The advance of recognition of LGBTQIA+ rights in Latin America began with the arrival of the 21st century, when in 2002 the Argentine Supreme Court ruled in favor of adoption between same-sex couples. Since then, 75 rights of national scope have been approved in 13 countries, which benefit people of sexual and gender diversity in a differentiated way.
Countries that have recognized LGBTQIA+ rights have done so through four main avenues of approval: Executive, Legislative, Judiciary and Autonomous Public Bodies. This implies that the rights, while having a national scope, have different legal status. Those approved by the Legislature modify laws such as civil codes, on the other hand, those recognized in the other three ways are not always able to change the legal grammar and some even require a second process of judicialization.
Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Ecuador, El Salvador, Mexico, Panama, Peru and Uruguay have gradually modified cissexist structures over the course of 20 years (the belief that validated bodies are those whose binary identities gender are strictly subject to the genitalia, “real” men have penises and “real” women have vulvas) and heterosexuals who rule the political, social and symbolic order.
This was made possible by LGBTQIA+ activism, which they have been fighting since the 1970s, often at the cost of their lives.
The long struggle for the rights of the LGBTQIA+ population
The historical processes of political transition in the region focused on procedural formality, under the need to conceive citizens from the imperative of homogeneity. This implies that, in order to make normative reason prevail in the public space to guarantee impartiality, they denied the specificity of bodies and their desires, as well as the difference of race, gender, sexual orientation, among other traits that threaten unity and coherence. homogeneous structure from which liberal democracy is articulated.
The long-standing struggles for sexual and gender diversities, as well as the listening and attention they received in international human rights scenarios, allowed their demands to enter the framework of understanding the legality of human rights. This meant that democratic countries that signed international agreements in this area were obliged to comply with these requirements.
But these processes have not been automatic. Despite the international obligation that was built, LGBTQIA+ people had to fight to enforce international human rights conventions and treaties. This battle was fought through different strategies, such as reaching congressmen who were most sympathetic to LGBTQIA+ rights or strategic litigation, even the sporadic and limited arrival of people of sexual and gender diversity to positions of popular representation.
Pending progress and challenges
The experience of countries in the recognition of these rights shows that they emerged, in most cases, without legal or binding harmonization. For example, they recognized civil unions or equal marriage without the legal robustness involved in heterosexual marriage, which includes the right to adoption or the range of statutory social security benefits, such as the right to health care, child care and a pension from the partner in case of death, among others.
In many cases, as in Mexico (2017), the vote of transgender people across the country was approved by the National Electoral Institute. The measure of this autonomous public body is situated in the legal absence of national scope of the recognition of the right to gender identity. This was approved at the subnational level, and it was only in January 2021 that this same body, at the behest of the Federal Electoral Court, established affirmative measures so that people of sexual and gender diversity had access quotas to candidacies for positions of popular representation. .
In Peru, the right to gender identity was recognized in 2016 through a sentence dictated by the Constitutional Court. But the process of rectifying gender in identity documents must be done through summary proceedings (abbreviated judgments) where this process is still under judicial protection. That is, the rectification of sex must be ordered by a judge.
Furthermore, these processes in Peru do not provide for transgender people to enjoy the right to gender identity in their DNI, although they do so in other types of documents considered “minor”. In this regard, demands were made before the Court, which in turn ordered the National Registry of Identification and Civil Status to recognize the right to gender identity. The answer so far, however, has been negative.
These unbridled and unrelated ways of recognizing rights reaffirm the conditions of violence and discrimination that LGBTQIA+ people suffer for not responding to the cissexist and heterosexual mandates under which the morals of liberal citizenship are based.
We cannot forget that the rights were approved in only 13 countries and in some of them only one was recognized, such as El Salvador, two in Bolivia and Panama or five in Chile, compared to the 13 rights in Argentina or the 10 in Uruguay, where they were also public policies were generated in this regard.
The delay with which the rights of LGBTQIA+ people begin to be recognized requires genuine empathy and legal acuity from democratic governments in Latin America to recognize the right of commitment to extend the dignity of these people who have historically lived on the margins of human decency.
