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LGBTQ rights in Ecuador

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LGBTQ rights in Ecuador
Ecuador
StatusLegal since 1997
Gender identityTransgender people allowed to change legal gender
MilitaryUnknown
Discrimination protectionsSexual orientation and gender identity constitutional protections
Family rights
Recognition of relationshipsCivil unions since 2008
Same-sex marriage since 2019
AdoptionSame-sex couples may not adopt. Single persons not restricted

Lesbian, gay, bisexual, transgender, and queer (LGBTQ) rights in Ecuador have evolved significantly in the past decades. Both male and female forms of same-sex sexual activity are legal in Ecuador and same-sex couples can enter into civil unions and same-sex marriages.[1]

In 1998, Ecuador became one of the first countries in the world to constitutionally ban discrimination based on sexual orientation. Since 2008, civil unions with all of the rights of marriage (except for adoption) have been available to same-sex couples. Additionally, transgender people under the 2016 Gender Identity Law may change their legal gender solely based on self-determination, without undergoing surgery. Ecuador is also one of the few countries in the world to have banned conversion therapy. In 2023, there are still hundreds of clinics that promote conversion therapy.[2]

In 2013, gay activist Pamela Troya filed a lawsuit to strike down the country's same-sex marriage ban. The lawsuit focused mostly on the Inter-American Court of Human Rights' ruling in Atala Riffo and Daughters v. Chile and its 2018 opinion on same-sex marriage. The Atala case has caused bans on same-sex marriage in Mexico to be struck down and Chile pledging to legalise same-sex marriage. Additionally, in January 2018, the Inter-American Court of Human Rights ruled that same-sex marriage is a human right protected by the American Convention on Human Rights.[3] As a result, on 12 June 2019, the Constitutional Court ruled in a 5–4 vote in favor of same-sex marriage, legalising it in Ecuador.[4]

History

[edit]

Conquest by the Spanish from the mid-16 century onwards introduced Christianity, specifically Roman Catholicism, and religious mores condemning homosexuality as "sinful" and "immoral" to the region now known as Ecuador. As such, society has typically viewed homosexuality pejoratively. However, this is, or at least was, not the case for many of the indigenous peoples, including the Shuar. While the Europeans and the West have typically regarded anal intercourse as a sign of effeminacy, the Shuar perceived it as a sign of trickery. The "passive" partner (chiminiamnijikratin) and the "active" partner (chiminiamnijitiai) were not regarded as feminine. A Shuar myth, known as the story of the fox and the jaguar, involves the fox deceiving the jaguar into having anal sex, but after having discovered the trickery the jaguar chases the fox and bites him.[5]

The Inca Empire's perception of homosexuality is unclear and is the subject of ongoing debate. Most modern-day documentation about the Incas stems from the Spanish Inquisition. These reports suggest that male homosexuality was punished in the south and centre of the Inca Empire, possibly by death, but was tolerated in the north. According to certain sources, homosexuality and cross-dressing were tolerated "acts of worship", commonly practised in religious rituals and temples. Quariwarmi were cross-dressing shamans, tasked with performing rituals in honour of Chuqui Hinchay, a jaguar dual-gender god.[6] Effeminate men were called hualmishcu or warminchu by the Incas. Lesbian relationships seem to have been highly regarded by Inca society. Lesbians (known as holjoshta) enjoyed many privileges and could even participate in combats and were given the possibility of maintaining promiscuous relations between themselves.[7]

Law regarding same-sex sexual activity

[edit]
Main article: Decriminalization of homosexuality in Ecuador

Same-sex sexual activity has been legal in Ecuador since 1997 when the Constitutional Tribunal, in Case No. 111-97-TC, overturned the first paragraph of Article 516 of the Penal Code, which criminalized sexual activities between persons of the same sex.[8] In 2014, a new Organic Integral Penal Code (2014) entered into force, which did not include the criminalising provisions previously struck down by the Constitutional Court.[9]

The age of consent in Ecuador is 14, regardless of gender or sexual orientation.[10]

Recognition of same-sex relationships

[edit]
Main article: Same-sex marriage in Ecuador

Article 67 of the Ecuadorian Constitution adopted in 2008 limited marriage to the union of a man and a woman.[11][12] However, article 68 provides that same-sex couples in stable and monogamous unions shall enjoy the same rights and obligations as married couples, except for adoption.

The stable and monogamous union between two persons without any other marriage ties who have a common-law home, for the lapse of time and under the conditions and circumstances provided for by law, shall enjoy the same rights and obligations of those families bound by formal marriage ties.

[12][Note 1]

Diane Rodríquez and her partner Nicolás Guamanquispe (pictured) became one of the first couples to register a civil union in Ecuador.

Based on Article 68, civil unions for same-sex couples are legal in Ecuador.[13][14] In August 2014, President Rafael Correa signed a resolution to allow same-sex couples to register their unions. It also allows civil unions to be registered as a complementary data to marital status and created a special registry for these unions.[15] The order took effect on 15 September.[16] In April 2015, the National Assembly approved an amendment to the Civil Code that codified civil unions into statutory law and deleted the requirement of evidence of cohabitation for at least two years.[17]

2018 Inter-American Court of Human Rights advisory opinion

[edit]

On 9 January 2018, the Inter-American Court of Human Rights (IACHR) issued an advisory opinion that parties to the American Convention on Human Rights should grant same-sex couples "accession to all existing domestic legal systems of family registration, including marriage, along with all rights that derive from marriage".[3]

Following the IACHR advisory opinion, which held that same-sex marriage is a human right, two same-sex couples went to the Civil Registry in Cuenca, applying for marriage licenses. After both were rejected for not being a different-sex couple, they filed suit in court arguing that the refusal to recognise their marriage was discriminatory, unconstitutional and a violation of the American Convention on Human Rights. Relying on the IACHR advisory opinion, two family judges ruled in the couples' favour on 29 June 2018. The judges ordered the Civil Registry to immediately begin registering same-sex marriages. However, the Civil Registry appealed the decision to the Constitutional Court.[18] On 12 June 2019, the court ruled in favor of same-sex marriage, making it legal throughout the country.[4]

Adoption and parenting

[edit]

Article 68 of the Ecuador Constitution states: "La adopción corresponderá sólo a parejas de distinto sexo".[19] An unofficial English language translation of this provision states: "Adoption shall only be permitted for different-sex couples."[12] The Constitution is silent about adoptions by single individuals.

Under Ecuadorian statutory law, however, a single person is allowed to adopt a child, although a legally constituted heterosexual couple has priority over the single person.[Note 2]

In May 2018, the Constitutional Court of Ecuador ordered the Civil Registry to register a seven-year-old girl as the daughter of a lesbian couple. The case, filed in September 2012, sought to have the daughter registered with the surnames of both her mothers.[20] The Court ruled that failing to register the daughter is a violation of children's rights.[21] The vote was 5 to 3, with one abstention.[20]

Discrimination protections

[edit]

In 1998, Ecuador became the first country in the Americas (and only the third worldwide after South Africa and Fiji) to include sexual orientation as a protected category in its Constitution.[8] An unofficial English language translation of Article 11(2) states:

All persons are equal and shall enjoy the same rights, duties and opportunities. No one shall be discriminated against for reasons of ethnic belonging, place of birth, age, sex, gender identity, cultural identity, civil status, language, religion, ideology, political affiliation, legal record, socio-economic condition, migratory status, sexual orientation, health status, HIV carrier, disability, physical difference or any other distinguishing feature, whether personal or collective, temporary or permanent, which might be aimed at or result in the diminishment or annulment of recognition, enjoyment or exercise of rights. All forms of discrimination are punishable by law. The State shall adopt affirmative action measures that promote real equality for the benefit of the rights-bearers who are in a situation of inequality.[12]

In 2015, a labor law reform made it illegal for employers to discriminate against people due to their sexual orientation.[22]

In June 2018, the Justice Ministry approved a new policy concerning the rights of LGBT people. The policy aims to guarantee and strengthen their rights in relation to health, education, work, security, social protection and justice.[23]

Gender identity and expression

[edit]

The Gender Identity Law (Spanish: Ley Orgánica de Gestión de la Identidad y Datos Civiles), approved in 2016, allows Ecuadorians to state their gender identity instead of the sex assigned at birth. The law distributes new legal ID cards to those wishing to change their gender and birth name.[24][25]

Conversion therapy

[edit]

In November 2011, an Ecuadorean activist group, called Fundación Causana, began a petition on Change.org to entreat the Ecuadorean Minister of Health to close down more than 200 "ex-gay clinics". The group claimed that the clinics abuse and torture patients in an effort to "cure homosexuality".

The clinics primarily targeted lesbians and operated under the guise of being drug rehabilitation centers.[26][27] At least one pair of parents discovered the abuse and asked for the clinic to release their daughter, Paola Ziritti, but were denied. Ziritti was eventually released after two years of confinement and was the first to press a formal complaint against the clinics.[27]

Activists consequently called on the Government to close down the clinics, but by August 2011, only 27 had been closed, while a reported 207 clinics remained open.[28] On 23 January 2012, the Change.org petition was closed and marked as a success with 113,761 international signatures. The petition also was updated with a statement from Fundacion Causana reading,

After ten years of outcry, the nation of Ecuador – through the Ministry of Public Health – has entered into a commitment with civic organizations and society in general to deconstruct the belief that homosexuality is an illness and root out the use of torture in these clinics. We extend our thanks to all the men and women who signed our petition. It has been invaluable to have this support in starting to change this reality.

Minister of Health Carina Vance Mafla ordered shortly thereafter three clinics to be raided in the vicinity of Quito and rescued dozens of women.[29]

Consequently, Article 151 of the Penal Code was changed in 2014 to prohibit conversion therapy, equating it to torture. People who undertake the pseudoscientific practice are punished with seven to ten years imprisonment.[30]

Living conditions

[edit]
LGBTI Pride parade in Guayaquil (2013)
Main article: LGBT literature in Ecuador

A fairly large gay scene has developed in Quito and Guayaquil.[31] The first gay pride in Ecuador took place in Quito in 1998, following the Constitutional Court ruling that overturned the law which prohibited sexual acts between people of the same sex.[32] Nevertheless, Ecuador has a conservative and macho culture, and homosexuality tends to be viewed negatively by society.[31]

Since the last decade, many gay pride marches have been organized in all major cities, with the authorization of authorities and police protection, in addition to their participation. In Guayaquil's gay pride march of 2011, for instance, among those present were Guayas Province's Vice Prefect Luzmila Nicolaide, Guayaquil City Council member Gino Molinari, and member of the National Assembly Gina Godoy, while the police band played traditional songs.[33][34]

There have also been LGBT film festivals organized in the major cities.[35]

The U.S. Department of State's 2011 Human Rights Report found that,

The constitution includes the principle of nondiscrimination and establishes choice of sexual orientation as a right. Although the law prohibits discrimination based on sexual orientation, gay, lesbian, and transgender persons continued to suffer discrimination from both public and private bodies. LGBT organizations reported that transgender persons suffered more discrimination because they were more visible. LGBT groups claimed that police and prosecutors did not thoroughly investigate deaths of LGBT individuals, including when there was suspicion that the killing was because of sexual orientation or gender identity. LGBT organizations and credible media sources reported that LGBT persons were interned against their will in private treatment centers to "cure" or "dehomosexualize" them, although such treatment is illegal. The clinics reportedly used cruel treatments, including rape, in an attempt to change LGBT persons' sexual orientation. In August[,] the government reported that it closed 30 such centers, but LGBT organizations reported that other illegal clinics continued to operate. Members of the LGBT community continued to report that their right of equal access to formal education was frequently violated. The LGBT population involved in the commercial sex trade reported abusive situations, extortion, and mistreatment by security forces.[36]

In 2012, President Rafael Correa appointed Carina Vance Mafla, a lesbian activist, as the country's Health Minister.[37]

In 2017, approximately 20,000 people marched in the Guayaquil Gay Pride parade. For the first time, the municipality of Guayaquil agreed to light up the Bolivar and San Martin Monument with the colors of the rainbow in support of LGBT rights.[38] In June 2017, the Presidential House was illuminated in rainbow colors.[39] In 2018, more than 18,000 people participated in the Quito Pride march.[40]

2013 election homophobic remarks

[edit]
Historic meeting with President Rafael Correa of Ecuador, led by Diane Rodríguez

After the 2013 Ecuadorian general election, Nelson Zavala, an evangelical preacher and the presidential candidate who finished last out of the eight candidates, was sentenced by an election court to pay more than $3,000 in fines for his homophobic remarks. The court also prohibited him for a year from standing as a candidate or from affiliating himself or being involved with a political party or movement. During the campaign, he called gay people "sinners" and "immoral" and said they suffered from "severe deviation of conduct." LGBT activists applauded the ruling as "landmark".[41][42] Zavala appealed the verdict, but the ruling was ratified in the last instance on 19 March 2013.[43]

LGBTI candidacy

[edit]

In the 2013 elections, LGBTI activist Diane Marie Rodríguez Zambrano of the Silueta X Association (Asociación Silueta X) became the first openly transgender candidate to run for public office.[44][45][46] At the conclusion of her candidacy, Ecuadorian President Rafael Correa Delgado declared his respect and admiration for Rodriquez on Twitter.[47][48][49] Months later, Rodriguez was invited to change the Presidential Guard.[50] In December 2013, she led the first LGBTI group meeting with President Rafael Correa.[51] The meeting concluded with several agreements.[52] In 2017, she was elected to the National Assembly, becoming the country's first transgender lawmaker.[53]

Summary table

[edit]
Same-sex sexual activity legal Yes (Since 1997)
Equal age of consent (14) Yes (Since 1997)
Anti-discrimination laws in employment only Yes (Since 1998)
Anti-discrimination laws in the provision of goods and services Yes (Since 1998)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) Yes (Since 1998)
Same-sex marriages Yes (Since 2019)[54]
Recognition of same-sex couples Yes (Since 2008)
Adoption for single people regardless of sexual orientation Yes
Stepchild adoption by same-sex couples No
Joint adoption by same-sex couples No (Constitutional ban since 2008)
LGBT people allowed to serve openly in the military Yes (Since 2009)[55]
Right to change legal gender Yes
Gender identity recognition in identity cards Yes (Since 2016)[25]
Automatic parenthood for both spouses after birth Yes (Since 2018)
Access to IVF for lesbians
Conversion therapy banned Yes (Since 2014)
Commercial surrogacy for gay male couples
MSMs allowed to donate blood Yes [citation needed]

See also

[edit]

Notes

[edit]
  1. ^ In Spanish, the official version of Article 68 reads as follows:

    La unión estable y monogámica entre dos personas libres de vínculo matrimonial que formen un hogar de hecho, por el lapso y bajo las condiciones y circunstancias que señale la ley, generará los mismos derechos y obligaciones que tienen las familias constituidas mediante matrimonio. Article 68, Constitución de la República del Ecuador
  2. ^ "Código de la Niñez y Adolescencia" (in Spanish). 3 January 2003. Archived from the original on 10 January 2015. Retrieved 9 April 2021. priorizará la adopción por parte de parejas heterosexuales constituidas legalmente, sobre la adopción por parte de personas solas

References

[edit]
  1. ^ "The 203 Worst (& Safest) Countries for LGBTQ+ Travel in 2023". Asher & Lyric. 5 June 2023. Retrieved 20 August 2023.
  2. ^ "Secuestros, abusos y torturas: así funcionan las horrorosas clínicas de deshomosexualización en Ecuador". Infobae (in Spanish). 7 May 2023.
  3. ^ a b "Inter-American Court endorses same-sex marriage". Agence France-Presse. Yahoo7. 9 January 2018. Archived from the original on 9 January 2018. Retrieved 9 January 2018.
  4. ^ a b Crittenton, Anya (4 June 2019). "Ecuador high court delays ruling on same-sex marriage". Gay Star News. Archived from the original on 20 June 2019. Retrieved 13 June 2019.
  5. ^ Cova, Victor (2018). "Nicole, reina de Macas: el impacto del trabajo asalariado sobre el activismo trans en la Amazonia ecuatoriana". Academia.edu.
  6. ^ Horswell, Michael J. (2006). Transculturating Tropes of Sexuality, Tinkuy, and Third Gender in the Andes, introduction to "Decolonizing the Sodomite: Queer Tropes of Sexuality in Colonial Andean Culture". ISBN 0-292-71267-7. Article online.
  7. ^ "La homosexualidad en las culturas antiguas" (in Spanish). 23 February 2015. Archived from the original on 17 March 2015.
  8. ^ a b Fetterhoff, Christina (28 November 2011). "Shutting Down Clinics that 'Cure Homosexuality' in Ecuador". The Human Rights Brief. Archived from the original on 2 January 2013. Retrieved 9 April 2021.
  9. ^ "Criminalisation of consensual same-sex sexual acts". database.ilga.org. Retrieved 30 September 2024.
  10. ^ "Codigo Penal Ecuador" (PDF). Archived from the original (PDF) on 17 May 2004. Retrieved 9 April 2021.
  11. ^ Küffner, Joshua Partlow and Stephan (29 September 2008). "Voters in Ecuador Approve Constitution" – via www.washingtonpost.com.
  12. ^ a b c d "Ecuador: 2008 Constitution in English". pdba.georgetown.edu.
  13. ^ "Apoyo al matrimonio entre personas del mismo sexo en América Latina" (PDF). Perspectivas desde el Barómetro de las Américas. 44. 2010. Archived from the original (PDF) on 20 August 2013. Retrieved 9 April 2021.
  14. ^ "Ecuador Approves New Constitution Including Same-Sex Civil Unions". 30 September 2008.
  15. ^ Civil, Registro. "REGISTRO DE UNIONES DE HECHO". Retrieved 26 June 2016.
  16. ^ "Desde el 15 de septiembre se reconocerán las uniones de hecho como un estado civil – ANDES". Retrieved 26 June 2016.
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  19. ^ "Ecuador: Constitution, 2008". pdba.georgetown.edu.
  20. ^ a b Villagomez, Cristina; Vidal, Laura (21 June 2018). "In Ecuador, a Young Girl Wins the Right to Have the Surnames of Both Her Mothers". Global Voices. Retrieved 9 April 2021.
  21. ^ Smith, Lydia (31 May 2018). "Gay family recognised by state in Ecuador in historic decision". PinkNews. Retrieved 9 April 2021.
  22. ^ "LEY ORGÁNICA PARA LA JUSTICIA LABORAL Y RECONOCIMIENTO DEL TRABAJO EN EL HOGAR" (PDF).
  23. ^ "Gobierno Nacional presenta la política pública para la garantía de derechos de las personas LGBTI". Ministerio de Justicia, Derechos Humanos y Cultos (in Spanish). Archived from the original on 7 May 2019. Retrieved 9 April 2021.
  24. ^ "Change of 'gender' in identity card will require two witnesses – EcuadorTimes.net – Breaking News, Ecuador News, World, Sports, Entertainment". Archived from the original on 9 June 2016. Retrieved 26 June 2016.
  25. ^ a b "LEY ORGÁNICA DE GESTIÓN DE LA IDENTIDAD Y DATOS CIVILES" (PDF).
  26. ^ "Lesbian Torture Clinics in Ecuador- Claiming to "Cure" Them". Hispanically Speaking News. Hispanically Speaking News. 5 November 2011. Archived from the original on 12 December 2011. Retrieved 17 January 2013.{{cite web}}: CS1 maint: unfit URL (link)
  27. ^ a b "Why 200 Lesbian Torture Clinics Are Still Operating in Ecuador". The Huffington Post. 11 November 2011. Retrieved 17 January 2013.
  28. ^ "Lesbians Escape From Ecuador's "Ex-Gay" Torture Centers". The Advocate. The Advocate. 7 October 2011. Retrieved 17 January 2013.
  29. ^ "Rights groups hail Ecuador's crackdown on lesbian 'torture clinics'". MSNBC. 25 January 2012. Archived from the original on 10 June 2012.
  30. ^ "Código Orgánico Integral Penal" (PDF). Archived from the original (PDF) on 19 February 2018. Retrieved 11 August 2018.
  31. ^ a b "Gay Ecuador". Gay Guide. Gay Times. Archived from the original on 19 October 2012. Retrieved 26 December 2012.
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  33. ^ "Comunidad Glbti del Ecuador celebró Día del Orgullo Gay". El Universo. 2 July 2011.
  34. ^ "Desfile del orgullo 2011 en Guayaquil". Gay Ecuador (in Spanish). Archived from the original on 23 December 2011. Retrieved 9 April 2021.
  35. ^ "Es Ecuador sede de festival de cine LGBT en Latinoamérica - Es Ecuador sede de festival de cine LGBT en Latinoamérica Miércoles, 12 de Octubre de 2011 15:12 Rolo. Toro Hits: 443 Para conmemorar la". Archived from the original on 3 August 2012.
  36. ^ "2011 Country Reports on Human Rights Practices: Ecuador, Bureau of Democracy, Human Rights and Labor, U.S. Department of State, p. 25" (PDF).
  37. ^ "Ecuador Lesbian Activist Appointed to Presidential Cabinet". www.advocate.com. 24 January 2012.
  38. ^ "Matrimonio igualitario y registro de niños: pedidos ciudadanos en la marcha del Orgullo LGTBI". EMG (in Spanish). 5 July 2017. Retrieved 9 April 2021.
  39. ^ ECU, Presidencia (28 June 2017). "El Palacio de #Carondelet se ilumina al recordar el Día Internacional del Orgullo LGBTIpic.twitter.com/HMwYzNLNoA".
  40. ^ Power, Shannon (4 July 2018). "18,000 people hit the streets to celebrate Pride in Ecuador". Gay Star News. Archived from the original on 15 July 2018. Retrieved 6 July 2018.
  41. ^ "Ecuador sentence for homophobia". BBC News. 12 March 2013.
  42. ^ Ramos, Zuania (12 March 2013). "Preacher Sentenced For Homophobic Comments". HuffPost.
  43. ^ "TCE ratifica sentencia contra excandidato presidencial Nelson Zavala - MAR. 19, 2013 - 16:46 - Política - Noticias de Ecuador y del mundo | El Universo". www.eluniverso.com. 19 March 2013.
  44. ^ "Diane Rodriguez: primera transexual en postularse a asambleista en Ecuador". YouTube (in Spanish). Canal Ecuavisa. 15 November 2012. Archived from the original on 13 December 2021. Retrieved 9 April 2021.
  45. ^ "Ruptura impulsa una candidata transexual en Guayas". El Comercio (in Spanish). 14 November 2012. Archived from the original on 24 April 2014. Retrieved 9 April 2021.
  46. ^ "¡Superó el discrimen y ahora lucha por la inclusión social!". Extra (in Spanish). Archived from the original on 24 April 2014. Retrieved 9 April 2021.
  47. ^ Rafael Correa (19 March 2013). "DianeRodriguezZ Estimada Diane: sólo quería decirle que la admiro y respeto profundamente, aunque no comparta todos sus postulados". Twitter (in Spanish). Retrieved 9 April 2021.
  48. ^ "DianeRodriguezZ Estimada Diane: sólo quería decirle que la admiro y respeto profundamente, aunque no comparta todos sus postulados". Twitter (in Spanish). 19 March 2013. Archived from the original on 12 May 2014. Retrieved 9 April 2021.
  49. ^ "Un Espacio para el Debate de los Gais". El Comercio (in Spanish). 27 March 2013. Archived from the original on 12 May 2014.
  50. ^ Gender Studies Network – In Spanish Archived 26 June 2020 at the Wayback Machine President Rafael Correa invites presidential change of guard transsexual activist Diane Rodriguez. Retrieved 11 August 2013.
  51. ^ "Historic meeting between the President of Ecuador and the GLBTI community to allow moving forward in claiming rights". Andes. 16 December 2013. Archived from the original on 12 May 2014. Retrieved 9 April 2021.
  52. ^ "15 asesinatos de GLBTI investigara el Gobierno". El Universo (in Spanish). 18 December 2013. Retrieved 9 April 2021.
  53. ^ Isaad, Virginia (2 April 2019). "11 Transgender Latinas Empowering the LGBTQIA Community". Hiplatina. Retrieved 9 April 2021.
  54. ^ "La Corte Constitucional de Ecuador aprueba el matrimonio gay". el Nuevo Herald (in Spanish). 12 June 2019. Archived from the original on 16 June 2019. Retrieved 12 June 2019.
  55. ^ El camino hacia la inclusión. La homosexualidad en el ejército. Enfoque. Retrieved on November 8, 2021.
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