The Queering (or Not) of Latin America

By Bécquer Medak-Seguín

December 2009

On December 21, Mexico City became the first Latin American city to legalize same-sex marriage.¹ The legislation, however, will provide gay men and women with more than merely the right to recite their vows at the altar. The law that changes marriage in the city’s civil code from, roughly, ‘the union between a man and a woman’ to “the free uniting of two people” will allow same-sex couples (and, presumably, transgender, bisexual, and other queer couples) to adopt children, apply for bank loans together, inherit wealth and be included in the insurance policies of their spouse. Previously, Mexico City allowed civil unions between same-sex couples, but these did not provide the rights now conferred under the law that legalizes same-sex marriage. Mexico City joined only seven countries and five U.S. states in legalizing same-sex marriage: Belgium, Canada, the Netherlands, Norway, South Africa, Spain, Sweden, Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont.²

Though Mexico City’s legislation is the most progressive since Argentina’s legalization of same-sex civil unions in 2002, it would be imprecise or naïve to think that this new legislation will immediately open a space for further advances toward equal rights for members of the LGBTQ community in Latin America. Earlier this fall it was thought that Argentina would again be at the forefront of gay rights legislation when Judge Gabriela Seijas granted José María Di Bello and Alex Freyre a marriage license. Buenos Aires mayor Mauricio Macri even went so far as to say that the city would not appeal the judge’s ruling, effectively welcoming other same-sex couples to pursue marriage licenses in court. Gay rights groups in Argentina and elsewhere saw this event as much more than a localized victory: many believed that the marriage in Argentina could open the floodgates throughout Latin America for the legalization of same-sex marriage.³ This hope was misplaced. Unfortunately, the couple’s somewhat state-condoned, yet legal marriage was stalled the day before it was set to take place.⁴ Judge Marta Gomez Alsina ordered the wedding blocked until the Supreme Court could supposedly study the issue more closely, leaving Di Bello and Freyre in limbo between a certain legal status and an indefinite delay for a decision thereof.

Mexico City’s decision on same-sex marriage, unlike Argentina’s, was developed through the city’s assembly and subsequently written into law. This methodology may solidify gay rights in the capital, but it may also solidify anti-gay rights in the rest of the country. Such an anti-equal rights movement in the rest of Mexico may, in the end, quash any gains in the capital. In Mexico, as in the United States, social conservativism is grounded in the ideology of the church – in Mexico, namely, of the Catholic Church. Because of the breadth of the church’s political opinions, gay rights cannot readily be separated from other issues for which social conservatives feel a similar conviction. In the United States, the web of social conservativism seems to encompass gun, gay, and abortion rights. Similarly, Mexico has proven its web of social conservativism also links, at least, the latter two. The Mexico City assembly legalized abortion within the first twelve weeks of pregnancy in 2007. Since then, 17 of Mexico’s 31 states have reacted by passing legislation explicitly stating that life begins at conception, effectively banning abortions.⁵ Moreover, abortion and now same-sex marriage have been used as a political tool by the Institutional Revolutionary Party (PRI) – party that undemocratically ruled Mexico between 1929 and 2000 – to siphon votes from the typically more conservative National Action Party (PAN) leading up to the presidential elections in 2012. The PAN has already vowed to challenge the same-sex marriage law through the courts and, thus, it is likely that the PRI will follow suit.

Besides Mexico and Argentina, the only other Latin American countries to have moved forward on gay rights have been Brazil, Uruguay, Colombia, and Ecuador. Brazil recognizes same-sex civil unions and, through equal protection jurisprudence, has extended heterosexual couple’s rights to them. In May 2008, a national symposium was held to discuss LGBTQ rights. President Luiz Inácio Lula da Silva suggested that the symposium focus on the future legal status of same-sex partnerships and discuss proposals that would afford these couples the right to adopt children.⁶ On January 1, 2008, Uruguay became the first Latin American country to have a national civil union law. The law gives people who have lived together for at least five years the same rights as those who are married, thereby affecting both same- and opposite-sex couples.⁷ In Colombia, same-sex couples can be recognized as de facto unions via a Constitutional Court ruling on January 29. The unions provide civil and political rights to same-sex couples, including nationality, residency, housing protection, and state-benefits.⁸ And, finally, the 2008 Ecuadorian constitution allows for same-sex civil unions that, with the still debated exception of adoption, include the same rights as marriage.⁹

Though it is premature to call Mexico City’s decision a turning point (it is only a turning point, so far, on paper), it may not be farfetched to say that Latin America is experiencing a new wave of gay rights legislation. Chile and Venezuela, in particular, look primed for political compromises that may provide equal rights to members of the LGBTQ community. During the 2006 Chilean presidential election, both President Michelle Bachelet and center-right candidate Sebastian Piñera voiced their support for civil unions, defying the Catholic Church and many conservative members of congress. In Venezuela, a bill for gender equity and equality is being considered by the Venezuelan National Assembly and, though the national leaders of the Episcopal Church publicly condemned legislation, President Hugo Chávez has given it his blessing.¹⁰ It is unfortunate, however, that so few Central American and Caribbean countries have even taken up this issue, let alone made any progress by affording same-sex couples basic matrimonial rights. Perhaps there is where equal rights activists should focus their attention next.

Notes

¹ Castillo, E. Eduardo, “Mexico City Legalizes Same-Sex Marriage,” The Associated Press 21 December 2009.

² The countries and states are not organized by the date in which they legalized same sex marriage. Washington D.C. may soon join the five American states in legalizing same-sex marriage. This information was gathered from the above-cited Associated Press article.

³ See, for example, Julia Kumari Drapkin’s article, “Leading Latin America in the push for gay rights,” GlobalPost 11 December 2009. She argues, even after the November 30 setback, that Argentina will lead the way in gay rights for Latin America.

⁴ Orellana, Vanessa Hand, “Argentine Judge Suspends Region’s 1st Gay Marriage,” The Associated Press 30 November 2009.

⁵ Okeowo, Alexis, “Mexico’s Abortion War,” Foreign Policy 17 December 2009.

⁶ Though Brazil recognizes same-sex civil unions through judicial precedence, there is no law that cements its legality. Other proposals have surfaced in Brazil aiming to confer rights similar to those now provided to same-sex couples in Mexico City. It is unlikely, however, that the word “marriage” will appear if legal status is given to these couples.

⁷ “Uruguay approves gay civil unions,” BBC 19 December 2007.

⁸ Grew, Tony, “Colombian court confirms equal rights for same-sex couples,” PinkNews 29 January 2009.

⁹ “New Ecuador constitution includes gay rights guarantees,” The Associated Press via 365Gay.com 29 September 2008.

¹⁰ Dehani, Ramsey, “Venezuelan government moves to establish greater LGBT rights,” PinkNews 21 July 2009.