LGBT rights in Costa Rica

LGBT rights in Costa Rica
Costa Rica
Same-sex sexual activity legal?	Legal since 1971[1]
Gender identity/expression	-
Military service	No armed forces
Discrimination protections	Sexual orientation protections since 1998
Family rights
Recognition of relationships	Yes for some purposes
Adoption	Legal, only if requested individually

Lesbian, gay, bisexual, and transgender (LGBT) persons in Costa Rica may face legal challenges not experienced by non-LGBT residents. Same-sex sexual relations have been legal since 1971.^[1] Since 2013, households headed by a same-sex couples can obtain some domestic partnership benefits.

History

Homosexuality first became classified as a grave sin and crime during the Spanish rule. After gaining independence, it remained a crime until the liberal presidency of Tomás Guardia. While it was decriminalized during this era as part of a larger reform of the legal system, homosexuality was still widely seen as an "infamous sin".^[2]

In 1971, a universal age of consent was established as was a new law that prohibited "scandalous sodomy" but otherwise maintained the legal status of private homosexual sex acts between consenting adults.^[2] Article 382 in the Penal Code that mentions "scandalous sodomy" was repealed in 2002, alongside many other laws.^[3]

While homosexuality was technically legal, police harassment and raids of LGBT people and private establishments were formerly commonplace. In 1990, for instance, Minister of Government Antonio Alvarez Desanti announced that he would not allow foreign women to enter Costa Rica to participate in an "Encuentro," an international meeting of lesbians. He instructed Costa Rican consulates not to grant visas to women travelling unaccompanied by men, warning that all such women would be stopped at the airport.^[4]

He also informed airlines that if they sold tickets to women travelling alone, or appearing likely to attend the meeting, they would be required to provide for the suspected lesbians' immediate return. When pressed to explain how lesbians could be identified at the airport, he reportedly asserted that women who had short hair, wore pants, or travelled alone could be identified as lesbians. Organizers changed the dates and location of the meeting, and it finally took place.^[4]

Furthermore, the government did not want to grant legal recognition to political organizations seeking to advance LGBT rights.^[2] These policies started to change in the 1990s, when the Supreme Court of Justice of Costa Rica ruled that the constitution gave LGBT people the right to peaceful assembly, associate, create their own private establishments, as well as their own LGBT rights associations.^[2]

In 1993, it came to light that the Universidad Internacional de las Americas has a policy of expelling LGBT students and firing LGBT faculty and staff. When an AIDS-HIV education association, Instituto Latinoamericano de Educacion y Prevencion en Salud, filed a complaint with the Ministry of Education they were unable to come up with a specific example of the university's policy being enforced, but the Ministry stated that if the policy is enforced it would probably violate Articles 20, 33, and 70 of the constitution.^[5]

In the later 1990s the Costa Rica Catholic Church organized protest against LGBT tourism, often arguing that it was a cover for sex tourism. Yet, there are still several tourist groups that cater to LGBT people.^[6]

In 1998, a planned LGBT pride festival was cancelled out of concern of the possibility of violence. During the initial planning of the event, the then President of Costa Rica publicly opposed granting permits for the event to occur.^[7]

In 1999, the City of San José attempted to close down a gay sauna, but the Supreme Court in 2000 ordered the city to allow the sauna to remain open, stating, "subjective criteria of morality and proper behaviour have no legal basis ... and represent a violation of the fundamental rights granted by our Constitution".^[8]

In 2012 Citizen's Action Party presented a bill to declare the Legislative Assembly a "homophobia-free space" which passed by the majority of votes, having only the negative vote of the Christian parties.^[9]

On 1 July 2013, the Legislative Assembly passed legislation that would give same-sex couples some of the same rights and benefits given to opposite-sex married couples.

Recognition of same-sex relationships

As of March 2015, Costa Rica law does not recognize same-sex marriage or civil unions. In 2013, national legislation has been passed, which offers a limited form of domestic partnership benefits.

In 2006 the Supreme Court rejected a claim that the Constitution requires the government to recognize same-sex marriages. Human rights lawyer Yashin Castrillo Fernandez had sued arguing that certain constitutional provisions relating to equal rights and international law required the legalization of same-sex marriage, but only two of the justices agreed.^[10] The majority wrote that at the time the Constitution was approved, "marriage" was understood to be a union between a man and a woman. The court decision did state that the national government had the power to enact civil unions.^[11]

In 2008 the LGBT rights association Diversity Movement, persuaded some lawmakers to introduce a civil unions bill. Deputies Ana Helena Chacón Echeverría (then of the Social Christian Unity Party, currently of the Citizens' Action Party) and José Merino (Broad Front) expressed support for the proposed bill stating that, "gays and lesbians are no less Costa Rican than the rest of us. We're not talking about marriage or adoption, but about basic civil rights.".^[11]

On July 2010 the Constitutional Court (Sala IV) ordered the TSE (Supreme Elections Tribunal) to stop the effort of preparing the referendum to take place on 5 December of this year that will allow citizens to decide the future of civil unions for same sex couples in Costa Rica. The Recurso de Amparo (appeal) was presented by lawyer Quirós Salazar, alleging that the referendum violates the rights and freedoms of individuals. The petition for referendum has been organized by the Observatorio de la Familia, a religious conservative group seeking to stop legislation that promotes civil unions for same sex couples.^[12]

On 1 July 2013, the Legislative Assembly passed legislation that would grant the benefits of domestic partnerships "without discrimination contrary to human dignity". Progressive lawmakers indicated during debate that the changes would open civil unions to same-sex couples. Conservative lawmakers immediately called upon President Laura Chinchilla to veto the legislation,^[13][14] claiming that they mistakenly voted for the bill.^[15] Chinchilla refused to oppose the bill's passage^[16] and signed it into law days later.^[17] The bill took effect 8 July 2013.^[18]

On 10 July, six same-sex couples asked courts to start the process to have their relationships recognized through civil unions. A day later, a family court accepted one of the petitions.^[18]

Adoption and parenting

Mario Núñez, a member of the Libertarian Movement Party, introduced a bill in the Legislative Assembly in 2007 to ban LGBT people and same-sex couples from adopting or having custody of children.^[19][20] Currently under Costa Rica’s law gay and lesbian individuals can legally adopt children, but not same sex couples.^[21]

Discrimination protections

The constitution does not explicitly prohibit discrimination on the basis of sexual orientation or gender identity.

Since 1998, "sexual option" (Article 48 Costa Rican General Law 7771) is one of the categories in which discrimination is generally prohibited in areas such as employment.

ARTICLE 48. Costa Rican General Law 7771 – Discrimination
Who ever applies, arranges or practices discriminatory measures because of race, nationality, gender, age, political, religious or sexual option, social position, economic situation, marital status or by any suffering of health or disease, will be sanctioned with penalty of twenty to sixty days fines. The judge will be able to impose, in addition, the disqualifying penalty that corresponds, of fifteen to sixty days.

Gender identity/expression

Since 2013, transgender persons can change their legal name so that it matches their gender identity. Surgery is not a requirement but a judicial order is required. However, gender change is not allowed.^[22][23]

Article 2 of the Regulations on Photographs in Identity Documents by Supreme Electoral Court, Decree 08-2010, states: "Every person has the right to have their image and gender identity respected at the moment of taking the photograph that is attached to the identity card."^[24]

Living conditions

LGBT rights in Costa Rica have made significant cultural, social and legal progress since the 1970s. While certain politicians, such as president Óscar Arias, have expressed some support for LGBT rights, Costa Ricans tend to be socially conservative when it comes to sexual orientation and gender identity issues, in large part due to the strong influences of the Roman Catholic Church and cultural traditions about machismo.

On 27 March 2008, the former president of Costa Rica, Oscar Arias Sanchez, signed an executive order designating 17 May as the National Day Against Homophobia,^[25] committing Costa Rica to join others around the world in working to eradicate bias against gays and lesbians. On 21 April 2013, Carmen Muñoz (Partido Acción Ciudadana) became the first openly lesbian member of Costa Rica's legislative assembly, after being interviewed by La Nación newspaper.^[26]

In 2008, the Costa Rican Supreme Court ruled against a gay prison inmate receiving conjugal visits.^[27] In October 2011, the Costa Rican Supreme Court reversed the 2008 ruling that now allows equality for gay couples in receiving conjugal visits only for partners outside of prison.^[28]

On May 15, 2014, International Day Against Homophobia and Transphobia, the president of Costa Rica Luis Guillermo Solis placed a rainbow flag in the Presidential House. According to Luis Guillermo Solis, this was a symbolic act in support of all kinds of diversity, particularly for a group that has been severely discriminated. The act generated mixed reactions and was criticized by religious sectors of the country.^[29][30]

Political party views

Recognition of same-sex unions under a different figure than marriage is supported by some of the main parties including now ruling Citizens' Action Party (PAC), oppositionist National Liberation Party (PLN), Social Christian Unity (PUSC) and Libertarian Movement (ML). Left-wing party Broad Front it’s the only of the main parties that supports same-sex marriage, but both PAC and PLN have endorsement of the initiative by some of their important figures, including some lawmakers. PUSC it's oppose to same-sex marriage as a whole, while ML’s candidate and congressman Otto Guevara expressed during the 2014 presidential campaign that although supports recognition for same sex couples it’s not a priority for him.

Opposition is frontal from a group of four small Christian parties; National Restoration, Costa Rican Renovation, Christian Democratic Alliance and Accessibility without Exclusion, all of them having a total of five lawmakers in the Assembly, reason for which they generally use filibusterism to delay the discussion.

In 2012, controversy erupted when Justo Orozco, Costa Rican Renovation's president and then only deputy, was head of the Human Rights Commission. Protesters were upset that Orozco expressed support for the belief that homosexuality is a sin and a treatable disease. As a result of the protests, future vicepresident Ana Helena Chacón, then PUSC's member, moderated an official government meeting with protestors seeking to expand legal equality for gay couples.

HIV/AIDS

While HIV/AIDS is not exclusively a problem for LGBT people, public health efforts to fight the spread of disease have raised public awareness of sexual orientation and gender identity issues.

Since the late 1990s, equal opportunity laws in Costa Rica generally protect people living with HIV/AIDS. The law also stipulates that all persons living with HIV/AIDS have the right to medical care, regardless of their nationality.^[31]

HIV/AIDS preventative programs for LGBT people are primarily handled by Non-Governmental Organizations (NGOs). Comprehensive sex educational campaigns are almost nonexistent in public high schools because of the opposition of the Catholic Church and other religious groups.^[32]

Summary table

Same-sex sexual activity legal	(Since 1971)
Equal age of consent	(Since 2002)
Anti-discrimination laws in employment	(Since 1998)
Anti-discrimination laws in the provision of goods and services	(Since 1998)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech)	(Since 1998)
Same-sex marriages
Recognition of same-sex couples	(for some purposes such as conjugal visit, health-related decisions and social insurance; civil union bills pending)[33]
Step-child adoption by same-sex couples
Joint adoption by same-sex couples
Gays and lesbians allowed to serve openly in the military	Has no military (See Article 12 of Constitution)
Right to change legal gender	/ (Name change is allowed, however gender change is not)
Access to IVF for lesbians
Commercial surrogacy for gay male couples
MSMs allowed to donate blood	Since 2007 [34]

See also

• LGBT rights in the Americas

References

External links

Wikimedia Commons has media related to LGBT in Costa Rica.

• Goodwater Human Rights Association
• LGBT Human Rights
• LGBT Rights Costa Rica
• CIPAC (local NGO that provides help and resources for GLBT
• Movimiento Diversidad (local gay politics)
• Mujer y Mujer Sitio Lésbico en Costa Rica