LGBT rights in Chile

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This article is about LGBT rights in Chile. For general LGBT topics in Chile, see LGBT in Chile.
LGBT rights in Chile
Chile
Same-sex sexual activity legal? Legal since 1999,
age of consent not equalized
Gender identity/expression Yes
Military service LGBT allowed to serve in the military
Discrimination protections Sexual orientation and gender identity protections (see below)
Family rights
Recognition of
relationships
Civil unions since 2015[1]
Adoption Single gay persons may adopt

Lesbian, gay, bisexual, and transgender (LGBT) people in Chile may face legal challenges not experienced by non-LGBT residents. Both male and female same-sex sexual activity is legal in Chile. Since October 22, 2015, same-sex couples and households headed by same-sex couples have the same legal protections available to opposite-sex married couples, within a civil union - except for adoption rights and the title of marriage.[1]

Law regarding same-sex sexual activity[edit]

Adult, consensual, non-commercial, same-sex sexual activity has been legal in Chile since 1999, but the liberalization of the criminal code created an unequal age of consent and did not modify vague public indecency laws, which have been used to harass LGBT people in Chile.[2]

In Chile, the age at which there are no restrictions for sexual activities is 18, while the minimum age of consent is 14. Limitations exist between 14 and 18 years old (Art. 362 Chilean Penal Code). Even when not clearly stated in Article 362, later on, in Article 365, homosexual activity is declared illegal with anyone under 18 years old.

Art. 362.[3] El que accediere carnalmente, por vía vaginal, anal o bucal, a una persona menor de catorce años, será castigado con presidio mayor en cualquiera de sus grados, aunque no concurra circunstancia alguna de las enumeradas en el artículo anterior.

Translation: Whoever has carnal access, by vaginal, anal or oral route, to a person under fourteen years, shall be punished by imprisonment of any degree, if circumstances listed in the previous article are not also present.

There also exists in the Chilean Penal Code, a legal figure called estupro. This figure establishes some limitations to sexual contacts with children older than 14 and younger than 18 years old. The estupro legislation (Article 363) defines four situations in which sex with such a children can be declared illegal even if the minor consented to the relationship (non-consensual sex with anyone older than 14 y.o. falls under the rape legislation, Article 361; while any sexual contact with anyone under 14 y.o. falls under the statutory rape legislation, Article 362.):

  • When one takes advantage of a mental anomaly or perturbation of the child, even if transitory.
  • When one takes advantage of a dependency or subordinate relationship of the child, like in cases when the aggressor is in charge of the custody, education or caretaking of the child, or when there exists a laboral relationship with the child.
  • When one takes advantage of severely neglected children.
  • When one takes advantage of the sexual ignorance or inexperience of the child.

The sexual acts regulated by Articles 361 (rape), 362 (statutory rape), 363 (estupro) and 365 (homosexual sex) are defined as "carnal access" (acceso carnal), which means either oral, anal or vaginal intercourse. Other articles within the penal code regulate other sexual interactions (Articles 365 bis, 366, 366 bis, 366 ter, 366 quarter). Article 365 bis, regulates the "introduction of objects" either in the anus, vagina or mouth. Article 366 bis, defines "sexual act" as any relevant act with sexual significance accomplished by physical contact with the victim, or affecting the victim's genitals, anus or mouth even when no physical contact occurred.

Article 369 states that charges relating to these offenses (Articles 361 to 365) can be brought only after a complaint by the minor or the minor's parent, guardian or legal representative. Nevertheless, if the offended party cannot freely file the complaint and lacks a legal representative, parent or guardian, or if the legal representative, parent or guardian is involved in the crime, the Public Ministry may proceed by its own.

As of September 2016 a new Penal Code has been drafted and is pending within the Chile Constitutional Judiciary Committee for seven years now, if enacted it would establish a universal age of consent set at 14 (regardless of gender or sexual orientation), but must pass the Chile Congress and a signature of the President to come into effect.[4]

History[edit]

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.[5] Homosexual acts were decriminalized in 1999, with an age of consent of 18.[6] 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.[7][8]

Gender identity/expression[edit]

In Chile, transgenderism is often associated with homosexuality. In the early part of the twenty-first century, the legal rights of transgender people in Chile has begun to improve.

A landmark case, brought in 2005 by Andrés Rivera, the founder of a NGO in Chile dedicated to fighting for trans people's rights, won the right for trans people to legally change their name and sex in 2007.[9]

Public policy[edit]

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.

In 2011 the Ministry of Health approved a circular which obliged to call transsexuals by their social name in all care centers in Chile and launched the first protocol which at nation level regulated the medical procedures of body alteration. This success 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.[10]

Since 2013, sex reassignment surgeries and hormone therapy are funded by the public health system (Fondo Nacional de Salud).[11]

Proposed 2016 Gender Identity Law[edit]

Currently in 2016, a gender identity law, which would not require any surgeries or judicial permission is being discussed by the congress.[12] In August 2016, a Chilean Senate commission approved a proposal that would allow transgender adults to legally change their name and gender without going before a judge. The Senate’s Human Rights Commission voted 4-1 in favor of the proposal. Now the bill goes to the Senate floor. Chile President Michelle Bachelet supports the bill.[13]

Childhood Act[edit]

On 31 August 2016, the Family Committee of the Chamber of Deputies, under the Bill on "System of Guarantees of Rights of the Childhood," approved the right of children and adolescents to develop their gender identity.

Thus, Article 12 of the bill states that "every child has the right from birth to a name, nationality and language; to know the identity of their parents; to preserve 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 idiosyncrasies, including their gender identity."

Previously, the Committee had approved Article 8 of the bill, ensuring that "no child shall be arbitrarily discriminated against because of their sexual orientation, gender identity, gender expression and sex characteristics, among other distinctions."[14]

Intersex rights[edit]

In January 2016, the Chilean Ministry of Health informed that has ordered the suspension of normalization treatments on intersex children.[15][16]

The instructions were published in Circular 8, 22 December 2015, entitled “Instructions on aspects of health care to intersex children“. The circular instructs the ceasing of “unnecessary “normalization” treatment of intersex children, including irreversible genital surgeries, until they are old enough to decide about their bodies“, while work takes place to develop protocols that meet human rights standards.[17][18]

Recognition of same-sex relationships[edit]

Campaign demanding legal recognition of same-sex marriage in Chile.

Civil unions[edit]

Chile has recognised civil unions since 22 October 2015. 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.[19]

The history of Chile's civil union law originates in 2014. When President Bachelet took office in March 2014, she made passing Piñera's civil union bill a priority issue as well.[20] Legalising same-sex marriage remains a longer-term goal of Bachelet's administration.[21]

On 5 August 2014, a Senate committee approved the civil unions bill.[22] On 7 October 2014, the bill moved out of the Senate to be scheduled for a final vote in the Chamber Of Deputies within coming weeks.[23]

The name of the bill was changed to Civil union pact (Pacto de Unión Civil) on December 17, and Congress reiterated their intention to hold the final vote by January 2015.[24] On 6 January 2015, a provision recognising foreign marriages as civil unions was approved in the Constitutional Committee while the child adoption clause was turned down. The bill went to a final vote before both the Senate and the Chamber of Deputies as it was amended.[25] On 13 January, the full Chamber of Deputies reinserted the adoption provision. On 20 January 2015, the Chamber approved the bill on a vote of 86 to 23 with 2 abstentions. On 27 January, the Senate rejected all the Chamber's amendments, so the bill was headed to the joint committee of both houses.[26] The committee reached the agreement in regard to the text of the bill and changed its name to Civil union agreement (Acuerdo de Unión Civil) the same day. The bill was passed in both houses on 28 January 2015. The new law recognises marriages performed abroad as civil unions and views couples and their children as a family. In March 2015, the Ministry of Foreign affairs announced that it would begin to recognise all unions performed abroad for residency matters. On 13 April 2015, the bill was signed by President Bachelet. It became law six months after its publication in the country's official gazette. The first civil unions occurred on October 22, 2015.[1][27][28][29][30][31]

Same-sex marriage attempts[edit]

Michelle Bachelet the president of Chile, declared on 11 April 2013 that she supports marriage equality and will seek to legalise it if elected president in the November 2013 presidential elections. Bachelet, who was president of Chile between 2006 and 2010, won the election on 15 December 2013.[32]

On 10 December 2014, a group of senators from various parties joined MOVILH in presenting a bill to allow same-sex marriage and adoption to Congress. MOVILH has been in talks with the Chilean government to seek an amiable solution to the pending marriage lawsuit brought against the state before the Inter American Court of Human Rights. The group has suggested that they may drop the case if Bachelet's Congress keeps their promise to legislate same-sex marriage.[33]

On 17 February 2015, lawyers representing the Government and the LGBT rights group MOVILH met to discuss an amicable solution to the same-sex marriage lawsuit before the Inter-American Commission Of Human Rights. The Government announced that they would drop their opposition to same-sex marriage. A formal agreement will be signed in April and the case will still continue according to MOVILH's lawyer who stated that the lawsuit will live on until Chile enacts the law.[34]

Adoption and Parenting[edit]

In Chile, families or individuals interested in adopting must apply and be approved by Sename (National Service for Minors), which keeps the registry of children eligible for adoption. Final approval is granted by the Family Court.[35] Chilean law stipulates that single people are allowed to adopt, regardless of their sexual orientation.[36]

Same-sex couples are allowed to apply to adopt. If applicants are approved as suitable to adopt, legally only one of them would be the legal parent of the child.[37]

For same-sex couples, within a civil union or not, that raise a child together, if the legal parent (because of birth or adoption) dies, it is easier for the surviving parent to get custody of the partner's child.[38][39] According to studies done by Movilh, 10 percent of same-sex couples have children in Chile. Of these, 86% are lesbian mothers, while 33% are gay parents.[40][41]

Currently in 2016, Chile's Congress is debating the "Bill of the Integral Reform of the Adoption System in Chile" that would allow adoption by same-sex couples.[42][43][44]

Nicolás Has Two Dads[edit]

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.[45]

“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.

Public opinion[edit]

Public opinion has shown substantial support for same-sex civil unions: 65% favored their legalization in 2004, even though only 24% supported same-sex marriage.[46] In 2009, 33.2% supported same-sex marriage and 26.5% supported adoption by same-sex couples.[47] Support among young people is much higher: according to a study by the National Youth Institute of Chile, 56% of young respondents supported same-sex marriage, while 51.3% supported same-sex adoption.[48] An August 2012 poll found that 54.9% of Chileans support same-sex marriage, while 40.7% are opposed.[49] A more recent poll showed that 70% of youths support same-sex marriage.[50] On the 7th of September 2015, a poll found that 60% of Chileans support marriage between same-sex couples, while 44% support same-sex adoption.[51]

Discrimination protections[edit]

In Chile there are different laws, regulations and public policies that protect LGBT people from discrimination. However, according to Movilh's Annual Reports on the Human Rights of Sexual Diversity, each year more cases are reported because there is more empowerment among gay, lesbian, bisexual and transgender people to fight for their rights and to denounce discriminatory acts.[52][53]

Article 373 of the Penal Code, based on the "offenses to morals and good customs" has been for years the only legal standard that has used the police to harass homosexuals, even for behavior such as holding hands in public. In 2010, the bill to repeal the article was rejected in the Constitution, Law and Justice Committee of the Chamber of Deputies.[54] Nevertheless, the XIV version of the Annual Report on the Human Rights of Sexual Diversity in Chile for the year 2015, emphasizes in one of its chapters on police abuses and arbitrary arrests by mentioning that "for the first time in seven years no police abuses were reported against lesbian, gay, bisexual or transgender people." A positive reality that has been influenced by the work of the Human Rights Department of Carabineros, which reacted rapidly to any suspicious denunciation of homophobia and transphobia, and promote, among officials, various training lectures.[55]

Anti-discrimination law[edit]

The law, approved in 2012, imposes penalties for acts of discrimination on the basis of race, ethnicity, nationality, marital status, disability, age, sex, sexual orientation, gender identity and personal appearance, among other distinctions. It allows citizens to file anti-discrimination lawsuits and requires the State to develop public policies to end discrimination.[56]

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."[57]

The law is colloquially known as the Zamudio law, in honor of Daniel Zamudio.

Goods and services[edit]

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.[58] The anti-discrimination law enacted in 2012 defines discrimination and includes protection against it on grounds of sexual orientation and gender identity.

On 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.[59][60]

Employment[edit]

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.[61]

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.[62]

Since 2016, the Labor Code explicitly prohibits discrimination based on sexual orientation and gender identity.[63][64]

In schools[edit]

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.[65]

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.[66] 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.[67]

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.[68]

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.[69]

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.[70][71]

Housing[edit]

Since 2015, the Civil union law officially recognises same-sex couples as a family, and offers protection in access to housing.[72] 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.[73] In 2013 it was confirmed that the "rent subsidy" program benefits all families and young couples regardless of sexual orientation or gender identity.[74]

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.[75]

Hate crimes law[edit]

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." [76]

Blood donation[edit]

In 2013, the Health Ministry lifted a ban on gay and lesbian blood donations.[77]

Before, potential blood donors would be asked their sexual orientation as a part of a questionnaire that would decide whether or not their blood was viable. Anyone identifying as gay, lesbian or bisexual was prohibited from donating blood. The current language in the questionnaire now only restricts donors with a history of risky sexual behavior, regardless of the sexual orientation of the participant. Risky sexual conduct is defined by the Health Ministry as sex with more than one partner in the previous 12 months.

Other areas[edit]

In May 2014, Law 20.750 that creates the National Television Council, includes sexual orientation and gender identity as protected categories against discrimination.[78]

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.[79][80]

Military service[edit]

The Military of Chile does not discriminate on grounds of sexual orientation and gender identity. It officially prohibits discrimination against LGBT people.

In 2012, the commander-in-chief of the Chilean Army Juan Miguel Fuente-Alba, reported the repeal of all rules and regulations that prevented LGBT people from entering the Armed Forces. On September 10, 2012, by Order of Command No. 6583/126, it was declared expressly repealed all those rules or provisions of institutional regulations, which contravene the principle of non-discrimination according to the Anti-discrimination law.[81][82]

In 2014, the Ministry of National Defense, established the Committee for Diversity and Non-Discrimination which will aim to advance concrete measures to eradicate discrimination and arbitrary exclusions in the military. The instance, which is composed of representatives of all branches of the Military of Chile, expressly prohibits discrimination based on sexual orientation and gender identity. The resolution, signed by Defense Minister Jorge Burgos, established the government as responsible for creating a more inclusive armed services.[83][84]

The same year, sailor Mauricio Ruiz became the first serving member of the Armed Forces to publicly assume his homosexuality. Ruiz said that what was most important was not a soldier's sexual orientation, but his or her willingness to serve the country. His announcement came with the full backing of the Chilean Navy.[85]

On May 29, 2015, the commander-in-chief Humberto Oviedo, aware that the anti-discrimination issue requires a more specific regulation, and indeed a cultural change within the army, issued an Order of Command to expand and complement the 2012 order that had repealed all rules contrary to the Anti-discrimination law. It was established emphatically that "the Chilean Army, as an institution that must and belongs to all Chileans without exception, does not discriminate arbitrarily on the basis of race or ethnicity, socioeconomic status, religion or belief, sex, sexual orientation, gender identity, marital status, affiliation, personal appearance or any other reason." The discriminatory conducts of its officials are "expressly and definitively prohibited." If someone violates this principle will incur a "very serious offense, regardless of the rank hierarchy, category or type of contract."[86]

Conversion therapy[edit]

In June 2015, the Chilean College of Psychologists announced its rejection to the realization of so-called "reparative therapy to cure homosexuality," also known as conversion therapies. After conducting an investigation, through its Gender and Sexual Diversity Committee, established that "the different sexual orientations are no deviations or mental illness, therefore, there is no disease to cure." Through a press release, they stated that "there is no scientific study showing that conversion therapies change homosexuality, so only produce frustration and damage to their patients."[87]

In February 2016, the Chilean Ministry of Health for the first time expressed their opposition to conversion therapy. “We consider that the practices known as ‘reparative therapies’ or ‘conversion’ of homosexuality represent a grave threat to health and well-being, including the life, of the people who are affected,” they stated.[88]

Summary table[edit]

Same-sex sexual activity legal Yes (Since 1999)
Equal age of consent No For male (Pending) / Yes For female
Anti-discrimination laws in employment Yes (Since 2012-2016)
Anti-discrimination laws in the provision of goods and services Yes (Since 2012)
Anti-discrimination laws in other areas Yes (Since 2012)
Hate crimes law including sexual orientation and gender identity Yes (Since 2012)
Recognition of same-sex couples (e.g. civil union) Yes (Since 2015)
Same-sex marriage No (Pending; Same-sex marriage from abroad is recognized as a civil union since 2015)
Step-child adoption by same-sex couples No (Pending)
Joint adoption by same-sex couples No (Pending)
Adoption by single LGBT person Yes
LGBT people allowed to serve openly in the military Yes
Right to change legal gender Yes
Sexual orientation conversion therapy banned by law No
Intersex minors protected from invasive surgical procedures Yes (Since 2015)
LGBT anti-discrimination law in public and private schools Yes (Since 2016)
LGBT anti-bullying law in public and private schools Yes (Since 2011)
Access to artificial insemination/IVF for lesbian couples Yes
Commercial surrogacy for gay male couples Yes (No prohibition)
MSMs allowed to donate blood Yes (Since 2013)

See also[edit]

References[edit]

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