In Latin America, LGBT legal rights change more quickly than attitudes

Mexican President Peña Nieto called for making same-sex marriage a constitutional right this week. Many Latin American countries are at the forefront of pushing for LGBT rights, driving social shifts by starting with legal changes.

When Mexico’s president announced a proposal to enshrine same-sex marriage in the Constitution this week, he bolstered Latin America's standing as a global leader in promoting lesbian, gay, bisexual, and transgender rights.

Mexico will become the fifth Latin American country to legalize same-sex marriages, should President Enrique Peña Nieto’s proposal be approved. And it would follow a string of initiatives to strengthen LGBT rights and protections in the region: Ecuador in 2008 approved one of the world’s only constitutions that bans discrimination on the basis of sexual orientation and gender identity, while Argentina legalized adoption for same-sex couples in 2010, and Chile passed hate crime legislation in 2012.

But while laws have changed dramatically, social attitudes have at times been left to play catch-up.

In Brazil, for example, which grants constitutional protections to the LGBT community, the former president of Brazil's Chamber of Deputies and his supporters late last year called for a “heterosexual pride” day, and there have been high-profile incidents of targeted violence. Local nongovernmental organizations in Central America and Mexico are reporting more LGBT migrants fleeing El Salvador, Guatemala, and Honduras in search of safer living conditions.

According to the latest data from the Inter-American Commission on Human Rights, from January 2013 to March 2014 there were 770 acts of violence committed against LGBT individuals in Latin America, resulting in nearly 600 deaths. And despite all the legal efforts, Latin America has the highest rates of violence against the LGBT community in the world, according to the NGO Transgender Europe. 

The gap between laws on the books and public attitudes toward LGBT rights and protections – though not unique to Latin America – has raised questions about what tactics are most effective in driving change. Unlike the United States, for example, where gay-rights movements spurred social and piecemeal legal change for decades before the US Supreme Court ruled in favor of same-sex marriage in 2015, in most Latin American countries the laws changed first – and often via high court decisions. Yet even when there's pushback, data show that legal measures often have driven changes in attitudes at home or in neighboring countries. The reason, some analyst say, is that they created an opportunity to bring into the open a discussion that is often hidden. 

“The big issue is, if you have these laws changing faster than public opinion, do we then see public opinion changing more quickly once the laws are imposed?” asks Javier Corrales, a professor of political science at Amherst College who studies sexuality and LGBT rights in Latin America. “There is some early evidence that the answer is ‘yes.’ The process of getting constitutions changed and laws changed produces public debate. And debate can produce changes in opinion.”

Rights-based constitutions

Latin America has a history of rights-based constitutions, many written following the military dictatorships and government oppression of the 1970s and ‘80s. The constitutional changes were meant to prevent crimes like widespread disappearances or politically motivated killings from happening again. But they also became key tools for LGBT activism in many countries here.

If activists petitioning for public support for same-sex marriage, for example, “got to Congress and ran into a wall, they could go to the courts,” says Omar G. Encarnación, professor of political studies at Bard College in New York and author of "Out in the Periphery: Latin America's Gay Rights Revolution."

“In some countries, society and political systems can handle this on their own, and in other cases  – like Brazil and Mexico – where political systems can’t seem to deal with it and society isn’t there yet, courts intervene” to uphold these rights-based constitutions, he says. 

The change in social acceptance has been notable in several Latin American countries. For example, Mexico, which legalized gay marriage in Mexico City in 2010, saw a nationwide jump in approval for same-sex marriage from 37.8 percent that year to 43.3 percent in 2014, according to polling by Vanderbilt University’s LAPOP AmericasBarometer. During that same time frame, public approval for same-sex marriage in conservative Chile went up by more than 8 percentage points to nearly 50 percent approval – and by 20 percentage points in Uruguay, reaching 70 percent approval.

The phenomenon was not universal; approval grew much more slowly – or even fell – in Central American nations, where few steps have been taken to legalize same-sex marriage or legally protect LGBT rights.

Even so, “I think every candidate in recent presidential elections had to issue a statement on gay marriage or gay rights, even in places like Central America,” says Mr. Corrales.

“None of the positions were very impressive,” he says, noting that in cases like Guatemala, it meant presidential candidates simply stated that they are against same-sex marriage. “But the fact that it’s being discussed publicly is very important. It’s a totally different scenario from even 10 years ago, when there were no conversations on this at all.”

'Typical discrimination'

Still, there is a sharp contrast between countries in the region like Argentina, which outpaces the rest of the world in supporting sex-change surgery and adoption by gay couples, and those like El Salvador, where a transgender police officer was beaten by other officers in public last summer.

Cesar Humberto Solis, who is from Guatemala, has experienced violence and discrimination due to his sexual orientation. He sat in a row of six young men and one woman on a long couch in the San Juan Diego migrant shelter in Mexico State last fall, listening to a presentation on safety precautions along the migratory path.

Mr. Solis, who identifies as gay, says he fled Guatemala City more than 12 months earlier. Not only was he suffering what he calls “typical discrimination,” like having job interviews cut off just minutes into a conversation, but he started receiving threats from local gangs. One afternoon, he was chased home while young men threw rocks at him and yelled slurs, he recounts.

“I was depressed. People like me are expected to hide. It’s all you can do in Guatemala if you don’t want to suffer abuse – or worse,” Solis says.

He describes Guatemala as “100 percent bad” for someone in the LGBT community, whereas he’s found Mexico to be “only 40 percent bad.” It’s enough of an improvement that he’s considering applying for asylum here.

Shelters across Mexico have reported an uptick in LGBT Central American migrants in recent years. According to the International Organization for Migration, this community “in Central America is particularly vulnerable. Discrimination and persecution on grounds of sexual orientation and gender identity are some of the main push factors behind their migration, especially in the Northern Triangle countries of Guatemala, Honduras, and El Salvador.”

Conservative values and pushback from religious institutions plays a role in why some nations here are still home to some of the worst discrimination and violence against the LGBT community in the world, experts say. 

The role religion plays in public perceptions of LGBT rights is surprising, however, says Mr. Encarnación.

Latin America is one of the most Catholic regions in the world, yet, “often the more Catholic a country is [in Latin America], the more progressive it is on LGBT rights,” he says.

The Catholic Church in Mexico this week came out in opposition of Mexico's proposal. But while some 80 percent of the country identifies as Catholic, polls show only about 20 percent regularly attend church, and the church's campaigns on moral issues like halting the legalization of abortion or gay marriage in recent years haven't resonated with the faithful in Mexico, experts say.

But the more Evangelical a population is – a religious shift sweeping many nations here, in particular populations in Brazil, Guatemala, El Salvador, and Honduras – the harsher the public pushback, he says. Both the Evangelical clergy and laity "are keen on blocking anything that has to do with sexuality, abortion, and LGBT rights," says Corrales.

He points to poverty and development as another predictor of LGBT acceptance and protection. “The poorer a country is, the less likely it is to be aggressive on this front. Which would also explain why Argentina, Uruguay, and Chile are further ahead.”

Despite the work that’s left to be done in Latin America in protecting LGBT communities, many are hopeful. 

“Implementation is always the hardest part,” says Randy Berry, the US special envoy for the human rights of LGBT people, while visiting Mexico City after touring Central America last fall. But once a constitution is changed or legislation is passed, progress for this population is already set into motion. “You can’t put the genie back into the bottle,” he says.

– Travel related to this story was made possible by a grant from the International Reporting Project.