LGBT rights in El Salvador

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El Salvador (orthographic projection).svg
StatusLegal since 1822
Gender identityNo
MilitaryYes
Discrimination protectionsYes, protections based on sexual orientation and gender identity
Family rights
Recognition of relationshipsNo recognition of same-sex couples
AdoptionSame-sex couples not recognized

Lesbian, gay, bisexual, and transgender (LGBT) persons in El Salvador may face legal challenges not experienced by non-LGBT residents. Both male and female same-sex sexual activity are legal in El Salvador, but same-sex couples and households headed by same-sex couples are not eligible for the same legal protections available to opposite-sex married couples.

LGBT people in El Salvador face high rates of violence and homicide. About 500 hate crimes against LGBT people were reported between 1998 and 2015. In response, the Legislative Assembly passed a law providing penalties of imprisonment for such hate crimes. But discrimination remains widespread. In 2018, the Government approved a new policy, allowing LGBT people to file legal complaints when discriminated against.

Legality of same-sex sexual acitivty[edit]

Same-sex sexual activity has been legal since 1822. In 1826, El Salvador enacted its first Penal Code, which made no mention of homosexuality.[1] As such, sexual relations between people of the same sex are legal.[2][3] The age of consent is 18.

Recognition of same-sex relationships[edit]

Same-sex marriage is not recognized. Since 2006, there have been proposals to change the constitution to restrict recognition of same-sex marriage, even when these are couples married legally outside of the country.[4] Individuals can adopt, but same-sex couples cannot adopt as a couple.[2] The Law on Family Violence also does not apply to same-sex couples.[2]

In August 2016, a lawyer in El Salvador filed a lawsuit before the country's Supreme Court asking for the nullification of Article 11 of the Family Code which defines marriage as a heterosexual union. Labeling the law as discriminatory and explaining the lack of gendered terms used in Article 34 of the Constitution's summary of marriage, the lawsuit sought to allow same-sex couples the right to wed.[5][6] On 20 December, the Salvadoran Supreme Court rejected the lawsuit on a legal technicality.[7]

A second lawsuit against the same-sex marriage ban was filed on 11 November 2016.[8] On 17 January 2019, the Supreme Court dismissed the case on procedural grounds.[9][10]

Discrimination protections[edit]

Discrimination against LGBT people in El Salvador is very widespread.[11] Polls show high levels of prejudice directed at LGBT people, and there are many reports of anti-gay harassment and bias-motivated violence.[12]

Much of the nation's advocacy on behalf of LGBT rights comes from William Hernández, and his partner, Joaquin Caceres and the other members of Asociación Entre Amigos (Among Friends Association), who have faced harassment and even death threats for their activism.[4]

In April 2009, the Ministry of Public Health and Social Assistance published new guidelines banning discrimination against LGBT people and HIV-positive people in health services.[13][14]

On 4 May 2010, President Mauricio Funes issued a presidential decree banning discrimination based on sexual orientation and gender identity in the public sector.[2] At the same time, President Funes created a Sexual Diversity Division within the Secretary of Social Inclusion, which was headed by an openly lesbian woman.[4]

Although there have been gains on removing discrimination, activists report that outside of the government and administrative areas, discrimination is still ongoing.[4]

In 2015, the Salvadoran Parliament passed a law adding sexual orientation and gender identity to the Criminal Code's hate crime provisions. The Code provides a penalty of between three to six years imprisonment for those who commit a crime based on the victim's race, ethnicity, political affiliation, sexual orientation or gender identity.[15][16]

In April 2018, the Government approved the Institutional Policy for the Care of the LGBT Population (Política Institucional para la Atención de la Población LGBT). The policy, written by the Government with the aid of LGBT activists, as well as the national police and public security officials, allows LGBT people to file legal complaints against people who discriminate against them. Claims of crimes, torture and cruel, inhuman and degrading treatments against LGBT people will also be fully investigated by police forces. This was done with the aim of guaranteeing and protecting the rights of LGBT people.[17][18]

Military service[edit]

Lesbian, gay and bisexual people are allowed to serve openly in the Armed Forces of El Salvador.[19]

Blood donation[edit]

Gay and bisexual men are allowed to donate blood. Blood donation policy prohibits those who "engage in risky behaviours" from donating (people with mutiliple sex partners, for instance).[20]

Living conditions[edit]

While some legal advances for LGBT rights have made, public attitudes about LGBT people are often still negative, even violently intolerant.

A major reason for these negative public attitudes about LGBT people are the traditional teachings of the main religions in the country; namely the Catholic Church and several conservative and evangelical Protestant denominations.

These religious denominations believe that homosexuality and cross dressing are signs of immorality, and many of their leaders have organized opposition to LGBT rights legislation.

In July 2017, the capital city, San Salvador, authorised the permanent painting of several crossroads with the colours of the rainbow in support of LGBT rights.[21]

Violence against LGBT individuals[edit]

There have been multiple instances of violence and murders targeting homosexuals and transsexuals throughout El Salvador's history. It was reported that during the Salvadoran Civil War, unknown forces kidnapped over a dozen trans sex workers in the early 1980s.[22] This event mobilized the early activity of William Hernández and his partner Joaquin Cáceres, who formed the first formally-established LGBT organization Entre Amigos.[4]

After the Civil War, violence against LGBT individuals continued. There were reports of violence targeting LGBT throughout the 1990s, and AIDS and LGBT rights activists received regular threats of violence.[23] A survey from 2006 until 2009 showed continued threats of violence against LGBT activists, violence against LGBT members, and lack of investigation by police in LGBT deaths as a result of gang violence.[2] On 9 September 2015, it was reported that El Salvador lawmakers passed a law enhancing penalties for hate crimes based on sexual orientation and gender identity.[16]

Elections[edit]

Hugo Salinas, former Mayor of Intipucá (2009-2012), is the only known openly gay person to have held public office in El Salvador.[24]

HIV/AIDS[edit]

The end of the Civil War and the democratization paved the way for NGOs and private citizens to campaign for HIV/AIDS education. Yet, since the 1990s, people working for such groups, most notably The Oscar Romero AIDS Project, have faced harassment and death threats.[2]

Since 2005, a national policy on HIV/AIDS has been developed, and it has gradually gotten the support of major politicians.[25] In 2009, a national health plan to stop the spread of HIV/AIDS included a prohibition on sexual orientation-based discrimination in health care.[14]

Public opinion[edit]

A 2010 poll revealed that El Salvador had some of the lowest support for legalizing same-sex marriage in Latin America at 10%.[26]

The 2017 AmericasBarometer showed that 19% of Salvadorans supported same-sex marriage.[27]

Summary table[edit]

Same-sex sexual activity legal Yes (Since 1822)
Equal age of consent Yes (Since 1822)
Anti-discrimination laws in employment only Yes (Since 2018)
Anti-discrimination laws in the provision of goods and services Yes (Since 2018)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) Yes (Since 2018)
Hate crime law includes sexual orientation and gender identity Yes (Since 2015)
Same-sex marriages No
Recognition of same-sex couples No
Adoption by single LGBT persons Yes
Stepchild adoption by same-sex couples No
Joint adoption by same-sex couples No
Gays, lesbians and bisexuals allowed to serve openly in the military Yes
Right to change legal gender No
Access to IVF for lesbians No
Automatic parenthood for both spouses after birth No
Conversion therapy banned on minors No
Commercial surrogacy for gay male couples No (Banned regardless of sexual orientation)
Men who have sex with men allowed to donate blood Yes

See also[edit]

References[edit]

  1. ^ El Salvador Archived 14 August 2007 at the Wayback Machine Retrieved on 23 August 2007.
  2. ^ a b c d e f Asociación Salvadoreña de Derechos Humanos “Entre Amigos” (2010). HUMAN RIGHTS SITUATION OF LESBIAN, GAY, BISEXUAL AND TRANSGENDER PERSONS IN EL SALVADOR: Shadow Report submitted to the United Nations Human Rights Committee (PDF). San Salvador.
  3. ^ STATE-SPONSORED HOMOPHOBIA A WORLD SURVEY OF SEXUAL ORIENTATION LAWS OF CRIMINALISATION, PROTECTION AND RECOGNITION
  4. ^ a b c d e Bolles, Alexandra. ""Solidarity & Actions": Exclusive Interview with Young Lesbian Activists in El Salvador Part 1". GLAAD. Retrieved 10 September 2012.
  5. ^ Same-sex Marriage Lawsuit Filed in El Salvador
  6. ^ (in Spanish) Piden declarar inconstitucional exclusión de matrimonio a personas del mismo sexo
  7. ^ (in Spanish) Sala Constitucional de El Salvador rechaza solicitud de matrimonio homosexual
  8. ^ (in Spanish) Piden a Sala Constitucional que autorice el matrimonio homosexual en El Salvador
  9. ^ "Corte Suprema de El Salvador rechaza nueva demanda del matrimonio igualitario". Washington Blade (in Spanish). 22 January 2019.
  10. ^ "Piden a juzgadse salvadoreña resolver demanda para permitir matrimonio gay". La Vanguardia (in Spanish). 19 January 2019.
  11. ^ Tomo N.383; Numero 66
  12. ^ UN HCR
  13. ^ (in Spanish) Acuerdo nº 202 contra la discriminación sexual.
  14. ^ a b El Salvador: Ministerial decree to reduce homophobia in health services, UN AIDS Archived 6 July 2009 at the Wayback Machine, 3 April 2009
  15. ^ CÓDIGO PENAL DE EL SALVADOR
  16. ^ a b El Salvador lawmakers approve enhanced hate crime penalties
  17. ^ (in Spanish) El Salvador garantizará derechos de las personas LGBT mediante nueva política
  18. ^ El Salvador crea política para garantizar los derechos de las personas LGBT
  19. ^ Asociación Salvadoreña de Derechos Humanos “Entre Amigos” (2010). HUMAN RIGHTS SITUATION OF LESBIAN, GAY, BISEXUAL AND TRANSGENDER PERSONS IN EL SALVADOR: Shadow Report submitted to the United Nations Human Rights Committee (PDF). San Salvador.
  20. ^ MANUAL DE PROMOCIÓN, CAPTACIÓN Y SELECCIÓN DE DONANTES DE SANGRE
  21. ^ El Salvador’s ‘Rainbow Crosswalk’ Promotes Pedestrian Safety and LGBTQ Rights
  22. ^ Feder, Lester. "The Savior Of The World Watched As These Trans Women Disappeared". Buzzfeed News.
  23. ^ Schenk, Anna (January – February 1999). "El Salvador's New War: Lesbian Gay Activism Confronts 'Social Cleansing'". Against the Current. 78.
  24. ^ Chávez, Carlos. "Gay, VIH positivo y alcalde". La Prensa Gráfica.
  25. ^ Un AIDS Archived 25 March 2009 at the Wayback Machine
  26. ^ Lodola, Germán; Margarita Corral (2010). "Support for Same‐ Sex Marriage in Latin America" (PDF). AmericasBarometer Insight. 44.
  27. ^ (in Spanish) CULTURA POLÍTICA DE LA DEMOCRACIA EN LA REPÚBLICA DOMINICANA Y EN LAS AMÉRICAS, 2016/17