After four years of processing in Congress and thanks to the push of different feminist organizations and civil society, in September 2021 Law 21,369 on sexual harassment, violence and gender discrimination was published in the Official Gazette, whose declared objective is the promotion of comprehensive policies aimed at preventing, investigating, sanction and eradicate sexual harassment, violence and gender discrimination in higher education. This is a regulation widely required by various civil society organizations, which emerged after feminist mobilizations in 2018, after various accusations of gender violence against students, officials and academics, which led to takeovers of universities, various demonstrations and the interpellation of the university authorities to raise the standards of protocols and procedures for dealing with these types of violence.
In this way, Law 21,369 filled a gap that existed before its publication, since it requires all higher education institutions – universities, technical training centers, professional institutes and parent schools of the Armed Forces – to install gender equality policies. To this end, all higher education institutions must have a comprehensive policy against sexual harassment, violence and gender discrimination that includes interventions in prevention, investigation, punishment, protection and reparation.
Almost a year after the publication of this law, the Superintendence of Higher Education, the body in charge of supervising compliance with the rules of the law and interpreting the regulations of higher education, has issued circular No. 1, dated July 8, 2022, the first on this matter, in order to provide some clarification about the implementation of the law in the Houses of Study.
One of the interpretations made by this Superintendence is about how the requirement of all higher education institutions to ensure that policies, plans, protocols and regulations on sexual harassment, violence and gender discrimination are elaborated, evaluated and / or modified in participatory procedures that ensure gender parity should be understood, respecting the principles of gender equity enshrined in the international treaties ratified by Chile and in force (Article 3, Law 21,369).
In this regard, the Superintendence of Higher Education has established that “when the number of people who must take part in the process of representation of a certain estate is in equal number, an equal number of men and women must participate. In turn, when the number of people chosen to participate in representation of a estate is an odd number, the difference between the representation of men and women cannot be greater than one.” This interpretation assumes that this body has been inclined to the conception of the rule of parity as a “ceiling”, that is, as a numerical equalizing mechanism between men and women, preventing one gender from being represented in a majority way in relation to the other.
However, this interpretation ignores and omits an essential aspect of the design of this policy. In fact, during the legislative processing of this law in the National Congress, particularly in the Gender Equity Commission of the Lower House, it was decided to establish a model in which both prevention actions and those of investigation, punishment, reparation and protection of gender violence rest on the principle of autonomy, that is, in the power of higher education institutions to determine and conduct their institutional aims and projects in the academic, economic and administrative dimension, within the framework established by the Constitution and the law, as recognized in Law 21,091 on higher education.
By virtue of the recognition of this autonomy, Law 21,369 is designed in order to require compliance with certain “floors or minimums”, that is, both for the creation and / or modification of the actions that make up the comprehensive gender policy, universities and other institutions of higher education must comply with minimum standards and principles established in the law, without prejudice to other actions that they themselves could define. The law does not contemplate “maximums”, in order to allow both institutions and academic communities of education Superior preserve their own practices, developments and regulations, which they have achieved through participatory procedures.
That being the case, what happens if an academic community, within the framework of its participatory processes and with a gender focus, chooses to interpret the parity required in the law in a different way? Perfectly an academic community could interpret the rule of parity as a basal measure that ensures a minimum level (“one floor”) of representation that could be exceeded, reinforcing the correction of the structural inequalities of underrepresentation of one gender over another. In the same sense, what happens if an academic community, within the framework of dialogue and participation, conceives of parity as a basic measure and also considers and ensures equal representation of sex-generic diversities and not only men and women? How are sex-generic diversities integrated into the unilateral interpretation made by the Superintendence of Higher Education about the principle of parity established in Law 21,369?
This consideration is not superfluous, since the intensity and speed with which the mainstreaming of the gender approach has developed in the national academic communities have not been and are not uniform. On the contrary, in this area there are institutions that have an incipient work in the implementation of prevention, research and sanction interventions to address gender violence and discrimination, with others in which an important exercise of work and politicization of these issues has already been developed. In the latter, it would not be strange if, as a result of the debate in participatory instances with all levels, they have arrived at their own interpretations, different from the binary conception of participation delivered by the Superintendence of Higher Education. However, if this were the case, the Superintendence, in use of its powers, could currently initiate an administrative procedure and eventually apply a fine in the event that the academic communities have exercised actions within their communities in accordance with their own practices and decisions about parity.
By the way, the interpretation that conceives parity as a ceiling is legitimate, but given the reliable history and purpose of Law 21,369, and the application of the principles of autonomy, cooperation and collaboration, inclusion, diversity of educational projects and participation present and recognized in the higher education system in Chile, it is more coherent for each academic community to determine the scope of the rule of parity required in the elaboration of the integrated gender policy and not that it is a single body that determines how it should be understood, without listening and attending to the dialogue within the communities.
Finally, the superintendence’s interpretation of how the parity established in Law 21,369 should be understood reveals one of the main concerns that the academic communities of higher education warn for the implementation of said law. In a recent investigation into the perceptions and challenges of the communities on the implementation of this law, the assessments of the communities about the Superintendence of Higher Education are evident, as an institution that has not yet developed the gender approach or the competences to supervise compliance with the aforementioned law, so that its contribution as an oversight body to the fulfillment of the purposes and purposes of the same would be meager.
It is therefore required that the entire educational system accompany in values, principles, standards and common ambitions and that the same gender approach that is required for higher education institutions, is also required for the other institutions that make up this educational system.
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The content expressed in this opinion column is the sole responsibility of its author, and does not necessarily reflect the editorial line or position of El Mostrador.
