Rights to get married
Luiz MeLLo, AnnA PAuLA uzieL
And MiriAM Grossi
“To marry or not to marry?” For
Latin America’s gays and lesbians this is not the existential dilemma that it is for most heterosexual couples. It is the object of
an intense political struggle waged
country by country. With some notable exceptions, same-sex couples
across the region cannot enjoy conjugal or parental rights.
At the same time, homosexuality
is not illegal in any country in Latin
America except Guyana. In Cuba,
the legal status of lesbians and gays
is somewhat ambiguous. This situates the region somewhere in the
middle ground of global attitudes—
more liberal than Africa and Asia,
but much less tolerant than Europe.
But for those facing discrimination,
that is small comfort.
Some of the region’s most enlightened laws for lesbians and gays Breaking new ground
have been passed in Uruguay, Argen- In Uruguay, a law signed by Presi-tina and Mexico. The Civil Union dent Tabaré Vásquez in December
Law 1004 passed by the city of Bue- 2007 grants certain legal rights to all
nos Aires in December 2002 guaran- cohabiting couples living together
tees all couples, regardless of gender for at least five years. The law, how-or sexual orientation, the right to ever, does not codify “married” sta-register their unions with the Public tus or permit child adoption. But
Registry for Civil Unions. To qual- the trend may spread further. Same-ify, applicants must prove that they sex legislation has been under dis-are a resident of Buenos Aires and cussion by national-level lawmakers
have been involved in a stable and in Argentina, Brazil, Chile, Colom-public relationship for at least two bia, Mexico, Peru, and Venezuela.
years, or they must have children to- Across the region, in fact, there is
gether. Farther south, authorities in growing support from civil society
the Patagonian province of Rio Ne- although religious opposition con-gro extended in April 2003 the same tinues to be strong.
rights and obligations to same-sex While legislators wrangle, the
couples already enjoyed by hetero- same-sex movement is turning to
sexual couples. the courts. Lesbian, Gay, Bisexual,
The Cohabitation Law of Mexico
City, approved in November 2006,
grants same-sex couples marital
rights identical to those established
for common-law relationships between men and women. The decree
specifically includes pension, inheritance and guardianship rights. In
the Mexican state of Coahuila, Decree 209, dated January 2007, states
that adults of the same or different
sexes are recognized as “civil
companions” and a family entity.
The decree grants inheritance and
alimony rights, among others, but
The most enlightened
laws have been
passed in Uruguay,
Argentina and Mexico.
and Transgender (LGBT) groups are
spearheading legal battles in many
countries to win basic civil rights,
such as spousal protection in private health insurance plans and retirement benefits. The impact of favorable decisions, however, appears
to be limited only to those who
brought the case to court.
But some judicial cases have had
wider repercussions. One such example occurred in Colombia, in November 2007. The United Nation
Human Rights Council requested a
review of a case in the Colombian
Constitutional Court involving the
denial of pension rights to a man
whose male partner died. The Council successfully argued that denying a pension due to sexual orientation violated the guarantee of equal
rights established in the UN Covenant on Civil and Political Rights.
The Colombian court’s reversal also
led to a recommendation that such
decisions not be repeated.
In 1999, Brazil’s Public Ministry
began extending the social security
benefits of private sector employees to same-sex partners. This policy reversal stemmed from a lawsuit
brought by the non-governmental
Still, resistance to incorporating
sexual rights into law and the policy
agenda demonstrates that the debate is overshadowed by bias.
Luiz Mello is a sociologist at the
Universidade Federal de Goiás,
anna Paula uziel is a psychologist at
the Universidade do Estado do Rio
de Janeiro and Miriam grossi is an
anthropologist at the Universidade
Federal de Santa Catarina.