Beyond The Rainbow: LGBTI Rights In Latin America And The Caribbean

By Gabriela De Cicco

Without a doubt, Latin America and the Caribbean are vast, colorful and diverse regions. In many countries there, democratic processes are still incipient and regional initiatives like Mercosur and the Union of South American Nations (UNASUR) are relatively recent strategic alliances.

Throughout 2010, airs of social and political change swept through the Americas from the north to the south. Heated debates about rights for LGBTI persons have taken place in several countries. Some policy gains have drawn smiles and tears of happiness from hundreds and thousands of faces of people from the LGBTI community.

Many activists are aware, though, that the gains to date are small steps towards living and fully enjoying their rights, and they know that they must continue to pressure the States to promote and protect the human rights of all people, no matter what their sexual orientation and gender identity.
In any case, LGBTI persons in Latin America and the Caribbean and everywhere else in the world have experienced a long history of human rights violations harassment, and persecution. Policy victories to date still need to be expanded and deepened, and there remains work to be done to challenge heteropatriarchal systems, including those with entrenched discriminatory laws and blatantly punitive regimes, the latter of which still exist in most Caribbean countries.

International Legal Frameworks

A number of legal frameworks exist to protect and promote LGBTI rights in the regions.

For example, the Organization of American States has passed three very important resolutions [1] on “Human rights, Sexual Orientation and Gender Identity ” in the last three years.

The last of the three resolutions, among other things, condemned acts of violence and violations of human rights in reaction to sexual orientation and gender identity. It also urged the States to investigate these cases and to assure that the violators are brought to justice.

The present version of the consolidated document that was negotiated around the Project of the Inter-American Convention Against Racism and all Forms of Discrimination and Intolerance contains, amongst the prohibited motives of discrimination, mention of expression of sexual orientation and gender.

Similarly, in October 2010, at the UN, the CEDAW committee adopted general Recommendation No. 28 which finally includes, after more than 6 years of work of several specialists, sexual orientation and gender identity.

General Recommendation No. 28 clarifies that “discrimination of women because of sex and gender identity is indissolubly tied to other factors that affect women, such as race, ethnicity, religion or beliefs, health, marital status, age, class, caste, sexual orientation and gender identity.”
Susana Chiarotti, MECSEVI [2] expert of the OAS, spoke with AWID about the importance of this. She explained that “a General Recommendation is an analysis by the experts of the Committees regarding how a State that opts out from a convention must interpret an article determined by the convention”

Chiarotti continues, “What is the legal value of a general recommendation? It is not the article of the treaty that is binding but it is the way in which the States must interpret articles of the treaty, that is to say, it is authorized and obligatory jurisprudence, there is no another way of interpreting it. This is important at the time of discussing a particular article, because to interpret it, we must first resort to the general recommendations that the experts have provided.”

Like Chiarotti, Marcelo Ferreyra, Coordinator of the Latin America and the Caribbean Program of the International Gay and Lesbian Human Rights Commission – IGLHRC, along with others, has observed that through civil society contribution, and the analysis of experts, general recommendations have begun to recognize specific rights that were not earlier recognized. This begins to assert subjects that, as Susana tells us, “before were not visible, that everyone understood that they were universal rights is not necessarily true, universal was in the realm of the white, masculine, adult, without disabilities, proprietor of goods, and heterosexual. In this recent general recommendation, the Committee has already included wording around sexual orientation and gender identity as a base for discrimination, which was never included in the past as it was deemed not necessary because it was to be understood as being including in “other causes.””

A month after this gain, however, a step backwards occurred. The General Assembly of the UN acceded to the elimination of the resolution on “extrajudicial, summary and arbitrary executions” the reference to murders motivated by the sexual orientation of the victim.

The General Assembly approves a resolution of this nature every two years. The one of 2008 included an explicit reference to murders motivated by the sexual preferences of the victims. This year, however, Morocco and Mali presented an amendment in representation of the Islamic and African countries to replace “sexual orientation” for “discriminatory reasons of any type.”

In July 2009, the Committee of Economic, Social and Cultural Rights approved the General Observation No. 20: The non-discrimination and economic, social and cultural rights (article 2, paragraph 2 of the International Pact of Economic, Social and Cultural Rights) (see the corresponding information at the end of the article), where two references to sexual orientation are made.

Furthermore, the Yogyakarta Principles address a broad range of international human rights standards and their application to issues of sexual orientation and gender identity. These principles address a lack of respect for psycho-physical well-being, education, the right to work, the rights to housing, the right to form a family, the right to the freedom of opinion and expression, social security, and other civil and political rights.

Regional Frameworks

In addition to international conventions, other regional documents give visibility to sexual orientation and promote non-discrimination, including the “Latin American Convention of the Rights of Young People”, which mentions sexual orientation twice.

Also, the “Andean Letter of Human Rights” has a specific point; F, which mentions the “rights of persons with diverse sexual orientation”, which includes articles 52 and 53.

In 1998, Mercosur member States had already adopted the principles and rights that constituted the “Socio-Labour Declaration of Mercosur.” In 2007, Mercosur created the Working Group on Sexual Diversity based on a proposal of the Mercosur LGBT Network, which was the initial step in the first uprisings of that regional bloc on LGBTI human rights.

The Situation Today

In spite of existing international conventions and regional frameworks, the situation for LGBTI persons varies widely in Latin America and the Caribbean today.

Responding to circumstances faced by LGBTI persons in the Caribbean, just this past November, the Inter-American Commission on Human rights (IACHR) denounced laws that criminalize homosexual conducts and allow for sentences of life imprisonment; these laws currently exist in nearly all of the Anglophone countries in the Caribbean. [3]

Groups like SASOD (Society Against Sexual Orientation Discrimination, Guyana) and CAISO (Coalition Advocating for Inclusion of Sexual Orientation, Trinidad and Tobago) have denounced rights violations against LGBTI persons.

Moreover, in 2009 for the first time, the Commonwealth Heads of Government Meeting (CHOGM) received LGBTI activists. Some of the themes discussed during were: “Derogation of legislation that criminalizes sexualities and nonconventional expressions of gender; prevention and penalisation of violence and crimes related to prejudice, among them the punitive violation of lesbians; ending discrimination in access to healthcare systems; restoration of security in the educative system with respect to violence and persecution; confronting the necessity of support and resources for fathers and mothers, and the development of instruction and sensitization for diverse public servants and suppliers of services.”

On July 15 in Argentina, the Senate, after 15 hours of algid debate, approved the Law of Egalitarian Marriage, Law No. 26.618 which introduces modifications to the Civil Code. Argentina is now the first country in Latin America where a law makes it possible for a same sex couple to marry under the same conditions as a heterosexual pair. Some other modifications allow homosexual couples to adopt children. are related to the right to adoption.

In Mexico, the Supreme Court of Justice recognized same-sex marriages as constitutionally valid, approved by the local legislature of the Mexican capital. The Court also resolved that in all the states of the country must recognize the same-sex marriages that take place in the capital. The Court, to the distaste of the Church, also recognized that same-sex couples can adopt. The government of Felipe Calderón had opposed reform to the Civil Code of the Federal Capital, which provided equal rights to same-sex couples just as with heterosexual couples.

Colombia, Uruguay, and Paraguay have reinforced the debate around the possibility of having a law similar to Argentina’s in their respective countries. In Colombia about a month ago, the debate was rejected by the Constitutional Court of Colombia.



Uruguay was the first country in 2009 that legalized adoption by couples that are openly LGBTI, and in August returned to debates about same sex marriage. Since 2007, the country has had the Common-Law Union (out of wed-lock)law, in which the possibility for people of the same sex is clear.

Bolivia and Ecuador incorporated into their Constitutions protections in respect to discrimination based on sexual orientation and gender identity. In Bolivia the “Law against racism and all forms of discrimination” was approved recently and has two articles where it includes sexual orientation and gender identity, mainly where it explains what should be understood as discrimination.

In Barbados homosexuality is illegal and in Belize in 2003 it once again became illegal in the country. In Barbados the crime of homosexuality can bring a sentence of 50 years in prison. Jamaica still has Sodomy laws, and the sentence can bring up to10 years in prison.

In Brazil, only some states recognize civil unions. Just a few days ago, the outgoing president Lula da Silva promulgated a decree of the Executive, that guarantees the right of homosexuals to receive a pension when their partner passes. Earlier, in order to obtain this, one had to resort to winding judicial processes. “According to the decree published in the Official Newspaper of the Union, the norm was adopted based on concepts of the Brazilian Civil Code and the Constitution that guarantee the well-being of the citizen without discrimination.”

In Colombia “in 1980 homosexuality was no longer considered a crime in the Colombian Penal Code and it is at that moment that it was therefore sanctioned legally against discrimination; the right to individual development (autonomy) was recognized, as long as it does not interfere with peaceful coexistence, social organization or favour illegal, odious or unjust privileges. Discrimination based on race or sex; eliminated homosexuality as a cause of bad conduct of youth and as a reason of prohibiting entry into the armed forces.”

The organisation Diverse Colombia, which won the Felipa de Souza prize in 2010, listed a series of norms that can serve to protect persons of the LGBTI community.

Continuing Struggles

Without a doubt, homophobia and machismo continue to be obstacles in countries where legal advances have been made. Intolerance and violence encouraged by the Catholic Church, just as much as the Evangelical Church (especially in Brazil) like other reactionary sectors of society, continues to be a deaf wall where the voices and struggles of the LGBTI community collide.

It is because of this, that the creation of a network that makes possible new changes in the scope of the education is cause for celebration. In November of 2010, in Lima, Peru, the “Latin American Network of Lesbian, Gay, Bisexual and Transsexual Education” (RIE-LGBT) was created. Its mandate is “to fight homophobic bullying and transphobia in schools, acting as a form of prevention and eradication of discrimination due to sexual orientation and gender identity.”

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Translation by Karen Murray

Note: The author would like to dedicate this article to Natalia Gaitán, a citizen of the province of Cordoba, Argentina, who in March 2010, at the age of 27, was assassinated by her partner’s stepfather for being lesbian. In her name, the author also wants to recognise all the people of the LGBTI community who have been assassinated, mistreated, and who have had their basic right to life violated, but that simultaneously inspire us to continue onward in our struggles.

Sincere thanks also to Susan Chiarotti, Marcelo Ferreyra and Irene Ocampo.

Footnotes:

[1] These resolutions can be found at www.oas.org/dil/esp/AG-RES_2435_XXXVIII-O-08.pdf , www.oas.org/dil/esp/AG-RES_2504_XXXIX-O-09.pdf and www.ciem.ucr.ac.cr/documentos/resolucion2010.pdf .

[2] MESCEVI is the Mechanism of the pursuit of the application of the Convention to prevent, sanction and eradicate violence against the women.

[3] These countries include Antigua and Barbuda, Bahamas, Barbados, Belize, Dominican, Granada, Guyana, Jamaica, San Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines and Trinidad and Tobago.