Human Rights are innate to human beings, and they should apply equally and universally without discrimination. But how often human rights are no more than human desires! Nevertheless human rights are not for governments to bestow upon citizens, but rather something all human beings are entitled to for the sole fact of their existence. But how often many States deprive their populations (or part of them) of such rights because of traditional prejudices! In this sense, one can say that whereas the fight for equal rights in legislation has been a battle against segregationist laws on the basis of race, gender, sexual orientation, gender identity or other condition, the fight for equal rights in everyday life has been a battle against prejudices and so-called traditional cultural values based on such prejudices.
José Vasconcelos Calderon wrote in 1925 a philosophical essay called “The Cosmic Race. Mission of the Iberoamerican Race” where he described the Latin American population as the first “race of synthesis in the globe” having thus the power to transform the world.
Nowadays Latin America, at the international level, is among those leading the efforts to abolish segregationist laws against people on the basis of sexual orientation or gender identity, and it is leading the way in the promotion of LGBTI equality to the point that many laws or judicial decisions adopted here can be considered more advanced than those of other continents. We will point out here (I) some examples of these advanced laws or decisions, while at the same (II) we will draw the attention to fundamentalist forces, particularly of religious nature, like political movements associated to some evangelical churches, which are working to obstruct, reverse or impede such advancements and to make LGBTI population and its gains invisible again.
I. Some countries of Latin America are going far beyond other continents with regard to the legal recognition of gender identity. The Argentinean Gender Identity Law of 2012 permits to legally change name and sex of a person by means of the issuance of a new birth certificate recognizing his/her inner perception of gender identity. This procedure is made before the Civil Registry Officer by simple request of the person, without the need to present any evidence of hormone therapy, gender reassignment surgeries, medical or psychological reports, or any other proof, except for the simple will of the person to be legally considered of a certain sex and have a certain name. The Registrar Officer has no power to object this petition because it fully depends on the will of the petitioner. The procedure takes about ten working days and the person receives then a new birth certificate, a new identity card and passport, and may request for the change of all other documents issued on the previous name and sex. This procedure may also be initiated by persons under legal age with the participation of their parents. And gender identity recognition may be requested by foreigners legally residents of Argentina, provided however that they cannot achieve the recognition of their identity in their countries.
Other countries are following this example. In this regard, the Uruguayan Gender Identity Law of 2009 is now applied more easily, although it requires –as in the case of Mexico City- a judicial decision. Chile and Ecuador had approved in first discussion in their respective Congresses, a draft Gender Identity Law. And there is a similar initiative in Costa Rica.
In the absence of a Gender Identity Law, some judicial decisions have recognized the full legal identity of trans people without the need of a surgical reassignment in Chile, Bolivia, Brazil and Bolivia. On their side Colombia and Ecuador permit the free change of name –not sex- of any person by means of a simple administrative request.
As far as sexual orientation is concerned, several countries in Latin America recognize equal rights for same-sex couples and their families. In this regard, Argentina, Uruguay and Mexico City allow egalitarian marriage, co-maternity, co-paternity and joint adoption, while Colombia, Ecuador and Brazil recognize equal rights to all couples. These rights were recognized by means of Judicial Decisions of the Constitutional Court of Colombia and the Federal Supreme Tribunal of Brazil. Colombia is currently discussing in the Congress egalitarian marriage.Other countries such as Bolivia have criminalized homophobia and other still have criminalized hate crimes, as in Costa Rica.
II. However, things are not so beautiful everywhere, not even in the above-mentioned countries. The religious fundamentalists are very active in the whole region. In Brazil a racist and homophobic religious leader was elected to head the Human Rights Committee of the Congress, where he is trying to reverse all the improvements. In other countries few or no improvements have been achieved in order to get equal rights and opportunities, as in the case of Peru and Venezuela in South America and most of Central America and in the Caribbean countries. In Venezuela the recognition of gender identity of trans population is valid only for those born before 1977, as since 1998 no request of recognition of gender change has been granted. I believe these contradictions in the continent are somehow unrelated to the notions of left or right, so often used to explain support or lack of support to LGBTI equal rights.
In conclusion, we have strong signs that the “cosmic race” is proposing new and original solutions with regard to LGBTI rights. We are becoming a model for LGBTI rights in the world. We are even proposing to eliminate the mention of gender in legal documents, as it serves only to grant or deny rights to some persons, as before was the case for the mentions of race or religion. Is there an original cosmic answer to LGBTI struggles on its way?
However, despite these advances, there are also signs of a much stronger and coordinated fundamentalist movement, with the implication that advancements might be more difficult to achieve in the future.