LGBT rights in Guatemala

Lesbian, gay, bisexual, and transgender (LGBT) persons in Guatemala may face legal challenges not experienced by non-LGBT residents. Both male and female same-sex sexual activity are legal in Guatemala.

LGBT rights in Guatemala
StatusLegal since 1871[1]
Gender identityTransgender people are unable to legally change gender
MilitaryUnknown
Family rights
Recognition of relationshipsNo recognition of same-sex couples
AdoptionNo

Sexual orientation and gender identity are not expressly included in the country's non-discrimination laws and same-sex couples and households headed by same-sex couples are not eligible for the same legal protections available to opposite-sex married couples. A majority of Guatemalans affiliate with the Catholic Church or Protestant churches. As such, attitudes towards members of the LGBT community tend to reflect prevailing religious mores. Nevertheless, LGBT people have slowly gained more and more visibility and acceptance in recent years, in line with worldwide trends. Additionally, Guatemala is legally bound to the January 2018 Inter-American Court of Human Rights ruling, which held that same-sex marriage and the recognition of one's gender identity on official documents are human rights protected by the American Convention on Human Rights.[2]

Legality of same-sex sexual activity
A Mayan cave painting of two men engaging in sexual acts, located in Naj Tunich

The Mayan civilization, present in Guatemala before Spanish arrival, was tolerant of homosexuality. There was a strong association between ritual and homosexual activity. Some shamans engaged in homosexual acts with their patients, and priests engaged in ritualized homosexual acts with their gods.[3]

Following Spanish conquest and the incorporation of modern-day Guatemala into the Viceroyalty of New Spain, sodomy became punished with burning at the stake. Christianity, which has traditionally regarded homosexuality as sinful, was also introduced to the region, and thus the relative openness surrounding homosexuality disappeared.

Consensual, non-commercial, private same-sex sexual activity has been legal in Guatemala since 1871.[1]

Recognition of same-sex relationships

There is no legal recognition for same-sex couples in the form of same-sex marriage or in the more limited form of civil unions or domestic partnership arrangements. Former President Álvaro Colom supports civil unions for same-sex couples.[4] In December 2016, Deputy Sandra Morán along with various groups announced the introduction of a civil unions bill in the Congress of Guatemala. Morán acknowledged that her proposal would be strongly criticized by conservative groups, but argued that "society is not only made up of these people, but also people who think differently." Additionally, she urged the modernization of Guatemala on issues of recognition and support to all citizens.[5]

2018 Inter-American Court of Human Rights ruling

In January 2018, the Inter-American Court of Human Rights (IACHR) ruled that the American Convention on Human Rights mandates and requires the recognition of same-sex marriage. The ruling was fully binding on Costa Rica and sets a binding precedent for other Latin American and Caribbean countries including Guatemala. The Court ruled that same-sex marriage is a human right.[2]

While the ruling was welcomed by human rights groups; the Catholic Church, religious groups and conservative organizations expressed opposition. Constitutional lawyers have urged the Government to abide by the ruling.[6]

In response to the IACHR ruling, several government lawmakers introduced a so-called "life and protection" bill, which would increase penalties for abortion and would explicitly ban same-sex marriage. If passed, the bill would criminalise women who have miscarriages (which according to certain statistics from the United States National Library of Medicine is as high as 30% of all pregnancies), and would define the family as "being a father, a mother and children". Moreover, the bill establishes that "freedom of conscience and expression" protects people from being "obliged to accept non-heterosexual conduct or practices as normal." It has also attracted further criticism, as it erroneously and unscientifically describes homosexuality as "being contrary to biology and genetics". The bill has already passed its first and second readings, and requires a final third reading, a reading of every individual article, and lastly a signature from the President. President Jimmy Morales has expressed support for the proposal, saying: "I remind the people of Guatemala that their institutions and their officials, according to Article 156 of the Political Constitution of the Republic, are not obligated to follow illegal orders. Guatemala and our government believe in life. Our government and Guatemala believe in the family based in the marriage of man and woman." His usage of the term "illegal" is factually incorrect, as Guatemala, like most Latin American countries, has taken an oath to uphold international law, respect human rights, and follow the jurisdiction and jurisprudence of the Inter-American Court of Human Rights.[7][8]

If enacted, the bill would contravene international law with regards to same-sex marriage, specifically the American Convention on Human Rights.[7] LGBT activists announced their intention to challenge the proposal to the Constitutional Court and, if necessary, to the Inter-American Court of Human Rights itself.[8] In September 2018, the bill's third reading was blocked, and it has not been debated in Congress since.[9]

Discrimination protections

Guatemala laws do not prohibit discrimination on the basis of sexual orientation or gender identity in areas such as employment, education, housing, health care, banking or other public accommodations, such as cafes, restaurants, nightclubs and cinemas.[10] The only exception to this is the Código de la Niñez y la Juventud (Code on Childhood and Youth), approved in 1997, which protects children and youth from experiencing discrimination based on a variety of factors, including their own sexual orientation and that of their parents.[11]

In May 2017, Deputy Sandra Morán presented a bill to Congress with the aim of reforming articles 27 and 202 of the Criminal Code to add sexual orientation and gender identity as protected categories.[12]

Gender identity and expression
See also: Transgender rights

Since 2016, transgender people in Guatemala can change their legal name so that it matches their gender identity, following judicial permission. However, they cannot change their legal gender.[13][14]

In December 2017, a bill to recognize the right to gender identity and allow for transgender people to change their name and gender on birth certificates was introduced to Congress.[15] In August 2018, both the Legislative and Constitutional Points Commission and the Women's Commission rejected the bill.[16]

Politics

In January 2016, Sandra Morán was elected to Congress, the country's first openly LGBT legislator. She is the country's first openly lesbian lawmaker, and a member of Convergence, a left-wing political party.[17]

During the 2019 Guatemalan general election, a total of four openly gay men ran for office. Two openly gay men were among candidates who ran for seats in Congress: Aldo Dávila, executive director of Asociación Gente Positiva, a Guatemala City-based HIV/AIDS service organization, is a member of Winaq, and Otto René Félixa, a member of the far-left Guatemalan National Revolutionary Unity (URNG) party.[18][19] Two openly gay men ran for seats in the Central American Parliament: José Carlos Hernández Ruano, a member of the Semilla party, and Henry Cortez, a member of Convergence.[20] Following the elections in June, Dávila became the first openly gay man elected to the Congress of Guatemala. He has vowed to fight for LGBT rights in the country after he takes office in January 2020, by pushing for a legislative proposal that would criminalize hate crimes and hate speech against the LGBT community, and a "gender identity law" that would allow transgender people to change their official documents to reflect their gender status. He also seeks to create a national commission of complaints and monitoring for discrimination against women, young people and LGBT people.[21][22] Hernández Ruano was elected to the Central American Parliament.[23][24]

Social conditions
Participants at an LGBT Pride walk in Guatemala City, 23 June 2012

Despite homosexuality being legal since 1871, negative social attitudes have prevailed in Guatemalan society, and harassment, even targeted killings, of LGBT people have been known. For example, while a gay bar was allowed to open in 1976, it was the only gay bar allowed in Guatemala until the late 1990s.

Most Guatemalan residents are members of the Catholic, Fundamentalist Protestant, or Eastern Orthodox faiths, which all have traditionally upheld socially conservative attitudes and in particular tend to believe that homosexuality and cross-dressing are signs of immorality. These socially conservative Christian attitudes are also reflected in the dominant political parties in the nation. The National Unity of Hope is a Christian social democratic party, and the Patriotic Party is a conservative, if not right-wing, political party. Most of the other political parties, even the more liberal or left-wing parties, generally ignore the issue of LGBT rights.

Despite these challenges, the LGBT community has become more visible since the 1990s, and the nation's refocus on democratization, peace, and human rights has had some benefit for LGBT rights. In 1993, OASIS (Organization to Support an Integral Sexuality in the Face of AIDS) was allowed to be established as a non-profit group that would provide comprehensive HIV/AIDS education aimed at the LGBT community. The end of the civil war in 1996 and the subsequent advancement of democratization and human rights allowed OASIS to also work on LGBT rights. The first gay pride parade in the country took place in the capital Guatemala City in 2000.[25]

Like many other countries, Guatemala's LGBT situation is evolving and new figures are emerging as pioneers. LGBT rights in Guatemala are no longer a forbidden topic. Younger generations are making a mark on Guatemala's society, challenging the prevailing views in the country.

Anti-LGBT violence

Bias-motivated crimes (a.k.a. "hate crimes") on the basis of sexual orientation or gender identity are reportedly tolerated by the Government, especially when the harassment or violence is directed at transgender people. The lack of civil rights protections and protections from hate crimes is attributed to the prevailing attitudes about sexual identity and gender roles.[26]

In the late 1990s, there were several reports by the United Nations and some NGOs that LGBT people in Guatemala were being systematically targeted for death as part of a "social cleansing campaign". One of the more prominent victims of this campaign was transgender AIDS activist Luis Palencia, who was gunned down in Guatemala City in 1997.

Public opinion

According to a July 2010 poll by Cid-Gallup, 85% of the country's population opposed same-sex marriage, while 12% supported it and 3% were unsure.[27]

According to a Pew Research Center survey, conducted between 10 November and 16 December 2013, 12% of respondents supported same-sex marriage, 82% were opposed.[28][29]

An ILGA poll carried out between 18 April and 20 June 2014 showed that 23% of the Guatemalan population supported same-sex marriage. 61% were opposed and 17% were undecided.[30]

In May 2015, PlanetRomeo, an LGBT social network, published its first Gay Happiness Index (GHI). Gay men from over 120 countries were asked about how they feel about society’s view on homosexuality, how do they experience the way they are treated by other people and how satisfied are they with their lives. Guatemala was ranked 69th with a GHI score of 40.[31]

The 2017 AmericasBarometer showed that 23% of Guatemalans supported same-sex marriage.[32]

Summary table
Same-sex sexual activity legal (Since 1871)
Equal age of consent (Since 1871)
Anti-discrimination laws in employment only (Proposed)
Anti-discrimination laws in the provision of goods and services (Proposed)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) (Proposed)
Anti-discrimination laws in education (Since 1997)
Same-sex marriages
Recognition of same-sex couples (Proposed)
Stepchild adoption by same-sex couples
Joint adoption by same-sex couples
LGBT people allowed to serve openly in the military
Right to change legal gender / (Since 2016, transgender persons can change their legal name but not their legal gender)
Access to IVF for lesbians
Commercial surrogacy for gay male couples
MSMs allowed to donate blood
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See also

References
  1. Fernandez, Manuel. "Guatemala" (PDF). glbtq Encyclopedia Project.
  2. "Inter-American Court endorses same-sex marriage". Agence France-Presse. Yahoo7. 9 January 2018. Archived from the original on 9 January 2018. Retrieved 9 January 2018.
  3. Peter Herman Sigal. From moon goddesses to virgins: the colonization of Yucatecan Maya sexual desire. p. 213. University of Texas Press, 2000. ISBN 0-292-77753-1.
  4. Moore, Oliver (10 May 2012). "For or against: A look at world leaders' stances on gay marriage". The Globe and Mail. Retrieved 2 January 2020.
  5. Hora, Diario La (22 December 2016). "Preparan reformas al Código Civil para legalizar unión de personas del mismo sexo". La Hora (in Spanish). Retrieved 2 January 2020.
  6. Latin America countries urged to abide by landmark LGBT rights ruling The Washington Blade, 15 January 2018
  7. "Guatemala: Reject 'Life and Family Protection' Law". Human Rights Watch. 31 August 2018. Retrieved 2 January 2020.
  8. "Jimmy Morales: "Guatemala cree en la vida y en la familia basada en el matrimonio de hombre y mujer"". InfoCatólica (in Spanish). 1 September 2018. Retrieved 2 January 2020.
  9. Peralta, Ricardo (6 September 2018). "Guatemala Detuvo la Iniciativa que Prohibía el Matrimonio Igualitario y el Aborto". Hornet (in Spanish). Retrieved 2 January 2020.
  10. "Guatemala: Treatment of gay, lesbian, bisexual and transgendered/transsexual individuals and availability of state protection; police attitudes towards same-sex domestic violence and state protection available to victims (2003 - September 2006)". Refworld. Immigration and Refugee Board of Canada. 26 October 2006. Retrieved 2 January 2020.
  11. "GUATEMALA: ACTIVISTS FIGHT TO RETAIN SEXUAL ORIENTATION WITHIN NEW CHILDREN AND YOUTH LAW". OutRight International. 1 May 1998.
  12. Pocasangre, Henry Estuardo; Gramajo, Jessica (4 May 2017). "Iniciativa propone sancionar la homofobia". Prensa Libre (in Spanish).
  13. "Socially conservative Guatemala sees LGBT gains". Puerto Vallarta Daily News. 1 August 2016. Retrieved 2 January 2020.
  14. "Comunidad GLBTI en Guatemala gana ciertas batallas". El Universo (in Spanish). 31 July 2016. Retrieved 2 January 2020.
  15. "Transgender rights bill introduced in Guatemala". Washington Blade. 4 December 2017. Retrieved 27 September 2018.
  16. "El Congreso de Guatemala rechaza reconocer derechos de los trans". France 24 (in Spanish). 29 August 2018. Retrieved 27 September 2018.
  17. Lavers, Michael K. (20 January 2016). "First LGBT member of Guatemala Congress takes office". Washington Blade.
  18. Randall, Devin (13 March 2019). "Guatemalan General Election Brings Two Gay Men Fighting For LGBT Rights". Instinct Magazine.
  19. Lavers, Michael (9 March 2019). "Two gay men run for Guatemala Congress". The Washington Blade.
  20. Salazar, Pizo (15 June 2019). "Elecciones Guatemala: candidatos LGBT+ con agenda de diversidad sexual". Presentes (in Spanish).
  21. "Primer diputado gay en Guatemala promete lucha por derechos". Publinews (in Spanish). 19 June 2019.
  22. "Aldo Dávila set to be Guatemala's 1st openly gay congressman". MYNorthwest.com. 20 June 2019. Archived from the original on 21 June 2019.
  23. Abolafia Anguita, Luis (17 June 2019). "Aldo Dávila Expected ro Become First Openly LGBTQ Congressman in Guatemala". Victory Institute.
  24. Lavers, Michael K. (18 June 2019). "Gay man poised to win seat in Guatemala Congress". The Washington Blade.
  25. "Aldo Dávila set to be Guatemala's 1st openly gay congressman". The Washington Post. 20 June 2019.
  26. "Sexual minority rights in Guatemala: Struggling for recognition and justice". PBI Guatemala. 29 March 2010. Archived from the original on 4 September 2018.
  27. "Guatemalans Reject Same-Sex Marriage". Archived from the original on 7 December 2011.
  28. "Social Attitudes on Moral Issues in Latin America". Pew Research Center. 13 November 2014. Retrieved 2 January 2020.
  29. "Appendix A: Methodology". Pew Research Center. 13 November 2014. Retrieved 2 January 2020.
  30. "ATTITUDES TOWARDS MARRIAGE EQUALITY IN 51 COUNTRIES" (PDF). ILGA. 13 May 2015. Archived from the original (PDF) on 31 August 2017.
  31. The Gay Happiness Index. The very first worldwide country ranking, based on the input of 115,000 gay men Planet Romeo
  32. Espinal, Rosario; Morgan, Jana; Boidi, María Fernanda; Zechmeister, Elizabeth J. (November 2017). "CULTURA POLÍTICA DE LADEMOCRACIA EN LA REPÚBLICA DOMINICANAY EN LAS AMÉRICAS, 2016/17" (PDF). Vanderbilt University (in Spanish).
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