanent tension between rights and
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46 liberties was born, as well as a gradual but systematic inscription of power in life in a
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48 way that “the spaces, the liberties, and the rights won by individuals in their conflicts
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51 with central powers always simultaneously prepared a tacit but increasing inscription of
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53 individuals' lives within the state order” (Ibid. 154). The case this article analyses is a
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55 good example of this process.
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We have translated to English all quotes from texts in Spanish.
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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 2006 pp.
23-72, where a detailed genealogy of the concept is included.
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3 In March 2007, Mexico’s Supreme Court ruled the cases of 11 soldiers who had
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6 filed claims against their dismissal from the Army on the grounds of ‘uselessness’
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8 supposedly caused by their HIV positive status. They asked the Court to rule out Article
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226 of the Mexican Armed Forces Social Security Law which establishes 200 reasons
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13 for immediate discharge of military personnel. One of them was living with HIV.
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15 Donato was one of the soldiers dismissed. After many vicissitudes he finally
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decided to sue the Army. During an interview in 2007, nearing the end of a legal
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20 process that would prove decisive for his future and that in many respects would change
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22 the relationship between this institution and its members, Donato said,
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In my case it was a dismissal, you could call it an unfair dismissal. Although
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27 there is a law that regulates grounds for dismissal, it is a law that clearly violates
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29 human beings’ most fundamental rights. Among them, we have the right to
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32 health, the right to non-discrimination, the right to equality, the right to be heard
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34 and defended in trial, the right to due legal process. These are fundamental
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principles in our Constitution.
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39 Donato claimed some fundamental rights that would allow him to save his life, receive
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41 health care, work, and recover, in many regards, his dignity. Perhaps unwillingly, he
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was a leading character in an episode that showed the intersection between
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46 individuation and totalization procedures used by the State. His body was the object of
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48 thorough and detailed scrutiny in order to determine his health status; he underwent
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51 various tests that eventually became the reason and justification for his dismissal and for
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53 denying him medical care or treatment. Forsaken, Donato the soldier found an answer
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55 as a citizen, an answer that allowed him to reformulate the events through a
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58 fundamental perspective: the rights to which he was entitled.
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3 Donato was also forced to reformulate the coordinates of his subjectivity, his
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6 identity and his life. Not only did he have to deal with his dismissal and with medical
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8 neglect but also with the daily—often informal but always insidious—effects of stigma.
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Having been diagnosed with HIV, Donato was not only haunted by the imminent death
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13 the physicians announced but also by a spectre that inhabited his peers’ conversations
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15 and physicians’ remarks: that he was infected with HIV because he was ‘a homosexual’.
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Thus, as so often has been the case in Mexico in the last 25 years, Donato
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20 became the main character of a biography that could be inscribed on the pages of
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22 Foucault’s History of Sexuality. Unsuspected pages undoubtedly because they are not
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only the pages of a power that inscribes itself in life and of a device that allows subjects
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27 to access their intelligibility, the totality of their bodies, and their identity (Foucault,
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29 1981) but also of a power that is contested, displaced, and transformed at the very
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32 coordinates of its functioning. In that regard, we could revert the above quote from
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34 Agamben and say that each time life is tacitly but increasingly inscribed in the state
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order, new spaces, liberties, and rights are created and won by individuals in their
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39 conflicts with central powers.
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41 The case was in the news for several weeks, sparking intense public debate. In a
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certain sense, one of the country’s most powerful institutions, traditionally shielded
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46 from public scrutiny and legal action, was being judged. The Army had already been
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48 touched by the democratic demand for accountability: in late 2005, the Federal Institute
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51 for Access to Information published that the Army had dismissed already 110 soldiers
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53 living with HIV. By 2003, the virus was already the first cause of admittance and death
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55 in the Military Hospital Adult Infection Wing3 (Medellín, 2003).
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According to ONUSIDA (1998), 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.
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3 This legal process reveals a historic event which is possible only given certain
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6 political, social and subjective coordinates that would have seemed impossible a few
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8 decades ago, or in a different context. In this case, human rights discourse used by civil
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and social organizations working on HIV in Mexico served to promote the ownership of
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13 rights in a context of precarious but declarative democracy, and joined subjective
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15 processes of building citizenship enacted by these soldiers: suddenly, military personnel
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presented themselves as citizens defending their individual rights vis-à-vis this powerful
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20 state institution. In order to understand these processes, we examined the discourses
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22 they generated based on interviews with some of those that filed claims against the
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Ministry of National Defense (Sedena) and transcripts of the Supreme Court sessions
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27 where the cases were decided (SCJN, 2007).
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29 We believe that these events involved a discursive turbulence where the subjects
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32 involved moved from certain subject position4 that we could call ‘disciplinary’ to one
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34 we have called a ‘citizen’ subject position5 . Foucault has defined “discipline” as the
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“methods, which [make] possible the meticulous control of the operations of the body,
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39 which [assure] the constant subjection of its forces and [impose] on them a relation of
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41 docility-utility” (Foucault, 1977: 181), and these are the very ones that are questioned
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by the processes here described. By demanding the respect of fundamental rights
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46 protected by the Constitution, these men break the pretension of docility-utility of the
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48 bodies that is so central to modern forms of discipline. This way, although the claimants
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Following Laclau and Mouffe, we understand that these positions emerge “within a discursive
53 structure,” but given its open character, discourse “does not succeed in permanently fixing such positions
54 in a closed system of differences” (2006:156). In that regard, subject positions imply both dispersion,
55 which rejects the notion of a subject as an ‘originative founding totality,’ and ‘overdeterminations’ that
56 prevent the mere ‘separation’ between diverse positions (Ibid. 157).
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Although for Foucault citizenship could be a form of disciplinary power, for our analysis we
58 differentiated between the two positions. We believe it is necessary to consider the historical trajectory of
59 disciplinary power, which can show us forms of functioning and other specifications that escaped
60 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. See Mouffe, 1999; Bell and Binnie, 2000.
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3 were already formally citizens—while somewhat restricted by the Code of Military
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6 Justice—, the violation of their rights triggered processes that allowed them to feel and
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8 act as such. Opposing the hierarchical nature of the Armed Forces, the claimants
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adhered to subject positions that privileged the discourse of democracy and human
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13 rights,6 and removed themselves from subjectivation processes instigated by the military
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15 by appealing to a different authority: the civil law that protects their citizenship.
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20 Methods
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For this research, we used an instrumental case study procedure in which “a particular
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27 case is examined to provide insight into an issue or refinement of theory” (Stake,
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29 1994:237). In this case, the theory in question had to do with identifying subject
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32 positions in the exercise of sexual rights in order to understand the bio-political exercise
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34 of power in this field. Therefore, this study did not examine a particular population (the
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military in general) but the discursive production that took place during the legal
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39 processes of the soldiers living with HIV.
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41 To that end, we carried out narrative autobiographical interviews (Lindón, 1999)
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with four of the claimants. Due to the Army’s hermeticism and the confidentiality of the
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46 claims, it was very difficult to contact the interviewees; we had to contact them through
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48 people they trusted. We were able to approach the soldiers through their lawyer, who
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51 invited them to participate in this research and obtained their consent to be interviewed.
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53 Of all those who were invited, four soldiers agreed to participate provided we kept
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55 confidential their rank, personal data, and sociodemographics; hence, this document
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58 does not include any such data. We were aware, however, that one of the soldiers had
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Mouffe 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’
(Mouffe, 1999:120).
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3 won his case and another had lost his before they were interviewed; the cases of the
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6 other two were under consideration by the Supreme Court at the time of the interviews.
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8 We are grateful for their willingness to participate in this project.
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Further, this study included not only the claimants’ discourses but also the
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13 institutions’ involved in the legal process. We used transcripts of the Supreme Court
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15 sessions where the cases were decided. The Supreme Court ruled in favor of the
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soldiers, marking an inflection point in the bio-political trajectory of power.
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22 Biopolitics and HIV: the administration of death
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27 While anti-retroviral treatments -which by Mexican law should be universally available-
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29 have partially eliminated the equivalence of HIV to death, the events we analyze here
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32 show that these men, the Army itself and some of the Supreme Court judges had not
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34 brought their ideas up to date. For that reason, when these soldiers were given their
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diagnosis, they entered an agonizing process: regardless of each individual’s situation,
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39 all the interviewees received their diagnosis as a notice of imminent, almost immediate
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41 death. Olegario remembers his internal dialogue when he found out:
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I thought, “This is it. This illness has no cure, so I’m going to die very
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46 soon, very soon. I don’t know when, but something’s going to happen to
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48 me”.
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51 This equivalence of infection to death, of HIV to AIDS, not only stemmed from
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53 these soldiers’ lack of information, but was fed by some of the medical personnel when
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55 they gave test results. What is more, sometimes this death sentence came with an
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58 informal notification that they would also be discharged from the Army. The prospect
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60 of death was followed by economic, social and symbolic abandonment. While Olegario
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3 was greeted with the comment that “the good life is over” when he went to get his last
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6 paycheck, Juan was given his diagnosis along with a foreseen dismissal:
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8 Doctor: You know what? They’re going to throw you out, so light up
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your candles. Knock on doors and see where you’re going to get medical
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13 treatment. Start looking for medication because they’re going to throw
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Juan: What do you mean? They’re supposed to give me support.
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20 Doctor: But you’re under a death sentence.
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22 Juan: What do you mean a death sentence? How long will I live?
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Doctor: Well, that depends on you. Maybe a year, maybe two or three. I
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27 don’t know.
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29 As the interviewees began delving deeper into the implications of their

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32 diagnosis, the ominous announcement unfolded all the possible forms of loss: medical
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34 care would be suspended, as would all economic benefits and assets, labor rights and
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social security benefits. Death seemed even closer, accompanied by multiple forms of
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39 damage to them and others: partners, wives and children, so much so that for Donato,
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41 his dismissal and loss of health care constituted essentially a ‘death sentence:’
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What the Defense Ministry did was to excuse itself from the obligation of
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46 giving us medical care and everything we need to have the best possible
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48 quality of life. As a result, they are giving us a death sentence. But in

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51 Mexico, we don’t have the death penalty. Why should we be sentenced to
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53 death for having a disease?
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55 The deployment of sexuality is one of biopower’s fundamental tools as well as
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58 the place where power links to biological life (Foucault, 1981). In this case, since the
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60 virus’ main form of transmission is sexual, the relevance of sex as a field of power
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3 intensifies. Nonetheless, the issue here is not only the capitalization of life but also to
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6 some extent the administration of death because the legal process deprived the Army of
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8 the power to ‘foster life or disallow it to the point of death’ (Foucault, 1981:161). This
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way, the AIDS epidemic becomes an intersection where the production of sex features
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13 death “as an essential formative attribute”, which will allow from now on to create new
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15 forms of ‘regulating and assigning death’ (Butler, 1992:344).7
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However, while waiting for their official dismissal notice, the soldiers began to
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20 get information about the difference between HIV and AIDS, and about the life
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22 expectancy resulting from anti-retroviral treatment. Servando talks about his experience
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when he and his wife went to a specialized HIV clinic in Mexico City:
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27 We both had to learn and get informed about what HIV is and how to live
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29 with it, how we had to follow treatment, how we should learn to live with
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32 it, what my life was going to be like from then on and how to manage it,
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34 and I said, “Well, this is definitely a disease, but it’s not like the world is
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coming to an end.”
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39 Access to this medical knowledge showed them that death was not imminent,
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41 but that stopping treatment would indeed be fatal. Given this prospect a series of
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subjective and social processes were unleashed that finally led to the legal suit. Access
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46 to medical attention became a driving force of life, the purpose of their lives. However,
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48 even though the subjective processes behind the claims may vary (preserving their
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51 income to support themselves and/or their families, reparation of the emotional
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53 suffering caused by the injustice, the mending of a fractured, broken subjectivity, etc.),
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55 the soldiers produced an institutional response to the Army’s action: they used medical
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58 and legal discourses in order to deal with the dismissal.
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Esposito (2006) 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” (53).
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3 Thus, in this exercise of citizenship, these men took the opposite road from
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6 institutional subjectivation associated with HIV diagnosis: by making personal
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8 background and circumstances irrelevant and seeking to change institutional discourses,
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the legal proceedings became a mechanism to de-subjectivize.
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15 What is “uselessness”?: to foster life or disallow it to the point of death
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20 “Uselessness” is the formal reason given by the Army for dismissing these
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22 soldiers. For them, this description opens an irreparable wound in their relationship with
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the Army and profoundly damages their emotional bond with the institution that both
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27 had provided and disciplined them, producing subjects tied to the identity of “soldier” 8.
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29 Such an insult then becomes a driving force for legal action.

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32 It was anger that pushed me to defend myself, to defend my rights after
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34 being stepped on. To them I was useless; I was somebody with HIV and
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they want to throw you away like something that’s no use any more, after
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39 you’ve served your country. Just when I thought they were going to
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41 support me, I saw the other side of the coin and I didn’t like it. There you
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are thinking you’re ready to give your life for your country, for your
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46 people; that’s the mentality they create in you. I loved my job and my
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48 country with a pure love (Juan).

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51 Donato even questions the legitimacy of the existing law:
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53 The word “useless” is a denigrating, aggressive, violent word that can cut
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55 to the bone and hurt anyone’s feelings because we all are of some use.
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We use here Foucault’s specific connotation for “subject”:
60 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, 1988: 231).
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3 So, calling you useless is low, and cowardly on the part of the
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6 institutions. I say the institutions because they are the ones who enforce
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8 the law and that law stipulates uselessness9.
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Being useless meant being disposable, expendable and incapable. In one sense,
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13 being useless is a kind of living death. Declaring these men useless renders them dead
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15 before death overtakes them. This agonizing dynamic is the origin of the indignation
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and the driving force to reclaim what was theirs. The appeal simply means affirming
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20 their lives in the face of an institution that rejected them to the point of death.
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The struggle: biopower versus citizenship in the Supreme Court
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29 In the Supreme Court discussion, a conflict unfolded between a conception of

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32 citizenship as a set of fundamental rights and a bio-political discourse bound and
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34 determined to administer life and death in a specific population group (the Army)
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(SCJN, 2007). The legal debate consisted of determining whether, based on Article 226
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39 of the Armed Forces Health Law, the complainants could be considered “useless” and
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41 their dismissal was justified. It was therefore necessary to solve the controversy about
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the “uselessness” of the soldiers living with HIV. Some of the judges argued that the
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46 Court should resort to scientific information. To argue his vote supporting the
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48 complainants’ appeals, one of the judges presented findings by the Mexican Academy
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51 of Sciences about the medical condition of people living with HIV. This document
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In August 2008, President Calderón sent a legal initative to the Congress in order to “modify the terms
55 of retirement for military personnel living with HIV, in response to the National Justice Supreme Court’s
56 resolution of March 2007”. In this same document, Calderón suggests to “substitute in every law the
57 concept of ‘uselessness’ for ‘inability’, in order to consecrate a terminology that better suits the respect of
58 human rights” (Presidencia de la República, 2008). This event shows the tremendous impact that the
59 courage of those who carried out these legal processes has had politically, legally and in the lives of many
60 military personnel and their families.
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3 states that the infection does not equal AIDS and that, in addition, in neither case is the
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6 person automatically useless, and that people living with HIV are capable of perfoming
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8 any kind of job.
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The discussion then centered on whether the Court should or should not admit
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13 that information as relevant to their legal decision.10 This unleashed a heated battle
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15 between medical knowledge and formalist legal discourses that was eloquently
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expressed by another judge when arguing against the use of scientific information:
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20 The Mexican School of Sciences [sic11] report is not contributing proof to the
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22 briefs, nor does it establish the equality of the parties involved in the case…
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because never does it mention what the military medical experts say. In addition,
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27 for scientists’ opinions to be objective, complete and impartial, it would have
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29 been necessary to take into account expert opinions from both parties (SCJN,
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32 2007).
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34 Here, we are looking at two different uses of scientific knowledge: while the
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judges that supported the appeals used it to defend the fundamental rights of the
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39 complainants, those who refused brought it to the table in order to deny them their
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Biopower colors the arguments of the judges who intended to deny the
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46 appeals.12 Here, the soldiers continue to be usable and disposable bodies that refuse to
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48 be classified and disciplined. HIV reveals the institution’s failure to even keep a watch
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“In other countries, scientific contributions to legal proceedings are so commonplace that judges don’t
55 even have to bother asking for them. Scientists themselves contribute regularly, thinking that in that way,
56 they contribute to finding fairer solutions to concrete cases that the Courts must resolve” (Carbonell,
57 2007).
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The judge made a mistake here, because the correct name of this institution is the ‘Mexican Academy
59 of Sciences’.
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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).
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3 on them. Thus, institutional discipline breaks up when it clashes against those who
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6 inhabit its margins and, without further ado, expels them.
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8 The point against which disciplinary systems that classify, create
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hierarchies and perform surveillance, etc., clash, will be the element that
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13 cannot be classified, the one that escapes surveillance, the one that cannot
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15 enter the system of distribution; in sum, the residue, the irreducible, the
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unclassifiable, the inassimilable. That will be the pitfall of these physics
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20 of disciplinary power (Foucault, 2005: 75).
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22 The body to be protected is then the body of the Army, which would be
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weakened by the “useless” bodies of the soldiers living with HIV, so that the
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27 effectiveness of discipline could be brought into question.
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29 If the Armed Forces have to choose between assigning or not a mission

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32 to a soldier who has the virus because he is undergoing treatment, clearly
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34 we face an impediment to serve , to the detriment of the rest of the

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personnel that will be affected by having to cover for their fellow soldier
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39 who cannot do it. This, in turn, creates resentment among them, which
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41 damages the esprit de corps which Armed Forces are largely based on.
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In contrast, the judges favoring the appeals opposed the complainants’
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46 fundamental rights to military discipline. Two historically distinct concepts of law —
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48 and of power, for that matter— struggled for hegemony in that same session of the
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51 Court. The judge who favored granting the appeals classified his opponent’s arguments
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53 as “theoretical constructions of other times” and stated:
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55 It seems very dangerous to me to return to arguments in which either the
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58 collective or public interest are opposed, as an intangible subject, to fundamental
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60 rights….It is not acceptable to oppose the collective to the individual.
13
1
2
3 Thus, while the judges in favor of granting the appeals ceaselessly constructed
4
5
6 an abstract, universal subject entitled to rights under Mexican law, excluding the
7
8 biography of the individuals from the legal arguments, those who wanted to deny the
9
10
appeals unrelentingly brought the singularity of the soldiers’ case back into the
11
12
13 discussion in order to argue the primacy of the military institution’s interests over
14
15 individual rights. This opposition between the institutional and the individual can be
16
Fo
17
18
seen in other issues in the debate.
19
20 In the end, the Court declared the said article unconstitutional, with the
rP
21
22 condition that the reinstated soldiers should undergo regular exams to determine their
23
24
health status and, as a result, their possible uselessness if there was an onset of AIDS. In
ee
25
26
27 short, the victory was relative because, even though the Court ordered the complainants
28
rR
29 to be reinstated, it maintained the criteria of uselessness, postponing its application until

30
31
32 a potential moment when AIDS appeared. The only possibility of maintaining their
33
ev
34 rights is that they do not develop AIDS before they have completed 20 years of service
35
36
so that they can retire and enjoy the rights of retirement.
iew
37
38
39
40
41 Homosexuality: A Constitutive Spectre13
42
43
On
44
45
46 Although the legal discussion centered on issues related to the soldiers’ health
47
ly
48 status and the clash between their rights and the Army’s interests, another topic
49
50
51 permeated the discussions, though buried and silenced, but always suggested: the sexual
52
53 component of HIV infection. The findings of the Mexican Academy of Sciences —with
54
55
56
57
58 13
We use the term spectre in its broad sense as “something unpleasant or dangerous that is imagined or
59 expected” (Compact Oxford English Dictionary, 2008). Spectre’s meaning in English is similar to that of
60 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 realization of
a desire and, in the last analysis, an unconscious desire” (Laplanche and Pontalis, 1983: 138).
14
1
2
3 its own bio-political vocation— add a fundamental consideration that went practically
4
5
6 unmentioned during the trial: the possibility of sexual transmission.
7
8 Sexuality thus remains explicitly absent from most of the discussions, but it is
9
10
not the absence of sexuality in general, but of homosexuality, which becomes a spectre
11
12
13 lurking within different discourses. That is, the supposed homoerotic practices of the
14
15 soldiers are the basis for this tense discursive episode about rights, health, equality and
16
Fo
17
18
democracy. One soldier confirms this impression:
19
20 This issue of uselessness is discriminatory because what happens is that
rP
21
22 if the Army accepted a patient with HIV it would be the same as
23
24
accepting a homosexual inside the Armed Forces, and they don’t belong
ee
25
26
27 there.
28
rR
29 Although not in relation to themselves, the soldiers interviewed say that the
30
31
32 gossip of homoerotic practices follows HIV infection like a shadow. In fact, one of their
33
ev
34 complaints is that, once their fellows found out their diagnosis —violation of
35
36
confidentiality is one of the main infringement of their rights by the institution—
iew
37
38
39 accusations and insults related to homosexuality followed immediately. As Donato says:
40
41 I guess that what they think —or what everybody thinks, not just
42
43
On
44
soldiers— is that HIV/AIDS is a disease that is 100 percent homosexual.
45
46 So, when they found out about me, more than wanting to say hello to me,
47
ly
48 they expected that I would say, “Yes, I’m a homosexual,” or, “I‘ve been
49
50
51 with homosexuals,” but I thought, “How can they think that about me?”
52
53 The danger of homosexual relations among members of the Army was used by
54
55 some of the judges who considered that protecting the complainants contradicted
56
57
58 protecting the rest of the military. Along these same lines, one judge argued:
59
60
15
1
2
3 It has been said here that if a person with HIV takes the appropriate
4
5
6 prophylactic measures for responsible sexual relations, there will be no
7
8 problem. I ask myself whether the health standards that the military could
9
10
be entrusted to the responsible, prophylactic, preventive, appropriate
11
12
13 exercise of sexual relations by patients with HIV, according to the terms
14
15 of the law and the official Mexican norm. I think it would be very
16
Fo
17
18
dangerous to say that. If everyone did this, we could agree. But we know
19
20 that human nature doesn’t work that way. And this illness poses a risk of
rP
21
22 a severe bacteriological problem [sic], initially in the military community
23
24
and then for everyone else.
ee
25
26
27 However, there is no explicit mention made of homosexuality in the Military
28
rR
29 Code of Justice. What comes closest is Article 402, which allows for any interpretation:
30
31
32 Article 402. Military personnel who commit dishonest, but non-violent,
33
ev
34 acts among themselves or with civilians, on a war ship, buildings,

35
36
military points or posts or any other Army facility, will be punished with
iew
37
38
39 two years in prison.
40
41 Officers, in addition to this punishment, will be dismissed from
42
43
On
44
duty, and banned from active duty for 10 years. (Cámara de Diputados,
45
46 1933/2005: 73).
47
ly
48 In practice, this article is used to ban homosexuality, but above all to prevent its
49
50
51 being recognized publicly. Interestingly, in this event it was not the soldiers living with
52
53 HIV who violated this norm, but rather the judges who were defending the Army. For
54
55 example, one of them offered his reasons for not granting the appeals:
56
57
58 We should be extremely careful, since the lives of others could be put at
59
60 risk, since this is an illness with such a high mortality rate that putting the
16
1
2
3 lives of others at risk should be avoided at all cost….Did the scientists
4
5
6 take into account life on a military base, where the 103 soldiers in a
7
8 company sleep in beds next to each other?
9
10
The hint of homosexuality is quite clear in this quote so that, despite the Army’s
11
12
13 efforts not to mention the prohibition of homosexuality, it was the judges who
14
15 suggested it, paradoxically breaking the prohibition of making it explicit.
16
Fo
17
18
19
20 Threats of HIV transmission and contagion of homosexuality
rP
21
22
23
24
As we have said above, Donato experienced his discharge from the Army as a “death
ee
25
26
27 sentence”. Behind this sentence, there has to be a crime. What would the crime be?
28
rR
29 Donato himself suggests the answer: what the Ministry is punishing is not the illness
30
31
32 itself, but what it supposedly makes explicit: the homosexuality of those who have it.
33
ev
34 People who work there are full of prejudice. The ruling principle of the
35
36
Army has been machismo for a long time. So [the idea is that] only
iew
37
38
39 homosexuals can have HIV. But we know now that not only
40
41 homosexuals can get HIV, but that anybody, from any social class, of any
42
43
On
44
age can have HIV; nobody is immune; HIV doesn’t choose.
45
46 First of all, the punishment appears with the infection itself. Juan remembers,
47
ly
48 “There were those who said to me, ‘you see, [that’s what you get] for having sex with
49
50
51 homosexuals. So, how many fags did you fuck?’” Next, the punishment is expressed in
52
53 the dismissal and its definitive consequences.
54
55 Judging by the literature, homosexuality in the military has been an issue for
56
57
58 more than a decade. Today, there is no longer a debate about whether or not
59
60 homosexuals are apt for military service, but rather whether their presence affects
17
1
2
3 others’ performance (Kier, 1988). For example, Brown and Ayres (2004) say that in the
4
5
6 United States:
7
8 The fear is that if openly gay and lesbian people are allowed to serve, they will
9
10
make other soldiers uncomfortable. This discomfort will cause a breakdown in
11
12
13 morale and discipline, destroying the "unit cohesion" that is essential for
14
15 effective soldiering (Brown and Ayres, (2004:151)
16
Fo
17
18
Along these same lines, in the United States and in countries with highly
19
20 developed armies, like Israel (Belkin and Levitt, 2001), most of the discussion centers
rP
21
22 on homosexuality as identity and not as desire, on the production and regulation of
23
24
subjects, not of pleasures. In a clear example of how the deployment of sexuality works
ee
25
26
27 (Foucault, 1981), the part is taken as the whole: sexuality defines the subject in his
28
rR
29 entirety and allows the institution to separate and isolate the “abnormals” from the
30
31
32 “normal” majority. This is entirely a bio-political exercise14.
33
ev
34 However, in contrast with the identity politics so dominant in the field of

35
36
sexuality in the United States, in Mexico homosexuality is not formally mentioned as an
iew
37
38
39 impediment for signing up or being expelled from the Armed Forces. Rather, it remains
40
41 a spectre and is only suggested in the case of HIV, which supposedly brings it to light.
42
43
On
44
What is it about homosexuality that makes it so threatening for the military institution?
45
46 One article about the Chilean Army states that the rejection is based upon “the
47
ly
48 supposition that there is a potential for sexual harassment by homosexuals, who are
49
50
51 immoral, and also a high risk of HIV/AIDS transmission among homosexuals” (Ortiz,
52
53 2004: 262). So, it is not only the fear of transmitting HIV, but of homosexual desire, as
54
55 if it operated by contagion.
56
57
58
59 14
One significant example of this dispute is found in the U.S. Congressional debate that resulted in the
60 “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, 1998). In this specific case,
hypocrisy was institutionalized and became written law.
18
1
2
3 From a Freudian point of view, Butler states that this is a paranoid interpretation
4
5
6 of homosexuality:
7
8 If we start off from a Freudian approach to consciousness, in which the
9
10
repression of homosexuality becomes the prerequisite for the constitution
11
12
13 of masculinity, a critical reading of the military norm allows us to
14
15 understand that the latter produces a notion of ‘man’ as a homosexual
16
Fo
17
18
that denies himself (Butler, 2004: 183).
19
20 For this reason, homosexuality supposedly implicit in HIV corrodes as a spectre
rP
21
22 the very basis of hierarchical and disciplinary practices: gender.
23
24
They think homosexuality doesn’t go with men; so, men have to be
ee
25
26
27 strong, rough, grotesque, and therefore, if they have that image and
28
rR
29 there’s a male person attacking that masculinity, he has to be thrown out

30
31
32 because he’s ruining the image they have. The result is that homosexuals
33
ev
34 have to leave the Armed Forces because they go against what the
35
36
uniform represents (Donato).
iew
37
38
39 A large part of the public discussion in these trials consisted of determining
40
41 whether the dismissal of the positive soldiers was an act of discrimination. Some of the
42
43
On
44
judges made a great effort to use politically correct non-discriminatory language, maybe
45
46 as a result of the recently passed Law against Discrimination. With little mention of
47
ly
48 sexuality in the Supreme Court, the judges who advocated for the appeals argued that
49
50
51 the discharge was, in effect, an act of discrimination because it treated soldiers
52
53 unfavorably in comparison to civilians in the same situation. In defense of the soldiers,
54
55 one judge said that if they were denied protection, that protection would have to be
56
57
58 denied to anyone living with HIV: children, mothers, teachers, etc.
59
60
19
1
2
3 This indirectly points out that the prejudice against homosexuality would be the
4
5
6 reason behind the dismissals and that the problem resides in the transgression of the
7
8 silence that HIV diagnosis supposedly represents. One judge confirms this by using
9
10
irony:
11
12
13 It is said that “if the patient with HIV takes normal precautions for these
14
15 cases, he will not be a danger for the collectivity”. And that may be true,
16
Fo
17
18
but I ask myself: I don’t know if there are still pantaleones [Army-
19
20 sponsored pimps] but visitadoras [prostitutes brought in to provide
rP
21
22 “service” to the base] 15 have been around for many years, many
23
24
centuries. And you know what? They will continue to exist, and the
ee
25
26
27 visitadoras will be near the bases and, since the Constitution mandates
28
rR
29 that I must not discriminate, maybe I’m also talking about visitadores
30
31
32 [male prostitutes].
33
ev
34
35
36
To cast off the spectre
iew
37
38
39
40
41 By talking about ‘adjacent beds,’ ‘bacteria’ insidiously transmitted through
42
43
On
44
everyday contact, and ‘visitadores’ (male sex workers) in a markedly masculine world,
45
46 some of the judges bring sexuality to the debate in the phantasmatic way we have
47
ly
48 described, and in order to make the soldiers liable for their dismissal (because of their
49
50
51 deviant behavior) and to construct them as a threat to the Army (because of their
52
53 ‘infectious’ disease). But the defense chose a different tactic, one that neutralized these
54
55 arguments: the claimants argued that the Army had violated their rights to work, health
56
57
58 care, equality, and non-discrimination, but they never mentioned violations to their
59
60 15
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 organizing traveling prostitution
services for isolated military bases in the Peruvian Amazon.
20
1
2
3 ‘sexual rights’. Sexuality did not seem a matter for political vindication, but rather a
4
5
6 field of damage, guilt and destruction. As mentioned above, once the diagnosis was
7
8 known, the immediate suspicion that haunted them was that they were concealing their
9
10
‘homosexuality’. During the interviews, when asked how they had contracted the
11
12
13 disease, some of them chose not to answer, others said that they had acquired it through
14
15 heterosexual transmission, and only one said that he had contracted it through
16
Fo
17
18
homosexual intercourse. Nonetheless, for all the interviewees, sexuality had been the
19
20 means of infection with a life-threatening virus that marked a dramatic turning point in
rP
21
22 their lives. We understood that much of the pain, the loss, the fear and the fractures
23
24
these subjects experienced had not been assimilated and that they were still mourning.
ee
25
26
27 For these reasons, a defense focused on protecting sexuality could have been even more
28
rR
29 damaging. By ignoring their sexuality and regarding other rights as central to their
30
31
32 defense, the legal process did not become itself a painful and destructive experience for
33
ev
34 the claimants.
35
36
Essentially, then, we should ask ourselves how to protect sexual rights without
iew
37
38
39 producing further harm. We believe there is no single mechanism to do it. Sexual
40
41 rights,16 either expressly or tacitly included in the law, may require, under certain
42
43
On
44
circumstances and in specific cases, stating identities, practices, wishes, and life stories.
45
46 Such is not, however, the sine qua non of their defense. In this case, it was precisely the
47
ly
48 avoidance of all these elements what allowed to protect the claimants’ autonomy and
49
50
51 dignity, including their sexual autonomy.
52
53 Furthermore, based on the theoretical arguments presented here, we maintain
54
55 that in view of a markedly bio-political intervention as is the case under study, where
56
57
58 sexuality could again become the place where power links to biological life, the strategy
59
60
16
In Mexican law there is no formal specification of ‘sexual rights’ and therefore no possibility of their
legal protection (Morales, 2008).
21
1
2
3 to protect sexuality by eluding it or not making it explicit fractures this possible link.
4
5
6 Somehow, here sexual autonomy required the relativization and dissipation of the
7
8 deployment of sexuality as analyzed by Foucault. Thus, sexual rights can also be used
9
10
to defend intimacy and to protect the silences these men prefer to keep, the
11
12
13 inconsistencies they do not wish to resolve, their secrets. Somehow, sexuality or its
14
15 defense does not emerge only in the field of subjective coherence, social intelligibility,
16
Fo
17
18
and differentiated identities.
19
20 The claims they filed and the Supreme Court’s resolution that declared the
rP
21
22 unconstitutionality of Article 226 of the Mexican Armed Forces Social Security Law
23
24
revealed that the course of biopower can be changed. Thus, as mentioned before, power
ee
25
26
27 retracts while at the same produces new spaces, liberties, and rights which are created
28
rR
29 and won by individuals in their conflicts with central powers.

30
31
32 Somehow, these claimants managed to transform this disallowing of life to the
33
ev
34 point of death into fostering it. Perhaps, in many regards, we continue to be tied to the
35
36
logic of biopower, and we should ask ourselves if this retraction, this change in the
iew
37
38
39 ‘direction’ of its operations, does not imply ultimately a deep change in its functioning.
40
41 In that regard, we think it is necessary to underscore the clever strategy the defense
42
43
On
44
chose, because rather than using a phantasmatic logic that while excluding sexuality
45
46 inscribed it in the center of the case, it used silence to knock down its operation. And
47
ly
48 this disengaging of sexuality ultimately became a means to protect it.

49
50
51 We could ask if in the gradual but systematic transformation of the relationship
52
53 between sexuality and the State a ‘tacit and increasing’ inscription of power in life will
54
55 prevail. There is no one direction or definitive resolution. As was the case with the
56
57
58 soldiers, freedom does not emerge beyond these crossroads but in its more developed
59
60 and tighter versions. Esposito argues that bio-politics produces either subjectivity or
22
1
2
3 death. In this case, however, we found that bio-politics produced subjectivity to defend
4
5
6 life and resist death.
7
8
9
10
11
12
13
14
15
16
Fo
17
18
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20
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ee
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ev
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iew
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On
44
45
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ly
48
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27

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Global Public Health

Subject, Sexuality, and Biopower: Legal Defense of Soldiers

Journal: Global Public Health

Manuscript ID: RGPH-2009-0048

Manuscript Type: Original Article

Keywords: subjectivity, sexuality, human rights, Mexico, biopower

URL: http:/mc.manuscriptcentral.com/rgph Email: gph-msph@columbia.edu

29 country. In this article we analyze this process by looking at claimants’ discourses as

34 well as the production and direction of individuals.

29 As the interviewees began delving deeper into the implications of their

48 quality of life. As a result, they are giving us a death sentence. But in

29 Such an insult then becomes a driving force for legal action.

48 country with a pure love (Juan).

29 In the Supreme Court discussion, a conflict unfolded between a conception of

29 If the Armed Forces have to choose between assigning or not a mission

34 we face an impediment to serve , to the detriment of the rest of the

29 to be reinstated, it maintained the criteria of uselessness, postponing its application until

34 acts among themselves or with civilians, on a war ship, buildings,

34 However, in contrast with the identity politics so dominant in the field of

29 there’s a male person attacking that masculinity, he has to be thrown out

29 and won by individuals in their conflicts with central powers.

48 this disengaging of sexuality ultimately became a means to protect it.

34 150, pp. 150-188.

48 ----- (2004), Lenguaje, poder e identidad, Madrid, Síntesis.

29 Harvard Law Review, Vol. 111, No. 5, pp. 1371-1376.

34 Esposito, Roberto (2006), Bíos. Biopolítica y filosofía, Buenos Aires, Amorrortu.

29 a la acción social”, Economía, Sociedad y Territorio, Vol. II, N° 6.

34 Medellín, J. Alejandro (2003), “Crece el SIDA como problema en sistema de salud

48 Szasz, Ivonne y Salas, Guadalupe (coords.) Sexualidad, derechos humanos y

29 Agosto de 2008 | Comunicado.

48 Sesión Pública Ordinaria del Pleno de la Suprema Corte de Justicia de la Nación”,

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