LGBT rights in Costa Rica

LGBT rights in Costa Rica Costa Rica
Same-sex sexual intercourse legal status Legal since 1971[1]
Gender identity/expression Gender changes allowed
Military service No armed forces
Discrimination protections Sexual orientation protections since 1998
Family rights
Recognition of
relationships		 Yes for some purposes
Adoption Legal, only if requested individually

Lesbian, gay, bisexual, and transgender (LGBT) rights in Costa Rica have evolved significantly in the past decades. Same-sex sexual relations have been legal since 1971.[1] Since 2013, households headed by a same-sex couples can obtain some domestic partnership benefits. In January 2018, the Inter-American Court of Human Rights made mandatory the approbation of same-sex marriage, adoption for same-sex couples and the recognition of transgender people's gender identity on ID cards. The Government has announced that it will apply the sentences in the following months.[2][3]

Legality of same-sex sexual activity

Homosexuality first became classified as a grave sin and crime during the Spanish rule. After gaining independence, it remained a crime until the liberal presidency of Tomás Guardia. While it was decriminalized during this era as part of a larger reform of the legal system, homosexuality was still widely seen as an "infamous sin".[4]

In 1971, a universal age of consent was established as was a new law that prohibited "scandalous sodomy" (presumably public, no known convictions are in record) but otherwise maintained the legal status of private homosexual sex acts between consenting adults.[4] Article 382 in the Penal Code that mentioned "scandalous sodomy" was repealed in 2002, alongside many other laws.[5]

Apology

On 1 July 2018, President Carlos Alvarado Quesada issued a public apology to members of the LGBT community for the past persecution and discrimination they faced from the Costa Rican state. The President stated that the state had in the past "promoted and executed persecutions, raids, arbitrary arrests and beatings" towards LGBT people. He also spoke of the Stonewall riots, which led to the modern gay rights movement, and that Costa Rica had legalised homosexuality two years later, in 1971, but that discrimination and violence continued for the following decades.[6]

On behalf of the Government of the Republic, I ask your forgiveness and I renew my commitment to fight so that this shameful chapter of our history will not be repeated.

— President Carlos Alvarado Quesada, 1 July 2018

Recognition of same-sex relationships

Carlos Alvarado Quesada won the presidency in April 2018, and became the first Costa Rican President to support same-sex marriage. He famously expressed support for the January 2018 IACHR ruling.

Currently, Costa Rica does not recognize same-sex marriage or civil unions. In 2013, national legislation was passed, which offers a limited form of domestic partnership benefits for opposite-sex and same-sex couples.[7]

In 2006, the Supreme Court rejected a claim that the Constitution requires the Government to recognize same-sex marriages. Human rights lawyer Yashin Castrillo Fernandez had sued arguing that certain constitutional provisions relating to equal rights and international law required the legalization of same-sex marriage, but only two of the justices agreed.[8] The majority wrote that at the time the Constitution was approved, "marriage" was understood to be a union between a man and a woman. The court decision did state that the National Government had the power to enact civil unions.[9]

In 2008, the LGBT rights association, Diversity Movement, persuaded some lawmakers to introduce a civil unions bill. Deputies Ana Helena Chacón Echeverría (then of the Social Christian Unity Party, currently of the Citizens' Action Party) and José Merino (Broad Front) expressed support for the proposed bill stating that, "gays and lesbians are no less Costa Rican than the rest of us. We're not talking about marriage or adoption, but about basic civil rights.".[9]

In July 2010, the Constitutional Court ordered the TSE (Supreme Elections Tribunal) to stop an effort of preparing a referendum that would have allowed Costa Rican citizens to decide the future of civil unions for same-sex couples in Costa Rica. The referendum was supposed to be held on 5 December 2010. The "recurso de amparo" (appeal) was presented by lawyer Quirós Salazar, alleging that the referendum proposal violated the rights and freedoms of individuals. The petition for referendum had been organized by the Observatorio de la Familia, a religious conservative group, seeking to stop legislation that promotes civil unions for same-sex couples.[10]

On 1 July 2013, the Legislative Assembly passed legislation that grants benefits of domestic partnerships "without discrimination contrary to human dignity". Progressive lawmakers indicated during debate that the changes would open civil unions to same-sex couples. Conservative lawmakers immediately called upon President Laura Chinchilla to veto the legislation,[7][11] claiming that they mistakenly voted for the bill.[12] Chinchilla refused to oppose the bill's passage and signed it into law days later.[13][14] The bill took effect on 8 July 2013.[15] On 10 July 2013, six same-sex couples asked courts to start the process to have their relationships recognized through civil unions. A day later, a family court accepted one of the petitions.[15]

In mid-March 2015, two government proposals on civil unions were submitted to the Legislative Assembly.[16] On March 19, 2015, a bill to legalize same-sex marriage was introduced to the Legislative Assembly by Deputy Ligia Elena Fallas Rodríguez from the Broad Front.[17]

2018 Inter-American Court of Human Rights ruling

On January 9, 2018, the Inter-American Court of Human Rights ruled that countries which are signatories to the American Convention on Human Rights are required to allow same-sex couples to marry.[18] Inter-American Court of Human Rights rulings are fully binding in Costa Rica, and take precedence over local laws.

The Costa Rican Government quickly announced that it will abide by the ruling, and legalise same-sex marriage. The Superior Council of Notaries has, however, refused to issue marriage licenses to same-sex couples until the ban is explicitly struck down by the Supreme Court or repealed by the Legislative Assembly. Despite this, one same-sex couple successfully married before a notary in February 2018 and currently await official registration with the Civil Registry.[19] The notary in question is facing an investigation, but rejects any wrongdoing, stating that he respected international law and took a stand against discrimination when marrying the couple.[20]

Lawsuits seeking to legalise same-sex marriage went before the Supreme Court.[21] In August 2018, the Costa Rican Supreme Court ruled in favor of lifting the same-sex marriage ban, giving the country's legislators 18 months to legalize same-sex marriage.[22]

Adoption and parenting

Mario Núñez, a member of the Libertarian Movement Party, introduced a bill in the Legislative Assembly in 2007 to ban LGBT people and same-sex couples from adopting or having custody of children, though it was never debated or discussed.[23][24] Currently under Costa Rican law, gay and lesbian individuals can legally adopt children, but not same-sex couples.[25]

Discrimination protections

LGBT flag map of Costa Rica

The Constitution does not explicitly prohibit discrimination on the basis of sexual orientation or gender identity.

Since 1998, "sexual option" (Article 48 of the Costa Rican General Law 7771) has been one of the categories in which discrimination is generally prohibited in areas such as employment.[26]

ARTICLE 48. Costa Rican General Law 7771 – Discrimination
Who ever applies, arranges or practices discriminatory measures because of race, nationality, gender, age, political, religious or sexual option, social position, economic situation, marital status or by any suffering of health or disease, will be sanctioned with penalty of twenty to sixty days fines. The judge will be able to impose, in addition, the disqualifying penalty that corresponds, of fifteen to sixty days.

Gender identity and expression

Prior to 2018, changing the sex assigned at birth was not allowed. Article 51 of the Organic Law of the Supreme Electoral Tribunal and the Civil Registry includes sex as one of the requirements to register births.[27] However, Article 2 of the Regulations on Photographs in Identity Documents states: "Every person has the right to have their image and gender identity respected at the moment of taking the photograph that is attached to the identity card."[28]

Since 2013, transgender people have been able to change their legal name on documentation so that it matches their gender identity. Surgery is not a requirement but it does require a judicial order.[29][30]

In 2016, a bill allowing transgender people to legally change their name and gender without the need for surgery or judicial permission was introduced to the Legislative Assembly.[31] In June 2017, the bill advanced to the Human Rights Commission.[32] In addition, the Supreme Electoral Tribunal has announced its endorsement of the bill.[33]

On 14 May 2018, the Supreme Electoral Tribunal (TSE) approved a resolution that allows people to change their name according to their gender identity on official ID cards. The decision came in response to the Inter-American Court of Human Rights ruling in January 2018 that all member countries, including Costa Rica, must provide full and equal rights to same-sex couples and citizens whose self-perceived gender is different from their birth gender. The tribunal declared that the process can be accomplished through a simple and free procedure. In addition, the TSE reported that in order to avoid stigmatizing effects, the gender a person is registered with at birth will no longer appear on identity documents.[34] Although, the court assured that the Civil Registry will continue to record in their database the registered sex at birth.[35]

On 28 June 2018, President Carlos Alvarado issued an executive decree requiring all state institutions to modify the documents and internal records of transgender people who wish to have their name, photograph or sex changed. The decree applies to passports, driving licenses, ID documents, work permits, university identification, etc.[36] Costa Rican officials announced that this was in accordance with the January 2018 Inter-American Court of Human Rights ruling.

Blood donation

In August 2007, a ban on gay and bisexual men donating blood was lifted.[37][38] The drive to lift the ban was led by activist Alberto Cabezas.

Living conditions

The Marcha de las putas (SlutWalk) in 2011 in San José, promoting women's rights and LGBT rights.
A sign at the Marcha de las putas in 2011, saying "I am bisexual, calm down!".

LGBT rights in Costa Rica have made significant cultural, social and legal progress since the 1970s. While certain politicians, such as President Óscar Arias, have expressed some support for LGBT rights, Costa Ricans tend to be socially conservative when it comes to sexual orientation and gender identity issues, in large part due to the strong influences of the Roman Catholic Church and cultural traditions about machismo.

While homosexuality was technically legal, police harassment and raids of LGBT people and private establishments were formerly commonplace. In 1990, for instance, Minister of Government Antonio Alvarez Desanti announced that he would not allow foreign women to enter Costa Rica to participate in an "Encuentro," an international meeting of lesbians. He instructed Costa Rican consulates not to grant visas to women travelling unaccompanied by men, warning that all such women would be stopped at the airport.[39] He also informed airlines that if they sold tickets to women travelling alone, or appearing likely to attend the meeting, they would be required to provide for the suspected lesbians' immediate return. When pressed to explain how lesbians could be identified at the airport, he reportedly asserted that women who had short hair, wore pants or traveled alone could be identified as lesbians. Organizers changed the dates and location of the meeting, and it finally took place.[39]

Furthermore, the Costa Rican Government did not want to grant legal recognition to political organizations seeking to advance LGBT rights.[4] These policies started to change in the 1990s, when the Supreme Court of Justice of Costa Rica ruled that the Constitution gave LGBT people the right to peaceful assembly, associate, create their own private establishments, as well as their own LGBT rights associations.[4]

In 1993, it came to light that the Universidad Internacional de las Americas had a policy of expelling LGBT students and firing LGBT faculty and staff. When a HIV/AIDS education association, Instituto Latinoamericano de Educacion y Prevencion en Salud, filed a complaint with the Ministry of Education, they were unable to come up with a specific example of the university's policy being enforced, but the Ministry stated that if the policy is enforced it would probably violate Articles 20, 33, and 70 of the Constitution.[40]

In the late 1990s, the Costa Rica Catholic Church organized protest against LGBT tourism, often arguing that it was a cover for sex tourism. Yet, there are still several tourist groups that cater to LGBT people.[41]

In 1998, a planned LGBT pride festival was cancelled out of concern of the possibility of violence. During the initial planning of the event, the then President of Costa Rica publicly opposed granting permits for the event to occur.[42]

In 1999, San José, Costa Rica's capital city, attempted to close down a gay sauna, but the Supreme Court in 2000 ordered the city to allow the sauna to remain open, stating, "subjective criteria of morality and proper behaviour have no legal basis ... and represent a violation of the fundamental rights granted by our Constitution".[43]

On 27 March 2008, the then President of Costa Rica, Oscar Arias Sanchez, signed an executive order designating 17 May as the National Day Against Homophobia,[44] committing Costa Rica to join others around the world in working to eradicate bias against gays and lesbians.

In 2008, the Costa Rican Supreme Court ruled against a gay prison inmate receiving conjugal visits.[45] In October 2011, the Costa Rican Supreme Court reversed the 2008 ruling and now allows equality for same-sex couples in receiving conjugal visits only for partners outside of prison.[46]

In 2012, the Citizens' Action Party presented a bill to declare the Legislative Assembly a "homophobia-free space" which later passed by a majority of votes, being opposed only by the Christian parties.[47]

On 21 April 2013, Carmen Muñoz (Partido Acción Ciudadana) became the first openly lesbian member of Costa Rica's Legislative Assembly, after being interviewed by La Nación.[48]

On 15 May 2014, the International Day Against Homophobia, Transphobia and Biphobia, President of Costa Rica Luis Guillermo Solis placed a rainbow flag in the Presidential House. According to Luis Guillermo Solis, this was a symbolic act in support of all kinds of diversity, particularly for a group that has been severely discriminated. The act generated mixed reactions and was criticized by religious sectors of the country.[49][50]

On 1 May 2018, Enrique Sánchez became the first openly gay congressman in Costa Rica.[51]

Political party views

Recognition of same-sex unions under a different name than marriage is supported by some of the main parties including the National Liberation Party (PLN), the Social Christian Unity (PUSC) and the Libertarian Movement (ML). Left-wing party Broad Front was the first main party that supported same-sex marriage. In December 2016, the Citizens' Action Party (PAC) officially announced its support of same-sex marriage and adoption.[52] Some figures of PLN also support same-sex marriage, including some lawmakers. PUSC is opposed to same-sex marriage as a whole, while ML's candidate and congressman, Otto Guevara, said during the 2014 presidential campaign that although he supports recognition for same-sex couples it is not a priority for him.

Opposition is frontal from a group of four small Christian parties; the National Restoration, the Costa Rican Renewal, the Christian Democratic Alliance and Accessibility without Exclusion, all of them having a total of fourteen lawmakers in the Assembly, and they generally use filibusters to delay discussions on LGBT rights.

In 2012, controversy erupted when Justo Orozco, president of the Renewal Party, was head of the Human Rights Commission. Protesters were upset that Orozco expressed support for the belief that homosexuality is a sin and a treatable disease. As a result of the protests, future Vice President Ana Helena Chacón, then a PUSC member, moderated an official government meeting with protesters seeking to expand legal equality for same-sex couples.

HIV/AIDS

While HIV/AIDS is not exclusively a problem for LGBT people, public health efforts to fight the spread of disease have raised public awareness of sexual orientation and gender identity issues.

Since the late 1990s, equal opportunity laws in Costa Rica generally protect people living with HIV/AIDS. The law also stipulates that all persons living with HIV/AIDS have a right to medical care, regardless of their nationality.[53]

HIV/AIDS preventative programs for LGBT people are primarily handled by Non-Governmental Organizations (NGOs). Comprehensive sex educational campaigns are almost nonexistent in public high schools because of the opposition of the Catholic Church and other religious groups.[54]

Summary table

Same-sex sexual activity legal (Since 1971)
Equal age of consent (Since 2002)
Anti-discrimination laws in employment (Since 1998)
Anti-discrimination laws in the provision of goods and services (Since 1998)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) (Since 1998)
Same-sex marriages (Legally binding sentence awaiting application)
Recognition of same-sex couples (For some purposes only since 2013, civil union pending)
Adoption by single LGBT persons
Stepchild adoption by same-sex couples (Proposed)
Joint adoption by same-sex couples (Proposed)
LGBT people allowed to serve openly in the military Has no military (Allowed to serve openly in the civil defense Public Force)
Right to change legal gender (Since 2018)
Access to IVF for lesbians
Conversion therapy banned
Commercial surrogacy for gay male couples
MSMs allowed to donate blood (Since 2007)

See also

References

  1. 1 2 State-sponsored Homophobia A world survey of laws prohibiting same sex activity between consenting adults Archived 17 October 2012 at the Wayback Machine.
  2. ↑ "Corte Interamericana de DD. HH: Costa Rica debe garantizar plenos derechos a población LGBTI". Teletica. 9 January 2018. Retrieved 9 January 2018.
  3. ↑ Ramírez, Luis (9 January 2018). "Implementar matrimonio gay como pide Corte IDH no requiere del Congreso, según gobierno". Amelia Rueda. Retrieved 9 January 2018.
  4. 1 2 3 4 ">> social sciences >> Costa Rica". glbtq. 1 March 2004. Archived from the original on 19 May 2010. Retrieved 1 August 2010.
  5. ↑ "Laws - Costa Rica - CR". GayLawNet. 2002-04-17. Retrieved 2010-08-01.
  6. ↑ Presidente Carlos Alvarado pide perdón a personas LGBTI por persecución del Estado costarricense
  7. 1 2 ""Costa Rican legislature accidentally passes gay marriage legalization", TicoTimes.net, 3 July 2013". Archived from the original on 6 July 2013. Retrieved 4 July 2013.
  8. ↑ "Costa Rican Supreme Court says no to homosexual "marriage"". LifeSiteNews.com. Retrieved 2015-01-01.
  9. 1 2 "COSTA RICA: Congress to Study Bill on Homosexual Civil Unions - IPS". Ipsnews.net. 19 September 2006. Archived from the original on 10 June 2011. Retrieved 1 August 2010.
  10. ↑ "Referendum initiative on gay unions awaits go-ahead". Ticotimes.net. 22 June 2010. Archived from the original on 9 October 2010. Retrieved 1 August 2010.
  11. ↑ "¿Aprueban por accidente matrimonio gay en Costa Rica?", SDPNoticias.com, 3 July 2013
  12. ↑ "Costa Rica Accidentally Approves Same-Sex Unions", The Huffington Post, 3 July 2013
  13. ↑ "Costa Rica 'accidentally' legalises gay marriage", The Independent, 5 July 2013
  14. ↑ (in Spanish) Presidenta Laura Chinchilla firmó ley con la que diputados habrían dado derechos a parejas gais. Retrieved 13 July 2013.
  15. 1 2 (in Spanish) Juzgado acepta por primera vez el trámite de una unión homosexual en Costa Rica. Retrieved 13 July 2013.
  16. ↑ Buscan reformar Código de Familia para aprobar unión gay
  17. ↑ (in Spanish) Proyecto de ley N.°19.508
  18. ↑ Andres Pretel, Enrique. "Latin American human rights court urges same-sex marriage legalization". Retrieved January 12, 2018.
  19. ↑ (in Spanish) “Estamos haciendo valer un derecho”: primer matrimonio igualitario de Costa Rica
  20. ↑ (in Spanish) Dirección de Notariado abre “proceso de fiscalización” a notario que casó a pareja gay
  21. ↑ Madrigal, Rebeca (February 22, 2018). "Sala IV estudia seis acciones de personas que reclaman validez del matrimonio gay". La Nación. Retrieved February 23, 2018.
  22. ↑ "Costa Rica court: End gay marriage ban". BBC News. 2018-08-10. Retrieved 2018-08-12.
  23. ↑ Kilian Melloy (21 September 2007). "Costa Rica Contemplating Gay Adoption Ban". EDGE Boston. Retrieved 27 December 2012.
  24. ↑ Andrew Belonksy (20 September 2007). "Costa Rica Squashing Queer Adoption? / Queerty". Queerty.com. Retrieved 27 December 2012.
  25. ↑ Costa Rica considers law to prevent gay adoption Pink News
  26. ↑ Additional information for considering the Costa Rica Report Human Rights Committee 116th Session
  27. ↑ "TSE no tiene competencias para cambiar sexo en cédulas". El Mundo CR (in Spanish). 15 May 2018. Retrieved 20 May 2018.
  28. ↑ (in Spanish) REGLAMENTO DE FOTOGRAFÍAS PARALA CÉDULA DE IDENTIDAD DECRETO N.º 08-2010
  29. ↑ "Cédula otorga una nueva identidad a hombre 'trans'" (in Spanish). Retrieved 22 October 2016.
  30. ↑ "Mujer trans logra cambio de nombre en cédula de identidad" (in Spanish). Retrieved 22 October 2016.
  31. ↑ "Change In Sex Designation In Identity Card (Cedula) Possible If Bill Is Approved". Q Costa Rica. 19 January 2016. Retrieved 20 May 2018.
  32. ↑ "Personas trans podrían cambiar su sexo en el Registro al cumplir 18 años". La Nación (in Spanish). 17 June 2017. Retrieved 20 May 2018.
  33. ↑ "TSE avala plan que permite cambio de género a personas transexuales". La Nación (in Spanish). 13 June 2017. Retrieved 20 May 2018.
  34. ↑ "Aprueban cambio de nombre por identidad de género". www.tse.go.cr (in Spanish). Supreme Electoral Court of Costa Rica. Retrieved 20 May 2018.
  35. ↑ "TSE Approves Change Of Gender Identity On Cedula". Q Costa Rica. 15 May 2018. Retrieved 20 May 2018.
  36. ↑ (in Spanish) Alvarado firma decreto que favorece a transexuales
  37. ↑ Costa Rica Lifts Ban on Gay Blood
  38. ↑ "LA IGUALDAD DEL SISTEMA COSTARRICENSE ENFOCADO EN LA PERCEPCIÓN DE LA POBLACIÓN DE MUJERES Y HOMOSEXUALES". Mi tinta es el alma. Retrieved 2016-02-07.
  39. 1 2 Written out. How Sexuality is Used to Attack Women's Organizing, authored by Cynthia Rothschild, a revised publication of the International Gay and Lesbian Human Rights Commission and the Center for Women's Global Leadership, 2005, pages 123-128
  40. ↑ University in Costa Rica Adopts Anti-Gay Policy
  41. ↑ "Gay and Lesbian Travelers, Costa Rica in English". 1-costaricalink.com. Archived from the original on 25 October 2010. Retrieved 1 August 2010.
  42. ↑ Gay Lesbian Travel Costa Rica
  43. ↑ "Costa Rica: Political Progress, Cultural Lag", The Free Library by Farlex, 2001
  44. ↑ "Costa Rica backs International Day Against Homophobia - from Pink News - all the latest gay news from the gay community". Pink News. 2008-05-01. Retrieved 2010-08-01.
  45. ↑ "No Conjugal Visits For Gay Inmates In Costa Rica | On Top Magazine :: Gay & Lesbian News, Entertainment, Commentary & Travel". Ontopmag.com. 2008-08-10. Retrieved 2010-08-01.
  46. ↑ Conjugal Visits For Gay Couples Legalized In Costa Rica
  47. ↑ "Costa Rican Legislature Declared Homophobia Free". Inside Costa Rica. Retrieved 30 August 2016.
  48. ↑ "Carmen Muñoz: la exguerrillera de Alajuelita que llevará el megáfono del PAC". nacion.com. 21 April 2013. Retrieved 2013-04-21.
  49. ↑ "Solís sobre bandera de diversidad: "No estoy en un concurso de belleza, debo gobernar para todos"". ameliarueda.com. 16 May 2014.
  50. ↑ Dyer, Zach (16 May 2014). "Social conservative lawmakers incensed over LGBT flag at Casa Presidencial". The Tico Times. San Jose. Retrieved 19 May 2014.
  51. ↑ Gay Costa Rican legislator sworn in
  52. ↑ (in Spanish) Matrimonio igualitario quiebra a la fracción legislativa del PAC
  53. ↑ Ray Of Hope: Costa Rica’s Progressive Approach to HIV/AIDS
  54. ↑ "Catholics, evangelicals protest sexual education in Costa Rica schools", TicoTimes.net, 18 July 2012 Archived 1 January 2013 at the Wayback Machine.
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