LGBT Rights in the Americas
A transformation, some would even say a revolution, is taking place in our understanding of democracy. Citizens and nations are increasingly recognizing that freedom and equality under the law requires protecting the rights, status and expression of lesbian, gay, bisexual, and transgender (LGBT) people.
What was a taboo subject 20 years ago is today open to public discussion and debate. LGBT rights are central topics of concern, not just in academic circles, but even in televised presidential debates.
Remarkably, Latin America has emerged as a world leader in this democratic transformation.
Some of the most advanced pro-LGBT legislation can be found in the region. But at the same time, in many areas Latin America is a world laggard; some of the worst forms of homophobia are routinely found in Latin America—placing the Americas in the awkward position of occupying both the lead and the back seat in the historic global movement to expand our conception of democracy. What explains this dichotomy?
Latin America Leads
It is important to look first at the positive. Some spectacular achievements in LGBT rights have occurred just in the past two years.
Everybody who follows Latin American affairs is probably familiar with the pathbreaking 2010 law in Argentina legalizing gay marriage and adoption. But many people may not realize that, while only Argentina, Canada, Mexico City, and a few states in the United States have approved gay marriage laws, LGBT rights are expanding almost everywhere.
For instance, in 2008, Brazil’s then-President Luiz Inácio Lula da Silva inaugurated an international LGBT congress. The same year, Ecuador approved the second constitution in the world that bans discrimination on the basis of “gender identity,” “sexual orientation” and “HIV status” (although it still defines marriage as the “union between man and woman,” Art. 68).
In 2009, Uruguay approved civil unions. In 2010, El Salvador’s president, Mauricio Funes, issued a decree banning discrimination in the public service based on sexual orientation and gender identity. Costa Rica’s Constitutional Court ordered the Supreme Elections Tribunal to discontinue preparations for a referendum petitioned by Observatorio de la Familia, a conservative group seeking to block gay rights. The same year, Brazil’s Federal Supreme Tribunal voted 10-0 in favor of gay partnerships.
In 2011, Lima Mayor Susana Villarán led the city’s small gay pride parade. In Colombia, the Supreme Court unanimously ruled that homosexual couples have the right to “form a family” and gave the legislature two years to legislate in favor of recognizing same-sex unions. Even Fidel Castro, a person not known for admitting errors, apologized publicly for his mistreatment of homosexuals in the 1960s.
The transformation of Latin America is not just an internal affair.
As this process has unfolded, the region has emerged as a global champion of LGBT rights. In 2007, for instance, Argentina, Brazil and Uruguay promoted the United Nations launch of the Yogyakarta Principles, which specify how states must treat issues of sexual orientation and gender identity.
In March 2011, on behalf of 85 signatory countries, Colombia delivered a joint statement during the UN General Debate that called on states to end violence and establish criminal sanctions for human rights violations linked to sexual orientation and gender identity, and urged the Human Rights Council to address these important human rights issues.
Also that month, President Dilma Rousseff of Brazil discussed with President Barack Obama of the United States the appointment of a special rapporteur on LGBT rights within the Inter-American Commission for Human Rights (IACHR) at the Organization of American States (OAS). Last November, partially in response, the IACHR created a Unit on the Rights of Lesbian, Gay, Bisexual, Trans, and Intersex (LGBTI) Persons.
And yet, despite these advances, Latin America is still home to some of the worst forms of discrimination and mistreatment of LGBT folks.
The notion of hate crime does not exist in many countries. Surveys show that the majorities tend to have little political tolerance for LGBT rights everywhere except in Argentina and Uruguay. Churches, schools, neighbors, and households routinely demonize LGBT people, forcing them to leave their places of residence or to stay in the closet. Politicians still express apprehension. The governor of Jalisco state in Mexico was typical in his remark that gay marriage “still disgusts me.”
The Catholic and Protestant Churches play a complicated role. On the one hand, Catholic charities tend to offer assistance to AIDS patients and victims of domestic abuse—groups that often include members of the LGBT community. On the other hand, factions within the clergy are today the most unabashed exponents of anti-LGBT speech. Chile’s Cardinal Jorge Medina is a good example, openly proclaiming that “if a person has a homosexual tendency it is a defect, like missing an eye, a hand, a foot [...] but when it enters the practice of sexual life between people it’s still not acceptable.”
Few prodemocracy movements in the past 30 years have had to face such a complicated dilemma: fighting a moral authority in order to make a democratic point. With certain religious leaders deciding to become unabashedly outspoken against homosexuality, the LGBT movement finds itself battling a widely esteemed institution in its campaign to win rights.
Even when homophobia is quiet, it is still potent. Few Latin American employers have proactive prodiversity policies, and LGBT employees are often encouraged not to flaunt their sexuality. Marriage continues to be defined, constitutionally in some cases, as unions reserved for straight couples (or fake straight couples).
Neither the police nor school teachers receive training on how best to respond to LGBT issues. Transsexuals, many of whom rely on sex work to make a living, face the worst forms of physical and mental abuse, and sometimes lethal violence, by the very same people who purchase their services. In several English-speaking Caribbean nations, homosexuality remains illegal.
Consequently, there is an air of inhospitality even when the legal environment is hospitable.
Mexico City is a good example. A year after the city approved in late 2006 a cohabitation law granting same-sex couples marital rights identical to those established for common-law relationships between men and women, only 302 couples applied for this right. In contrast, in Massachusetts, with a smaller population (of 6.5 million versus 8.9 million in Mexico City), eight months after gay marriage was approved, 6,000 couples filed for this right.
Violence remains a problem. In Honduras, Mexico, Colombia, and Brazil, prominent gay leaders have been murdered. Latin American LGBT groups are finding that, as Omar Encarnación has argued, gay rights in the books “will mean nothing” as long as discrimination and violence remain rampant.
The dichotomy of status of LGBT rights can also be gauged quantitatively. Mario Pecheny and I have been working on two possible measures of LGBT rights and status. One looks at the legal environment, the other at LGBT-friendly organizations in a given country...