LGBT Law Update: Latin America

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A major breakthrough in sexual orientation law in Latin America occurred earlier this year: the ruling of the Inter-American Court of Human Rights that Chilean authorities unlawfully discriminated against Judge Karen Atala Riffo by denying her custody of her children based on her sexual orientation.  Now there is an English translation of the Atala decision; because this is the court’s official version, it can be cited and submitted as precedent in other courts.

With increasing recognition of same-sex relationships throughout the region, parenting issues loom as the next frontier.  Other Latin American highlights:

Argentina. Not content to rest on its laurels after passing Latin America’s first same-sex marriage law in 2010, this May the Argentinian legislature passed one of the world’s most progressive gender identity laws. The statute grants individuals the absolute right to change their gender identity on government documents without requiring medical or judicial approval. It also mandates the availability of hormone therapy and reassignment surgery for transgender individuals. Further, it provides these same protections to minors without requiring parental approval.

Chile. Spurred by the brutal attack and subsequent death of 24-year-old gay man Daniel Zamudio, Chile’s legislature passed the country’s first general anti-discrimination law in April. The law does not single out any particular social group for protection, but outlaws “any distinction, exclusion or restriction that lacks reasonable justification…that causes the deprivation, disturbance or threatens the legitimate exercise of fundamental rights.” No litigation involving the law has yet come to our attention.

Cuba. President Raúl Castro’s daughter, Mariela, head of Cuba’s National Center for Sex Education, has been campaigning for a strong anti-discrimination law. In a thorough and fascinating post, Blabbeando reports on Ms. Castro’s recent talk at the New York Public Library, in which she talked at length about the topic. Though no such law has been passed as of this writing, two other reports (one in English, one in Spanish) have Ms. Castro hinting that it could happen as early as this year. 

Ecuador. Ecuador’s 2008 constitution granted same-sex couples the right to register their relationships as civil unions. Now, in what appears to be the country’s first such ruling, the Pinchicha District Court in Quito, Ecuador’s capital, has affirmed a lesbian couple’s right to register under the new constitution (reports in English and Spanish). In addition to formalizing the union, registry allows the couple to avail themselves of Ecuador’s patrimonial and inheritance laws. Just days later, however, police forcibly broke up a peaceful anti-homophobia rally in the central Ecuadorian city of Guayaquil, where noted anti-LGBT attorney and “bioethics expert” Jorge Scala of Argentina was speaking on the subject of same-sex marriage. 

Uruguay. The Uruguayan Congress legalized same-sex civil unions in 2007 and adoption by same-sex couples in 2009; a marriage bill has been proposed, but it has not yet been passed. However, in June an appellate court ruled that same-sex marriages performed in other countries must be honored by Uruguay. The case involved a gay couple who had been married in Spain but split their time between Spain and Montevideo, Uruguay’s capital. 

International. During June and July the Inter-American Commission on Human Rights (IACHR) has issued a number of statements condemning murders and attacks of LGBT individuals in countries throughout the Americas, including BrazilHonduras, Jamaica, Mexico, and the United States. Additionally, New York-based advocacy group AIDS-Free World has filed a petition with the IACHR regarding Jamaica’s anti-sodomy law. The group has asked the Commission to issue a declaration pressuring Jamaica to make a change. The Commission’s declarations are not binding, but it could recommend that the Inter-American Court of Human Rights hear the case or issue an advisory opinion on the matter. Since Jamaica has not submitted to automatic jurisdiction by the Court, however, it could simply decline to submit to the jurisdiction in the case, making it unlikely that the IACHR will have the opportunity to strike down the law.

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