LGBT rights in Puerto Rico

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LGBT rights in Puerto Rico
Puerto Rico
Same-sex sexual activity legal? Legal since 2003
Military service Gays and lesbians allowed to serve openly
Discrimination protections Discrimination based on sexual orientation or gender identity is prohibited in employment
Family rights
Recognition of
relationships
Domestic violence law protects couples regardless of sexual orientation or marital status
Restrictions:
Statute limits marriage to one man and one woman (1999)
Adoption No

Lesbian, gay, bisexual, transgender (LGBT) persons in Puerto Rico face some legal issues. Public discussion and debate about sexual orientation and gender identity issues has increased, and some legal changes have been made. Supporters and opponents of legislation protecting the rights of LGBT persons can be found in both of the major political parties. Public opposition still exists due, in large part, to the strong influence of the Roman Catholic Church, as well as socially conservative Protestants. Puerto Rico's status as a United States commonwealth has a great influence over legal rights of LGBT citizens.

Law regarding same-sex sexual activity[edit]

In 2003, the U.S. Supreme Court declared unconstitutional all state and territorial statutes penalizing consensual sodomy, when limited to non-commercial acts between consenting adults in private. The case, Lawrence v. Texas applied to the law in Puerto Rico as well. A year earlier, the Puerto Rico Supreme Court had ruled that the commonwealth's ban on sodomy was not unconstitutional.[1]

Puerto Rico modified its Penal Code in 2004 to remove private, non-commercial sexual activity between consenting adults from its sodomy statute.[2]

Recognition of same-sex relationships[edit]

On March 19, 1999, Governor Pedro Rosselló signed into law H.B. 1013, which defined marriage as "a civil contract whereby a man and a woman mutually agree to become husband and wife."[3]

In 2008, the Commonwealth's Senate passed a proposed referendum to voters that would have amended Puerto Rico's Constitution to define marriage as a union between a man and a woman, banning same-sex marriages, civil unions and domestic partnership benefits.[4] Better known as resolución 99 (resolution 99), the constitutional amendment was not approved by the Commonwealth's House of Representatives, after the legislative committee studying the proposal concluded not to recommend its approval. A similar bill was defeated in 2009.[5]

During the civil unions debate, attorney general Roberto Sánchez Ramos had declared it might be unconstitutional to deny the right of marriage to same-sex couples.[6]

In early January 2010, Governor Luis Fortuño made comments to a group of evangelical ministers that indicated he favored amending Puerto Rico's constitution to restrict marriage to the union of one man and one woman.[7] However, shortly afterwards he categorically denied that he favored such a measure.[8]

In 2013, Governor Garcia Padilla signed an order extending health insurance coverage to the same-sex domestic partners of workers in the executive branch.[9] That same year, Representatives Luis Vega Ramos, Carlos Vargas Ferrer and José Báez Rivera introduced House Bill 488 to extend domestic violence protections to all households, regardless of sexual orientation and gender identity.[10] The House passed the legislation on 24 May.[9] Governor Garcia Padilla signed the legislation into law on 29 May.[11]

Conde-Vidal v. Garcia-Padilla[edit]

Two women residing in Puerto Rico, represented by Lambda Legal Defense and Education Fund, filed a complaint in the U.S. District Court of Puerto Rico on March 25, 2014, seeking recognition of their 2004 marriage in Massachusetts. They initially named as defendants in their suit, Conde-Vidal v. Rius-Amendariz, Puerto Rico's secretary of health and registrar of vital statistics, later adding Governor Alejandro J. Garcia Padilla and treasury director, retitling the case Conde-Vidal v. Garcia-Padilla.

The plaintiffs argued that Puerto Rico's marriage law denied them constitutional rights guaranteed under the Due Process and Equal Protection clauses of the United States Constitution.[12][13] Four more couples joined as plaintiffs in June.[14] On August 28, Christian Chaplains, Capellanes Internacionales Cristianos León de Judá, asked to be allowed to intervene in the suit on behalf of its eight members who reside in Puerto Rico. They claimed that if the court rules for the plaintiffs they "will be obligated by law to marry same sex couples."[15] On October 17, Judge Juan M. Perez-Gimenez denied the group's request.[16]

Judge Perez-Gimenez dismissed the plaintiff's lawsuit on October 21, 2014, ruling that the United States Supreme Court's ruling in the 1972 case Baker v. Nelson prevented him from considering the plaintiffs' arguments. He concluded that Puerto Rico's definition of marriage did not conflict with the U.S. Constitution and that:

Puerto Rico, acting through its legislature, remains free to shape its own marriage policy. In a system of limited constitutional self-government such as ours, this is the prudent outcome. The people and their elected representatives should debate the wisdom of redefining marriage. Judges should not...traditional marriage is the fundamental unit of the political order. And ultimately the very survival of the political order depends upon the procreative potential embodied in traditional marriage.[17][18]

The plaintiffs plan to appeal to the First Circuit Court of Appeals.[19]

Adoption and parenting[edit]

Adoption of children by same-sex couples and step-child adoption by same-sex partners is currently prohibited by Puerto Rican law.

In February 2013, the Supreme Court of Puerto Rico, in a 5-4 decision, affirmed the ban on same-sex adoption in Puerto Rico. The court's majority opinion held that that Puerto Rico's constitution "does not prohibit discrimination based on sexual orientation" and accepted arguments presented by the legislature that the "traditional family, composed of a father, a mother, and their children best protected the well-being of minors."[20]

Discrimination[edit]

A gay rights bill (House Bill #1725) was introduced on May 21, 2009 in the island's House of Representatives, and it was approved by a 43 to 6 vote on November 11, 2009.[21] House Bill #1725 would have amended existing Puerto Rican civil rights laws to forbid discrimination on the basis of sexual orientation in the areas of employment, public transportation and public facilities, business transactions, and housing. The legislation addressed sexual orientation only, not gender identity. The bill was referred to Puerto Rico's Senate and first discussed on December 18, 2009. The Senate Committees for Labor & Human Resources, and for Civil Matters, were both reviewing the measure. However, the President of the Senate, Thomas Rivera Schatz, a vocal opponent of the legislation, stated in early April 2010 on the Senate floor that the legislation would not be approved by the Senate. The Senate held no hearings and took no action.[22] At the same time, Governor Luis Fortuño, a member of the island's New Progressive Party and affiliated with the mainland Republican Party) indicated that any gay rights law needs to state exemptions for organizations that object to homosexuality on the grounds of beliefs.

In addition to these developments, there are portions of the proposed revised Civil Code for Puerto Rico that have been reviewed by both Houses of the Legislature that impact LGBT residents. This included a proposal to insert into the Civil Code a provision to allow post-operative transsexuals to change the gender noted on their birth certificates. On the other hand, there is concern that some proposed clauses that invalidate so-called common law marriages may actually result in the reduction of rights (for example hospital visitations) for same-sex couples. It is significant that Puerto Rico's Roman Catholic Archbishop had proposed a concept called "shared residency" (residencia compartida) that would allow same sex couples hospital visitation rights and inheritance and insurance rights as well. However, the discussions surrounding these proposals have included demands by some conservatives that the Constitution be amended to forbid same sex marriages or civil unions.[23]

In 2013, Senator Ramón Luis Nieves introduced Senate Bill 238 to ban discrimination based on sexual orientation and gender identity. It acquired 14 co-sponsors, assuring its passage.[24] The Senate approved the legislation 15 to 11. By the time it passed by the House on a vote of 29 to 22 on 24 May, it had been amended to apply only to employment discrimination.[9] After final action by the Senate, Governor Garcia Padilla signed the legislation into law on 29 May.[11]

Hate crime[edit]

In 2002 Puerto Rico amended its hate crime statutes to include sexual orientation and gender identity as protected characteristics.[25] Puerto Rico is also covered by U.S. federal law, notably the Matthew Shepard Act.

Military[edit]

The Military defense of Puerto Rico has been the responsibility of the U.S. military, pursuant to the Treaty of Paris (1898) under which Spain ceded Puerto Rico to the United States. The U.S. military formerly had a "don't ask, don't tell" (DADT) policy regarding LGBT service members, and this presumably applied to the island's National Guard as well. The policy was repealed in December 2010 and ended on September 22, 2011.

Political parties[edit]

Politicians from the Partido Popular Democrático and the Partido Nuevo Progresista de Puerto Rico, which are the island's two main political parties, include both supporters and opponents of LGBT rights. This was most recently demonstrated by the House of Representatives vote on November 11, 2009, approving Bill 1725 (forbidding discrimination on the basis of sexual orientation). The bill passed by a vote of 43 to 6, with most Representatives from both parties voting in favor. The six Representatives voting against the bill were equally divided between both parties.

The Puerto Rican Independence Party is a member of the Socialist International, and is on record as supporting full rights for LGBT citizens. Other smaller left wing pro-independence groups are also on record supporting LGBT rights. In the Puerto Rican general election, 2012, all of the recently founded parties–Movimiento Unión Soberanista, the Puerto Ricans for Puerto Rico Party, and the Working People's Party of Puerto Rico–supported marriage equality and banning discrimination based on sexual orientation and gender identity.[26]

On November 6, 2012, Popular Democratic Party candidate Pedro Peters Maldonado became the first openly gay politician elected to public office in the island's history, when he won a seat on San Juan's city council.[27]

Living conditions[edit]

Same-sex sexual activity legal Yes (since 2003)
Equal age of consent Yes (since 2004)
Anti-discrimination laws in employment Yes (since 2013)
Anti-discrimination laws in the provision of goods and services Yes
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) Extent unclear (See United States v. Windsor)
Same-sex marriages No
Recognition of same-sex couples Yes (Yes for domestic violence purposes since 2013)
Step-child adoption by same-sex couples No
Joint adoption by same-sex couples No
Gays and lesbians allowed to serve openly in the military Yes (since 2011)
Right to change legal gender No
Access to IVF for lesbians Yes
Commercial surrogacy for gay male couples No
Hate crimes law Yes (since 2004)
MSMs allowed to donate blood No

See also[edit]

References[edit]

  1. ^ "Puerto Rico's Sodomy Law Just "Tip of the Iceberg"". Thegully.com. Retrieved May 5, 2012. 
  2. ^ "2004 Penal Code of Puerto Rico" (PDF). Retrieved February 7, 2014. 
  3. ^ "H.B. 1013". Oficina de Servicios Legislativos. March 19, 1999. Retrieved February 5, 2012. 
  4. ^ "Puerto Rico gov. allows referendum against gay marriage". USA Today. January 23, 2008. Retrieved May 5, 2012. 
  5. ^ Good news for gays of Puerto Rico[dead link]
  6. ^ "Puerto Rico: Progress on Gay Rights, But not AIDS". Edgeboston.com. July 13, 2007. Retrieved May 5, 2012. 
  7. ^ Unlimited Studios. "Fortuño proposes ban on same-sex marriage". Prdailysun.com. Retrieved May 5, 2012. 
  8. ^ http://www.prparatodos.org/comunicados/2010/2010-01-10%20fortuno%2099.pdf
  9. ^ a b c "Puerto Rico Outlaws Discrimination Based On Gender Or Sexual Orientation". Fox News Latino. May 25, 2013. Retrieved May 30, 2013. 
  10. ^ http://aldia.microjuris.com/2013/01/29/proyectos-legislativos-buscan-prohibir-discrimen-por-razon-de-genero-e-incluir-a-parejas-del-mismo-sexo-en-la-proteccion-de-violencia-domestica/
  11. ^ a b "Puerto Rico governor signs bills for gay rights". U.S. News and World Report. May 29, 2013. Retrieved May 30, 2013. 
  12. ^ "Conde v. Rius, 14-1253". United States District Court of Puerto Rico. Scribd. March 25, 2014. Retrieved March 30, 2014. 
  13. ^ "Puerto Rican Wants Same-Sex Marriages Recognized". ABC News. March 26, 2014. Retrieved March 30, 2014. 
  14. ^ Lavers, Michael K. (June 25, 2014). "Four same-sex couples join Puerto Rico marriage lawsuit". Washington Blade. Retrieved September 24, 2014. 
  15. ^ "Capellanes Cristianos piden intervenir en caso Tribunal Federal". Metro Puerto Rico. September 4, 2014. Retrieved October 16, 2014. 
  16. ^ "Opinion and Order Denying intervention to Capellanes Internacionales Cristianos Leon de Juda, Inc.". Scribd.com. U.S. District Court for Puerto Rico. Retrieved 17 October 2014. 
  17. ^ Johnson, Chris (October 12, 2014). "Judge upholds Puerto Rico ban on same-sex marriage". Washington Blade. Retrieved October 12, 2014. 
  18. ^ "Opinion and Order". U.S. District Court for Puerto Rico. Retrieved October 21, 2014. 
  19. ^ "Lambda Legal to Appeal Aberrant District Court Ruling Dismissing Lawsuit Seeking Marriage for Same-Sex Couples in Puerto Rico". Lambda Legal. October 23, 2014. 
  20. ^ "Puerto Rico Supreme Court upholds gay adoption ban". February 20, 2013. Retrieved October 23, 2014. 
  21. ^ "Cámara de Representantes de Puerto Rico Decimosexta Asamblea Legislativa P C1725 Certificación de Votación". November 11, 2009. Retrieved June 25, 2011. 
  22. ^ http://www.prparatodos.org/comunicados/2010/2010-04-14%20vistas%20somoza.pdf
  23. ^ Andrés Duque (November 27, 2007). "Puerto Rico: In lieu of civil unions, de Castro Font offers "shared residence" measure". Blabbeando.blogspot.com. Retrieved May 5, 2012. 
  24. ^ http://www.primerahora.com/noticias/gobierno-politica/nota/medidaparaprohibirdiscrimenpororientacionsexualtienelosvotosenelsenado-800263/
  25. ^ "H. B. 96". Oficina de Servicios Legislativos. March 4, 2002. Retrieved May 31, 2013. 
  26. ^ Los partidos políticos y las comunidades LGBTT from PedroJulioSerrano.com September 19, 2012
  27. ^ Homosexual gana por primera vez unas elecciones en la Isla from El Nuevo Dia November 7, 2012