Lesbian, gay, bisexual, and transgender (LGBT) people in Chile may face legal challenges not experienced by non-LGBT residents. Both male and female same-sex sexual activity is legal in Chile. Since October 22, 2015, same-sex couples and households headed by same-sex couples have the same legal protections available to opposite-sex married couples, within a civil union - except for adoption rights and the title of marriage.
Video LGBT rights in Chile
Law regarding same-sex sexual activity
Adult, consensual, non-commercial, same-sex sexual activity has been legal in Chile since 1999, but the liberalization of the criminal code created an unequal age of consent and did not modify vague public indecency laws, which have been used to harass LGBT people in Chile.
In Chile, the age at which there are no restrictions for sexual activities is 18, while the minimum age of consent is 14. Limitations exist between 14 and 18 years old (Art. 362 Chilean Penal Code). Even when not clearly stated in Article 362, later on, in Article 365, homosexual activity is declared illegal with anyone under 18 years old.
Art. 362. El que accediere carnalmente, por vía vaginal, anal o bucal, a una persona menor de catorce años, será castigado con presidio mayor en cualquiera de sus grados, aunque no concurra circunstancia alguna de las enumeradas en el artículo anterior.
- Translation: Whoever has carnal access, by vaginal, anal or oral route, to a person under fourteen years, shall be punished by imprisonment of any degree, if circumstances listed in the previous article are not also present.
There also exists in the Chilean Penal Code, a legal figure called estupro. This figure establishes some limitations to sexual contacts with children older than 14 and younger than 18 years old. The estupro legislation (Article 363) defines four situations in which sex with such a children can be declared illegal even if the minor consented to the relationship (non-consensual sex with anyone older than 14 y.o. falls under the rape legislation, Article 361; while any sexual contact with anyone under 14 y.o. falls under the statutory rape legislation, Article 362.):
- When one takes advantage of a mental anomaly or perturbation of the child, even if transitory.
- When one takes advantage of a dependency or subordinate relationship of the child, like in cases when the aggressor is in charge of the custody, education or caretaking of the child, or when there exists a laboral relationship with the child.
- When one takes advantage of severely neglected children.
- When one takes advantage of the sexual ignorance or inexperience of the child.
The sexual acts regulated by Articles 361 (rape), 362 (statutory rape), 363 (estupro) and 365 (homosexual sex) are defined as "carnal access" (acceso carnal), which means either oral, anal or vaginal intercourse. Other articles within the penal code regulate other sexual interactions (Articles 365 bis, 366, 366 bis, 366 ter, 366 quarter). Article 365 bis, regulates the "introduction of objects" either in the anus, vagina or mouth. Article 366 bis, defines "sexual act" as any relevant act with sexual significance accomplished by physical contact with the victim, or affecting the victim's genitals, anus or mouth even when no physical contact occurred.
Article 369 states that charges relating to these offenses (Articles 361 to 365) can be brought only after a complaint by the minor or the minor's parent, guardian or legal representative. Nevertheless, if the offended party cannot freely file the complaint and lacks a legal representative, parent or guardian, or if the legal representative, parent or guardian is involved in the crime, the Public Ministry may proceed by its own.
As of March 2017 a new Penal Code has been drafted and is pending within the Chile Constitutional Judiciary Committee for seven years now, if enacted it would establish a universal age of consent set at 14 (regardless of gender or sexual orientation), but must pass the Chile Congress and a signature of the President to come into effect.
History
In 1810, the age of consent for opposite-sex activity was 12. In 1999, the age of consent was set at 14 for both girls and boys in relation to heterosexual sex. Homosexual acts were decriminalized in 1999, with an age of consent of 18. In 2011, the Tribunal Constitucional de Chile confirmed that the age of consent is 14 for heterosexual relations (for both girls and boys), as well as for lesbian relations (Woman-girl), but it is 18 for male homosexual relations.
Maps LGBT rights in Chile
Gender identity/expression
In Chile, transgenderism is often associated with homosexuality. In the early part of the twenty-first century, the legal rights of transgender people in Chile has begun to improve.
A landmark case, brought in 2005 by Andrés Rivera, the founder of a NGO in Chile dedicated to fighting for trans people's rights, won the right for trans people to legally change their name and sex in 2007.
Public policy
The LGBT rights group Movilh achieved in 2001 that the Civil Register made an announcement that made possible for transsexuals in Chile to obtain their identity documentation without having to change their appearance.
In 2009 the National Organization of Gendarmeries ordered the end to disciplinary sanctions against inmates which prevented them to dress accordingly to their gender identity.
In 2011 the Ministry of Health approved a circular which obliged to call and register transsexuals by their social name in all care centers in Chile and launched the first protocol which at nation level regulated the medical procedures of body alteration. This success was preceded by a pilot plan for free medical attention for transsexuals put in action by the Ministry of Health through a proposal of Movilh. In 2002 some offices had already established a certain health record for transsexuals so that they could receive care adequate of their gender identity.
Since 2013, sex reassignment surgeries and hormone therapy are funded by the public health system (Fondo Nacional de Salud).
Proposed Gender Identity Law
Currently in 2018, a gender identity law, which would not require any surgeries or judicial permission is being discussed by the congress. On 21 January 2014, the Senate approved the bill in a general vote, with 29 in favor and three abstentions. In May 2017, the Senate Human Rights Commission approved the bill, after four years of debate, establishing the right of individuals over 18 to legally change their name and gender on official documents through an administrative process. On 14 June 2017, Senators passed the entire bill in a specific vote, including the requirement of a medical evaluation to prove that the person has the psychological and psychiatric conditions to formulate the request. The bill now heads to the Chamber of Deputies for discussion. On 15 January 2018, the Human Rights Commission approved the bill and dispatched it to the Chamber of Deputies. The commission included children and adolescents and deleted the requirement of a medical evaluation previously approved in the Senate. On 23 January 2018, the Chamber approved the bill in a general vote of 68 to 35, though the inclusion of minors was rejected due to lack of quorum. The bill goes to a final vote before the Senate as it was amended.
Transgender Children and Youth
In Chile, transgender children are allowed to change their name and gender on legal documents, though a judicial permission is required. Requirements depends on the judge. In recent years some cases have been made public.
In April 2017, the Ministry of Education issued a ministerial circular entitled "Rights of girls, boys and trans students in the field of education." The document is addressed to the holders and principals of educational establishments throughout the country, and points out that failure to comply with the measures constitutes an infraction that will be sanctioned according to its seriousness. Some of the measures that educational establishments must adopt include: guaranteeing the social name of trans students in all fields, the right to wear uniforms, sports clothes or accessories according to their gender identity; and provide trans student facilities for the use of bathrooms and showers according to the specific needs of the process they are living, respecting their gender identity.
Bill on "System of Guarantees of Rights of the Childhood," recognize the right to children and adolescents to develop their gender identity. Article 19 based on "Identity" states that "every child has the right, from birth, to have a name, a nationality and a language of origin; to know the identity of their fathers and/or mothers; to preserve their family relations in accordance with the law; to know and practice the culture of their place of origin and, in general, to preserve and develop their own identity and idiosyncrasy, including their gender identity."
Intersex rights
In January 2016, the Chilean Ministry of Health temporarily ordered the suspension of normalization treatments on intersex children. The guidelines ended in August 2016. Anti-discrimination legislation is before the Senate.
Recognition of same-sex relationships
In March 2015, the Ministry of Foreign affairs issued a circular that recognizes same-sex civil unions and equal marriages performed abroad for residency matters. Chile has recognised civil unions since 22 October 2015.
Civil unions
Chile's civil union laws enable same-sex and opposite-sex cohabitating couples to co-own property and make medical decisions as well as claim pension benefits and inherit property if their civil partner dies. Gaining custody of a partner's child where necessary is also made easier by the law. The new law recognises marriages performed abroad as civil unions and views couples and their children as a family.
In August 2011, President Sebastián Piñera introduced a bill to Congress allowing registered cohabitation. After four years of debate and improved provisions added during Michelle Bachelet's administration, the bill was passed in both houses on 28 January 2015. On 13 April 2015, the bill was signed into law by President Bachelet and was published in the Official Gazette on 21 April 2015. It took effect on October 22, 2015.
On 1 December 2016, the Chamber of Deputies unanimously approved (except for 6 abstentions) a bill to give couples who enter in a civil union five days off, like couples who marry have. The bill was approved by the Senate in October 2017, in a unanimous 15-0 vote. It took effect on 8 November 2017.
Same-sex marriage bill
On 28 August 2017, President Michelle Bachelet signed the Marriage Equality Bill, fulfilling an election promise and as part of the "Friendly Settlement Agreement" signed in June 2016 by the State of Chile with the Movement for Homosexual Integration and Liberation (Movilh), in the context of a lawsuit filed before the Inter-American Commission on Human Rights (CIDH), involving the lack of access to civil marriage by three same-sex couples in Chile.
The bill amends the definition of marriage of article 102 of the Civil Code, replacing the phrase that determines it as the union "between a man and a woman", by "the union between two people". In addition, the measure contemplates the right of joint adoption and filiation (automatic parenthood) for same-sex couples.
Adoption and Parenting
Chilean law stipulates that single people are allowed to adopt, regardless of their sexual orientation. Same-sex couples are allowed to apply to adopt. If applicants are approved as suitable to adopt, legally only one of them would be the legal parent of the child. For same-sex couples, within a civil union or not, that raise a child together, if the legal parent (because of birth or adoption) dies, it is easier for the surviving parent to get custody of the partner's child. In Chile, families or individuals interested in adopting must apply and be approved by Sename (National Service for Minors), which keeps the registry of children eligible for adoption. Final approval is granted by the Family Court. According to studies done by Movilh, 10 percent of same-sex couples declare having children in Chile. In 86% of cases, lesbian mothers have custody of their children, while only 33% when it comes to gays parents.
In addition, filiation is defined by birth, therefore, same-sex couples can not recognize a child in the birth certificate. In March 2015, a lesbian mother filed a voluntary petition to a Family Court to have her daughter legally recognized as the daughter of her partner. In November 2015, the Supreme Court ruled against the two mothers, by a vote of three to two. In April 2016, the Filiation Regulation for Children of Same Sex Families bill was introduced into the Senate. If passed, the bill would offer three pathways to legally recognize the filiation of same-sex parents to their children.
The Marriage Equality bill introduced in August 2017 by President Bachelet, would allow joint adoption to married same-sex couples and filiation (automatic parenthood), for both married and unmarried same-sex couples. In September 2017, ten MPs introduced a bill to allow adoption by same-sex couples within a civil union. Currently in 2018, Chile's Congress is debating the "Bill of the Integral Reform of the Adoption System in Chile" that would allow adoption by same-sex couples.
Family planning
There are no laws that guarantee or protect the right to access to assisted reproductive technology. Lesbian couples may access to IVF treatments, though they do not have medical insurance coverage due they do not have an infertility pathology.
Currently in Chile, there is no specific legislation on surrogacy. In January 2018, a bill to allow altruistic surrogacy for same-sex couples and to ban commercial surrogacy for all couples was introduced to Congress.
Nicolás Has Two Dads
In 2014, a children's book addressing same-sex parent families was published. The book is currently being distributed to pre-school kids in public kindergartens in Chile. Despite being backed by the Chilean government, "Nicolás Has Two Dads" is not compulsory reading material for kindergartens throughout the country.
"Nicolás Has Two Dads" ("Nicolás tiene dos papás"), written by Movilh, tells the story of Nicolás, a little boy who lives with his two fathers. From sleepovers and trips to the stadium to reunions with his biological mother and explaining to his classmates why he has two dads, Nicolás leads readers through his everyday life.
The book is sponsored by The National Kindergarten Board (Junji), the Association of Toddler Educators, the National Directorate of Libraries, Archives and Museums, and the Departments of Psychology and Early Childhood and Basic Education of the University of Chile.
Public opinion
Public opinion has shown substantial support for same-sex civil unions: 65% favored their legalization in 2004, even though only 24% supported same-sex marriage.
In 2009, 33.2% supported same-sex marriage and 26.5% supported adoption by same-sex couples. Support among young people is much higher: according to a study by the National Youth Institute of Chile, 56% of young respondents supported same-sex marriage, while 51.3% supported same-sex adoption.
An August 2012 poll found that 54.9% of Chileans support same-sex marriage, while 40.7% are opposed. A more recent poll showed that 70% of youths support same-sex marriage.
On 7 September 2015, a poll found that 60% of Chileans support marriage between same-sex couples, while 44% support same-sex adoption.
On 23 January 2017, a survey by the same pollster found that 64% of Chileans support same-sex marriage, including 71% of unaffiliated people (24% of the sample), 66% of Catholics (58% of the sample) and 41% of Evangelicals (14% of the sample). The support was higher among left-leaning (72%) and centrist Chileans (71%), whilst it was lower among independents (64%) and right-leaning ones (55%).
Discrimination protections
In Chile there are different laws, regulations and public policies that protect LGBT people from discrimination. However, according to Movilh's Annual Reports on the Human Rights of Sexual Diversity, each year more cases are reported because there is more empowerment among gay, lesbian, bisexual and transgender people to fight for their rights and to denounce discriminatory acts.
Article 373 of the Penal Code, based on the "offenses to morals and good customs" has been for years the only legal standard that has used the police to harass homosexuals, even for behavior such as holding hands in public. In 2010, the bill to repeal the article was rejected in the Constitution, Law and Justice Committee of the Chamber of Deputies. Nevertheless, the XIV version of the Annual Report on the Human Rights of Sexual Diversity in Chile for the year 2015, emphasizes in one of its chapters on police abuses and arbitrary arrests by mentioning that "for the first time in seven years no police abuses were reported against lesbian, gay, bisexual or transgender people." A positive reality that has been influenced by the work of the Human Rights Department of Carabineros, which reacted rapidly to any suspicious denunciation of homophobia and transphobia, and promote, among officials, various training lectures.
Anti-discrimination law
The law, approved in 2012, imposes penalties for acts of discrimination on the basis of race, ethnicity, nationality, marital status, disability, age, sex, sexual orientation, gender identity and personal appearance, among other distinctions. It allows citizens to file anti-discrimination lawsuits and requires the State to develop public policies to end discrimination.
It describes as illegal discrimination "any distinction, exclusion or restriction that lacks reasonable justification, committed by agents of the state or individuals, and that causes the deprivation, disturbance or threatens the legitimate exercise of fundamental rights."
The law is colloquially known as the Zamudio law, in honor of Daniel Zamudio.
Goods and services
In Chile, the relationship between suppliers of goods or services and consumers is regulated by Law No. 19,496 on the Protection of the Rights of Consumers. Article 3 states that are basic rights of the consumer, among others, the right to non-discrimination. The anti-discrimination law enacted in 2012 defines discrimination and includes protection against it on grounds of sexual orientation and gender identity.
In December 2012, in the first ruling under the anti-discrimination law, a judge ordered a motel to pay a fine to a lesbian couple for refusing them entry, and ordered that it can't refuse entry on another occasion. The Third Civil Court of Santiago was emphatic in saying that denying services or products based on sexual orientation or gender identity was illegal.
Employment
Since 2016, the Labor Code explicitly prohibits discrimination based on sexual orientation and gender identity. The Labor Inclusion Law enacted in May 2017, which also amends the Law on Administrative Statute, prohibits any act of arbitrary discrimination resulting in exclusions or restrictions, based on sexual orientation and gender identity.
In 2004, the authorities announced that the rules of non-discrimination guaranteed in labor law also apply to the sexual minorities. In 2007, The Department of Labor made possible, through the implementation of the new politics, to make reports of discrimination based on sexual orientation or gender identity. The change came from a petition by Movilh and originated from an event in 2007 when an employee did the first report of this kind in a governmental instance. In June 2014, The Department of Labor officially updated the "Principles regarding the right to non-discrimination" set out in the Labour Code, according to the effects of the anti-discrimination law that includes sexual orientation and gender identity as protected classes.
In December 2015, a court ordered the Municipality of Talca to compensate three former employees who had been dismissed because of their sexual orientation. The court ruling also requires the Mayor Juan Castro Prieto and other officials to be trained in human rights.
In schools
The General Law of Education (LGE) promulgated in 2009, included the principles of non-discrimination and respect to diversity. The Ministry of Education launched in 2010 the School Coexistence Regulation, which points out the importance of eradicating the discrimination against LGBT people in the classroom.
In September 2011, Chile's Congress approved "The Law about School Violence" that amended the General Law of Education to establish definitions, procedures, and penalties for school violence and bullying. The law has a positive impact on the fight against homophobia and transphobia in the classroom. Educational institutions are required to create a Good School Coexistence Committee which will be responsible for managing and take all necessary measures to ensure a non-violent school life.
In 2013, the Superintendence of Education updated the Handbook for educational establishments on Rules of Procedure with regard to school coexistence, which orders the non-discriminatory treatment concerning students based on their sexual orientation or gender identity, and indicates that the regulation of all schools must sanction any act of discrimination between members of the school community.
In 2015, two new policies of the Ministry of Education recognized the importance of promoting the rights of LGBTI people in classrooms. The National School Coexistence Policy 2015-2018 guarantees non-discrimination for sexual diversity and it is incorporated into the School Calendar 2016 the "International Day Against Homophobia and Transphobia." The Ministry of Education recommends to schools develop educational, artistic, cultural or sports activities in commemoration of the date.
The School Inclusion law, that took effect in March 2016, guarantees non-discrimination based on sexual orientation and gender identity, mentioning the anti-discrimination law.
Housing
Since 2015, the Civil union law officially recognises same-sex couples as a family, and offers protection in access to housing. The Ministry of Housing and Town Planning issued an instruction in 2009 which officially extended the benefit of housing allowance to couples made up of people of the same sex. The Minister Patricia Poblete said that discrimination based on sexual orientation or gender identity is not allowed in any of the services offered by her ministry, so gay couples can apply, without problems, housing subsidies. In 2013 it was confirmed that the "rent subsidy" program benefits all families and young couples regardless of sexual orientation or gender identity.
Since 2016, the "Household Social Register" recognizes same-sex cohabiting couples. It is an information system whose objective is to support the nomination and selection of beneficiaries of institutions and government agencies that provide social benefits.
Hate crimes law
In 2012, the Anti-discrimination law amended the Criminal Code adding a new aggravating circumstance of criminal responsibility, as follows: "Committing or participating in a crime motivated by ideology, political opinion, religion or beliefs of the victim; nation, race, ethnic or social group; sex, sexual orientation, gender identity, age, affiliation, personal appearance or suffering from illness or disability."
Anti-torture law
In November 2016, President Michelle Bachelet enacted the Anti-torture law establishing criminal penalties for torture and cruel, inhuman and degrading treatment. It covers physical, psychological abuse and sexual violence, and includes sexual orientation and gender identity as protected categories. The law aims to punish people in public service positions, both public employee or private individuals in public service, who instigate, carry out or hide knowledge of torture.
Hate speech law
In July 2017, ten MPs introduced a bill to amend the Criminal Code to incorporate the crime of incitement to hatred or violence against people based on sexual orientation and gender identity, among other distinctions. On September 4, 2017, Michelle Bachelet introduced a bill to Congress which would criminalize incitement to violence against a person or a group of people, based on race, national or ethnic origin, sex, sexual orientation, gender identity, religion or beliefs. The law will also amend the Press Law and the Law on Criminal Responsibility of Legal Entities.
Blood donation
In 2013, the Health Ministry lifted a ban on gay and lesbian blood donations.
Before, potential blood donors would be asked their sexual orientation as a part of a questionnaire that would decide whether or not their blood was viable. Anyone identifying as gay, lesbian or bisexual was prohibited from donating blood. The current language in the questionnaire now only restricts donors with a history of risky sexual behavior, regardless of the sexual orientation of the participant. Risky sexual conduct is defined by the Health Ministry as sex with more than one partner in the previous 12 months.
Childhood Act
Bill on "System of Guarantees of Rights of the Childhood," includes protection from discrimination towards LGBTI children and adolescents. On 2 May 2017, the plenary session of the Chamber of Deputies approved the bill including LGBTI categories. The bill now heads to the Senate for discussion.
Article 9 of the bill states that "no child shall be arbitrarily discriminated against because of their sexual orientation, gender identity, gender expression and sex characteristics," among other distinctions.
Other areas
Since 2010, Law 20.418 on the Right to education, information and guidance on Fertility states that "everyone has the right to confidentiality and privacy about their sexual options and behaviors, as well as the methods and therapies they choose for the regulation or planning of their sexual life."
In May 2014, Law 20.750 on the Introduction of Digital Terrestrial Television was enacted. The law creates the National Television Council whose main function is to ensure the proper functioning of television services. It is understood by the correct functioning of these services the permanent respect, through its programming, to pluralism. For the purposes of this law, pluralism will be understood as "respect for social, cultural, ethnic, political, religious, gender, sexual orientation and gender identity diversity, and it shall be the duty of the concessionaires and permit holders of TV services regulated by this law to observe these principles."
In December 2015, President Michelle Bachelet signed a decree to set up the Office of the Undersecretary of Human Rights and establish an Inter-ministerial Human Rights Committee. It provides for a National Human Rights Plan that seeks to prevent discrimination, with specific reference to the anti-discrimination law that protects LGBT people in Chile.
Military service
The Military of Chile does not discriminate on grounds of sexual orientation and gender identity. It officially prohibits discrimination against LGBT people.
In 2012, the commander-in-chief of the Chilean Army Juan Miguel Fuente-Alba, reported the repeal of all rules and regulations that prevented LGBT people from entering the Armed Forces. On September 10, 2012, by Order of Command No. 6583/126, it was declared expressly repealed all those rules or provisions of institutional regulations, which contravene the principle of non-discrimination according to the Anti-discrimination law.
In 2014, the Ministry of National Defense, established the Committee for Diversity and Non-Discrimination which will aim to advance concrete measures to eradicate discrimination and arbitrary exclusions in the military. The instance, which is composed of representatives of all branches of the Military of Chile, expressly prohibits discrimination based on sexual orientation and gender identity. The resolution, signed by Defense Minister Jorge Burgos, established the government as responsible for creating a more inclusive armed services.
The same year, sailor Mauricio Ruiz became the first serving member of the Armed Forces to publicly assume his homosexuality. Ruiz said that what was most important was not a soldier's sexual orientation, but his or her willingness to serve the country. His announcement came with the full backing of the Chilean Navy.
On May 29, 2015, the commander-in-chief Humberto Oviedo, aware that the anti-discrimination issue requires a more specific regulation, and indeed a cultural change within the army, issued an Order of Command to expand and complement the 2012 order that had repealed all rules contrary to the Anti-discrimination law. It was established emphatically that "the Chilean Army, as an institution that must and belongs to all Chileans without exception, does not discriminate arbitrarily on the basis of race or ethnicity, socioeconomic status, religion or belief, sex, sexual orientation, gender identity, marital status, affiliation, personal appearance or any other reason." The discriminatory conducts of its officials are "expressly and definitively prohibited." If someone violates this principle will incur a "very serious offense, regardless of the rank hierarchy, category or type of contract."
Conversion therapy
In June 2015, the Chilean College of Psychologists announced its rejection to the realization of so-called "reparative therapy to cure homosexuality," also known as conversion therapies. After conducting an investigation, through its Gender and Sexual Diversity Committee, established that "the different sexual orientations are no deviations or mental illness, therefore, there is no disease to cure." Through a press release, they stated that "there is no scientific study showing that conversion therapies change homosexuality, so only produce frustration and damage to their patients."
In February 2016, the Chilean Ministry of Health for the first time expressed their opposition to conversion therapy. "We consider that the practices known as 'reparative therapies' or 'conversion' of homosexuality represent a grave threat to health and well-being, including the life, of the people who are affected," they stated.
Mental Health Protection Bill
On 18 October 2017, the Chamber of Deputies passed the Mental Health Protection bill, which states in its article 6 that "a mental health diagnosis can not be made based solely on criteria related to the political, socioeconomic, cultural, racial or religious group of the person, nor with their identity or sexual orientation." The bill now heads to the Senate for discussion.
Summary table
See also
- Human rights in Chile
- Intersex rights in Chile
- LGBT rights in the Americas
- Luis Larraín
References
External links
- Movimiento de Integración y Liberación Homosexual (MOVILH)
- Movimiento Unificado de Minorías Sexuales (MUMS)
Source of the article : Wikipedia
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