Americas Quarterly - Spring 2008

Same Sex
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 prohibits adoptions.

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 organization Nuances.

Still, resistance to incorporating sexual rights into law and the policy agenda demonstrates that the debate is overshadowed by bias.

POLICY UPDATE

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.