Diversity – Chile joins the list of Latin American countries where the same-sex marriage law has been passed
By Abril Neiman.
It has been a long time since Latin America has started its journey towards the recognition of the LGTBIQ+ community rights. Nonetheless, there is still a long way to go.
The most recent progress in the region took place in Chile, where the Congress passed Law 21,400[1] in December 2021, regulating the so-called same-sex marriage. This is the seventh country in Latin America to adopt this law and, although it can be seen as a relatively low number –there are more than twenty countries in the region–, this reflects that the fight continues.
As the Law 26,618[2] about Civil Marriage in Argentina, the recent Chilean Law changed those articles of the Civil Code referring to marriage, replacing the words “husband and wife” for “spouses”. Therefore, it is now allowed marriage between two people of the same sex in all the national territory.
The Chilean Law 21,400 clearly extends the LGTBIQ+ rights, as it does not only foresee the possibility to get married, but also allows filiation and adoption to couples of the same sex. In addition, it reaffirms that there is no place for discrimination based on sex nor gender identity, hence it is established the recognition of non-binary people’s rights[3]. In agreement with this, the words “mother” and “father” are replaced by others that do not mention one sex, i.e. “parents”, “mother and/or father”, “two mothers” and “two fathers”.
Having mentioned the above, it is clear that the Argentine Republic was, with no doubt, a pioneer country in the region, which pushed the neighbors’ countries on their way to this recognition. Since 2010 some other regulations were passed in Argentina, extending the LGTBIQ+ community rights. For example, Law 26,743[4] about Gender Identity, recognizes precisely the right to all people to be admitted according to their own identity and to be treated according to their own decision.
The Argentina Republic has been an example of these topics for all Latin America.[5]
For example, Brazil[6] and Uruguay[7] have legally authorized marriage between two people of the same sex since 2013. The following country to do so was Colombia, in 2016[8], later Ecuador, in 2019[9], Costa Rica in 2020[10], and last but not least Chile in 2021.
We would like to draw particular attention to Mexico, given that marriage between people of the same sex is not allowed in all the national territory and each particular Mexican Federal State has its own regulation.
In a State where it is not legal, people of the same sex can get married, although this occurs as a result of a judicial relief because the National Supreme Court already solved this issue favorably.
In brief, the recent same-sex marriage law passed by the Chilean Congress is a great achievement, not only for people who are part of the LGTBIQ+ community, but also to the whole society which, little by little, start breaking the bias.
Although seven countries in the region are not many, the debate is present and it will continue. The legislation will not ignore social reality forever.
For further information please contact: aneiman@ojambf.com
[1] Law 21,400 enacted on December 7th 2021, and published in Chile’s Official Gazette on December 10th 2021.
[2] Law 26,618 enacted on July 15th of 2010, and published in the Official Gazette on July 22nd, 2010.
[3] Law 21,400 (t.o 2021), article 1, ítem c – “Introduce the following amendments to the Civil Code: c. Add the following final clause: ‘The laws or other provisions that refer to the expressions husband and wife, husband or wife, shall be understood as applicable to all spouses, without distinction of sex, sexual orientation or gender identity’”
[4] Law 26,743 enacted on May 9th 2012, and published in the Official Gazette on May 24th 2012.
[5] In the opportunity of the approval of the same-sex marriage on Chile, Isabel Amor, Executive Director of “Fundación Iguales”, publicly thanked Argentina for being “the spearhead in Latin America”. Speech broadcasted by TN, December 7th, 2021.
[6] The right to same-sex marriage was recognized in Brazil through the Resolution N° 175 of May 14th 2013 from the National Justice Council.
[7] Law 19.075 enacted on May 3rd 2013 in Uruguay, and published on May 9th 2013.
[8] In Colombia same-sex marriage was granted by a Constitutional Court decision; SU-214 from April 28th, 2016.
[9] In Ecuador same-sex marriage was granted by the Constitutional Court decisions, numbers 10-18-CN and 11-18-CN from June 12, 2019.
[10] Costa Rica declared unconstitutional all laws that forbid same-sex marriage, as a response to the recommendations suggested by the CIDH through 2018-012782 resolution, which ordered the Congress to legislate on the subject in the term of 18 months. Expired that term with no regulation, same-sex marriage was legalized on May 26th, 2020.
