LGBT rights in Peru

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LGBT rights in Peru
Peru (orthographic projection).svg
Same-sex sexual intercourse legal status Legal since 1924[1]
Gender identity/expression Transgender people allowed to change legal gender without surgery
Military service Lesbians, gays and bisexuals allowed to serve openly since 2009
Discrimination protections No protection for LGBT people in hate crime or anti-discrimination laws
Family rights
Recognition of
relationships
No
Adoption No

Lesbian, gay, bisexual, and transgender (LGBT) people in Peru may face legal challenges not experienced by non-LGBT residents. Same-sex sexual activity among consenting adults is legal.[2] However, households headed by same-sex couples are not eligible for the same legal protections available to opposite-sex couples.

In January 2017, a decree issued by President Pedro Pablo Kuczynski prohibiting all forms of discrimination and hate crimes on the basis of sexual orientation and gender identity took effect, though this order was repealed by the Peruvian Congress in May 2017. In a landmark ruling published on 9 January 2017, the 7th Constitutional Court of Lima ruled in favor of recognizing and registering a same-sex marriage, between a Peruvian citizen and a Mexican citizen, performed in Mexico City in 2010, though this ruling was appealed, and is currently before the Supreme Court.

Homosexuality has been used as grounds for separation or divorce. Laws meant to protect "public morals" have also been used against lesbians and gays.[2] Society's attitude towards homosexuals has generally been hostile and is still heavily influenced by the Catholic Church. In the 1980s, the founding of the organisation Movimiento Homosexual de Lima (MHOL) managed to bring about at least a slight change in the way the media treated homosexuality. Known LGBT persons may face persecution by the public. During the first Lima pride parade in 2002, most demonstrators wore masks to avoid persecution by the public.

Legality of same-sex sexual activity

In Peru, consensual same-sex sexual activity has been legal since the enactment of the 1924 Penal Code.[1][3] From 1836 to 1838, the Bolivian Penal Code, which was imposed by General Andrés de Santa Cruz when the Peru–Bolivian Confederation was established, did not expressly prohibit homosexuality.[4] The first Criminal Code of Peru, approved in 1863, included sodomy as a criminal act. According to article 272, someone committing sodomy would be imprisoned, with the same penalties as imposed on the perpetrators of crimes related to rape and statutory rape.[5]

The age of consent in Peru has changed several times during recent years, and has been subject to political debate,[6][7] but today it is fixed at 14, regardless of gender and/or sexual orientation, in accordance with a 2012 decision of the Constitutional Court of Peru.[8]

Recognition of same-sex unions

On 26 July 2010, Deputy José Vargas of the ruling party Alianza Popular Revolucionaria Americana announced that he would introduce a bill legalizing civil unions.[9][10] However, in early 2011, the bill died in the Justice Committee because some of its members believed it would be necessary to change the Constitution in order to approve the law.[11]

Prior to the 2011 Peruvian general election, two of the presidential candidates, Keiko Fujimori and Alejandro Toledo, expressed their support for civil unions for same-sex couples,[12][13] but neither of them were elected. The winner of the election, Ollanta Humala, had stated that he opposed legal recognition for same-sex couples.[14] In April 2014, legislator Carlos Bruce received a petition signed by 10,000 people in favor of allowing civil unions for same-sex couples.[15] Bruce, who proposed the change in the law in September 2013, expressed his hope that it would alleviate the discrimination faced by LGBT Peruvians.

The bill was scheduled to be debated on 7 April in front of the Commission of Justice and Human Rights, but ultimately was postponed until after Easter.[16] In June 2014, a number of bills granting various forms of recognition were discussed in Congress. After the debate, politician Carlos Bruce, who had earlier stated publicly that he was gay, decided that his original civil union bill providing same-sex couples with more comprehensive rights should be voted on separately from the other proposals. More than one bill allowing for the recognition of same-sex relationships was scheduled to be discussed in the following parliamentary session, which began in August, though the debate was eventually postponed once more.[17]

In mid-December 2014, during the last week of the 2014 legislative year, it was announced that the bill would be the first thing on the Government's agenda in the new parliamentary session, which began in early March 2015.[18] On 10 March, Bruce's civil union bill was rejected on a vote of 7-4 with 2 abstentions and 2 absences in the Justice Committee. One senator called for Congress to reconsider the bill and the motion was scheduled for a vote on 17 March, but the meeting was suspended due to a lack of attendance by senators. Also on the agenda was an alternate proposal called a solidary union which was scheduled for a vote within two weeks, though the meeting never materialised.[19] On 14 April 2015, the bill was officially shelved by the Justice Committee after receiving only two votes in favor of its reconsideration.[20]

Congressmen Carlos Bruce and Alberto de Belaunde, from the center-right party Peruvians for Change, reintroduced a civil union bill in Congress in late November 2016.[21][22][23] The bill bears the signatures of various politicians, namely Gino Costa, Sergio Dávila, Vicente Zeballos, Ana María Choquehuanca, Guido Lombardi, Janet Sánchez Alva, Juan Sheput and Vice President Mercedes Aráoz. President Pedro Pablo Kuczynski announced his support for same-sex civil unions during his presidential campaign.

Recognition of same-sex marriage

On 14 February 2017, a bill legalizing same-sex marriage was introduced in the Peruvian Congress. The bill is sponsored by Indira Huilca, Marisa Glave, Tania Pariona, Alberto Quintanilla, Manuel Dammert, Horacio Zeballos, Marco Arana and Edgar Ochoa from the Broad Front and Alberto de Belaunde, Guido Lombardi and Carlos Bruce from the Peruvians for Change. Mrs Huilca said that the legislation was not about "creating ad hoc legal recognition" for same-sex couples but to extend equal rights. "Neither more nor less than that."[24] The proposal seeks to alter Article 234 of the Civil Code to define marriage as "the union voluntarily agreed upon by two persons legally able to do so".[25]

Recognition of marriages performed abroad

On 16 September 2016, the Registry Tribunal of the National Registry of Identification and Civil Status (RENIEC) ruled in favor of a same-sex couple married abroad, considering that same-sex marriage does not contravene international law and order. The couple, married in Belgium, sought to register property they purchased in the country. However, the public registrar refused. On 3 February, the court determined that the applicable law in this case was Belgian law and not Peruvian law. As such, it ruled that the couple can purchase and register property in Peru. The public registrar again refused, saying that although in this case the marriage had been contracted under Belgian law, this contravened international law and order under international treaties signed by Peru. In September, the court ruled that the marriage could not be incompatible with international public order because same-sex marriage is allowed in many countries and again ruled that Peruvian law was not applicable to the case because it is a marriage governed under the laws of Belgium. As a result, same-sex couples who have married in a foreign country will have no problems in registering property they purchased in Peru and have their economic rights recognized.[26]

In a ruling published on 9 January 2017, the 7th Constitutional Court of Lima ordered the RENIEC to recognize and register the marriage of a same-sex couple, Oscar Ugarteche and Fidel Aroche, who had previously wed in Mexico City. Ugarteche is the founder of the Homosexual Movement of Lima, a Peruvian LGBT advocacy group that was founded in 1982. The court ruled that not recognizing same-sex marriages performed in other countries would be highly discriminatory and contrary to both the Peruvian Constitution and many international provisions. The court found that the only reason upon which the marriage was not recognized was because it was concluded between persons of the same sex, and that argument is not reasonable and objective. Additionally, it cited many international precedents, including Atala Riffo and Daughters v. Chile and Obergefell v. Hodges.[27][28][29] RENIEC stated it would appeal the ruling to the Superior Court of Justice of Lima.[30][31] The Superior Court of Justice dismissed the case in March 2018, because Ugarteche had filed the lawsuit against RENIEC six days too late. The Court did not rule on the merits of the case, however. Ugarteche has announced his intention to appeal to the Constitutional Court.[32] The Court heard the case on 20 June.[33]

2018 Inter-American Court of Human Rights ruling

After a motion lodged by Costa Rica, the Inter-American Court of Human Rights issued a ruling in favour of same-sex marriage on 9 January 2018, requiring countries signatory to the American Convention on Human Rights to legalise same-sex marriage. On 11 January, the president of the Supreme Court of Peru and chairman of the country's judiciary, Duberlí Rodríguez, stated that Peru should abide by the decision.[34] On 29 January 2018, Housing Minister Carlos Bruce estimated that same-sex marriage will be allowed in Peru within two years, and several former Supreme Court judges and lawmakers, including Indira Huilca, stated that same-sex marriage will soon be legal in Peru, no matter what.[35][36] The Peruvian Government, however, has yet to issue a formal decision on the matter.

Discrimination protections and hate crime laws

LGBT flag map of Peru

Peru's Constitution Art. 2.2 stipulates that "every person has the right to equality before the law. No person shall be discriminated against on the basis of origin, race, sex, language, opinion, economic status, or any other distinguishing feature". Sexual orientation and gender identity can be included under "any other distinguishing feature", but are not explicitly mentioned.

Nevertheless, since May 2004, the Constitutional Procedure Code (Law 28.237) expressly provides that the writ of amparo, a constitutional guarantee to protect people from the threat or violation of the rights recognized in the Constitution, can be used in the case of discrimination based on sexual orientation.[37][38]

In July 2013, Congress voted down, 56-27 with 18 abstentions, a bill to amend Peru's hate crime laws to include sexual orientation and gender identity.[39]

As of February 2016, a new Penal Code has been drafted and is pending within the Justice and Human Rights Committee. It would establish explicit protection to LGBT people against discrimination, persecution and incitement to hatred.[40]

To break the political deadlock within Congress, a governmental decree adding the terms sexual orientation and gender identity to existing hate crime and anti-discrimination laws was published in the country's official gazette with the new Penal Code coming into effect on 7 January 2017. The decree was issued by the new President, Pedro Pablo Kuczynski.[41][42]

However, in May 2017, the Peruvian Congress voted by 66 votes to 29 to remove these provisions from hate crime and anti-discrimination laws. Members of the largest party in Congress, Popular Force, whose leader narrowly lost to Kuczynksi in the 2016 elections, were joined by members of the Alliance For Progress, to remove the provisions issued in the decree. As a result, Peru is one of three South American countries (along with Paraguay and Guyana) with no laws prohibiting discrimination against its LGBT population.[43][44]

Gender identity and expression

Transgender people are allowed to change their name, so that it matches their gender identity, following sex reassignment surgery. In May 2014, the Peruvian Constitutional Court ruled that a transgender woman could not change her gender on her national identity document.[45]

On 4 November 2016, a bill allowing transgender people to legally change their gender without the need for surgery was introduced in the Peruvian Congress. It bill also seeks to allow transgender people access to passports and other identity documents which match their gender identity.[46]

On 21 October 2016, the Constitutional Court of Peru reversed its 2014 decision, in which the court had determined that sex could only be biological and chromosomal. In this new ruling, published on 8 November, the court acknowledged that people are not only defined by their biological sex, but one must also take into consideration their psychic and social reality. Therefore, the court now recognizes the right of transgender persons to their gender identity. With this decision, transgender people in Peru may apply for a gender change before a judge without the need for sex reassignment surgery.[47] Judges Manuel Miranda Canales, Marianella Ledesma Narváez, Carlos Ramos Núñez and Eloy Espinosa-Saldaña Barrera were part of the majority.

Military service

Until 2009, military and police personnel, who engaged in same-sex sexual activity, could be punished with between 60 days to 20 years imprisonment or discharge from the forces.[2] However, in December 2009, the Constitutional Court of Peru ruled that homosexual or bisexual orientation or engaging in homosexual sex cannot be an impediment to membership of the police forces and the military.[48]

Blood donation

There is no official prohibition on gay and bi men donating blood in Peru.[49]

Public opinion

In August 2010, a poll revealed 8.3% of Peruvians approved of same-sex marriage, with higher percentage amongst people from Lima and younger people.[50]

According to Pew Research Center survey, conducted between 13 November and 16 December 2013, 14% of Peruvians supported same-sex marriage, 81% were opposed.[51][52]

An ILGA poll carried out between 18 April and 20 June 2014 showed that 18% of the Peruvian population supported same-sex marriage, 79% opposed.[53]

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. Peru was ranked 87th with a GHI score of 24.[54]

Summary table

Same-sex sexual activity legal Yes (Since 1924)
Equal age of consent Yes (Since 2012)
Anti-discrimination laws in employment No
Anti-discrimination laws in the provision of goods and services Yes
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) No
Hate crime laws include sexual orientation and gender identity Yes
Same-sex marriage No (Legalisation required per a 2018 IACHR ruling)
Recognition of same-sex couples (e.g. civil unions) No (Legalisation required per a 2018 IACHR ruling)
Stepchild adoption by same-sex couples No (Legalisation required per a 2018 IACHR ruling)
Joint adoption by same-sex couples No (Legalisation required per a 2018 IACHR ruling)
Gays, lesbians and bisexuals allowed to serve openly in the military Yes (Since 2009)
Right to change legal gender Yes (Since 2016)
Access to IVF for lesbians No
Commercial surrogacy for gay male couples No
MSMs allowed to donate blood Yes (No official prohibition)

See also

References

  1. ^ a b Carroll, A.; Mendos, L.R. (May 2017). "State Sponsored Homophobia 2017: A world survey of sexual orientation laws: criminalisation, protection and recognition" (PDF). International Lesbian, Gay, Bisexual, Trans and Intersex Association. Retrieved 12 May 2018. 
  2. ^ a b c Legal survey: Peru Retrieved on 23 August 2007.
  3. ^ "Estudio Diversidad Sexual y Unión Civil" (PDF) (in Spanish). 2014. Retrieved 12 May 2018. 
  4. ^ "Bolivia: Código Penal Santa Cruz (1834)". Retrieved 12 May 2018. 
  5. ^ "Evolución Legislativa de los Delitos Sexuales" (PDF) (in Spanish). Retrieved 12 May 2018. 
  6. ^ Lindsay Goldwert (2007-06-22). "Peru Lowers Age Of Consent To 14". CBS NEWS. Retrieved 2009-12-02. 
  7. ^ "Pleno Reconsidero Exoneracion de Sedunda Votacion a Proyecto Sobre Libertad Sexual" [House Reconsidered and Excluded Second Vote for Project on Sexual Freedom] (in Spanish). El Heraldo. 2007-06-27. Retrieved 2010-09-02. 
  8. ^ "Demanda de inconstitucionalidad interpuesta por diez mil seiscientos nueve ciudadanos contra el artículo 1° de la Ley N° 28704 que modifica el artículo 173°, inciso 3° del Código Penal, sobre delito de violación sexual contra víctima entre 14 y 18 años de edad" (PDF) (in Spanish). 2013-01-07. 
  9. ^ (in Spanish) Vargas afirma que uniones de hecho entre parejas del mismo sexo son "un derecho humano"
  10. ^ (in Spanish) Legislador peruano anuncia proyecto para legalizar uniones homosexuales
  11. ^ (in Spanish) Comisión de Justicia discutió la unión civil entre homosexuales
  12. ^ (in Spanish) Toledo hizo polémicas declaraciones sobre consumo de drogas y aborto
  13. ^ (in Spanish) Keiko difiere con Kenji sobre adopción de niños por parejas homosexuales Archived 8 November 2011 at the Wayback Machine.
  14. ^ (in Spanish) Perú: aspirante izquierdista Ollanta Humala se suma a rechazo de iglesia a bodas gay
  15. ^ 10 thousand sign petition in favor of civil union for gay couples Archived 13 April 2014 at the Wayback Machine., Peru this Week, 2 April 2014
  16. ^ "Peru Compiles Signatures For LGBT Civil Unions". HuffPost. 2014-04-10. 
  17. ^ (in Spanish) La unión civil y unión solidaria volverán a debatirse en agosto en Perú
  18. ^ (in Spanish) El Proyecto de Ley de Unión Civil está como punto número 1 en la agenda de la Comisión de Justicia y por lo tanto será el 1° punto que se verá en la próxima legislatura los primeros días de marzo
  19. ^ Unión Solidaria: Se suspendió debate del dictamen por falta de quórum
  20. ^ Unión civil fue archivada definitivamente por este Congreso
  21. ^ (in Spanish) Unión civil: Nuevo proyecto de ley se presentaría la siguiente semana y estas serían algunas de sus novedades
  22. ^ (in Spanish) Unión civil: bancada de PPK presentará nuevo proyecto de ley
  23. ^ (in Spanish) Presentaron al Congreso proyecto de Unión Civil entre personas del mismo sexo
  24. ^ Peruvian Lawmakers Introduce Gay Marriage Bill On Valentine's Day
  25. ^ (in Spanish) Se presentó proyecto de ley de Matrimonio Igualitario en el Peru
  26. ^ (in Spanish) Matrimonios gay pueden adquirir e inscribir bienes en el Perú
  27. ^ (in Spanish) Ordenan a RENIEC reconocer e inscribir matrimonio entre personas del mismo sexo realizado en México.
  28. ^ (in Spanish) Poder Judicial emitió histórica sentencia en favor del matrimonio homosexual
  29. ^ "Court orders Peru to recognize its first same-sex marriage". Gay Star News. 10 January 2017. 
  30. ^ "Peru takes step toward recognizing same-sex marriage". AP Wires. Daily Mail UK. 11 January 2017. 
  31. ^ "¿Por qué es importante que Reniec apele fallo sobre matrimonio de Óscar Ugarteche?" (in Spanish). 10 January 2017. Retrieved 20 January 2017. 
  32. ^ (in Spanish) Ugarteche: “Esta lucha no acaba acá, iré al Tribunal Constitucional”
  33. ^ Tribunal Constitucional debate reconocimiento de matrimonio gay realizado en México
  34. ^ (in Spanish) Perú debe respetar decisión CorteIDH sobre matrimonio homosexual lavanguardia
  35. ^ "Carlos Bruce hace anuncio: "Matrimonio gay se dará pronto en Perú"". ojo.pe. 
  36. ^ (in Spanish) Huilca: "Matrimonio entre personas del mismo sexo debe implementarse en el Perú"
  37. ^ CÓDIGO PROCESAL CONSTITUCIONAL
  38. ^ Gloobal - Discriminación por orientación sexual en Perú: Situación de las lesbianas, trans, gays y bisexuales en Perú
  39. ^ Peruvian Congress voted down gay rights law
  40. ^ #AlertaPerú : Congreso eliminaría orientación sexual e identidad de género como motivos de discriminación - Sin Etiquetas
  41. ^ (in Spanish) DECRETO LEGISLATIVO Nº 1323
  42. ^ (in Spanish) Perú: aprueban ley contra crímenes de odio y brindan tratamiento especializado a población penitenciaria LGTBIQ
  43. ^ "Peruvian Congress Vote to Remove LGBT from Hate Crime Legislation". The Perchy Bird Blog. 5 May 2017. 
  44. ^ "El Congreso derogó protección contra crímenes de odio por orientación sexual e identidad de género". LimaGay.net. 5 May 2017. 
  45. ^ Peru rejects change of gender for transgender individuals on national identity document
  46. ^ (in Spanish) Perú necesita una Ley de Identidad de Género y hoy se hizo algo importante
  47. ^ (in Spanish) Perú: Tribunal Constitucional reconoce derecho a la identidad de género
  48. ^ Author Carlos A. Quiroz (2009-12-10). "Peru's Constitutional Court ordered Police School to accept expelled Gay Student". Peruanista.blogspot.com. Retrieved 2011-01-19. 
  49. ^ Blood donation: Frequent questions
  50. ^ (in Spanish) ESTUDIO DE OPINIÓN PÚBLICA A NIVEL PERÚ URBANO - Informe de resultados - (5 al 9 de agosto de 2010) Archived 14 August 2011 at the Wayback Machine.
  51. ^ Religion in Latin America Chapter 5: Social Attitudes
  52. ^ Religion in Latin America Appendix A: Methodology
  53. ^ ATTITUDES TOWARDS MARRIAGE EQUALITY IN 51 COUNTRIES
  54. ^ The Gay Happiness Index. The very first worldwide country ranking, based on the input of 115,000 gay men Planet Romeo

External links

  • Movimiento Homosexual de Lima (MHOL) - Gay and lesbian group established in 1982
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