LGBT rights in Portugal

LGBT rights in Portugal Portugal
Location of  Portugal  (dark green)

– in Europe  (light green & dark grey)
– in the European Union  (light green)  –  [Legend]

Same-sex sexual intercourse legal status Legal since 1983;
age of consent equalized in 2007
Military service Gays, lesbians and bisexuals allowed to serve openly
Discrimination protections Sexual orientation and gender identity protections (see below)
Family rights
Recognition of
relationships		 Unregistered cohabitation since 2001,[1]
Same-sex marriage since 2010
Adoption Yes, since 2016

Lesbian, gay, bisexual and transgender (LGBT) rights in Portugal have improved substantially in the past decade and are now among the best in the world. After a long period of oppression during the Salazar dictatorship, Portuguese society has become increasingly accepting of homosexuality,[2] which was decriminalized in 1983,[3] eight years after the Carnation Revolution. Portugal has wide-ranging anti-discrimination laws and is one of the few countries in the world to contain a ban on discrimination based on sexual orientation in Article 13 of its Constitution. On 5 June 2010, the state became the eighth in the world to recognize same-sex marriage.[4][5][6][7] On 1 March 2011, the President ratified the Law of Gender Identity, said to be one of the most advanced in the world, which simplifies the process of sex and name change for transgender people.[8][9] Same-sex adoption has been legal since 1 March 2016.[10]

The country, while still influenced by Roman Catholicism, has progressively become more accepting of same-sex relationships and homosexuality. Opinion polls suggest that over 60% of the Portuguese population supports same-sex marriage and that around 70% believes that LGBT people should enjoy equal rights. Lisbon and Porto have visible LGBT scenes, with several gay bars, nightclubs and other venues, as well as their annual pride parades.

Legality of same-sex sexual activity

Same-sex sexual activity was first decriminalised in 1852, under Mary II and Ferdinand II, but it was made a crime again in 1886, under Louis I, and Portugal gradually became more oppressive of homosexuals until and throughout the dictatorship years.[11] It wasn't until 1983 that same-sex sexual activity was decriminalised again, and the age of consent was equalized with different-sex activity at 14 years of age in 2007.

Recognition of same-sex relationships

Portugal has recognized unregistered cohabitation since 5 May 2001, and same-sex marriage since 5 June 2010.[12] Same-sex marriage was legalized under the second term of the Socrates Socialist Government, and passed the Portuguese Parliament with the support of other leftist parties. Same-sex married couples are granted all of the rights of different-sex married couples. The Penal Code was amended in 2007 to equalize the age of consent and to criminalize domestic violence in same-sex relationships, thus equalizing treatment with opposite-sex couples.[13]

Adoption and family planning

Since 2016, Portuguese law has allowed adoption of children by same-sex couples. Prior to that reform, same-sex couples were barred from adopting and informally forbidden from fostering children, although there had been several court rulings allowing children to live with same-sex family couples.

In the past, Portugal had been forced to pay a fine due to homophobic statements from a court that ruled against a gay father's right for his daughter's custody. The European Court of Human Rights received the case and ruled in favour of the father in 1999, demanding the custody back to him and issuing a penalty for the country.

In March 2011, the President ratified the new Law of Gender Identity, which, among other things, does not impose sterility for transsexuals, thus recognizing biological LGBT parenting concerning cases of lesbian or bisexual transwomen who keep their semen before therapy and surgery to be able to later conceive with their spouses, creating a perfectly legal and recognized case of children with biological same-sex parents.[14]

On 17 May 2013, Parliament rejected a bill allowing same-sex couples to adopt children, in a 104-77 vote. On the same day, Parliament approved a bill, in its first reading, allowing same-sex married couples to adopt their partner's children (i.e. stepchild adoption).[15] However, that bill was rejected in its second reading on 14 March 2014, in a 107-112 vote.[16] Other bills granting adoption rights to same-sex parents and carers, as well as in vitro fertilisation for lesbian relationships, were introduced in Parliament by the opposition Socialist and Left Block parties on 16 January 2015.[17] On 22 January, Parliament rejected the proposals.[18]

On 23 September 2015, parties from the Left majority in Parliament submitted bills to grant same-sex couples full adoption rights as well as access to in vitro fertilisation.[19][20][21] On 20 November 2015, 5 proposals regarding adoption rights were approved by Parliament in their first readings.[22] The bills were then moved to the Constitutional Affairs, Rights, Freedoms and Guarantees Committee, where they were merged into one project and approved on 16 December 2015.[23] On 18 December 2015, the bill was approved by Parliament.[24][25] On 25 January 2016, one day after the presidential election, the outgoing President Aníbal Cavaco Silva vetoed the adoption bill.[26] The Left majority in Parliament announced their intention to override the veto. On 10 February 2016, the veto was overturned by Parliament.[27] The President begrudgingly signed the bill into law on 19 February 2016.[28] It was published in the official journal on 29 February. The law took effect the first day of the first month after its publication (i.e. 1 March 2016).[29]

On 13 May 2016, Parliament adopted a bill to give female same-sex couples access to medically assisted reproduction.[30][31][32] It was signed into law by President Marcelo Rebelo de Sousa on 7 June.[33][34][35] The law was published in the official journal on 20 June and took effect the first day of the second month after publication (i.e. 1 August 2016).[36][37][38]

Surrogacy was explicitly banned under a law adopted in 2006. In 2016, the Portuguese Parliament passed a law allowing gestational surrogacy under limited circumstances, such as when a woman is born without a uterus or has a serious illness that affects her uterus. Surrogacy, under any of its forms, is still illegal for same-sex couples.[39][40][41]

Discrimination protections and hate crime laws

LGBT flag map of continental Portugal

In 2003, laws against discrimination based on sexual orientation in employment came into effect concerning three particular measures: access to work and employment, protection against discrimination in work and against sexual harassment.[42] Since 2004, the Constitution has prohibited any form of discrimination based on sexual orientation, making Portugal one of the only countries in the world to enshrine a ban on discrimination based on sexual orientation in its Constitution.[42][43] A new Penal Code came into force in 2007, strengthening the anti-discrimination legislation much further. The Penal Code contains several provisions that relate to sexual orientation in three aspects: recognition of same-sex relationships through protection in the same means as to different-sex relationships, such as against domestic violence and murder; equal age of consent between same-sex and different-sex relationships; and sexual orientation being considered an aggravating circumstance in homicide and hate crime cases.[13]

In 2013, the Portuguese Parliament passed a law adding "gender identity" to the hate crimes provision in the Penal Code.[44]

In 2015, the Portuguese Parliament unanimously approved a measure to formally adopt 17 May as the "National Day Against Homophobia and Transphobia". In doing so, the Parliament committed to "engage in fulfilling national and international commitments to combat homophobic and transphobic discrimination".[45]

Gender identity and expression

Discrimination based on gender expression is illegal in Portugal.

In March 2011, the President ratified the new Law of Gender Identity, which allows transgender persons to change their legal gender on their birth certificates.[14][46]

On 19 January 2015, the Portuguese Parliament voted for the inclusion of gender identity as a protected ground of discrimination in the field of employment. Gender identity was added to sexual orientation and several other grounds in the non-discrimination clauses of the Portuguese Labour Code.[47] Additionally, since 2013, hate crimes on the basis of gender identity have been outlawed.[44]

On 24 May 2016, the Left Bloc introduced a bill to allow legal gender change solely based on self-determination.[48][49][50] Similar bills were introduced by People–Animals–Nature party and the Government in November 2016 and May 2017, respectively.[51][52] They were merged into one measure by a parliamentary committee and subsequently approved by the Parliament on 13 April 2018.[53][54][55] On 9 May, the President vetoed the bill.[56][57] On 12 July, the Parliament adopted the bill with changes with regards to sex changes by minors aged 16 and 17, suggested by the President in his veto message.[58][59] This time around, the President signed the bill on 31 July.[60][61] It was published in the official journal on 7 August 2018 and took effect the following day.[62][63]

The law allows an adult person to change their legal gender without any requirements. Minors aged 16 and 17 are able to do so with parental consent and a psychological opinion, confirming that their decision has been taken freely and without any outside pressure. The law also prohibits both direct and indirect discrimination based on gender identity, gender expression and sex characteristics, and bans non-consensual sex assignment treatment and/or surgical intervention on intersex children.[64]

Living conditions

Gay Pride in Lisbon

Although there are several cases of public prejudice against LGBT people, there is a dynamic gay scene in Lisbon,[2] Porto and in the main touristic cities in the Algarve region,[2] such as Faro, Lagos, Albufeira and Tavira, with several gay bars, pubs, nightclubs and beaches. Other smaller cities and regions such as Aveiro, Leiria, Coimbra, Braga, Évora and Madeira have more discreet gay communities, not very visible to the public eye. In Lisbon, most LGBT-oriented businesses are grouped around the bohemian Bairro Alto and the adjacent Príncipe Real and Chiado neighbourhoods.[65][65][66][67] In both Lisbon and Porto, there are also annual Pride parades that attract thousands of participants and spectators. Lisbon is also host to one of the largest LGBT film festivals in Europe – Queer Lisboa – the Lisbon Gay & Lesbian Film Festival. Some Portuguese beaches are popular among LGBT people, like 19 Beach, near Costa da Caparica, and Barril Naturist Beach (an official naturist beach) or Cacela Velha beach, both of them near Tavira.[66][68]

Public opinion

From left, Israeli Ambassador Tzipora Rimon, U.S. Ambassador Robert Sherman, Canadian Ambassador Jeffrey Marder, Danish Ambassador Michael Suhr, Belgian Ambassador Boudewijn Dereymaerker and Dutch Ambassador Govert de Vroe attend the 2016 LGBTI Pride parade in Lisbon[69]

A Eurobarometer survey published in late 2006 showed that only 29% of Portuguese surveyed supported same-sex marriage and 19% recognised same-sex couple's right to adopt (EU-wide average 44% and 33%).[70]

Opinions on same-sex marriage have considerably changed in 2009 with the discussion of the same-sex marriage bill. A survey by the Universidade Catolica revealed that 42% of the inquired citizens were in favour of same-sex marriage and another survey by Eurosondagem, Radio Renascenca, SIC TV, and the Expresso newspaper stated that about 52% of the Portuguese were in favour of same-sex marriages.[71][72] An Angus Reid poll on 11 January 2010 showed that 45.5% of those polled were in support of same-sex marriage, but this was less than the 49.3% that opposed. A Eurobarometer survey published in 2015 showed that support for same-sex marriage had risen significantly to 61%.[73]

Views on adoption had not been changed significantly at the time same-sex marriage was passed into law: only 21.7% favored adoption, while 68.4% opposed allowing same-sex couples to adopt.[74] However, in 2014, during the debate on Parliament's initiative to legalize stepchild adoption for same-sex couples, polls showed that the majority of the Portuguese population supported both stepchild adoption and full adoption rights.[75]

Eurobarometer

Below is the share of respondents in Portugal who agreed with the following statements in the 2015 Special Eurobarometer on discrimination.[76] The last column is the change from the 2006 Eurobarometer where respondents were presented the slightly different statement "Homosexual marriages should be allowed throughout Europe".[77]

Member state "Gay and lesbian people
should have the same rights
as heterosexual people"		 "There is nothing wrong
in a sexual relationship between
two persons of the same sex"		 "Same-sex marriages should be
allowed throughout Europe"		 Change from 2006
on last statement
 Portugal71%59%61%+32

Military service

Portugal allows all citizens to serve openly in the military regardless of sexual orientation, as the Constitution explicitly forbids any discrimination on that basis. Lesbians and gay or bisexual men and women are therefore able to serve in the military on the same basis as heterosexual men and women.[78]

In April 2016, Portugal's armed forces chief General Carlos Jerónimo resigned, days after being summoned to explain comments about gay soldiers made by the deputy head of the military college. President Marcelo Rebelo de Sousa accepted the resignation of Jerónimo, who took up the post of chief of staff in 2014. The resignation came after António Grilo, deputy head of the military college, admitted advising parents of young military students in the Portuguese army to withdraw their sons if they were gay "to protect them from the other students". Defence Minister Azeredo Lopes considered any discrimination "absolutely unacceptable".[79]

Asylum recognition

Since 30 August 2008, sexual orientation and gender identity have been recognised as grounds to apply for asylum.[80]

Blood donation

In 2010, Parliament unanimously approved a Left Bloc petition to allow gay and bisexual men to donate blood.[81] The motion was to finally be implemented by the Portuguese Blood Institute in October 2015, and a six-month or one year deferral period was to be enacted.[82][83] However, the motion's implementation was delayed.[84][85] In late September 2016, the new rules came into effect and allow gay and bisexual men to donate blood after a one-year deferral period.[86]

Summary table

Unofficial flag of the Portuguese LGBT community
Same-sex sexual activity legal (From 1852 to 1886; and since 1983)
Equal age of consent (14) (Since 2007)
Anti-discrimination laws in employment (Since 2003)
Anti-discrimination laws in all other areas (Since 2004)
Hate crime laws include sexual orientation and gender identity (Since 2007 for sexual orientation and since 2013 for gender identity)
Same-sex marriage (Since 2010)
Recognition of same-sex unions (Since 2001)
Adoption by single LGBT persons
Stepchild adoption by same-sex couples (Since 2016)
Joint adoption by same-sex couples (Since 2016)
LGB people allowed to serve in the military (Since 1999)
Transgender people allowed to serve openly in the military
Right to change legal gender (Since 2011)
Sex reassignment surgery not required for the change of legal gender (Since 2018)
Intersex minors protected from invasive surgical procedures (Since 2018)
Sexual orientation/gender identity for asylum recognition (Since 2008)
Access to artificial insemination/IVF for female couples (Since 2016)
Conversion therapy banned on minors
Homosexuality declassified as an illness (Since 2003)
Automatic parenthood for both spouses after birth (Since 2016)
Commercial surrogacy for gay male couples (Banned regardless of sexual orientation)
MSMs allowed to donate blood / (Since 2016; 1 year deferral period)

See also

References

  1. ↑ International: Global Summary of Registered Partnership, Domestic Partnership, and Marriage Laws, stand as of November 2003, International Gay and Lesbian Human Rights Commission
  2. 1 2 3 Mark Ellingham, John Fisher, Graham Kenyon: The rough guide to Portugal, Rough Guides, 2002, ISBN 9781858288772, p. 49.
  3. ↑ (in Portuguese) PortugalPride.org
  4. ↑ (in Portuguese) Lei n.° 9/2010 de 31 de Maio Permite o casamento civil entre pessoas do mesmo sexo
  5. ↑ (in Portuguese) Segunda-feira já vai ser possível celebrar casamentos entre pessoas do mesmo sexo
  6. ↑ Portugal becomes the sixth country in Europe to legalise gay marriage, Kate Loveys, Daily Mail, 18 May 2010
  7. ↑ Portugal's president to ratify same-sex marriage law, BBC News, 17 May 2010
  8. ↑ (in Portuguese) Statement of the Presidency of the Republic on the bill referring to sex change in civil registries
  9. ↑ Cavaco Silva ratifies the bill referring to sex change in civil registries
  10. ↑ Lei n.º 2/2016 de 29 de fevereiro
  11. ↑ (in Portuguese) O Estado Novo dizia que não havia homossexuais, mas perseguia-os
  12. ↑ Portugal's president ratifies gay marriage law, Business Week, Barry Hatton
  13. 1 2 (in Portuguese) Vigésima terceira alteração ao Código Penal, Alterações Lei N° 59/2007 de 4 de Setembro
  14. 1 2 Portuguese Gender Identity Law Law No. 7/2011 of 15th March 2010
  15. ↑ Portugal Expands Adoption Rights for Gay Couples
  16. ↑ (in Portuguese) Projeto de Lei 278/XII
  17. ↑ Duffy, Nick (11 January 2015). "Portugal: Opposition party to table same-sex adoption bill". Pink News. Retrieved 25 July 2015.
  18. ↑ "Portuguese parliament votes against gay couples adopting". Agence France-Presse. MSN News. 22 January 2015. Retrieved 25 July 2015.
  19. ↑ (in Portuguese) Projeto de Lei 5/XIII: Elimina as discriminações no acesso à adoção, apadrinhamento civil e demais relações jurídicas familiares, procedendo à segunda alteração à Lei n.º 7/2001, de 11 de maio, e à primeira alteração à Lei n.º 9/2010, de 31 de maio
  20. ↑ (in Portuguese) Projeto de Lei 2/XIII: Eliminação da impossibilidade legal de adoção por casais do mesmo sexo. Primeira alteração à Lei n.º 9/2010, de 31 de maio e segunda alteração à Lei n.º 7/2001, de 11 de maio
  21. ↑ (in Portuguese) Projeto de Lei 6/XIII: Segunda Alteração à Lei n.º 32/2006, de 26 de Junho, alargando o âmbito dos beneficiários das técnicas de Procriação Medicamente Assistida
  22. ↑ Portugal Allows Same-Sex Adoption, Artificial Insemination
  23. ↑ (in Portuguese) Votação na Reunião da Comissão nº. 7 em 2015-12-16
  24. ↑ (in Portuguese) Votação final: 17 deputados do PSD votaram a favor da adoção plena
  25. ↑ (in Portuguese) Cavaco decide promulgação da adopção gay e interrupção da gravidez até ao fim de Janeiro
  26. ↑ Portugal's outgoing president vetoes gay adoption bill
  27. ↑ Reuters: Portugal parliament overturns veto on adoption by gay couples
  28. ↑ (in Portuguese) "Cavaco promulgou adoção gay e alterações à lei do aborto". TSF Radio Noticias. 19 February 2016.
  29. ↑ (in Portuguese) Lei n.º 2/2016 de 29 de fevereiro
  30. ↑ (in Portuguese) Projeto de Lei 36/XIII
  31. ↑ (in Portuguese) AR alarga PMA a mais mulheres e aprova gestação de substituição
  32. ↑ (in Portuguese) Parlamento aprova barrigas de aluguer e Procriação Medicamente Assistida
  33. ↑ (in Portuguese) O Presidente da República, alertando para a insuficiente protecção dos direitos da criança, promulga alargamento da Procriação Medicamente Assistida
  34. ↑ (in Portuguese) Marcelo promulga procriação assistida, mas veta gestação de substituição
  35. ↑ (in Portuguese) Marcelo promulga 35 horas e veta barrigas de aluguer
  36. ↑ (in Portuguese) Lei 17/2016 de 20 de junho
  37. ↑ (in Portuguese) Lei que alarga a procriação medicamente assistida publicada em Diário da República
  38. ↑ (in Portuguese) Todas as mulheres com acesso à PMA a 1 de Agosto
  39. ↑ (in Portuguese) Parlamento aprova gestação de substituição
  40. ↑ Portugese [sic] president vetoes surrogacy law
  41. ↑ Surrogacy was legalized in Portugal
  42. 1 2 (in Portuguese) Homossexualidade é crime em 75 países
  43. ↑ (in Portuguese) Constituição da república Portuguesa
  44. 1 2 Portugal passes trans hate crime law
  45. ↑ Portugal formally adopts national anti-discrimination day with unanimous vote
  46. ↑ (in Portuguese) Comunicado na Presidência da República sobre o diploma relativo ao procedimento de mudança de sexo no registo civil
  47. ↑ ILGA-Europe
  48. ↑ (in Portuguese) Projeto de Lei 242/XIII
  49. ↑ (in Portuguese) BE apresenta projecto de lei para permitir mudança de sexo aos 16 anos
  50. ↑ (in Portuguese) BE quer permitir mudança de sexo aos 16 anos
  51. ↑ (in Portuguese) Projeto de Lei 317/XIII
  52. ↑ (in Portuguese) Proposta de Lei 75/XIII
  53. ↑ Portugal's parliament approves new legal gender change law
  54. ↑ Portugal Gender Change Law Boosts Transgender Rights, Protects Infants
  55. ↑ Parliament approves change of gender on official ID from age 16
  56. ↑ Portugal can still be legislative innovators on LGBTI equality – don’t stop now!
  57. ↑ Presidente da República solicita à Assembleia na República que, no decreto sobre identidade de género, preveja relatório médico quando se trate de menores
  58. ↑ Parlamento volta a aprovar autodeterminação da identidade de género
  59. ↑ Parlamento aprova lei da autodeterminação da identidade de género
  60. ↑ Presidente da República promulga lei da autodeterminação da identidade de género
  61. ↑ Marcelo promulga lei da Uber e alteração à lei da identidade de género
  62. ↑ Lei da autodeterminação da identidade de género entra em vigor amanhã
  63. ↑ Publicada lei que concede direito à autodeterminação de género
  64. ↑ Lei n.º 38/2018
  65. 1 2 David J. J. Evans: Cadogan Guides Portugal, New Holland Publishers, 2004, p. 56., ISBN 9781860111266
  66. 1 2 Lisbon Gay Travel Guide & Map – Bars, Clubs, Hotels
  67. ↑ (in Portuguese) O que é que o Chiado tem? Archived 22 February 2014 at the Wayback Machine.
  68. ↑ The natural delights of Faro
  69. ↑ LGBTI Pride Parade in Lisbon, US Embassy Lisbon, Flickr.com, Capture June 16, 2016, 26.01.2018
  70. ↑ Eight EU Countries Back Same-Sex Marriage Archived 5 September 2008 at the Wayback Machine.
  71. ↑ (in Portuguese) Somos uma sociedade homofóbica?
  72. ↑ Portuguese support same-sex marriage, by a smidge
  73. ↑ Eurobarometer 2015: Same-sex marriage support in the EU
  74. ↑ Portuguese Split on Same-Sex Marriage
  75. ↑ (in Portuguese) Portugueses querem referendo sobre coadoção
  76. ↑ "Special Eurobarometer 437: Discrimination in the EU in 2015" (PDF). European Commission. October 2015. Archived from the original (PDF) on 22 January 2016.
  77. ↑ "Eurobarometer 66: Public opinion in the European Union" (PDF). European Commission. December 2006.
  78. ↑ LGBT world legal wrap up survey. Archived 10 March 2012 at the Wayback Machine.
  79. ↑ Zee News India, Portugal military chief resigns over remark on gay soldiers, 08.04.2016
  80. ↑ Rainbow Europe: Portugal
  81. ↑ (in Portuguese) AR aprova diploma que permite a homossexuais dar sangue
  82. ↑ Portugal's gay men allowed to give blood
  83. ↑ (in Portuguese) Homossexuais vão poder doar sangue
  84. ↑ (in Portuguese) Gays continuam excluídos das doações de sangue
  85. ↑ Portugal's gays still banned from giving blood
  86. ↑ Gay men "finally allowed to give blood in Portugal", says media
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