Murder of non-binary magistrate reveals pattern of contempt in Mexico

A vigil for Ociel Baena in Mexico City on November 13th, 2023. Photo: María Ruíz.

Reportage • Alejandro Ruíz • November 17, 2023 • Publicado en Pie de Página el 14 de noviembre, 2023.

Following the murder of Ociel Baena and their partner Dorian Nieves Herrera on November 13th, the Prosecutor's Office in Aguascalientes state, in central Mexico, quickly declared the crime to have been of a personal nature. That statement hides a deeply rooted prejudice present in every facet of the Mexican state: a total lack of understanding of diverse sexual and gender identities.

Although the circumstances of Baena’s death remain unclear, stigmatizing and revictimizing discourses from authorities, the media and some sectors of society have reduced the tragic killings to a "crime of passion." In doing so, they once again make invisible the lived experience of over five million people over 15 years of age who identify as part of Mexico’s LGBTI+ community.

At least 453 people have been murdered in Mexico over the last five years because of their sexual orientation, gender identity or gender expression.

Mexico murders diversity. That is why Baena’s activism and public stature were so important. Important to raise awareness, as well as to reaffirm that non-binary people exist and can thrive in a still conservative and prejudiced society.

Alejandro Brito, founder of Letra S, an organization that has been documenting and tracking hate crimes against Mexico's LGBTI+ community for decades, agrees.

"Ociel's legacy, beyond their personal achievements, is that they put the importance of assuming one’s identity and expressing it freely on the table, right at the center of the debate. This is a fundamental right that has not been well understood until now. Ociel's free expression was always interpreted as a whim, a clownishness, or an act of exhibitionism by the most recalcitrant, conservative sectors of society. But Ociel insisted that it was part of who they were, that it was fundamental to them being themself, and that’s a powerful message.”

A demonstrator in Mexico City on November 13th wearing a t-shirt that reads: ‘damn hetero government.’ Photo: María Ruíz.

Ociel's legacy

In addition to being the first non-binary magistrate (magistrade) in Mexico and Latin America, Baena was also the first non-binary person to obtain a Mexican passport expressing their correct gender identity without needing to seek a writ of protection or other judicial recourse.

Their legacy in public life is undeniable. Even after their death, Baena continues to break barriers in a society that insists on making non-binary identities invisible.

Brito, who says he is distraught by Baena's murder, emphasizes that even in death, the magistrade continues to fight for the community.

"The mobilization of the community is impressive, and it’s a big deal because it is the first time in Mexico we have seen a mobilization of this magnitude following the murder of an LGBTI+ person. There was national coordination, as activists from cities around the country expressed their anger and indignation in different locations."

Now, Brito reflects, it is necessary to continue what Baena started: to make diversity and sex-diverse identities more visible, and to carry out "pedagogical and educational actions that promote our rights, as well as non-discrimination campaigns across all sectors of society."

"This is crucial, and it is something that right wing and conservative sectors have opposed hand over fist,” said Brito. “It is about teaching it in schools, in textbooks, in classrooms; because there are also LGBTI+ children, there are children who have a different orientation, a different gender identity, which conservative sectors refuse to accept."

For this reason, the work to break down prejudice (and hatred) is a fundamental part of basic education. To continue to refuse to do this work exposes sex-diverse people to mental health strain, as shown by a 2021 survey on Sexual and Gender Diversity carried out by Mexico’s National Institute for Statistics and Geography (INEGI).

Twenty-six percent of those surveyed said they had considered taking their own life, while 14.2 percent had attempted to do so at least once. And 80 percent of those surveyed experienced issues such as insomnia, stress, anguish, anxiety or depression.

Brito returns to the protests, and also to the public pronouncements that some institutions and public figures have made on the subject.

"I think we’ve seen a powerful response that shows a deep understanding of the problem, an awareness that these cases can no longer be swept under the rug, and that LGBTQ+ life is not worth less than any other. It's a very important show of solidarity. Such a unanimous expression of outrage, solidarity and demand for investigation is fundamental to dismantling prejudice in Mexico."

But speaking out is not enough. There are structures that must be dismantled.

Police at the scene of the demonstration for Ociel Baena and their partner Dorian Nieves Herrera on November 13th, 2023. Photo: María Ruíz.

Fighting the ‘crime of passion’ narrative

Alejandro Brito is careful in calling the murder of Baena and their partner a hate crime. Why? Brito answers: "Because we are not the Attorney General's Office. We cannot say it was, because we do not have enough evidence to say that it was motivated by prejudice."

This position is key to Brito's reflection on the role of the authorities in charge of ensuring justice in Baena's case, which is replicated in many other cases throughout the country.

"What the prosecutor claimed, which is that they stabbed each other to death, is ridiculous. Those kinds of statements can only be made after a forensic and medical study, through which the facts can be established, have been carried out. This has yet to take place. Instead the prosecutor shares any old information, in this, and in all other cases, when they should take things much more seriously. If that is what really happened, then they must demonstrate that with evidence, forensic studies, and by following international standards regarding this type of homicide."

One of those standards, Brito recalls, is contextual analysis, which authorities have not done in the days following the murders of Baena and their partner.

"The prosecutor, in his statements, does not mention Ociel's context at all: they were a prominent activist who was a victim of hateful attacks, of expressions of prejudice, who even received death threats. Nor do official statements take into account that after the execution of another activist from Aguascalientes in July, Ociel, logically, felt threatened and asked for protection measures and a police escort to guarantee their personal safety. All of this must be taken into account, which the Prosecutor's Office has thus far failed to do."

For Brito, Baena’s case is a reflection of a systematic pattern among justice workers at Mexican prosecutors offices, public ministries, courts, and so on.

One example of this pattern is the tendency to shelve investigations when LGBTI+ people are murdered. The main argument used by the authorities, says Brito, is the narrative of a crime of passion, or, as in Baena’s case, "a crime of a personal nature."

"Prosecutors claim that a crime of passion is typical among homosexuals, and based on that, they close cases. That’s unfortunately what we’re seeing now. Despite not having all the evidence, facts and details about what took place, the prosecutor claimed it was a crime of a personal nature. This leads to a lot of homophobia, a lot of rejection, and a lot of prejudice".

Brito has fought to eliminate prejudice in hate crime investigations for decades. He says the use of these narratives is common, and is tied to prejudices that have yet to be eradicated in the administration and execution of justice in Mexico

"For many decades we have been fighting against the prejudiced idea of ‘crimes of passion’, which has long been applied in crimes when the victim was gay, lesbian, transsexual, and now, non-binary, and which is indicative of prejudice towards gender and sexually diverse people, that considers them more passionate than the rest of the population, because of which they are more violent and kill each other,” said Brito. “This distorts all of the investigations, it leads to case files being shelved and to the entire matter being forgotten.”