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Lesbian, gay, bisexual, and transgender (LGBT) people in Ecuador may face some legal challenges not experienced by non-LGBT residents. Both male and female same-sex sexual activity are legal in Ecuador, but same-sex couples and households headed by same-sex couples are not yet eligible for the complete legal protections available to opposite-sex married couples regarding adoption rights.

ECU orthographic.svg
StatusLegal since 1997
Gender identityTransgender people allowed to change legal gender
MilitaryUnknown
Discrimination protectionsSexual orientation and gender identity constitutional protections
Family rights
Recognition of relationshipsSame-sex marriage since 2019,
Civil unions since 2008
AdoptionSame-sex couples may not adopt. Single persons not restricted

In 1998, Ecuador became one of the first countries in the world to constitutionally ban discrimination based on sexual orientation. Since 2008, civil unions with all of the rights of marriage (except for adoption) have been available to same-sex couples. Additionally, transgender people under the 2016 Gender Identity Law may change their legal gender solely based on self-determination, without undergoing surgery. Ecuador is also one of the few countries in the world to have banned conversion therapy.

In 2013, gay activist Pamela Troya filed a lawsuit to strike down the country's same-sex marriage ban. The lawsuit with the Constitutional Court focused mostly on the Inter-American Court of Human Rights' ruling in Atala Riffo and Daughters v. Chile and its 2018 opinion on same-sex marriage. The Atala case has caused bans on same-sex marriage in Mexico to be struck down and Chile's Government pledging to legalise same-sex marriage. Additionally, in January 2018, the Inter-American Court of Human Rights ruled that same-sex marriage is a human right protected by the American Convention on Human Rights, adding even more pressure on the Ecuadorian Government and the Constitutional Court to legalise same-sex marriage.[1] On June 12, 2019, the Constitutional Court of Ecuador ruled in a 5-4 vote in favor of same-sex marriage, making it legal throughout the country.[2][3]

Contents

HistoryEdit

Conquest by the Spanish from the mid-16 century onwards introduced Christianity, specifically Roman Catholicism, and religious mores condemning homosexuality as "sinful" and "immoral" to the region now known as Ecuador. As such, society has typically viewed homosexuality pejoratively. However, this is, or at least was, not the case for many of the indigenous peoples; among them, the Shuar. While the Europeans and the West have typically regarded anal intercourse as a sign of effeminacy, the Shuar perceived it as a sign of trickery. The "passive" partner (chiminiamnijikratin) and the "active" partner (chiminiamnijitiai) were not regarded as feminine. A Shuar myth, known as the story of the fox and the jaguar, involves the fox deceiving the jaguar into having anal sex, but after having discovered the trickery the jaguar chases the fox and bites him.[4]

The Inca Empire's perception of homosexuality is unclear and is the subject of ongoing debate. Most modern-day documentation about the Incas stems from the Spanish Inquisition. These reports suggest that male homosexuality was punished in the south and centre of the Inca Empire, possibly by death, but was tolerated in the north. According to certain sources, homosexuality and cross-dressing were tolerated "acts of worship", commonly practised in religious rituals and temples. Quariwarmi were cross-dressing shamans, tasked with performing rituals in honour of Chuqui Hinchay, a jaguar dual-gender god.[5] Effeminate men were called hualmishcu or warminchu by the Incas. Lesbian relationships seem to have been highly regarded by Inca society. Lesbians (known as holjoshta) enjoyed many privileges and could even participate in combats and were given the possibility of maintaining promiscuous relations between themselves.[6]

Law regarding same-sex sexual activityEdit

Same-sex sexual activity has been legal in Ecuador since 1997 when the Constitutional Tribunal, in Case No. 111-97-TC, overturned the first paragraph of Article 516 of the Penal Code, which criminalized sexual activities between persons of the same sex.[7]

The age of consent in Ecuador is 14, regardless of gender or sexual orientation.[8]

Recognition of same-sex relationshipsEdit

Article 67 of the Ecuadorian Constitution adopted in 2008 limited marriage to the union of a man and a woman.[9][10] However, article 68 provides that same-sex couples in stable and monogamous unions shall enjoy the same rights and obligations as married couples, except for adoption.

The stable and monogamous union between two persons without any other marriage ties who have a common-law home, for the lapse of time and under the conditions and circumstances provided for by law, shall enjoy the same rights and obligations of those families bound by formal marriage ties.[10][Note 1]

 
Diane Rodríquez and her partner Nicolás Guamanquispe (pictured) became one of the first couples to register a civil union in Ecuador.

Based on Article 68, civil unions for same-sex couples are legal in Ecuador.[11][12] In August 2014, President Rafael Correa signed a resolution to allow same-sex couples to register their unions. It also allows civil unions to be registered as a complementary data to marital status and created a special registry for these unions.[13] The order took effect on September 15.[14] In April 2015, the National Assembly approved an amendment to the Civil Code that codified civil unions into statutory law and deleted the requirement of evidence of cohabitation for at least two years.[15]

In 2013, gay activist Pamela Troya filed a lawsuit to strike down Ecuador's same-sex marriage ban and legalise same-sex marriage in the country.

2018 Inter-American Court of Human Rights rulingEdit

In January 2018, the Inter-American Court of Human Rights (IACHR) ruled that the American Convention on Human Rights mandates and requires the recognition of same-sex marriage. The ruling was fully binding on Costa Rica and sets a binding precedent for other Latin American and Caribbean countries including Ecuador.[1]

In May 2018, the Constitional Court of Ecuador ruled in favor of a lesbian couple seeking to have their daughter registered with the Civil Registry (see below). In the ruling, the Supreme Court also stated that the IACHR ruling is fully binding on Ecuador.[16]

Following the IACHR ruling, which held that same-sex marriage is a human right, two same-sex couples went to the Civil Registry in Cuenca, applying for marriage licenses. After both were rejected for not being a different-sex couple, they filed suit in court arguing that the refusal to recognise their marriage was discriminatory, unconstitutional and a violation of the American Convention on Human Rights. Relying on the IACHR ruling, two family judges ruled in the couples' favour on 29 June 2018. The judges ordered the Civil Registry to immediately begin registering same-sex marriages. However, the Civil Registry appealed the decision to the Constitutional Court.[17] On 12 June 2019, the court ruled in favor of same-sex marriage, making it legal throughout the country.[2][3]

Adoption and parentingEdit

Article 68 of the Ecuador Constitution states: "La adopción corresponderá sólo a parejas de distinto sexo".[18] An unofficial English language translation of this provision states: "Adoption shall only be permitted for different-sex couples."[10] The Constitution is silent about adoptions by single individuals.

Under Ecuadorian statutory law, however, a single person is allowed to adopt a child, although a legally constituted heterosexual couple has priority over the single person.[Note 2]

In May 2018, the Constitutional Court of Ecuador ordered the Civil Registry to register a seven-year-old girl as the daughter of a lesbian couple. The case, filed in September 2012, sought to have the daughter registered with the surnames of both her mothers. The Court ruled that failing to register the daughter is a violation of children's rights.[19] The vote was 5 to 3, with one abstention.

Discrimination protectionsEdit

In 1998, Ecuador became the first country in the Americas (and only the third worldwide after South Africa and Fiji) to include sexual orientation as a protected category in its Constitution.[7]

Ecuador includes both sexual orientation and gender identity in its constitutional prohibition against discrimination. An unofficial English language translation of Article 11(2) states:

All persons are equal and shall enjoy the same rights, duties and opportunities. No one shall be discriminated against for reasons of ethnic belonging, place of birth, age, sex, gender identity, cultural identity, civil status, language, religion, ideology, political affiliation, legal record, socio-economic condition, migratory status, sexual orientation, health status, HIV carrier, disability, physical difference or any other distinguishing feature, whether personal or collective, temporary or permanent, which might be aimed at or result in the diminishment or annulment of recognition, enjoyment or exercise of rights. All forms of discrimination are punishable by law. The State shall adopt affirmative action measures that promote real equality for the benefit of the rights-bearers who are in a situation of inequality.[10]

In 2015, a labor law reform made it illegal for employers to discriminate against people due to their sexual orientation.[20][21]

In June 2018, the Justice Ministry approved a new policy concerning the rights of LGBT people. The policy aims to guarantee and strengthen their rights in relation to health, education, work, security, social protection and justice.[22]

Gender identity and expressionEdit

The Gender Identity Law (Spanish: Ley Orgánica de Gestión de la Identidad y Datos Civiles), approved in 2016, allows Ecuadorians to state their gender identity instead of the sex assigned at birth. The law distributes new legal ID cards to those wishing to change their gender and birth name.[23][24][25]

Conversion therapyEdit

In November 2011, an Ecuadorean activist group, called Fundación Causana, began a petition on Change.org to entreat the Ecuadorean Minister of Health to close down more than 200 "ex-gay clinics." The group claimed that the clinics abuse and torture patients in an effort to "cure homosexuality."

The clinics primarily targeted lesbians and operated under the guise of being drug rehabilitation centers.[26][27] At least one pair of parents discovered the abuse and asked for the clinic to release their daughter, Paola Ziritti, but were denied. Ziritti was eventually released after two years of confinement and was the first to press a formal complaint against the clinics.[27]

Activists consequently called on the Government to close down the clinics, but by August 2011, only 27 had been closed, while a reported 207 clinics remained open.[28] On 23 January 2012, the Change.org petition was closed and marked as a success with 113,761 international signatures. The petition also was updated with a statement from Fundacion Causana reading,

After ten years of outcry, the nation of Ecuador - through the Ministry of Public Health - has entered into a commitment with civic organizations and society in general to deconstruct the belief that homosexuality is an illness and root out the use of torture in these clinics. We extend our thanks to all the men and women who signed our petition. It has been invaluable to have this support in starting to change this reality.

Minister of Health Carina Vance Mafla ordered shortly thereafter three clinics to be raided in the vicinity of Quito and rescued dozens of women.[29]

Consequently, Article 151 of the Penal Code was changed in 2014 to prohibit conversion therapy, equating it to torture. People who undertake the pseudoscientific practice are punished with seven to ten years imprisonment.[30]

Living conditionsEdit

 
LGBTI Pride parade in Guayaquil (2013)

A fairly large gay scene has developed in Quito and Guayaquil.[31] The first gay pride in Ecuador took place in Quito in 1998, following the Constitutional Court ruling that overturned the law that prohibited sexual acts between people of the same sex.[32] Nevertheless, Ecuador has a conservative and macho culture, and homosexuality tends to be viewed negatively by society.[31]

Since the last decade, many gay pride marches have been organized in all major cities, with the authorization of authorities and police protection, in addition to their participation. In Guayaquil's gay pride march of 2011, for instance, among those present were Guayas Province's Vice Prefect Luzmila Nicolaide, Guayaquil City Council member Gino Molinari, and member of the Assembly Gina Godoy, while the police band played traditional songs.[33][34]

There have also been LGBT film festivals organized in the major cities.[35]

The U.S. Department of State's 2011 Human Rights Report found that,

The constitution includes the principle of nondiscrimination and establishes choice of sexual orientation as a right. Although the law prohibits discrimination based on sexual orientation, gay, lesbian, and transgender persons continued to suffer discrimination from both public and private bodies. LGBT organizations reported that transgender persons suffered more discrimination because they were more visible. LGBT groups claimed that police and prosecutors did not thoroughly investigate deaths of LGBT individuals, including when there was suspicion that the killing was because of sexual orientation or gender identity. LGBT organizations and credible media sources reported that LGBT persons were interned against their will in private treatment centers to "cure" or "dehomosexualize" them, although such treatment is illegal. The clinics reportedly used cruel treatments, including rape, in an attempt to change LGBT persons' sexual orientation. In August[,] the government reported that it closed 30 such centers, but LGBT organizations reported that other illegal clinics continued to operate. Members of the LGBT community continued to report that their right of equal access to formal education was frequently violated. The LGBT population involved in the commercial sex trade reported abusive situations, extortion, and mistreatment by security forces.[36]

In 2012, President Rafael Correa appointed Carina Vance Mafla, a lesbian activist, as the country's Health Minister.[37]

In 2017, approximately 20,000 people marched in the Guayaquil Gay Pride parade. For the first time, the municipality of Guayaquil agreed to light up the Bolivar and San Martin Monument with the colors of the rainbow in support of LGBT rights.[38] In June 2017, the Presidential House was illuminated in rainbow colors.[39] In 2018, more than 18,000 people participated in the Quito Pride march.[40]

2013 election homophobic remarksEdit

 
Historic meeting with President Rafael Correa of Ecuador, led by Diane Rodríguez

After the 2013 Ecuadorian general election, Nelson Zavala, an evangelical preacher and the presidential candidate who finished last out of the eight candidates, was sentenced by an election court to pay more than $3,000 in fines for his homophobic remarks. The court also prohibited him for a year from standing as a candidate or from affiliating himself or being involved with a political party or movement. During the campaign, he called gay people "sinners" and "immoral" and said they suffered from "severe deviation of conduct." LGBT activists applauded the ruling as "landmark."[41][42] Zavala appealed the verdict, but the ruling was ratified in the last instance on 19 March 2013.[43]

LGBTI candidacyEdit

In the 2013 elections, LGBTI activist Diane Marie Rodríguez Zambrano of the Silueta X Association (Asociación Silueta X), became the first openly transgender candidate to run for public office.[44][45][46] At the conclusion of her candidacy, Ecuadorian President Rafael Correa Delgado declared his respect and admiration for Rodriquez on Twitter.[47][48][49] Months later, Rodriguez was invited to change the Presidential Guard.[50] In December 2013, she led the first LGBTI group meeting with President Rafael Correa.[51] The meeting concluded with several agreements.[52] In 2017, she was elected to the National Assembly, becoming the country's first transgender lawmaker.[53]

Summary tableEdit

Same-sex sexual activity legal   (Since 1997)
Equal age of consent   (Since 1997)
Anti-discrimination laws in employment only   (Since 1998)
Anti-discrimination laws in the provision of goods and services   (Since 1998)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech)   (Since 1998)
Same-sex marriages   (Since 2019)[54]
Recognition of same-sex couples   (Since 2008)
Adoption for single people regardless of sexual orientation  
Stepchild adoption by same-sex couples  
Joint adoption by same-sex couples   (Constitutional ban since 2008)
LGBT people allowed to serve openly in the military  [55]
Right to change legal gender  
Gender identity recognition in identity cards   (Since 2016)[25]
Automatic parenthood for both spouses after birth   (Since 2018)
Access to IVF for lesbians  
Conversion therapy banned   (Since 2014)
Commercial surrogacy for gay male couples  
MSMs allowed to donate blood  

See alsoEdit

NotesEdit

  1. ^ In Spanish, the official version of Article 68 reads as follows:

    La unión estable y monogámica entre dos personas libres de vínculo matrimonial que formen un hogar de hecho, por el lapso y bajo las condiciones y circunstancias que señale la ley, generará los mismos derechos y obligaciones que tienen las familias constituidas mediante matrimonio. Article 68, Constitución de la República del Ecuador

  2. ^ In Spanish, the official version of the statute reads as follows: "Se priorizará la adopción por parte de parejas heterosexuales constituidas legalmente, sobre la adopción por parte de personas solas...." Article 153(3), Código de la Niñez y Adolescencia de Ecuador, retrieved 26 January 2013

ReferencesEdit

  1. ^ a b "Inter-American Court endorses same-sex marriage". Agence France-Presse. Yahoo7. 9 January 2018. Retrieved 9 January 2018.
  2. ^ a b Crittenton, Anya (4 June 2019). "Ecuador high court delays ruling on same-sex marriage". Gay Star News.
  3. ^ a b "Corte Constitucional de Ecuador aplaza decisión sobre matrimonio igualitario". telesur (in Spanish). 4 June 2019.
  4. ^ Cova, Victor (2018). "Nicole, reina de Macas: el impacto del trabajo asalariado sobre el activismo trans en la Amazonia ecuatoriana". Academia.edu.
  5. ^ Horswell, Michael J. (2006). Transculturating Tropes of Sexuality, Tinkuy, and Third Gender in the Andes, introduction to "Decolonizing the Sodomite: Queer Tropes of Sexuality in Colonial Andean Culture". ISBN 0-292-71267-7. Article online.
  6. ^ ‹See Tfd›(in Spanish) La homosexualidad en las culturas antiguas
  7. ^ a b "Shutting Down Clinics that 'Cure Homosexuality' in Ecuador", The Human Rights Brief, Center for Human Rights and Humanitarian Law, reported by Christina Fetterhoff, 28 November 2011, retrieved 23 January 2013
  8. ^ ‹See Tfd›(in Spanish) CODIGO PENAL ECUADOR
  9. ^ "Voters in Ecuador Approve Constitution", Washington Post, reported by Joshua Partlow and Stephan Küffner, 29 September 2008
  10. ^ a b c d Constitution of the Republic of Ecuador, Political Database of the Americas, 31 January 2011
  11. ^ ‹See Tfd›(in Spanish) "Apoyo al matrimonio entre personas del mismo sexo en América Latina", Perspectivas desde el Barómetro de las Américas, authored by Germán Lodola and Margarita Corral, 2010 (No. 44), retrieved 23 January 2013 Archived 6 July 2013 at WebCite
  12. ^ "Ecuador Approves New Constitution Including Same-Sex Civil Unions", Towleroad, posted by Andy Towle, 30 September 2008, retrieved 23 January 2013
  13. ^ Civil, Registro. "REGISTRO DE UNIONES DE HECHO". Retrieved 26 June 2016.
  14. ^ "Desde el 15 de septiembre se reconocerán las uniones de hecho como un estado civil - ANDES". Retrieved 26 June 2016.
  15. ^ Ecuador reconoce la Unión de Hecho Homosexual como un estado civil
  16. ^ CORTE CONSTITUCIONAL INFORMA SOBRE LA DECISIÓN ADOPTADA EN EL CASO NO. 1692-12-EP
  17. ^ In historic move, court rules Ecuador's same-sex marriage ban is illegal, Gay Star News, 4 July 2018
  18. ^ ‹See Tfd›(in Spanish) Article 68, Constitución de la República del Ecuador
  19. ^ Gay family recognised by state in Ecuador in historic decision, PinkNews, 31 May 2018
  20. ^ LEY ORGÁNICA PARA LA JUSTICIA LABORAL Y RECONOCIMIENTO DEL TRABAJO EN EL HOGAR
  21. ^ "Ecuador Makes Important Strides for LGBTI People". Retrieved 26 June 2016.
  22. ^ ‹See Tfd›(in Spanish) Gobierno Nacional presenta la política pública para la garantía de derechos de las personas LGBTI
  23. ^ "Ecuadorean Lawmakers Approve New Gender Identity Law". Retrieved 26 June 2016.
  24. ^ "Change of 'gender' in identity card will require two witnesses - EcuadorTimes.net - Breaking News, Ecuador News, World, Sports, Entertainment". Retrieved 26 June 2016.
  25. ^ a b LEY ORGÁNICA DE GESTIÓN DE LA IDENTIDAD Y DATOS CIVILES.
  26. ^ "Lesbian Torture Clinics in Ecuador- Claiming to "Cure" Them". Hispanically Speaking News. Hispanically Speaking News. 5 November 2011. Archived from the original on 12 December 2011. Retrieved 17 January 2013.
  27. ^ a b "Why 200 Lesbian Torture Clinics Are Still Operating in Ecuador". The Huffington Post. The Huffington Post. 11 November 2011. Retrieved 17 January 2013.
  28. ^ "Lesbians Escape From Ecuador's "Ex-Gay" Torture Centers". The Advocate. The Advocate. 7 October 2011. Retrieved 17 January 2013.
  29. ^ "Rights groups hail Ecuador's crackdown on lesbian 'torture clinics'". MSNBC. 25 January 2012. Archived from the original on 10 June 2012.
  30. ^ Código Orgánico Integral Penal
  31. ^ a b "Gay Ecuador". Gay Guide. Gay Times. Archived from the original on 19 October 2012. Retrieved 26 December 2012.
  32. ^ ‹See Tfd›(in Spanish) El Universo El GLBTI, colectivo que gana espacios. Retrieved 23 April 2013.
  33. ^ ‹See Tfd›(in Spanish)"Comunidad Glbti del Ecuador celebró Día del Orgullo Gay", El Universo, reported by Alexandra Avila, 2 July 2011
  34. ^ ‹See Tfd›(in Spanish)"Desfile del orgullo 2011 en Guayaquil", Gay Ecuador
  35. ^ ‹See Tfd›(in Spanish)"Es Ecuador sede de festival de cine LGBT en Latinoamérica", Inthecloset, 12 October 2011
  36. ^ 2011 Country Reports on Human Rights Practices: Ecuador, Bureau of Democracy, Human Rights and Labor, U.S. Department of State, page 25
  37. ^ "Ecuador: Lesbian Activist Appointed to Presidential Cabinet", The Advocate, reported by Michelle Garcia, 24 January 2012
  38. ^ ‹See Tfd›(in Spanish) Matrimonio igualitario y registro de niños: pedidos ciudadanos en la marcha del Orgullo LGTBI
  39. ^ ‹See Tfd›(in Spanish) El Palacio de #Carondelet se ilumina al recordar el Día Internacional del Orgullo LGBTI
  40. ^ 18,000 people hit the streets to celebrate Pride in Ecuador
  41. ^ "Ecuador preacher sentenced for homophobic comments", BBC News, 11 March 2013
  42. ^ "Ecuadorian Ex Presidential Candidate And Preacher, Nelson Zavala, Penalized For Homophobic Comments", The Huffington Post, 12 March 2013
  43. ^ ‹See Tfd›(in Spanish)"TCE ratifica sentencia contra excandidato presidencial Nelson Zavala", El Universo, 19 March 2013
  44. ^ First Transgender Candidate in Ecuador Ecuavisa - Televistazo . Retrieved 17 September 2013
  45. ^ Diario El Comercio - In Spanish Breaking drives transgender candidate. Retrieved 11 August 2013.
  46. ^ Extra Journal - In Spanish Archived 24 April 2014 at the Wayback Machine, Exceeded the discrimination and now struggle for social inclusion! Retrieved 11 August 2013.
  47. ^ Twitter President Ecuador, Rafael Correa - In Spanish, "@DianeRodriguezZ Estimada Diane: sólo quería decirle que la admiro y respeto profundamente, aunque no comparta todos sus postulados." Retrieved on 8 May 2014.
  48. ^ Social Promises - In Spanish Archived 12 May 2014 at the Wayback Machine, Retrieved on 8 May 2014.
  49. ^ Diario el Comercio - In Spanish, "Gays have a place for meetings". Retrieved on 8 May 2014.
  50. ^ Gender Studies Network - In Spanish President Rafael Correa invites presidential change of guard transsexual activist Diane Rodriguez. Retrieved 11 August 2013.
  51. ^ Agency Los Andes, Historic meeting between the President of Ecuador and the GLBTI community to allow moving forward in claiming rights. Retrieved 27 March 2014.
  52. ^ Journal Universo - In Spanish, 15 murders of GLBTI investigate the government. Retrieved 27 March 2014.
  53. ^ Ecuador Makes History With Its First Transgender Lawmaker
  54. ^ "La Corte Constitucional de Ecuador aprueba el matrimonio gay". el Nuevo Herald (in Spanish). 12 June 2019.
  55. ^ IACHR Takes Case concerning Ecuador to the Inter-American Court