LGBT rights in Costa Rica

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Costa Rica (orthographic projection).svg
StatusLegal since 1971[1]
Gender identityGender changes allowed
MilitaryNo armed forces
Discrimination protectionsSexual orientation protections since 1998
Family rights
Recognition of relationshipsYes for some purposes
AdoptionLegal, 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 announced that it would apply the sentences in the following months.[2][3]

In August 2018, the Costa Rican Supreme Court ruled against the country's same-sex marriage ban, and gave the Legislative Assembly 18 months to reform the law accordingly, otherwise the ban would be abolished automatically. Same-sex marriage will be legal by May 26, 2020 at the latest.

Legality of same-sex sexual activity[edit]

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homosexual sex acts between consenting adults.[4] Article 382 in the Penal Code that mentioned "scandalous sodomy" was repealed in 2002, alongside many other laws.[5]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[edit]

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[edit]

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[edit]

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] On November 14, the Court released the full written ruling, which was published in the judicial bulletin on November 26, 2018.[23][24][25][26][27]

Adoption and parenting[edit]

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.[28][29] Currently, under Costa Rican law, gay and lesbian individuals can legally adopt children, but not same-sex couples.[30]

Discrimination protections[edit]

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

Under Article 48 of the 1998 Costa Rican General Law on HIV/AIDS (Ley núm. 7771 general sobre el VIH-SIDA), "sexual option" is one of the categories in which discrimination is generally prohibited in areas such as employment.[31] The article reads:

Gender identity and expression[edit]

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 (Spanish: Ley Orgánica del Tribunal Supremo de Elecciones y del Registro Civil) includes sex as one of the requirements to register births.[32] Article 2 of the Regulations on Photographs for Identity Documents (Reglamento de Fotografías para la Cédula de Identidad) 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."[33]

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.[34][35]

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.[36] In June 2017, the bill advanced to the Human Rights Commission.[37] In addition, the Supreme Electoral Tribunal has announced its endorsement of the bill.[38]

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.[39][40]

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.[41][42] Costa Rican officials announced that this was in accordance with the January 2018 Inter-American Court of Human Rights ruling. In December 2018, President Alvarado signed another executive order extending this right to immigrants.[43]

Additionally, hormone replacement therapy is financed by the state health system.[43]

Blood donation[edit]

In August 2007, a ban on gay and bisexual men donating blood was lifted.[44][45] The drive to lift the ban was led by activist Alberto Cabezas.

Living conditions[edit]

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.[46] 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.[46]

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.[47]

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.[48]

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.[49]

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".[50]

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,[51] 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.[52] In October 2011, the Costa Rican Supreme Court reversed its 2008 ruling and now allows equality for same-sex couples in receiving conjugal visits only for partners outside of prison.[53]

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.[54]

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.[55]

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.[56][57]

On 1 May 2018, Enrique Sánchez became the first openly gay congressman in Costa Rica.[58]

In December 2018, President Carlos Alvarado signed a number of executive decrees relating to housing rights for LGBT people, immigration rights for binational same-sex couples, and funding hormone replacement therapy through the state health system, among others.[43]

Political party views[edit]

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.[59] 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 Christian parties; the National Restoration and its splinter the New Republic Party, 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 Costa Rican 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.

The effect of the Inter-American Court of Human Rights's ruling on same-sex marriage caused uproar in the country and is often signaled and one of the causes behind the divisive 2018 Costa Rican general election, in which the two main candidates were Fabricio Alvarado Muñoz (PRN), a conservative Evangelical and staunch opponent of same-sex marriage, and Carlos Alvarado Quesada (PAC), a liberal and staunch supporter.[60]

Societal views[edit]

A 2013-2014 survey using samples from different religious backgrounds showed that support for LGBT rights was stronger among non-religious Costa Ricans, non-practicing Catholics and non-Christian minorities, whilst most practicing Catholics, Mainline Protestants and Neo-Pentecostals considered homosexuality as morally incorrect and "curable".[61]

HIV/AIDS[edit]

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.[62]

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 opposition from the Catholic Church and other religious groups.[63]

Summary table[edit]

Same-sex sexual activity legal Yes (Since 1971)
Equal age of consent Yes (Since 2002)
Anti-discrimination laws in employment Yes (Since 1998)
Anti-discrimination laws in the provision of goods and services Yes (Since 1998)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) Yes (Since 1998)
Same-sex marriages No/Yes (To be legal by May 2020)
Recognition of same-sex couples Yes (For some purposes only since 2013, civil union pending)
Adoption by single LGBT persons Yes
Stepchild adoption by same-sex couples No (Proposed)
Joint adoption by same-sex couples No/Yes (To be legal by May 2020)
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 Yes (Since 2018)
Access to IVF for lesbians No (Allowed for married couples and single women)
Conversion therapy banned No
Commercial surrogacy for gay male couples No
MSMs allowed to donate blood Yes (Since 2007)

See also[edit]

References[edit]

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  2. ^ "Corte Interamericana de DD. HH: Costa Rica debe garantizar plenos derechos a población LGBTI". Teletica. 9 January 2018. Retrieved 9 January 2018.
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  5. ^ "Laws - Costa Rica - CR". GayLawNet. 17 April 2002. Retrieved 1 August 2010.
  6. ^ Presidente Carlos Alvarado pide perdón a personas LGBTI por persecución del Estado costarricense
  7. ^ a b ""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.
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  16. ^ Buscan reformar Código de Familia para aprobar unión gay
  17. ^ (in Spanish) Proyecto de ley N.°19.508
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  42. ^ Instituciones deberán modificar documentos para que sean acordes con la identidad de género
  43. ^ a b c Costa Rica passes decrees boosting LGBT rights
  44. ^ Costa Rica Lifts Ban on Gay Blood
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  58. ^ Gay Costa Rican legislator sworn in
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External links[edit]