Queer Legislation in Latin America

Feature photo by Beatrice Murch

The World Health Organization only took homosexuality off of its list of mental health disorders in 1990. While this statistic is shocking, a lot has changed for the better in a very short amount of time. Argentina recently became the first Latin American country with full marriage rights for queer people, as well as adoption by said persons. In a liberal democracy, equal treatment in front of the law of all people is the only way to truly have said form of government (Ahem, United States. Are you listening?).

Coming from a full equal-rights-protection position, this brief summary of the current state of queer rights in Latin America starts with what seems to be the worst offenders (zero legislative support; open intolerance) to full civil, familial and sexual rights. This does not even begin to elaborate on cultural or political attitudes toward LGBTQ people in places that are historically very tied to the Catholic Church, and share a history of machismo that are clearly anti-woman and anti-man, especially as it relegates acceptable male behavior to a limited, neanderthal-like dope.

There are almost zero gay rights in the Caribbean. Sexual contact between consenting adults is mostly illegal between men, and often between women (it seems it is legal only as women are sometimes viewed as passive recipients of sex, rather than actors in their own sexuality). Punishments vary from a few years of prison time, up to a decade of hard labor or capital punishment. While these types of laws are not necessarily enforced, their existence makes life more difficult for queer people, as they socially sanction discrimination. It almost goes without saying that family and civil rights are non-existent. No marriage rights, mutual adoption, open military service or protection against discrimination based on sexual orientation or gender expression are available.

Puerto Rico with its strange limbo status between statehood and colony as a “commonwealth” of the United States, falls under US legislation when it comes to gays serving in the military, specifically Don’t Ask Don’t Tell. The policy seems to be choking along on its way to its well-deserved death. Most recently Judge Virginia Phillips’ (Federal District Court for the Central District of California) issued an injunction against the ban, stating it is unconstitutional. Although the Obama administration says it wants to end the policy, they claim they cannot do so unilaterally, and are appealing her injunction.

One interesting country to watch is Cuba. In a place where queers were put in detention camps in the recent past, now there is real debate about possible civil unions. After Mariela Castro’s (Cuba’s director of the National Center for Sex Education) work over the last few years, transgender rights are now codified in legislation, and sex change operations are even coveredby the island’s health care system. Earlier this year the government launched a public awareness campaign combating homophobia.

In the case of Central America, while same-gender sexual activity is not legally proscribed, there are no civil unions, gay marriage, adoption by singles/couples or transgender discrimination laws. The only country that does allow open military service is El Salvador (Costa Rica has no military). Although Mexico is in North America, it is geographically linked, but its laws are very different from those in neighboring countries. It almost appears as two countries: Distrito Federal (Mexico City) and Non-D.F. Within the capital, couples can marry and adopt children together. While outside the city, states do not have to perform marriages, they must recognize those done in the city. Single gays can adopt nationwide. There is anti-gay discrimination protection, but no open military service. The apparent patchwork of laws probably means people who don’t live in D.F. could find a way around said laws, if they were to have the money and time available to play with the oddly skewed system.

Moving on to South America, we find Paraguay and Bolivia near the bottom rung of the fairness ladder. While Bolivia bans discrimination based on gender identity, both countries passed a constitutional ban on gay marriage; Bolivia in 2007 and Paraguay in 1992. Venezuela can be found considering civil unions and an anti-discrimination bill based on gender identity, while Ecuador has civil unions but a constitutional ban on gay marriage. Peru bans any anti-gay discrimination and allows open military service, but has no provisions for any sort of marriage-like concept.

Chile does not allow open military service, but does have civil union, marriage and anti-discrimination bills currently under consideration. The discrimination bill has been sitting in congress for years, and many people here in Santiago have said it makes little sense to allow gay marriage, if persecution of those couples is still permitted. It is possible that legalizing gay marriage may push enactment of discrimination legislation. Both the marriage/civil union bills were proposed this year, and are getting a psychological push forward from the happenings in neighboring Argentina. President Piñera says he stands for LGBTQ rights, but the conservative Catholic Opus Dei sect holds a lot of cash and political power.

Moving on up to the Big Four, we have Colombia, Brazil, Uruguay and Argentina, all very close to the full legislative fairness experienced in Canada, including civil unions, open military service and anti-discrimination laws. Colombia is considering full marriage equality, and although it seems illogical, single gays may adopt, but not couples. Also, partners of service members are also registered for benefits under the special military social security system. The status of both Uruguay and Brazil is essentially the same. Both are contemplating marriage equality, and have approved of adoption by LGBTQ persons or couples in the last two years, while recognizing protection from discrimination based on orientation or trans identity. As aforementioned, Argentina just recently became the first South American country with full marriage equality along with full adoption rights.

As is clearly shown, there is a lot of cause for celebration, at least legislatively. The Americas have come a long way in the last century. From the Stonewall Riots to Gay Pride marches in major cities everywhere, we see that change cannot not come. While these laws do not preclude atrocious treatment of queer and trans people, they are essential as a platform to demand the respect and fair treatment required by all people regardless of personal differences. The codification of these laws needs to continue at a brisk pace, so that people in their daily lives can also continue to change societies as we steadily march toward a more just world.

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