The human rights court of the Americas has issued a groundbreaking ruling upholding same-sex marriage and trans rights throughout the Western Hemisphere.
The Costa Rican government had asked the Inter-American Court of Human Rights in 2016 to clarify its obligations toward its LGBT citizens under the American Convention on Human Rights, an international treaty drafted in 1969 requiring its members to respect democracy and personal liberty.
The court found that the Convention requires states to grant same-sex couples the same access to all legal institutions as heterosexual couples, including marriage. It also found that trans people must have access to a minimally invasive process for changing their legal name and gender — and that they shouldn’t need surgery to have their gender recognized.
Of the 23 countries who have signed on to the American Convention on Human Rights, 19 do not yet recognize same-sex marriage nationwide (though some have civil unions): Barbados, Bolivia, Chile, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Guatemala, Grenada, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, and Suriname. All 23 of the countries, except Dominica, Grenada and Jamaica, recognize the court’s authority.
The court’s opinion does not automatically make same-sex marriage legal in the member countries, but states who signed the human rights convention are bound by its rulings. Each must now follow its own processes to amend its laws.
LGBT activists from the countries under the court’s jurisdiction were guardedly optimistic about the ruling.
Gail Lynch, a Barbadian-Canadian and volunteer with the 519 Community Centre’s LGBT newcomer outreach program in Toronto, says of the ruling “it’s about time,” but doubts the government in Barbados will make the legal changes.
“Definitely this will not be adopted by Barbados,” she predicts. “What the churches say generally takes precedence.”
Barbados is one of 10 countries in the Caribbean that criminalize gay sex.
Jamaican activist Maurice Tomlinson, who lives in Toronto and is challenging his country’s sodomy law both in domestic courts and in appeals to the Inter-American Commission on Human Rights, hopes the opinion drives progress on his cases. The Commission is a separate branch from the human rights court, and can only issue recommendations to countries.
“Although this decision will have limited binding legal precedent for the Caribbean, it still sends a clear signal that the highest human rights body in the hemisphere supports the full human rights of LGBT people,” Tomlinson says.
“So, the Caribbean is clearly out of step with the rest of the hemisphere,” he continues, “as most of our territories still effectively criminalize same-gender love.”
David García Ponce, president of Toronto’s Latino LGBT group HOLA, says that while the court’s opinion is a welcome development, people shouldn’t rush to believe that queer people in Latin American countries are suddenly safer.
He’s concerned that the Canadian government might try to use this ruling to deny refugee applications from LGBT Latin Americans who are fleeing persecution in their home countries.
“People will think this is the end of homophobia and discrimination in Latin America, and that’s so far from truth,” he says. “Even if we have new laws, it doesn’t mean you can get your rights. You still have to fight daily homophobia and persecution.”
LGBT rights are a divisive issue in much of Latin America and the Caribbean but much progress has been made in the last decade. In addition to Canada and the USA (which are not party to the American Convention), same-sex marriage is legal in Argentina, Brazil, Colombia and Uruguay. In Mexico, it is recognized in 13 states and Mexico City. Nearly 80 percent of people in the Western Hemisphere live in equal marriage states.
But in other countries, the issue is politically contentious. Homosexuality is illegal in nearly all of the Anglo-Caribbean states, and constitutional bans on same-sex marriage exist in Bolivia, Cuba, Dominican Republic, Ecuador, Honduras, Jamaica and Paraguay. Last year, the Haitian Senate passed a bill that would make advocating for same-sex marriage a crime.
Most states in the region also do not allow trans people to change their legal gender, or require medical, psychological, or judicial interventions to do so.
Supreme Courts in Panama, Peru, and Venezuela are currently hearing or deliberating cases related to same-sex marriage. The Chilean congress is currently debating a same-sex marriage bill and a gender identity bill that the government agreed to introduce as part of a settlement related to an earlier same-sex marriage case at the Inter-American Court of Human Rights.
For Aleks Dugsman-Manzur, a trans Chilean who works with refugees in Toronto, the court’s opinion gives hope that the Chilean government will act on the long-delayed bills.
“For a Chilean person to change their identity, you have to prove so much stuff, you have to undergo medical examinations that verge on sexual assault. This means to me that the government might show a little bit of will to make those reforms faster. The court says pretty clearly that these are rights that are protected,” he says.
The Costa Rican government has said it will abide by the court’s ruling, but is evaluating how it will change its marriage and gender identity laws. The process is complicated by the fact that the country is in the middle of an election campaign.
Canada is not a signatory to the American Convention on Human Rights, in part because the convention includes a clause that could be interpreted to ban abortion. Canada does help fund the Inter-American human rights commission but has been criticized for not contributing enough.