Chilean Paradoxes: LGBT rights in Latin America

Published: August 13, 2012

Over the past few years, there have been important milestones advancing LGBT human rights in Latin America. Recognition of civil unions in Brazil and Uruguay, same-sex marriage in Mexico City and Argentina, laws protecting gender identity in Chile and Bolivia, and historic, progressive legislation in regard to gender identity in Argentina. These advances question old stereotypes of the region as a conservative macho culture dominated by the morals of the Roman Catholic Church.
 
The fight for LGBT human rights in Latin America isn’t a one-way street. Paradoxes arise among and between countries.  When Mexico City legalized same-sex marriage by legislative action, only 29% of the city’s population supported the right to adoption by same sex partners. In Ecuador, the Constitution prohibits discrimination based on sexual orientation yet bans same-sex marriage and adoption. Gay marriage is legal on a case-by-case basis in Brazil but transgender people continue to be the target of violent crime. In 2009, Brazil reported the highest number of murders of transgender people for the region. In Costa Rica, the president of the Legislative Assembly’s Human Rights Commission expressed his belief that sexual orientation is a sin that can be treated. Clearly, homophobia and transphobia are widespread in the region.
 
Chile:  World of Latin American paradoxes.
 
When the Chilean socialist president Michele Bachelet took office in 2006, LGBT groups saw an opportunity for advancing their rights in a country with rigid cultural conservatism. Ironically, most of the debate and legislation about LGBT issues had to wait until Sebastián Piñera, Chile’s first right-wing president since Pinochet left   office.
 
Three issues have received particular attention from the Chilean population: An anti-discrimination law, prompted by a ruling in the Karen Atala custody case condemning Chile by the Inter-American Court of Human Rights and the homophobic murder of Chilean youth Daniel Zamudio, a bill for same-sex civil unions  and  ban on same-sex marriage,  and , an   announced health coverage of sex reassignment surgeries by the country’s public health plan.
 
A  Quest for a Comprehensive Anti-discrimination Law
 
An anti-discrimination bill in Chile, introduced in 2005, had been languishing in Chile’s Chamber of Deputies for almost seven years.  It wasn’t until March 2012, shortly after the brutal killing of Daniel Zamudio, that LGBT associations along with international organizations called for the prompt passage of the law. Putting more pressure on the government, the Inter-American Court of Human Rights ruled in favor of Karen Atala, a Chilean judge who in 2005 had been denied custody of her children by the Supreme Court solely because she was living in a lesbian relationship.
 
The Chilean Constitution acknowledges equality but the principle of non-discrimination had not been specified nor included in any  type of prohibited conducts.  The “bill that establishes measures against discrimination” aimed to ban “arbitrary discrimination”, and includes  gender identity and sexual orientation as categories protected against discrimination.
 
In April 2012, a Joint Committee reviewed the bill and although the law was “not what we wanted in every point”, the Movement for Homosexual Integration and Liberation, (Movilh,) declared their support of the text. Concretely, the Joint Committee approved involving the State in actions against discrimination, giving   a preventive dimension to the bill.  Both houses of the government approved the bill with large margins.  Movilh, Iguales Foundation, and other LGBT organizations celebrated the bill.
 
However, there is still criticism towards the law:  some members of the board of the Iguales Foundation consider it a “hybrid of principles” already stated in the Constitution. The Organization of Transsexuals for the Dignity of Diversity (OTD) denounced the lack of concrete actions and the exclusion of affirmative action in the antidiscrimination law. A major critique is that it allows discrimination if other fundamental principles are evoked, such as academic freedom or freedom of religion.
 
When President Piñera signed the law on July 12, 2012. MUMS Chile, the Movement for Sexual Diversity, tweeted: “Strong and Clear, we don’t have to thank or applaud politicians for a mediocre law. Let’s protest!”

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