LGBT rights in Puerto Rico

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LGBT rights in Puerto Rico
Puerto Rico
Same-sex sexual activity legal? Legal since 2003
Discrimination protections Discrimination based on sexual orientation or gender identity is prohibited in employment
Family rights
Recognition of
relationships
Same-sex marriage since July 13, 2015[1]
Adoption Yes since 2015

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 2002, the Puerto Rico Supreme Court ruled that the commonwealth's ban on sodomy was not unconstitutional.[2] The next year, 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 invalidate the law in Puerto Rico as well. Puerto Rico modified its Penal Code in 2004 to 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, 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]

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.[15]

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.[16] The House passed the legislation on 24 May.[15] Governor Garcia Padilla signed the legislation into law on 29 May.[17]

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 traditional families. These policies were announced on July 13, 2015.[18][19]

Prior to this directive, adoption of children by same-sex couples and step-child 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 practiced 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.[15] After final action by the Senate, Governor Garcia Padilla signed the legislation into law on 29 May.[17]

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]

Public opinion[edit]

According to Pew Research Center survey, conducted between November 7, 2013 and February 28, 2014, 33% of Puerto Ricans supported same-sex marriage, 55% were opposed.[28][29]

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
Same-sex marriage Yes (Since 2015)
Recognition of same-sex couples Yes (Yes for domestic violence purposes since 2013)
Step-child adoption by same-sex couples Yes (Since 2015)
Joint adoption by same-sex couples Yes (Since 2015)
Gay men and lesbians allowed to serve openly in the military Yes (Since 2011)
Access to IVF for lesbians Yes
Hate crimes law Yes (since 2004)
Right to change legal gender No
Commercial surrogacy for gay male couples No
MSMs allowed to donate blood No

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[dead link]
  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. ^ a b c "Puerto Rico Outlaws Discrimination Based On Gender Or Sexual Orientation". Fox News Latino. May 25, 2013. Retrieved May 30, 2013. 
  16. ^ "Proyectos legislativos buscan prohibir discrimen en comunidades LGBTT". Microjuris - Puerto Rico. Retrieved June 29, 2015. 
  17. ^ a b "Puerto Rico governor signs bills for gay rights". U.S. News and World Report. May 29, 2013. Retrieved May 30, 2013. 
  18. ^ "Gay couples may adopt children in Puerto Rico (English translated version)". El Nuevo Dia. 13 July 2015. 
  19. ^ "Parejas gay podrían adoptar menores en Puerto Rico (Spanish original version)". El Nuevo Dia. 13 July 2015. 
  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. ^ "Medida para prohibir discrimen por orientación sexual tiene los votos en el Senado". Primera Hora. Retrieved June 29, 2015. 
  25. ^ "H. B. 96" (PDF). 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
  28. ^ "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. 
  29. ^ "Appendix A: Methodology". Pew Research Center's Religion & Public Life Project. November 13, 2014. Retrieved June 29, 2015. 

External links[edit]