LGBT rights in Chile

In 1810, the age of consent for opposite-sex activity was 12. In 1999, the age of consent was set at 14 for both girls and boys in relation to heterosexual sex.[3] Homosexual acts were decriminalized in 1999, with an age of consent of 18.[4] In 2011, the Tribunal Constitucional de Chile confirmed that the age of consent is 14 for heterosexual relations (for both girls and boys), as well as for lesbian relations (Woman-girl), but it is 18 for male homosexual relations.[5][6] In August 2018, the Constitutional Court again rejected that Article 365 of the Criminal Code was unconstitutional, in a 5-5 vote, validating for the second time in its history that the age of consent for gay men is 18, while for heterosexuals and lesbians is 14 years old.[7]

In July 2019, the Chamber of Deputies unanimously approved a bill repealing article 365 that if enacted it would establish a universal age of consent set at 14, regardless of gender or sexual orientation. The bill is currently being discussed in the Senate.[8]

Chile's civil union laws enable same-sex and opposite-sex cohabitating couples to co-own property and make medical decisions as well as claim pension benefits and inherit property if their civil partner dies. Gaining custody of a partner's child where necessary is also made easier by the law. The new law recognises marriages performed abroad as civil unions and views couples and their children as a family.[10]

In August 2011, President Sebastián Piñera introduced a bill to Congress allowing registered cohabitation.[11] After four years of debate and improved provisions added during Michelle Bachelet's administration, the bill was passed in both houses on 28 January 2015.[1][12][13] On 13 April 2015, the bill was signed into law by President Bachelet and was published in the Official Gazette on 21 April 2015. It took effect on 22 October 2015.[10][14]

On 1 December 2016, the Chamber of Deputies unanimously approved (except for 6 abstentions) a bill to give couples who enter in a civil union five days off, like couples who marry have. The bill was approved by the Senate in October 2017, in a unanimous 15-0 vote.[15] It took effect on 8 November 2017.[16]

On 28 August 2017, President Michelle Bachelet introduced the Marriage Equality Bill, fulfilling an election promise and as part of the "Friendly Settlement Agreement" signed in June 2016 by the State of Chile with the Movement for Homosexual Integration and Liberation (Movilh), in the context of a lawsuit filed before the Inter-American Commission on Human Rights (CIDH), involving the lack of access to civil marriage by three same-sex couples in Chile.[17][18]

The bill would have amended the definition of marriage of article 102 of the Civil Code, replacing the phrase that determines it as the union "between a man and a woman", by "the union between two people". In addition, the measure contemplates the right of joint adoption and filiation (automatic parenthood) for same-sex couples.[19] As of January 2020, the bill is still under debate.

There are no laws that guarantee or protect the right to access to assisted reproductive technology. Lesbian couples may access to IVF treatments, though they do not have medical insurance coverage due they do not have an infertility pathology.[36]

Currently in Chile, there is no specific legislation on surrogacy.[37] In January 2018, a bill to allow altruistic surrogacy for same-sex couples and to ban commercial surrogacy for all couples was introduced to Congress.[38]

In 2014, a children’s book addressing same-sex parent families was published. The book is currently being distributed to pre-school kids in public kindergartens in Chile. Despite being backed by the Chilean government, "Nicolás Has Two Dads" is not compulsory reading material for kindergartens throughout the country.[39]

"Nicolás Has Two Dads" ("Nicolás tiene dos papás"), written by Movilh, tells the story of Nicolás, a little boy who lives with his two fathers. From sleepovers and trips to the stadium to reunions with his biological mother and explaining to his classmates why he has two dads, Nicolás leads readers through his everyday life.

The book is sponsored by The National Kindergarten Board (Junji), the Association of Toddler Educators, the National Directorate of Libraries, Archives and Museums, and the Departments of Psychology and Early Childhood and Basic Education of the University of Chile.

The law in effect since 2012, imposes penalties for acts of discrimination on the basis of sexual orientation and gender identity, and since 2018 gender expression. It allows citizens to file anti-discrimination lawsuits and requires the State to develop public policies to end discrimination.[44] It describes as illegal discrimination "any distinction, exclusion or restriction that lacks reasonable justification, committed by agents of the state or individuals, and that causes the deprivation, disturbance or threatens the legitimate exercise of fundamental rights."[45] The law is colloquially known as the Zamudio law, in honor of Daniel Zamudio.

In Chile, the relationship between suppliers of goods or services and consumers is regulated by Law No. 19,496 on the Protection of the Rights of Consumers. Article 3 states that are basic rights of the consumer, among others, the right to non-discrimination.[46] The anti-discrimination law enacted in 2012 defines discrimination and includes protection against it on grounds of sexual orientation, gender identity and gender expression.

In December 2012, in the first ruling under the anti-discrimination law, a judge ordered a motel to pay a fine to a lesbian couple for refusing them entry, and ordered that it can't refuse entry on another occasion. The Third Civil Court of Santiago was emphatic in saying that denying services or products based on sexual orientation or gender identity was illegal.[47][48]

Since 2016, the Labor Code explicitly prohibits discrimination based on sexual orientation and gender identity.[49][50] The Labor Inclusion Law enacted in May 2017, which also amends the Law on Administrative Statute, prohibits any act of arbitrary discrimination resulting in exclusions or restrictions, based on sexual orientation and gender identity.[51]

In 2004, the authorities announced that the rules of non-discrimination guaranteed in labor law also apply to the sexual minorities. In 2007, The Department of Labor made possible, through the implementation of the new politics, to make reports of discrimination based on sexual orientation or gender identity. The change came from a petition by Movilh and originated from an event in 2007 when an employee did the first report of this kind in a governmental instance. In June 2014, The Department of Labor officially updated the "Principles regarding the right to non-discrimination" set out in the Labour Code, according to the effects of the anti-discrimination law that includes sexual orientation and gender identity as protected classes.[52]

In December 2015, a court ordered the Municipality of Talca to compensate three former employees who had been dismissed because of their sexual orientation. The court ruling also requires the Mayor Juan Castro Prieto and other officials to be trained in human rights.[53]

The General Law of Education (LGE) promulgated in 2009, included the principles of non-discrimination and respect to diversity. The Ministry of Education launched in 2010 the School Coexistence Regulation, which points out the importance of eradicating the discrimination against LGBT people in the classroom.[54]

In September 2011, Chile's Congress approved "The Law about School Violence" that amended the General Law of Education to establish definitions, procedures, and penalties for school violence and bullying. The law has a positive impact on the fight against homophobia and transphobia in the classroom.[55] Educational institutions are required to create a Good School Coexistence Committee which will be responsible for managing and take all necessary measures to ensure a non-violent school life.[56]

In 2013, the Superintendence of Education updated the Handbook for educational establishments on Rules of Procedure with regard to school coexistence, which orders the non-discriminatory treatment concerning students based on their sexual orientation or gender identity, and indicates that the regulation of all schools must sanction any act of discrimination between members of the school community.[57]

In 2015, two new policies of the Ministry of Education recognized the importance of promoting the rights of LGBTI people in classrooms. The National School Coexistence Policy 2015-2018 guarantees non-discrimination for sexual diversity and it is incorporated into the School Calendar 2016 the "International Day Against Homophobia and Transphobia." The Ministry of Education recommends to schools develop educational, artistic, cultural or sports activities in commemoration of the date.[58]

The School Inclusion law, that took effect in March 2016, guarantees non-discrimination based on sexual orientation and gender identity, mentioning the anti-discrimination law.[59][60]

Since 2015, the Civil union law officially recognises same-sex couples as a family, and offers protection in access to housing.[61] The Ministry of Housing and Town Planning issued an instruction in 2009 which officially extended the benefit of housing allowance to couples made up of people of the same sex. The Minister Patricia Poblete said that discrimination based on sexual orientation or gender identity is not allowed in any of the services offered by her ministry, so gay couples can apply, without problems, housing subsidies.[62] In 2013 it was confirmed that the "rent subsidy" program benefits all families and young couples regardless of sexual orientation or gender identity.[63]

Since 2016, the "Household Social Register" recognizes same-sex cohabiting couples. It is an information system whose objective is to support the nomination and selection of beneficiaries of institutions and government agencies that provide social benefits.[64]

In 2012, the Anti-discrimination law amended the Criminal Code adding a new aggravating circumstance of criminal responsibility, as follows: "Committing or participating in a crime motivated by ideology, political opinion, religion or beliefs of the victim; nation, race, ethnic or social group; sex, sexual orientation, gender identity, age, affiliation, personal appearance or suffering from illness or disability." [65]

In July 2017, ten MPs introduced a bill to amend the Criminal Code to incorporate the crime of incitement to hatred or violence against people based on sexual orientation and gender identity, among other distinctions.[66] On 4 September 2017, Michelle Bachelet introduced a bill to Congress which would criminalize incitement to violence against a person or a group of people, based on race, national or ethnic origin, sex, sexual orientation, gender identity, religion or beliefs. The law will also amend the Press Law and the Law on Criminal Responsibility of Legal Entities.[67][68]

On January 9, 2020, the Chamber of Deputies passed the bill outlawing incitement to hatred or violence and hate speech against people based on sexual orientation, gender identity and gender expression.[69][70]

In November 2016, President Michelle Bachelet enacted the Anti-torture law establishing criminal penalties for torture and cruel, inhuman and degrading treatment. It covers physical, psychological abuse and sexual violence, and includes sexual orientation and gender identity as protected categories. The law aims to punish people in public service positions, both public employee or private individuals in public service, who instigate, carry out or hide knowledge of torture.[71][72]

Bill on "System of Guarantees of Rights of the Childhood," includes protection from discrimination towards LGBTI children and adolescents.[73] On 2 May 2017, the plenary session of the Chamber of Deputies approved the bill including LGBTI categories. The bill now heads to the Senate for discussion.[74]

Article 9 of the bill states that "no child shall be arbitrarily discriminated against because of their sexual orientation, gender identity, gender expression and sex characteristics," among other distinctions.[74]

The Migration and Immigration bill bans discrimination based on sexual orientation and gender identity. The Chamber of Deputies passed the bill on January 16, 2019.[75]

The bill on Gender Violence establishes the right of women to a life free of violence. The purpose of this law is to prevent, punish and eradicate violence against women, regardless of their sexual orientation or gender identity, among others. Also, it amends the Penal Code and the Intrafamily Violence law to include same-sex couples. The Chamber of Deputies passed the bill on January 17, 2019.[76]

The so-called Gabriela's Law (N° 21.212), named for Gabriela Alcaino, was signed into law on March 2, 2020. It extends the legal definition of femicide to any person who commits a gender-motivated homicide of a woman. It defines crimes against women as any that “represent a manifestation of hatred, contempt or abuse because of gender,” and covers physical, sexual, economic, institutional, political and workplace violence. The definition also extends to the death of a woman when it occurs due to sexual orientation, gender identity or gender expression of the victim.[77][78]

Since 2010, Law 20.418 on the Right to education, information and guidance on Fertility states that "everyone has the right to confidentiality and privacy about their sexual options and behaviors, as well as the methods and therapies they choose for the regulation or planning of their sexual life."[79]

In May 2014, Law 20.750 on the Introduction of Digital Terrestrial Television was enacted. The law creates the National Television Council whose main function is to ensure the proper functioning of television services. It is understood by the correct functioning of these services the permanent respect, through its programming, to pluralism. For the purposes of this law, pluralism will be understood as "respect for social, cultural, ethnic, political, religious, gender, sexual orientation and gender identity diversity, and it shall be the duty of the concessionaires and permit holders of TV services regulated by this law to observe these principles."[80]

In December 2015, President Michelle Bachelet signed a decree to set up the Office of the Undersecretary of Human Rights and establish an Inter-ministerial Human Rights Committee. It provides for a National Human Rights Plan that seeks to prevent discrimination, with specific reference to the anti-discrimination law that protects LGBT people in Chile.[81][82]

Law 21.120, which recognizes and protects the right to gender identity, introduced in 2013 and enacted in 2018, establishes a legal procedure that allows the change of name and registered sex in all official documents. For unmarried persons over 18 years of age, the change is requested by submitting a request to the Civil Registry and Identification Service, without being required to prove hormone replacement therapy or undergo sex reassignment surgery.[84]

Children under 18 and over 14 years old must complete the process before family courts, either through their legal parent or representative or by themselves, if the judge accepts the latter option. For such effects, antecedents on the psychosocial and family context of the adolescent and their relatives must be presented. Children under 14 years of age, although they will not be able to make a gender change through the law, are recognized as transgender.[84]

The Law guarantees as basic principles non-pathologization, non-arbitrary discrimination, confidentiality, dignity in the treatment, the best interests of the child and progressive autonomy. In addition, to become effective, the law establishes the creation of two regulations that include gender transition accompaniment programs for minors, and another on the requirements and accreditation for the change of name and registered sex. Finally, "gender expression" is added as a protected category to the Anti-discrimination Law.[84]

After five years of debate in Congress,[85][86][87][88][89][90][91] on September 5, 2018, the Senate approved the bill by 26 votes in favor and 14 against.[92] On September 12 the Chamber of Deputies did the same with 95 in favor and 46 against.[93] On October 25, 2018, the Constitutional Court declares the constitutionality of the approved law.[94] On November 28, 2018, President Sebastián Piñera signs and enact the law.[95][96] On December 10, 2018, the law is published in the Official Gazette.[84] The two regulations for the law to take effect were published in August 2019.[97][98] The law took effect on December 27, 2019.

In 1974, Marcia Alejandra Torres became the first person in Chile to legally change her name and gender on the birth certificate. Previously, in May 1973, Marcia was the first person in the country to undergo a sex reassignment surgery.[99]

Until 2018, in Chile there was no specific law in force that regulates a procedure, nor specific requirements, to achieve the change of legal gender in the documents. A legal process must be initiated before a Civil Court, making use of the procedure to change the name of Law Nº 17,344. There must be presented a number of witnesses, and according to the requirements of each judge attach psychological and psychiatric evaluations, and certificates evidencing eventual surgical interventions or hormone replacement therapy. The resolution of the sentence is at the discretion of the Court, which may eventually approve only the change of name, leaving the sex assigned at birth, or modify both.[100]

In 2007, trans activist Andrés Rivera and a transgender woman were allowed, by judicial order, to change their name and gender on legal documents. In both cases, for the first time, surgery was not a requirement.[101][102] Several court rulings have allowed the change of name and gender on birth certificates, where a sex reassignment surgery has not been a requirement for the judge.[103][104][105]

The LGBT rights group Movilh achieved in 2001 that the Civil Register made an announcement that made possible for transsexuals in Chile to obtain their identity documentation without having to change their appearance. In 2009 the National Organization of Gendarmeries ordered the end to disciplinary sanctions against inmates which prevented them to dress accordingly to their gender identity.[106]

In 2011 the Ministry of Health approved a circular which obliged to call and register transsexuals by their social name in all care centers in Chile[107] and launched the first protocol which at nation level regulated the medical procedures of body alteration.[108] This was preceded by a pilot plan for free medical attention for transsexuals put in action by the Ministry of Health through a proposal of Movilh. In 2002 some offices had already established a certain health record for transsexuals so that they could receive care adequate of their gender identity.[109]

Since 2013, sex reassignment surgeries and hormone therapy are funded by the public health system (Fondo Nacional de Salud).[110]

Even before the law was passed in November 2018, some transgender children changed their name and gender on legal documents with judicial permission. Requirements could vary at the judge's discretion, and some cases were made public.[111][112]

In April 2017, the Ministry of Education issued a ministerial circular entitled "Rights of girls, boys and trans students in the field of education." The document, addressed to school administrations nationwide, points out that failure to comply with the measures constitutes an infraction that will be sanctioned according to its seriousness. Some of the required measures for schools include: guaranteeing the social name of trans students in all fields; guaranteeing the right to wear uniforms, sports clothes or accessories according to their gender identity; and providing bathroom and shower facilities that respect the gender identity of trans students.[113]

The bill "System of Guarantees of Rights of the Childhood" recognizes the right of children and adolescents to develop their gender identity.[73][114] Article 19 based on "Identity" states that "every child has the right, from birth, to have a name, a nationality and a language of origin; to know the identity of their fathers and/or mothers; to preserve their family relations in accordance with the law; to know and practice the culture of their place of origin and, in general, to preserve and develop their own identity and idiosyncrasy, including their gender identity."[74]

On 18 October 2017, the Chamber of Deputies passed the Mental Health Protection bill, which states in its article 6 that "a mental health diagnosis can not be made based solely on criteria related to the political, socioeconomic, cultural, racial or religious group of the person, nor with their identity or sexual orientation." The bill now heads to the Senate for discussion.[130]