Chile: winds of change for LGBTQI+ rights
With its Equal Marriage Law having entered into force, Chile is belatedly catching up. This realisation of the rights of LGBTQI+ people is a remarkable victory for civil society. In a time of political change that offers plenty of opportunities for further progress, LGBTQI+ activists have celebrated and then gone back to work to make equality a lived reality in law and in practice: now they are seeking to enshrine protections in Chile’s new constitution, get stronger anti-discrimination legislation passed, change attitudes through education and sensitisation, and create a safe environment for LGBTQI+ people to be able to realise their full potential and live without fear.
There was the usual cake with the two little figures in elegant suits, the shower of petals, the bright red balloons. The only things that suggested this was no everyday wedding were the address of the post-ceremony reception – Palacio de la Moneda, Chile’s presidential palace – and the host – the President of the Republic himself.
Javier and Jaime got married as soon as they got the chance. They have been together for seven years, entered a Civil Union Agreement three years ago, and have two children together. On Monday, 7 March 2022, they booked an appointment as soon as the registry opened, and shortly after 7 am on 10 March they were the first to make their vows as Chile’s Equal Marriage Law went into effect.
Then it was the turn of Consuelo and Pabla, the mothers of two-year-old Josefa. They’ve been together for 17 years, and for 17 years they dreamt this moment would come.
Many more will follow in their footsteps in the coming days and weeks, judging by survey data showing that in Chile almost 83 per cent of same-sex couples are willing to get married – they have just been waiting for the right to do so.
That right was recognised when, perhaps not coincidentally, the Equal Marriage Law was published in Chile’s Official Gazette on Human Rights Day, 10 December 2021. Both chambers of the Chilean Congress had passed it just three days earlier, making Chile the seventh Latin American country to legalise same-sex marriage, and the 32nd in the world, following in the recent footsteps of Costa Rica and Switzerland.
The new law modified the text of the Civil Code, replacing the terms ‘husband’ and ‘wife’ with that of ‘spouses’, those of ‘man’ and ‘woman’ with the expression ‘two people’ and those of ‘father’ and ‘mother’ with that of ‘parents’. It resolved issues ranging from adoption, the legal status of children and assisted reproduction to non-discrimination in labour rights on grounds of sexual orientation or gender identity. It also eliminated an outrageous piece of institutional transphobia by removing a clause that made a change of registered gender grounds for the automatic annulment of a marriage. From now on, both marriage and divorce will depend exclusively on the consent of the two people involved.
This is an essential step forward for a country that has recently experienced a steep rise in discrimination, harassment and violence against LGBTQI+ people. According to the Movement for Homosexual Integration and Liberation (MOVILH), human rights abuses against LGBTQI+ people rose by almost 15 per cent in 2020. Six LGBTQI+ people were murdered and there were hundreds of instances of physical and verbal aggression, police violence, institutional marginalisation, exclusion from public places, labour and educational discrimination, hate campaigns and incitement to violence.
Change came slowly. Chile only recognised legal divorce in 2004 and abortion remained entirely banned until 2017, when it was allowed on three very restrictive grounds – risk to the pregnant person’s life, rape and foetal non-viability. Chile finally recognised same-sex partnerships as ‘civil unions’ in 2015, which provided some but not all of the protections afforded by marriage. The 2021 Equal Marriage Law was preceded by the Gender Identity Law, passed in 2018. It will hopefully be followed by further changes in attitudes, legislation and public policy to enshrine the effective equality of all people.
SAME-SEX MARRIAGE AROUND THE WORLD
The path to equality
In August 2017, then-President Michelle Bachelet submitted the Equal Marriage Bill to Congress. In doing so, she was not only fulfilling one of her 2013 campaign promises, but also keeping her part of the ‘friendly settlement agreement’ the Chilean state signed with MOVILH before the Inter-American Commission on Human Rights (IACHR) in 2016.
MOVILH submitted a petition to the IACHR in 2012 on behalf of three same-sex couples who complained about lack of access to civil marriage and legal recognition by the state of marriages performed in other countries. The agreement was signed at a meeting facilitated by the IACHR Rapporteur for Chile, in which the state recognised the facts that gave rise to the complaint and acknowledged the need to eliminate discrimination against LGBTQI+ people, including by updating laws.
In March 2018 the Comptroller General – the office that oversees the legality of actions by the public administration – ruled that this agreement was binding following a request submitted by three national legislators, including future presidential candidate José Antonio Kast, who called its legality into question. Still, little progress followed.
In October 2019 the wave of protests known as the ‘social outburst’ kicked off. Protests persisted for months, even under the COVID-19 pandemic, giving birth to an unprecedentedly inclusive constitution-making process and, following the most uncertain election in decades, bringing to power the youngest and more unconventional president ever – a former student leader who came to politics through protest and openly embraces a feminist, gender-inclusive rights agenda.
As the 2021 election approached and his rates of approval hit rock bottom, conservative President Rafael Piñera took the Equal Marriage Bill on as a legacy project. After previously expressing opposition to same-sex marriage, during his last annual accountability speech on 1 June 2021 Piñera announced he would expedite the bill through Congress. Along with part of the political opposition, some LGBTQI+ organisations viewed this sudden urgency as ‘pinkwashing’ – the display of pro-LGBTQI+ actions to distract attention or launder somebody’s reputation – but still announced they would make sure the president followed through.
Two days later, under attack as ‘hypocritical’ by some and as a ‘traitor’ by others, Piñera sent the bill to the Senate, labelling it as ‘extremely urgent’ and therefore forcing lawmakers to discuss it within 15 days. The bill was approved by the Senate’s Constitutional Committee on 29 June and passed by the Senate on 21 July. The Chamber of Deputies voted for it on 23 November. The Senate then reviewed the changes made by the Chamber and approved it again.
Both bodies gave their final approval on 7 December, and the president signed the bill into law two days later, in a public ceremony widely attended by LGBTQI+ people. The law was published in the Official Gazette on Human Rights Day, 10 December 2021.
Civil society in action
For years LGBTQI+ several civil society organisations (CSOs) worked to push the process forward: among them were Acción Gay, the first of its kind, founded in 1987 with a focus on HIV/AIDS, MOVILH, established in 1991, and Fundación Iguales, active since 2011.
They deployed the full array of tactics. They studied comparative legislation and drafted bills, and they campaigned to shift public opinion by giving visibility to and normalising the existence of diverse families and holding online events, including Q&A sessions, to dispel prejudiced disinformation. They pushed the issue onto the election agenda and forced candidates to take a stance and advocated towards government and legislators. They used litigation and engaged with international human rights mechanisms. They went through all domestic courts up to the Supreme Court and when they lost, they denounced the state at the IACHR before reaching a ‘friendly settlement agreement’ with the state. It was this agreement that eventually led to the introduction of a civil society-authored Marriage Equality bill.
Earlier bills had been submitted to Congress in 2008, 2010 and 2014, but were never debated. Unlike the new law, these did not address the legal status of children of same-sex couples. The first bill to do this was drafted by Fundación Iguales and legal academics at the University of Chile, and was presented to President Bachelet and the president of the Senate in 2016.
Following an event in 2017, where the president officially signed off the submission of the bill to Congress, Fundación Iguales launched a campaign that encouraged people to ‘join history’. The campaign featured a journey through the milestones of civil rights struggles in Chile, each focused on the elimination of a law that structurally discriminated against a specific group, and presented equal marriage as the logical next step. To make it happen, it called on people to sign a Change.org petition urging the president to push the legislative process forward.
Despite civil society calls, the bill languished in Congress for years. In July 2019, the Senate Committee on Constitution, Legislation and Justice received it for the third time and organised yet another debate on the issue, in which senators listened to the arguments of representatives of LGBTQI+ CSOs but also the fiercely opposed views of anti-rights groups.
While the bill stagnated again, a sustained wave of protests erupted, the COVID-19 pandemic took hold of the world and Chile undertook the most inclusive constitutional reform process in its history. For LGBTQI+ activists, it was now or never.
The 2021 campaign kicked off on 14 February, Valentine’s Day, or as Chileans call it, the ‘day of love’. MOVILH’s traditional ‘picnic for diverse love’ would have taken place in Balmaceda park in Chile’s capital, Santiago, but the pandemic pushed the celebration off the streets and onto social media. MOVILH launched a campaign with posters featuring diverse couples demanding equal marriage and a video denouncing President Piñera’s position, which at that point was still opposed. It also put Congress on the spot, saying: ‘Just as the rejection of interracial marriage is called racism, the prohibition of equal marriage is called homophobia. Those who have the power to change the laws but do nothing about it, are complicit.’
Public opinion had already shifted, at least partly due to the Catholic Church’s damaged reputation following the 2018 deluge of revelations of priests sexually abusing hundreds of children over decades, with total impunity. The speed of change in Chileans’ relationship with the church, and with religion more generally, is truly astonishing. According to the 2021 Latinobarómetro survey, trust in the church among Chileans fell from 72 per cent in 1995 to 31 per cent in 2020. Thirty-five per cent of Chileans now declare themselves agnostic, one of the highest percentages in the region. It was likely no coincidence that a June 2021 survey showed that 74 per cent of Chileans supported same-sex marriage and 65 per cent backed adoption rights for same-sex couples.
From the point of view of people’s perceptions, changes occurred because a social consensus was reached that the arbitrary exclusion of diverse families is unacceptable.
In June, following Piñera’s surprise announcement that he would fast-track the Equal Marriage bill and on the eve of annual Pride celebrations, leading businesses joined the cause. A coalition of 30 Chilean and multinational companies launched the ‘Yes, I do’ initiative, declaring their support for same-sex marriage through ads in the most widely circulated newspaper, El Mercurio, and social media.
In September, Fundación Iguales launched another campaign to put additional pressure on Congress. It centred on a compelling video that told the story of two sisters who were equal in every respect in everybody’s eyes except the state’s, who treated them differently because one of them was gay. It invited people to sign an online petition urging Congress to approve the bill. Two months later, Fundación Iguales handed over 20,000 signatures to the president of the Senate.
Unable to hold mass gatherings due to the pandemic, CSOs used alternative means to gain public visibility. Supported by allies including universities and municipalities, Fundación Iguales deployed activists in seven of Chile’s 16 regions over a month, joining diverse families in raising the rainbow flag at every city’s most recognisable landmarks. The ‘banderazos’ tour came to an end on 23 November, with the hoisting of a giant flag outside the main building of the University of Chile in Santiago.
Voices from the frontline
Marco Becerra is director of ACCIONGAY, an LGBTQI+ civil society organisation founded in 1987 in response to the HIV/AIDS epidemic.
Demands for equality before the law were the result of a social and cultural change that Latin America had been experiencing for several years. The legalisation of equal marriage in Argentina and Uruguay, as well as its progress throughout Europe, prompted Chilean LGBTQI+ movements and sexual diversity organisations to mobilise around equality issues.
Chile is going through a complex, epoch-changing process that came about as a result of the 2019 social outburst. Although the movement for gender equality was already very strong, the context of social mobilisation helped create an environment conducive to the consolidation of the LGBTQI+ movement as a presence recognisable on the streets in citizen protests demanding more equality.
To a large extent this was reflected in the number of LGBTQI+ people who recently got elected, especially for the Convention in charge of drafting the new constitution, as well as in the ministerial appointments of LGBTQI+ people made by President Gabriel Boric.
From the point of view of people’s perceptions, changes occurred because a social consensus was reached that the arbitrary exclusion of diverse families is unacceptable. Support for equal marriage is striking: almost 70 per cent of Chileans agree, and a similar number support adoption by same-sex couples.
After 11 March we will have a progressive government that has incorporated equality and recognition of LGBTQI+ communities in its policy programme. We are sure that this will be a very different government from its predecessors, and we are very hopeful that it will be possible to start closing the gap of real inclusion of LGBTQI+ people in all areas of social life, from public administration institutions to the educational sphere.
This is an edited extract of our interview with Marco Becerra. Read the full interview here.
As part of the change propelled by the protest wave of 2019 onwards, the first transgender legislator, 25-year-old former student leader Emilia Schneider, was elected to Congress in November 2021. Several out bisexual and lesbian women gained legislative seats for the first time.
Same-sex marriage was prominent in the campaign for the run-off presidential election held on 19 December. Both candidates tried to claim the centre ground, where voters broadly supported equal marriage. But while the eventual winner, leftist Gabriel Boric, had sided with feminist and LGBTQI+ causes all along, far-right candidate and staunch Catholic José Antonio Kast was forced to soften the bigoted tone he had openly displayed until quite recently.
Kast had a damning history of prejudice: he had railed against the ‘indoctrination’ of children through so-called ‘gender ideology’, had insisted that a transgender woman was in fact a man and years earlier, on a day when Government House had been lit up in rainbow colours, he had tweeted angry accusations that the Bachelet government had surrendered to the ‘gay dictatorship’.
During the run-off campaign, LGBTQI+ groups actively promoted informed voting, laying out both candidates’ promises – or lack of promises – to LGBTQI+ people, and exposing Kast’s long history of bigotry. Once Boric won and appointed his future cabinet, LGBTQI+ organisations publicly celebrated two appointments in particular: Alexandra Benado, former player in the national female football team, as Sports Minister, and Marco Ávila, a teacher who played a key role in incorporating LGBTQI+ issues in school curriculums under Bachelet, as Minister of Education.
While they celebrate this long-awaited, hard-won victory, LGBTQI+ campaigners are not losing sight of the road ahead. Discrimination in access to a civil right as basic as marriage, with everything it implies, was a deep wound to the dignity of people who were not treated as deserving of equal respect. But the new law will not sweep away underlying inequalities.
The Constitutional Convention that is currently underway provides an excellent opportunity to push further: 77 of its 155 members are women, including a large proportion of self-declared feminists, and eight are LGBTQI+ activists. In December, the Convention’s Commission on Fundamental Rights received a delegation of LGBTQI+ activists who demanded that the new constitution recognise and protect sexual diversity.
The Convention provides an innovative tool that LGBTQI+ activists are making good use of: a Digital Platform for Popular Participation that includes a popular initiative mechanism. Up to early January, people were able to enter up to seven proposals. The initiatives that received at least 15,000 signatures from at least four regions would be submitted for discussion by the Convention.
United Dissenters Recomposing Sexopolitical Alliances (DURAS), a dedicated advocacy coalition of more than 42 LGBTQI+ groups, submitted three initiatives on sexual diversity: on the right to identity, the recognition of diverse families and the right to equality, non-discrimination and non-subordination. The first two cleared the hurdle of support and are now among 77 proposals that will be discussed by the Convention. Advocacy will continue for their inclusion in the constitutional text.
Other outstanding issues include the reform of Chile’s weak anti-discrimination law and its mainstreaming in state institutions. Popularly known as the Zamudio Law, this piece of legislation was passed in 2012 following the murder of 24-year-old Daniel Zamudio, who was tortured and beaten to death just for being gay.
LGBTQI+ advocates claim the law is overly punitive, imposing fines for discriminatory behaviour, without offering enough positive reinforcement to change institutional culture and individual behaviours. A bill seeking to guarantee real job opportunities and inclusion for transgender people, currently on the table, should also be passed without delay. And a lot more needs to be done in the area of sex education in schools, gender sensitisation in the workplace and overall safety for LGBTQI+ people.
Many young LGBTQI+ people are not that interested in marriage – at least not yet. What they really want is to be able to go places, meet people, build their futures – without fear. Persistent violence reflects relentless inequality: some lives continue to be worth less than others. Only when LGBTQI+ people are able to walk the streets confident they will not be attacked because of their sexual orientation or gender identity will real freedom and equality have been achieved.
OUR CALLS FOR ACTION
Chilean LGBTQI+ groups should continue to push for stronger anti-discrimination legislation, constitutional guarantees for LGBTQI+ rights and additional protections for trans people against violence and discrimination.
Chilean LGBTQI+ groups and broader civil society should keep up their campaigns of public engagement and sensitisation, in preparation for the likely anti-rights backlash.
Chilean civil society should support campaigns to recognise same-sex marriage in other Latin American countries.
Cover photo by Claudio Santana/Getty Images