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A Rainbow Wave Across Latin America

By Hobie Hunter Coverage of LGBT rights internationally usually comes in two varieties. Recent headlines that come to mind include “Florida gets out of marriage equality’s way[1]” and “Net tightening on gay and lesbian west Africans[2].” While the United States and Western Europe have made strong progress on LGBT rights, stagnation or regression are seen in Africa, the Middle East, the former Soviet Union, and South Asia. However, there is another, underreported story: that of Latin America. While the region may conjure images of machismo and Catholic conservatism, many countries of the region have actually shown remarkable progress on LGBT rights.

In recent years same-sex marriage has swept across much of Latin America. In 2010, Argentina became the first Latin American country to nationally legalize same-sex marriage[3]. Uruguay and Brazil, which had previously only had marriage equality in some states, followed in 2013[4]. In Mexico, Mexico City, Quintana Roo, and Colima all grant marriages to same-sex couples[5]. More importantly, each Mexican state is required to recognize same-sex marriages performed in other states[6]. Although marriage equality technically is not the law of the land in Colombia, judges are able to use a 2011 ruling to marry same-sex couples[7].

While some other Latin America states have yet to adopt same-sex marriage, they have nonetheless made other forms of progress for LGBT rights. Bolivia’s constitution bans all forms of anti-gay discrimination[8], Ecuador grants civil unions to same-sex couples[9], and sex reassignment surgery is covered by public health insurance in Cuba[10], Peru allows gays to openly serve in the military[11], and Venezuela has laws protecting against discrimination on the basis of sexual orientation and gender identity/expression[12], among other victories.

Much of this progress for LGBT rights is due to strong action by the judicial branch, as has been the case in the United States. High courts were responsible for marriage equality in Mexico, Colombia, and Brazil. Judiciaries across the region have been so able to support LGBT rights because many constitutions of the region are so young, and have progressive aspects that empower the judiciary to protect human rights[13]. Whereas the United States’ constitution has held fast for over two hundred years, Argentina’s, for example, last underwent a major overhaul in 1994. In Argentina’s new constitution, all international treaties that Argentina has ratified, including those that pertain to human rights, are held as equal to the rest of the constitution as supreme law. Ironically enough, many Latin America counties now have such progressive constitutions because of the conservative authoritarian regimes that used to span the region; wanting to ensure that human rights are not systematically violated, as they were under the old authoritarian system, the new legal systems are more responsive to human rights violations[14]. Furthermore, Latin American courts are more willing to be influenced by foreign judicial rulings. When SCOTUS Justice Anthony Kennedy referenced foreign precedent in Lawrence v. Texas, he came under fire from conservatives[15]. Meanwhile, in a 2012 ruling striking down the Mexican state of Oaxaca’s ban on same-sex marriage, the Mexican Supreme Court cited Loving v. Virginia, the landmark U.S. case striking down bans on interracial marriage[16]. Courts have been able to take more decisive action because they are farther removed from the will of the people than the executive or legislative branches. With insulation from majoritarianism, compounded with progressive constitutions Latin America courts have been able to act as the vanguard of LGBT rights.

Strong social movements have backed up the progressive judicial decisions across Latin America. In a region that has suffered decades of repression, demands for human rights resonate. LGBT movements first emerged during the 1980s, as HIV began to spread. In Brazil, STD groups (AIDS groups in particular) helped achieve a constitutional right to health care in 1988. A wide variety of NGOs and international organizations have supported the civil society efforts. World Bank loans during the 1990s helped to fuel the LGBT movements. By 2007, 1,500 non-governmental organizations were working with LGBT populations, some with funding from the national STD and AIDS program[17]. LGBT movements have prospered when they have built strong partnerships with political parties, such as in Brazil, Argentina, and Uruguay. Meanwhile, strong social movements in Bolivia, Colombia, and Costa Rica have had trouble because they have failed to build strong connections with national political parties. LGBT activists have traditionally partnered with the left, but this is not always the case. In Chile, they worked with the center-right party to push through the nation’s first hate crime law[18].

The progress of LGBT rights in Latin America has not been without opposition. Religious organizations, including both the Catholic Church and the Protestant right, have voiced their opposition. Even within high-income countries that have seen marked progress, divisions can be drawn. Argentina and Uruguay, which have seen the strongest progress on LGBT rights, are noticeably more secular. They have a stronger tradition of separation of church and state and a less religious population. On the other hand, Mexico, Brazil, and Chile all have a major political party with strong ties to the Catholic Church. This is not the case in Argentina or in Uruguay.[19]. Pope Francis, from Argentina, garnered significant press attention when he said in a speech, “Who am I to judge?” in reference to homosexuality[20]. While this marks a shift in tone from his predecessors, it is not a change in Church policy. The Vatican’s official Catechism still holds that homosexuality is “objectively disordered,” but that homosexuals must be received with “compassion and sensitivity.[21]” This position, essentially stating, “Hate the sin but love the sinner,” is not new. Despite the Pope’s softening of tone, religious organizations have not budged on policy. Change in Latin America will ultimately come from secular authorities, rather than religious organizations.

Countries that have made the strongest progress on gay rights—Mexico, Brazil, Chile, Argentina, and Uruguay—collectively compose about two-thirds of the total population of Latin America and the Caribbean. However, other parts of Latin America have not made commensurate progress. Central America lags behind. Not a single country allows same-sex couples to marry or adopt. None ban discrimination on the basis of gender identity or expression. Only Costa Rica recognizes same-sex unions for some purposes, and only El Salvador permits gays to only serve in the military.[22]

The Anglophone Caribbean lags even farther behind Central America. Consensual same-sex sexual acts are criminalized in Jamaica, Guyana, Belize, St. Kitts and Nevis, Antigua and Barbuda, Dominica, St. Lucia, Grenada, St. Vincent and the Grenadines, and Trinidad and Tobago[23]. Needless to say, as same-sex intercourse is illegal in these countries, same-sex adoption and marriage is illegal as well. Jamaica was dubbed by TIME in 2006 as “The Most Homophobic Place on Earth.” Lynch mobs have murdered homosexuals and popular musicians write songs laden with homophobic lyrics[24].

Latin America is diverse yet underreported regarding LGBT rights. The region is home to some countries that have made among the strongest progress on LGBT rights. While we may view social rights in the world as divided between the progressive developed world and the conservative developing world, Latin America has forged its own unique path as progressive and developing. This is something that should be lauded, and exemplary for the rest of the developing world. There is still significant progress to be made in Latin America, but with foreign assistance and more importantly grassroots efforts, greater freedom and tolerance for LGBT people will result.

[1] Margolin, Emma. "Florida Gets out of Marriage Equality’s Way." Msnbc.com. December 29, 2014. Accessed December 30, 2014.

[2] Mark, Monica. "Net Tightening on Gay and Lesbian West Africans." The Guardian. December 4, 2014. Accessed December 30, 2014.

[3] Barrionuevo, Alexei. "Argentina Approves Gay Marriage, in a First for Region." The New York Times. July 15, 2010. Accessed December 30, 2014.

[4] Gomez, Alan. "Voices: Parts of Latin America Ahead of U.S. on Gay Marriage." USA Today. October 7, 2014. Accessed December 30, 2014.

[5] Press, Associated. "Colima, Mexico Approves Same-Sex Civil Unions." Huffington Post. July 30, 2013. Accessed December 30, 2014.

[6] Agren, David. "Mexican States Ordered to Honor Gay Marriages." New York Times. August 10, 2010. Accessed December 30, 2014.

[7] Lavers, Michael K. "Colombia President Backs Same-sex Marriage." Washington Blade. May 27, 2014. Accessed December 30, 2014.

[8] Wockner, Rex. "Bolivia Bans Anti-gay Discrimination in Constitution." Pride Source. February 19, 2009. Accessed December 30, 2014.

[9] Senzee, Thom. "Ecuadorian President Defends Civil Union Rights." The Advocate. August 28, 2014. Accessed December 30, 2014.

[10] Press, Associated. "Cuba Begins Performing State-sponsored Sex-change Operations." New York Daily News. January 20, 2010. Accessed December 30, 2014.

[11] Flick, Enviado. "El Tribunal Constitucional De Perú Considera Que No Se Puede Excluir De La Polícia O El Ejército a Las Personas Homosexuales." Dos Manzanas. December 13, 2009. Accessed December 30, 2014.

[12] Glickhouse, Rachel, and Mark Keller. "Explainer: LGBT Rights in Latin America and the Caribbean." Americas Society/Council of the Americas. May 24, 2012. Accessed December 30, 2014.

[13] Encarnación, Omar G. "Why Latin American Courts Favor Gay Rights." New York Times. January 29, 2014. Accessed December 26, 2014.

[14] Jay Friedman, Elizabeth. "In Latin America, Human Rights Causes Resonate." New York Times. January 29, 2014. Accessed December 25, 2014.

[15] Curry, Tom. "A Flap over Foreign Matter at the Supreme Court." Msnbc.com. March 11, 2004. Accessed December 26, 2014.

[16] Feder, J. Lester. "Mexican Supreme Court: American Cases Demand Marriage Equality." Buzzfeed. February 18, 2013. Accessed December 26, 2014

[17] De La Dehesa, Rafael. "In Brazil, AIDS Activism Led to Political Connections." New York Times. January 29, 2014. Accessed December 25, 2014.

[18] Corrales, Javier. "The Usual Forces, With Surprising Results." New York Times. January 29, 2014. Accessed December 25, 2014.

[19] Ibid

[20] Carroll, James. "Who Am I To Judge?" The New Yorker. December 23, 2013. Accessed December 30, 2014.

[21] Becker, John. "Pope Francis Says More Nice Words About LGBTs, Changes Nothing." Huffington Post. September 20, 2013. Accessed December 30, 2014.

[22] "LGBT Rights in the Americas." Wikipedia. Accessed December 30, 2014.

[23] Lavers, Michael K. "Latin America ‘Light Years Ahead’ of Caribbean on LGBT Rights." Washington Blade. September 12, 2014. Accessed December 26, 2014.

[24] Padgett, Tim. "The Most Homophobic Place on Earth?" TIME.com. April 12, 2006. Accessed December 25, 2014.

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