LGBT rights in Puerto Rico

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LGBT rights in Puerto Rico
LocationPuertoRico.png
Same-sex sexual intercourse legal status Legal since 2003
Gender identity/expression Transgender people are legally allowed to change their gender
Discrimination protections Discrimination based on sexual orientation or gender identity is prohibited in employment
Family rights
Recognition of
relationships
Same-sex marriage since 2015[1]
Adoption Yes since 2015

Lesbian, gay, bisexual, transgender (LGBT) persons in Puerto Rico have almost the same protections and rights as heterosexual individuals. 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 on the legal rights of LGBT citizens. Same-sex marriage has been legal in the commonwealth since June 2015, when the U.S. Supreme Court ruled in the case of Obergefell v. Hodges that same-sex marriage bans are unconstitutional.

Law regarding same-sex sexual activity[edit]

In 2002, the Puerto Rico Supreme Court ruled that the commonwealth's ban on sodomy was constitutional.[2] The next year, however, the U.S. Supreme Court declared unconstitutional all state and territorial statutes penalizing consensual sodomy, when limited to noncommercial acts between consenting adults in private, in Lawrence v. Texas. Puerto Rico modified its Penal Code in 2004 to reflect the decision and remove private, non-commercial sexual activity between consenting adults from its sodomy statute.[3]

Recognition of same-sex relationships[edit]

Legal restrictions[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."[4]

In 2008, there was an unsuccessful attempt in the Legislature to submit a referendum to voters to amend Puerto Rico's Constitution to define marriage as a union between a man and a woman, and to ban same-sex marriages, civil unions and domestic partnership benefits.[5] Similar legislation failed in 2009.[6]

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.[7] Four more couples joined as plaintiffs in June.[8]

Judge Juan Pérez-Giménez dismissed the lawsuit on October 21, 2014, ruling that the United States Supreme Court's ruling in Baker v. Nelson (1972) prevented him from considering the plaintiffs' arguments. He concluded that Puerto Rico's definition of marriage did not conflict with the U.S. Constitution.[9]

The plaintiffs appealed the decision to the First Circuit Court of Appeals. On March 20, 2015, Puerto Rico Secretary of Justice César Miranda and Governor Alejandro García Padilla announced they had determined that Puerto Rico's statute banning the licensing and recognition of same-sex marriage was legally indefensible.[10] They asked the Court of Appeals to reverse the district court.[11]

On April 14, 2015, the First Circuit suspended proceedings pending a ruling from the U.S. Supreme Court in similar same-sex marriage cases.[12]

Supreme Court decision[edit]

As soon as the U.S. Supreme Court ruled in Obergefell v. Hodges on June 26, 2015, that same-sex couples have a constitutional right to marry, Governor Padilla signed an executive order requiring government agencies to comply with the ruling within 15 days,[13] and all parties to the Conde-Vidal lawsuit asked the First Circuit to overrule the district court as soon as possible.[14] The first same-sex couples began applying for marriage licenses on July 13, 2015.[1]

While same-sex marriage is legal in Puerto Rico, the territory's laws have yet to be changed to reflect this. In June 2018, a bill removing the heterosexual definition of marriage in Puerto Rican law and instead substituting a gender-neutral definition was introduced to the Puerto Rican Legislative Assembly. The bill would also raise the age of marriage from 14 to 18.[15]

Domestic partner benefits[edit]

In 2013, Governor Garcia Padilla signed an order extending health insurance coverage to the same-sex domestic partners of workers in the executive branch.[16]

Domestic violence[edit]

In 2013, 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.[17] The House passed the legislation on 24 May.[16] Governor Garcia Padilla signed the legislation into law on 29 May.[18]

Adoption and parenting[edit]

Following the U.S. Supreme Court's ruling in Obergefell v. Hodges, Puerto Rico's Department of Family ordered agency workers to consider only the "best interests of the child without prejudice" in future adoption and foster home placements. Families headed by same-sex couples are also entitled to apply for benefits such as those offered to opposite-sex families. These policies were announced on July 13, 2015.[19][20] The first successful adoption order for a same-sex couple in Puerto Rico was approved by a Puerto Rican court on December 10, 2015.[21]

Prior to this directive, adoption of children by same-sex couples and stepchild adoption by same-sex partners was prohibited by Puerto Rican law. In February 2013, the Supreme Court of Puerto Rico, in a 5-4 decision, affirmed the practised ban on same-sex adoption in Puerto Rico. The court's majority opinion held 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."[22] In January 2018, Governor Ricardo Rosselló signed into law a bill which brought Puerto Rico's adoption laws in line with Obergefell v. Hodges. The law now explicitly allows all couples, same-sex or opposite-sex, married or unmarried, to apply to adopt.[23]

Discrimination protections[edit]

An anti-discrimination bill (House Bill 1725) was introduced on May 21, 2009 to the island's House of Representatives, and it was approved by a 43 to 6 vote on November 11, 2009.[24] 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.[25] 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 discrimiantion law needs to state exemptions for organizations that object to homosexuality on the grounds of beliefs.

In addition to these developments, there were portions of a proposed revised Civil Code for Puerto Rico that had been reviewed by both chambers of the Legislature that would have impacted 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 was concern that some proposed clauses that would have invalidated common-law marriages may actually have resulted in the reduction of rights (for example hospital visitations) for same-sex couples. It was significant that Puerto Rico's Roman Catholic Archbishop had proposed a concept called "shared residency" (residencia compartida) that would have allowed same-sex couples hospital visitation rights and inheritance and insurance rights as well. However, the discussions surrounding these proposals included demands by some conservatives that the Constitution be amended to forbid same-sex marriages or civil unions.[26]

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.[27] 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.[16] After final action by the Senate, Governor Garcia Padilla signed the legislation into law on 29 May.[18]

In 2017, the Puerto Rican Legislature approved a religious freedom bill, which would have authorized public businesses to legally discriminate against LGBT people. Governor Ricardo Rosselló vetoed the bill in February 2018.[28]

Gender identity and expression[edit]

Until 2018, Puerto Rican law forbade transgender people from changing their legal gender on their birth certificates. There had been unsuccessful legislative proposals to repeal this law.[26]

In April 2017, Lambda Legal filed a federal lawsuit on behalf of four transgender Puerto Ricans, challenging the law. They argued that denying transgender Puerto Ricans the ability to obtain accurate birth certificates violates the Equal Protection and Due Process clauses of the U.S. Constitution: "Puerto Rico categorically prohibits changes to the gender marker on birth certificates, even for those whose birth certificate does not match who they are. This policy has no rational justification in law or practice. In fact, government officials in Puerto Rico know this, as they, appropriately, allow transgender individuals to correct the gender marker on their drivers' licenses. Puerto Rico's birth certificate policy is at odds with the Federal Government's policies, with 46 out of the 50 states in the United States and the District of Columbia, and with common sense."[29]

In early April 2018, a federal judge struck down the law, ruling it unconstitutional. Local LGBT activists celebrated the judge's decision, with Lambda Legal labelling it "a tremendous victory for transgender people born in Puerto Rico". Shortly thereafter, a spokesperson for the Puerto Rican Government announced that the Government would not appeal the ruling.[30][31]

Hate crime laws[edit]

In 2002, Puerto Rico amended its hate crime statutes to include sexual orientation and gender identity as protected characteristics.[32] Puerto Rico is also covered by U.S. federal law, notably the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act.

Military service[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.

Conversion therapy[edit]

Conversion therapy has a negative effect on the lives of LGBT people, and can lead to low self-esteem, depression and suicide ideation. There are a few known cases of minors being subjected to such practices in Puerto Rico. Between 2007 and 2008, a young gay man was repeatedly electrocuted as a part of a "treatment" to "cure" his homosexuality. He finally received an arrest warrant against his parents, who forced him to undergo the pseudoscientific practice.[33]

A bill to ban the use of conversion therapy on minors was introduced to the Puerto Rican Senate on 17 May 2018, the International Against Homophobia.[33]

Blood donation[edit]

Since 2015, gay and bisexual men in Puerto Rico have been allowed to donate blood following a one-year deferral period.[34]

Political parties[edit]

Growing societal acceptance has encouraged many LGBT Puerto Ricans to come out, including singer Ricky Martin, pictured here at a Human Rights Campaign award show in 2010.

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 same-sex marriage and banning discrimination based on sexual orientation and gender identity.[35]

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.[36]

Public opinion[edit]

According to a Pew Research Center survey, conducted between November 7, 2013 and February 28, 2014, 33% of Puerto Ricans supported same-sex marriage, 55% were opposed.[37][38]

Summary table[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 No
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) No
Hate crime laws include sexual orientation and gender identity Yes (Since 2002)
Same-sex marriage Yes (Since 2015)
Recognition of same-sex couples Yes (Yes for domestic violence purposes since 2013)
Stepchild adoption by same-sex couples Yes (Since 2015)
Joint adoption by same-sex couples Yes (Since 2015)
Gays, lesbians and bisexuals allowed to serve openly in the military Yes (Since 2011)
Transgender people allowed to serve openly in the military Yes (Since 2018)
Access to IVF for lesbians Yes
Conversion therapy banned on minors No (Proposed)
LGBT anti-bullying law in schools and colleges No
Sex education in schools covers sexual orientation and gender identity No
Right to change legal gender Yes (Since 2018)
Commercial surrogacy for gay male couples No
MSMs allowed to donate blood No/Yes (1 year deferral period since 2015)

See also[edit]

References[edit]

  1. ^ a b Michael Lavers (13 July 2015). "Same-sex couples apply for marriage licenses in Puerto Rico". Washington Blade. 
  2. ^ "Puerto Rico's Sodomy Law Just "Tip of the Iceberg"". Thegully.com. Retrieved May 5, 2012. 
  3. ^ "2004 Penal Code of Puerto Rico" (PDF). Retrieved February 7, 2014. 
  4. ^ "H.B. 1013" (PDF). Oficina de Servicios Legislativos. March 19, 1999. Retrieved February 5, 2012. 
  5. ^ "Puerto Rico gov. allows referendum against gay marriage". USA Today. January 23, 2008. Retrieved May 5, 2012. 
  6. ^ Good news for gays of Puerto Rico Archived June 3, 2015, at the Wayback Machine.
  7. ^ "Puerto Rican Wants Same-Sex Marriages Recognized". ABC News. March 26, 2014. Retrieved March 30, 2014. 
  8. ^ Lavers, Michael K. (June 25, 2014). "Four same-sex couples join Puerto Rico marriage lawsuit". Washington Blade. Retrieved September 24, 2014. 
  9. ^ Johnson, Chris (October 12, 2014). "Judge upholds Puerto Rico ban on same-sex marriage". Washington Blade. Retrieved October 12, 2014. 
  10. ^ "Expresiones del Gobernador Alejandro García Padilla". Office of the Governor. March 20, 2015. Retrieved March 20, 2015. 
  11. ^ "Brief of Defendants-Appellees in Puerto Rico marriage case". Scribd.com. First Circuit Court of Appeals. Retrieved March 20, 2015. 
  12. ^ Thomaston, Scottie (April 14, 2015). "First Circuit: No arguments in Puerto Rico marriage case until Supreme Court decides issue". Equality on Trial. Retrieved April 14, 2015. 
  13. ^ Danica Coto (June 26, 2015). "Puerto Rico amends laws after US ruling on gay marriage". Associated Press. Yahoo News. 
  14. ^ "Joint Proposal Further Proceedings". Retrieved June 27, 2015. 
  15. ^ (in Spanish) Charbornier anuncia radicación de proyecto de ley del nuevo Código Civil
  16. ^ a b c "Puerto Rico Outlaws Discrimination Based On Gender Or Sexual Orientation". Fox News Latino. May 25, 2013. Retrieved May 30, 2013. 
  17. ^ "Proyectos legislativos buscan prohibir discrimen en comunidades LGBTT". Microjuris - Puerto Rico. Retrieved June 29, 2015. 
  18. ^ a b "Puerto Rico governor signs bills for gay rights". U.S. News and World Report. May 29, 2013. Retrieved May 30, 2013. 
  19. ^ "Gay couples may adopt children in Puerto Rico (English translated version)". El Nuevo Dia. 13 July 2015. 
  20. ^ "Parejas gay podrían adoptar menores en Puerto Rico (Spanish original version)". El Nuevo Dia. 13 July 2015. 
  21. ^ "For the first time, Puerto Rico allows same-sex couple to adopt". Associated Press. LGBTQ Nation. 10 December 2015. 
  22. ^ "Puerto Rico Supreme Court upholds gay adoption ban". February 20, 2013. Retrieved October 23, 2014. 
  23. ^ (in Spanish) Gobernador aprueba adopción para parejas homosexuales y no casadas
  24. ^ "Cámara de Representantes de Puerto Rico Decimosexta Asamblea Legislativa P C1725 Certificación de Votación". November 11, 2009. Retrieved June 25, 2011. 
  25. ^ (in Spanish) "Evidente el discrimen por orientación sexual e identidad de género en vista de Somoza"
  26. ^ a b 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. 
  27. ^ "Medida para prohibir discrimen por orientación sexual tiene los votos en el Senado". Primera Hora. Retrieved June 29, 2015. 
  28. ^ Puerto Rico governor vetoes religious freedom bill, The Washington Blade, February 7, 2018
  29. ^ Lambda Legal Sues Puerto Rico for Anti-Trans Birth Certificate Policy
  30. ^ Court orders Puerto Rico to issue accurate birth certificates to transgender residents, April 4, 2018
  31. ^ US court grants rights to transgender people in Puerto Rico, The Washington Post, April 4, 2018
  32. ^ "H. B. 96" (PDF). Oficina de Servicios Legislativos. March 4, 2002. Retrieved May 31, 2013. 
  33. ^ a b Unión tripartita en contra de la homofobia
  34. ^ (in Spanish) FDA overturns 30-year ban on blood donations by gay men Reuters
  35. ^ Los partidos políticos y las comunidades LGBTT from PedroJulioSerrano.com September 19, 2012
  36. ^ Homosexual gana por primera vez unas elecciones en la Isla from El Nuevo Dia November 7, 2012
  37. ^ "Social Attitudes on Moral Issues in Latin America - Pew Research Center". Pew Research Center's Religion & Public Life Project. November 13, 2014. Retrieved June 29, 2015. 
  38. ^ "Appendix A: Methodology". Pew Research Center's Religion & Public Life Project. November 13, 2014. Retrieved June 29, 2015. 

External links[edit]