LGBT rights in Chile

LGBT rights in Chile
Chile
Same-sex sexual activity legal?	Legal since 1998, age of consent not equalized
Gender identity/expression	Yes
Military service	LGB allowed to serve in the military
Discrimination protections	Sexual orientation and gender identity protections (see below)
Family rights
Recognition of relationships	Civil unions since 2015
Adoption	Single gay persons may adopt

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.

Law regarding same-sex sexual activity

Adult, consensual, non-commercial, same-sex sexual activity has been legal in Chile since 1998, 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 of guardian, or if the legal representative, parent or guardian is involved in the crime, the Public Ministry may proceed by its own.

As of January 2016, a new Penal Code has been drafted and is pending within the Chile Constitutional Judiciary Committee for six 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.

Gender identity/expression

See also: Legal aspects of transsexualism

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 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).

Gender Identity Law

Currently in 2015, a gender identity law, which would not require any surgeries or judicial permission is being discussed by the congress.

Recognition of same-sex relationships

Campaign demanding legal recognition of same-sex marriage in Chile.

Main article: Recognition of same-sex unions in Chile

Civil unions

Chile has recognised civil unions since 22 October 2015. 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 history of Chile's civil union law originates in 2014. When President Bachelet took office in March 2014, she made passing Piñera's civil union bill a priority issue as well. Legalising same-sex marriage remains a longer-term goal of Bachelet's administration.

On 5 August 2014, a Senate committee approved the civil unions bill. On 7 October 2014, the bill moved out of the Senate to be scheduled for a final vote in the Chamber Of Deputies within coming weeks.

The name of the bill was changed to Civil union pact (Pacto de Unión Civil) on December 17, and Congress reiterated their intention to hold the final vote by January 2015. On 6 January 2015, a provision recognising foreign marriages as civil unions was approved in the Constitutional Committee while the child adoption clause was turned down. The bill went to a final vote before both the Senate and the Chamber of Deputies as it was amended. On 13 January, the full Chamber of Deputies reinserted the adoption provision. On 20 January 2015, the Chamber approved the bill on a vote of 86 to 23 with 2 abstentions. On 27 January, the Senate rejected all the Chamber's amendments, so the bill was headed to the joint committee of both houses. The committee reached the agreement in regard to the text of the bill and changed its name to Civil union agreement (Acuerdo de Unión Civil) the same day. The bill was passed in both houses on 28 January 2015. The new law recognises marriages performed abroad as civil unions and views couples and their children as a family. In March 2015, the Ministry of Foreign affairs announced that it would begin to recognise all unions performed abroad for residency matters. On 13 April 2015, the bill was signed by President Bachelet. It became law six months after its publication in the country's official gazette. The first civil unions occurred on October 22, 2015.

Same-sex marriage attempts

Michelle Bachelet the president of Chile, declared on 11 April 2013 that she supports marriage equality and will seek to legalise it if elected president in the November 2013 presidential elections. Bachelet, who was president of Chile between 2006 and 2010, won the election on 15 December 2013.

On 10 December 2014, a group of senators from various parties joined MOVILH in presenting a bill to allow same-sex marriage and adoption to Congress. MOVILH has been in talks with the Chilean government to seek an amiable solution to the pending marriage lawsuit brought against the state before the Inter American Court of Human Rights. The group has suggested that they may drop the case if Bachelet's Congress keeps their promise to legislate same-sex marriage.

On 17 February 2015, lawyers representing the Government and the LGBT rights group MOVILH met to discuss an amicable solution to the same-sex marriage lawsuit before the Inter-American Commission Of Human Rights. The Government announced that they would drop their opposition to same-sex marriage. A formal agreement will be signed in April and the case will still continue according to MOVILH's lawyer who stated that the lawsuit will live on until Chile enacts the law.

Adoption and Parenting

Chilean law stipulates that single people are allowed to adopt, regardless of their sexual orientation.

According to studies done by Movilh, 10 percent of same-sex couples have children in Chile. Of these, most are lesbian mothers who have custody of their children and share with a partner of the same sex, and a minority are gay parents who share parental care of a child with another man.

Nicolas 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 the 7th of September 2015, a poll found that 60% of Chileans support marriage between same-sex couples, while 44% support same-sex adoption.

Discrimination protections

In 2007, La Dirección del trabajo, the public service responsible for the carrying out of work-related legislament in Chile, made possible, through the implementation of the new politics, to make reports of discrimination based on sexual orientation or gender identity, which before was impossible. The change came from a petition by Movilh and originated from an event the 1 of June 2007 when an employee did the first report of this kind in a governmental instance.

The Ministry of Housing and Town Planning issued an instruction in 2009 which officially extended the benefit of housing allowance for spouses to couples made up of people of the same sex, in addition recognizing the status of such family ties.

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 2012 the School Coexistence Regulation, which points out the importance of eradicating the discrimination against the sexual minorities in the classroom.

Activists believe that conservative attitudes are changing, finding greater public tolerance as Chile's Congress debates striking "offenses to morals and good customs" clauses "that police have used to harass gays, even for behavior such as holding hands in public".

Anti-discrimination law

The law, approved in 2012, penalize the arbitrary discrimination and includes protection for discrimination of sexual orientation and gender identity.

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 anti-discrimination law is colloquially known as the Zamudio law, in honor of Daniel Zamudio's death.

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.

Living conditions

Pride parade in front of Palace of La Moneda, in Santiago in 2009.

In Chile, the Catholic Church and traditional beliefs regarding gender roles do play a combined role in prevailing attitudes about sex roles, sexual orientation and gender identity. LGBT-rights began to be publicly discussed as Chile went through a larger process of democratization, with an expanded interest in human rights and dignity.

While LGBT people live throughout Chile, the visible LGBT community is largely restricted to Santiago in the bohemian, socially liberal, neighborhood Bellavista, home to a thriving restaurant and club scene. A public parade for LGBT-rights is held every year in downtown Santiago.

While rare, efforts by LGBT people in Chile to organize for their rights outside of Santiago are gaining more publicity. The Chilean magazine, Opus Gay, has ventured far south, reporting on a recent lesbian march for equal rights in Concepcion, and on to the Straits of Magellan to report on the gay discothèque scene in Punta Arenas.

In the early part of the twenty-first century, greater publicity has been generated about LGBT people in Chile and the discrimination and harassment that they face. Some of the more notable examples of this include the following;

2004 removal of bisexual judge

In January 2004, the Chilean Supreme Court removed married judge Daniel Calvo from his position on the Santiago Court of Appeals, after media reports that he visited a sauna frequented by gay men. The story broke following the arrest of a Chilevisión TV editor for illegally taping, and then broadcasting, a conversation in the judge's chambers. Judge Calvo, investigating the case of an accused businessman running a child pornography ring, was taped in his office in a discussion with the owner of a gay sauna, in which he acknowledged being a former client.

2004 removal of custody rights from lesbian former judge

In 2004, the Chilean Supreme Court confirmed a lower court's decision that stripped former judge Karen Atala of custody of her three daughters because she is a lesbian. The case was taken up by the Inter-American Commission on Human Rights. In March 2012, the Inter-American Court of Human Rights ruled in favor of Atala.

2010 maricón PSA

In 2010, the Chilean government launched a public service announcement which referred to spousal or domestic abusers as maricón, which sparked outrage from LGBT rights advocates at home and abroad. Change.org and Chilean LGBT group Soy Hombre Soy Mujer co-sponsored a November 2010 petition against the campaign, while El Movimiento de Integración y Liberación Homosexual (Movilh) supported the campaign.

The key of the campaign was based in the polysemy of the word maricón, which in Chile means gay, treacherous, abuser, and unfair. In one of the spots, the well known gay photographer Jordi Castell says "Maricón es el que le pega a una mujer", i.e. "maricón is the one who abuses a woman (and not a gay man)". In another spot, football referee Pablo Pozo says the same sentence, which in this case means "maricón is the one who abuses a woman (and not a supposedly unfair referee)". This campaign earned a Golden Effie Award.

2012 murder

In March 2012, a young gay man named Daniel Zamudio was brutally beaten by a Neo-Nazi band. He died on March 27.

Movilh, a Chilean NGO that fights for the rights of LGBT citizens in Chile, said that from 2002 to 2012, there were 837 reported cases of brutality involving homophobia and transphobia. Seventeen of these cases were homicides, and in the past year alone three transsexual individuals were murdered; one of them had her face disfigured with a blowtorch.

Because of the large number of hate crimes, the government passed an anti-discrimination law in April 2012.

Military service

The Military of Chile does not officially discriminate on grounds of sexual orientation. Chile bans all anti-gay discrimination since 2012.

On August 13, 2014, The Defense Ministry ordered the creation of a new committee to monitor inclusion and tackle discrimination in the armed forces, a move hailed as a “historic” step by gay rights campaigners. Marcos Robledo, defense undersecretary, announced the formation of a Diversity and Anti-Discrimination Committee with the aim to eradicate arbitrary discrimination in the military.

The resolution, signed by Defense Minister Jorge Burgos, established the government as responsible for creating a more inclusive armed services.

Few days later, a sailor in Chile became the first serving member of the Chilean armed forces to announce he is gay. Mauricio Ruiz, 24, told a televised news conference his decision had "not been easy", but he wanted to help fight discrimination against homosexuals. Mr 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 armed. Mauricio Ruiz said homosexuals had "no reason to hide". "We can do anything, be marines or in any branch (of the military). We can do whatever profession, and we deserve as much respect as anyone else," he told reporters in the Chilean capital, Santiago. "In life there's nothing better than to be yourself, to be authentic, to look at people in the eye and for those people to know who you are."

Rolando Jimenez, president of Chile's Movement for Integration and Homosexual Liberation, expressed his gratitude to the Chilean Navy. "(The Navy is) telling the country and the members of the institution particularly that it is possible for gays and lesbians to be part of the armed forces and that they aren't going to suffer discrimination because of their sexual orientation within these institutions," Mr Jimenez said.

Summary table

Same-sex sexual activity legal	(Since 1998)
Equal age of consent	(Pending)
Anti-discrimination laws in employment	(Since 2012)
Anti-discrimination laws in the provision of goods and services	(Since 2012)
Anti-discrimination laws in other areas	(Since 2012)
Hate crimes law including sexual orientation and gender identity	(Since 2012)
Recognition of same-sex couples (e.g. civil union)	(Since 2015)
Same-sex marriage	(Pending; Same-sex marriage from abroad is recognized as a civil union since 2015)
Step-child adoption by same-sex couples	(Pending)
Joint adoption by same-sex couples	(Pending)
Adoption by single LGBT person
LGBT people allowed to serve openly in the military
Right to change legal gender
Access to artificial insemination/IVF for lesbian couples
Commercial surrogacy for gay male couples	(No prohibition)
MSMs allowed to donate blood	(Since 2013)

See also

• LGBT rights in the Americas
• Luis Larraín

External links

• Movimiento de Integración y Liberación Homosexual (MOVILH)
• Movimiento Unificado de Minorías Sexuales (MUMS)