Explainer: LGBT Rights in Latin America and the Caribbean

Updated May 16, 2013—Legal protections for lesbian, gay, bisexual, and transgender (LGBT) people vary widely across Latin America, from countries like Argentina and Uruguay that allow same-sex unions to countries such as Belize and Jamaica that outlaw sexual relations between couples of the same gender. In the past few years, a wave of pro-LGBT legislation has swept through the region, as well as a growth of LGBT rights groups pressing for stronger protections. AS/COA Online explores Latin American and Caribbean legislation pertaining to LGBT anti-discrimination protection, same-sex marriage and adoption, and more.
 

Argentina: In 2010, Argentina became the first country in Latin America and the second in the hemisphere to legalize same sex marriage. With that legislation, Argentine gay couples are entitled to all the same rights and benefits as straight couples, including adoption. Four Argentine provinces—including Buenos Aires—now extend those same rights to foreigners as well. Argentina also passed what some consider one of the world’s most permissive gender identity laws in May 2012. That law allows people to undergo sex-change operations of their own volition, and to change the legal gender on government documents free of charge, even without first undergoing a sex-change. Since the law went into effect, over 3,000 people changed their gender on government-issued IDs. As of 2009, Argentina’s armed forces permits the entry of gay and lesbian service members, and bans discrimination within that body. However, no national law exists that deals with discrimination based on sexual orientation or gender identity, though one passed the Chamber of Deputies in 2010 and awaits debate in the Senate. In May 2013, LGBT groups lobbied Congress to modify the country’s anti-discrimination law to include language to protect gay citizens.

Bolivia: While Bolivia has a number of legal protections against discrimination of LGBT citizens, it does not allow same-sex unions. Ratified in January 2009, Bolivia’s new constitution prohibits discrimination based on sexual orientation and gender identity. However, the constitution also restricts civil unions and marriage for opposite-sex couples. The Law Against Racism, passed in October 2010, protects against discrimination based on sexual orientation and gender identity. The law not only includes discrimination from individuals but also from public and private institutions as well as the media. In addition, the 2004 Reproductive Rights Law guarantees the rights of all citizens regardless of sexual orientation. A 2011 bill proposed giving equal rights to same-sex couples, such as inheritance and social security rights. In April 2012, Congresswoman Erica Claure introduced a bill that would legalize same-sex unions. Both bills are under consideration in the Legislative Assembly’s Commission on Human Rights, but are not slated for debate. There are no laws regarding adoption of children by gay couples, although the practice occurs on a small scale.

Brazil: In Brazil, LGBT rights largely stem from local- and state-based legislation and judicial decisions. In 1989, the states of Mato Grosso and Sergipe approved constitutions that protect against discrimination based on sexual orientation. Bahia was the first state to pass anti-discrimination legislation to protect LGBT rights when the capital city of Salvador passed such a law in 1997. Dozens of cities and states across the country followed suit in the early 2000s, banning discrimination of gays and, in some cases, transsexuals. Originally proposed in 2006, a federal anti-discrimination law is now under consideration in Brazil’s Congress.

The first Brazilian gay civil union took place in March 2004 after a judge granted the right to apply for residency to the British member of the couple. As such, Brazil was the first country in Latin America to recognize immigration as a benefit for same-sex couples, later defined by a 2008 resolution from the National Immigration Council. In May 2011, Brazil’s Supreme Court ruled that same-sex unions were legal and that gay couples are entitled to the same rights as heterosexual couples, including health, pension, and inheritance benefits. Brazil does not have laws prohibiting same-sex couples from adopting, though the landmark Supreme Court ruling set a precedent that could allow them to do so.

After the 2011 ruling, gay marriage was sometimes possible on a case-by-case basis. In June 2011, a São Paulo judge ruled that a couple’s civil union could be converted into a marriage, setting a precedent for same-sex couples to solicit legal marriages in court. A Rio Grande do Sul court ruled in October 2011 that a gay couple could wed, further opening the possibility. In December 2012, the São Paulo state judiciary issued a new rule that allows same-sex couples to be married by public registry offices. Elsewhere in the country, gay couples had to register a civil union and then go to the courts to convert the union into a marriage. In May 2013, the 15-member National Council of Justice led by the chief justice of the Supreme Court ruled that notaries nationwide could perform same-sex marriages and convert gay civil unions into marriages. The resolution “effectively legalizes gay marriage throughout Brazil,” legal scholars told The New York Times.

Transgender citizens may be able to legally change their names and gender by going to court. Brazil’s first transgender identity case took place in 2007 after a court ruled that a transgender woman who had undergone surgery could change her name and sex on national identification. In May 2012, the state of Rio Grande do Sul passed a decree allowing transgender citizens to change documentation on identification. Brazil's public health system provides free sex-change operations, with a legal framework from Brazil’s Federal Medicine Council.

Chile: Until recently, Chile offered few protections for the LGBT community. Prompted by the homophobic murder of Chilean youth Daniel Zamudio, the Chilean Congress passed anti-discrimination legislation in 2012—seven years after it was first introduced. Zamudio’s murder prompted both the UN High Commissioner for Human Rights and the Inter-American Court on Human Rights to urge passage of the bill. Though the legislation does not specifically mention sexual orientation or gender identity, it outlaws any discrimination that “threatens the legitimate exercise of fundamental rights.” In 2007, the Chilean Supreme Court ruled that transgendered men and women could legally change their name and sex. Chile currently has no legal recognition of same-sex relationships. In 2011, President Sebastián Piñera asked Congress to introduce a bill legalizing civil unions, which would be available to both homosexual and heterosexual couples.

In September 2012, a Chilean LGBT group brought a case before the Inter-American Commission on Human Rights against the Chilean government for refusing to legalize gay marriage. Chilean courts refused to marry three gay couples in 2010. In April 2013, the Commission said the case was “admissible” and will move ahead. The same month, the Senate’s Constitutional Commission approved the civil unions bill, though it remains to be debated in Congress.

Colombia: LGBT rights in Colombia have been won largely through the country’s judicial system. In 2009, Colombia’s Constitutional Court ruled that cohabitating same-sex couples must be granted all the same rights as their straight counterparts, including rights to property, inheritance, and social security benefits. Then, in 2011 that Court ruled that the country’s legislature must approve same-sex marriage or an equivalent; otherwise it will become a legal fact on June 21, 2013. In 1999, that Court made discrimination based on sexual orientation illegal within the armed forces, though this has been overlooked by the military. However, in 2011, Congress passed anti-discrimination legislation with sexual orientation as a protected category. That law stipulates jail time and steep fines for violators. Colombia’s Congress voted against a bill to legalize same-sex marriage in April 2013. However, the 2011 Supreme Court ruling is slated to take effect on June 21.

Costa Rica: Limited LGBT rights are offered in Costa Rica. Passed in 1998, Costa Rica’s HIV/AIDS Law prohibits discrimination based on sexual orientation, with a penalty of fines. However, one of the central LGBT issues in Costa Rica is same-sex unions, since the country’s “Family Code” forbids gay marriage. In May 2006, Costa Rica’s Supreme Court ruled that gay marriage is unconstitutional, and in August 2010, the Court ruled against a referendum which would have allowed citizens to decide on same-sex unions. President Laura Chinchilla is in favor of legalizing same-sex unions, but not marriage. Costa Rica’s Parliament is considering legalizing same-sex unions. In June 2012, the legislature’s Commission on Human Rights rejected a same-sex unions bill, though the issue is still under debate in Congress.

Cuba: In the case of Cuba, there is a mixed record on LGBT rights. While the Castro government persecuted homosexuals in the early days of the Revolution, often sending them to prison and work camps, Fidel Castro since apologized for those actions, calling them a “great injustice.” Cuba decriminalized gay sexual relations in 1979, and since 2008 performs sexual reassignment surgery free of charge. Cuba’s 1992 Constitution outlaws “any form of discrimination harmful to human dignity,” but does not explicitly name sexual orientation or gender identity. However, at the Communist Party Conference in January 2012, the government said it would work to end sexual orientation discrimination for party membership or government posts. Though Cuba’s Constitution defines marriage as a “union between a man and a woman,” Cuban President Raúl Castro’s daughter Mariela has repeatedly pressed the Cuban parliament to pass legislation legalizing same-sex unions. She hinted one could be debated by the end of this year.

Ecuador: Quito protects both gay and transgender rights. The Constitution of 1998 banned discrimination based on sexual orientation, making Ecuador of the first countries in the world to do so. The country’s new Constitution—passed by referendum in September 2008—also encompasses gay rights. The Constitution legalized same-sex civil unions, which first took place in October 2009. The document also prohibits discrimination based on sexual orientation and gender identity. However, it bans same-sex marriage as well as adoption of children by same-sex couples. Transgender persons have been able to change their sex on national identity cards by requesting the change in court. Congress is debating a reform to the country’s federal ID law, and whether to allow people to choose which gender to put on identification.

El Salvador: Though legislation exists to protect against discrimination of gays, it is not enforced. In May 2010, President Mauricio Funes passed a decree banning discrimination based on sexual orientation and gender identity in public service. However, the LGBT community is calling for new laws to protect their rights, which it says are often violated. In April 2006, Congress passed a law banning same-sex marriage and same-sex couples from adopting children, though the legislation was not ratified. In February 2012, legislators defeated a constitutional reform to prohibit gay marriage. Another attempt to push through the reform in 2013 is unlikely to get enough votes to pass because the ruling party opposes the legislation.

Guatemala: There are few Guatemala LGBT protections in place. One law that includes LGBT language is the 1997 Code on Childhood and Youth, which bans discrimination against minors based on sexual orientation. However, discrimination against gays is common, and a spate of murders of transgendered people occurred between 2004 and 2006. In December 2009, then-President Álvaro Colom said he would support gay marriage, but current President Otto Pérez opposes it.

Mexico: In 2009, the Federal District of Mexico City legalized gay marriage and granted gay couples the right to adopt. Same-sex civil unions and adoption rights were also legalized by the northern state of Coahuila in 2007. In 2010, the Mexican Supreme Court ruled that the validity of these unions must be recognized nationwide, though Mexican states can decide whether or not to perform them. Same-sex marriage is also legal in Quintana Roo state. In May 2012, the Quintana Roo secretary of state reversed the annulment of two gay marriages and validated future same-sex marriages. In December 2012, Mexico’s Supreme Court ruled article 143 of Oaxaca state’s civil code unconstitutional, opening the door for same-sex marriage in the state. The ruling means other gay couples throughout the country could appeal through the judicial system to win marriage rights. In Colima state, for example, several gay couples were able to marry in early 2013, spurring activists to promote reforming the state’s civil code to allow gay marriage.

The Chamber of Deputies passed legislation guaranteeing social security benefits to same-sex couples in May 2012, though the measure is stalled in the Senate. However, in May 2013, the Institute for Social Security and Services for State Workers—which administers social security and health benefits for federal government employees—began allowing same-sex couples to receive health benefits.

In March 2013, Mexico’s Supreme Court ruled that derogatory terms for gays constitute hate speech and are not protected by freedom of speech. Those who use those words can be subject to lawsuits, the Court said. Looking further back, in 2003, Mexico became the second country in Latin America (after Ecuador) to extend protection from discrimination to LGBT citizens, passing the Federal Law to Prevent and Eliminate Discrimination. That law forbids discrimination based on “sexual preference” in a number of fields including access to education and employment. However, Mexico’s armed forces remain a gray area. While homosexuality is not legally a cause for dismissal, neither is it protected. LGBT service members have reported being discharged due to military laws concerning “proper conduct” and morality.

Nicaragua: This Central American country used to have some of the toughest anti-LGBT laws in the region. A 1992 law altered the penal code to criminalize sex among persons of the same gender, making it punishable with jail. In May 2008, a new penal code decriminalized gay sexual relations. The new penal code also criminalized discrimination based on sexual orientation, punishable by jail or fines, though the LGBT community often complains that discrimination continues. In December 2009, the government established an ombudsman to advocate for the rights of the LGBT community.

Peru: In Peru, there are limited protections for gay and transgender citizens. Passed in May 2000, Peru’s anti-discrimination law bans prejudice based on sexual orientation with jail sentences of up to five years. However, gay-rights activists are pushing for stronger legislation as discrimination against gays continues. In June 2004, the country’s Constitutional Court ruled against a law that prohibited gay sexual relations in the military. Gay Peruvians are legally able to serve in the police and armed forces following a court ruling in December 2009.

Uruguay: Uruguay offers many protections for the LGBT community. It was the first Latin American country to legalize same-sex unions, passing the Civil Union Law in December 2007. The law gives same-sex couples similar rights to marriage—including health, pension, inheritance, and parenting benefits—as long as the couple has been together for at least five years. The country was also the first in Latin America to pass a law allowing gay couples to adopt children in September 2009. A presidential decree passed in May 2009 permitted gays to serve in the military. In December 2012, the lower house of Congress approved the Marriage Equality Law bill—which gives same-sex couples the same rights as heterosexual couples, including the right to marry. The Senate approved the bill in April 2013, and President José Mujica signed the law in May. The law goes into effect on August 3.

In September 2004, Uruguay’s Congress passed an anti-discrimination law which prohibits prejudice based on factors such as race and religion, as well as “sexual orientation and identity.” It also established a commission to examine discriminatory practices and recommend new legislation. In November 2009, the Gender Change law passed, which allows citizens to change their name and sex on government-issued documents. Those who wish to change their gender or name are not required to undergo an operation.

Venezuela: There are a number of laws that protect gay rights, though the LGBT community has pressed for an all-encompassing anti-discrimination law. The Organic Labor Laws of 1999 and 2006 prohibited workplace discrimination based on sexual orientation. The People’s Power Law of 2010 prohibited discrimination based on sexual orientation and gender identity—the first time gender identity was legally protected in Venezuela. The country’s December 2010 Banking Law also forbids discrimination in banks based on gender identity. Passed in November 2011, Venezuela’s law to regulate residential rent protects against discrimination in rental contracts based on sexual orientation and gender identity.

Same-sex unions are not permitted by law. In February 2008, the Supreme Court ruled that while it is unconstitutional to discriminate based on sexual orientation, same-sex unions were not legal. In March 2009, a member of Venezuela’s Congress considered adding language to the Organic Law for Gender Equity and Equality to recognize same-sex unions, but quickly backtracked. The 2009 civil registry law allows citizens to change their name on legal documents, but not the gender. However, transsexuals have been unable to change even their names after the law was passed.

Countries Lacking in LGBT Protections

Despite a wave of new laws guaranteeing rights for gays and transgendereds in Latin America, many countries lack legislation to protect LGBT rights—and some even retain laws hostile to gays. Several Central American countries lack LGBT protections. Belize’s criminal code outlaws intercourse between men with jail sentences of up to 10 years. The constitutionality of this section of the code is now being challenged in court. Panama only decriminalized same-sex sexual activity in July 2008. Honduras’ 2005 Constitution bans same-sex marriage and does not recognize same-sex marriages that took place in other countries. It also bans gay couples from adopting and having custody of children.

In the Caribbean, few countries protect gay rights. Gay sexual relations are still illegal and carry prison sentences in Antigua and Barbuda, Barbados, Dominica, Grenada, Jamaica, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, and Trinidad and Tobago. Jamaica—once dubbed “the most homophobic place on earth” by TIME—is seeing its anti-sodomy laws challenged at the Inter-American Commission on Human Rights. Though not enforced, Trinidad and Tobago’s Immigration Act forbids homosexuals from entering the country. The 2010 Dominican Constitution bans same-sex marriage and even same-sex couples from co-habitating. Haiti has no legislation pertaining to gay rights, and its first gay rights organization was launched this year.

In South America, three countries lack laws protecting gay rights. Guyana is the only South American country that bans same-sex intercourse, with punishments ranging from two years to life in prison. Guyanese activists are calling for the decriminalization of these laws. Suriname lacks LGBT legislation, and its first gay rights march was held last year. Paraguay’s 1992 Constitution prohibits same-sex marriage and civil unions, though the country’s LGBT community seeks legislation that guarantees rights for gays.