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Lesbian, gay, bisexual, and transgender (LGBT) persons in Venezuela may face legal challenges not experienced by non-LGBT residents. Both male and female same-sex sexual activity is legal in Venezuela, but same-sex couples and households headed by same-sex couples are not eligible for the same legal protections available to opposite-sex married couples. Also, same-sex marriage and de facto unions are constituionally banned since 1999.

VEN orthographic.svg
StatusLegal since 1997
Gender identityNo
MilitaryNo
Discrimination protectionsSexual orientation and gender identity/expression protections (see below)
Family rights
Recognition of relationshipsNo recognition of same-sex unions
RestrictionsSame-sex marriage and de facto union constituionally banned since 1999
AdoptionSingle parent adoption legal, joint parent adoption illegal

Contents

Legality of same-sex sexual activityEdit

Homosexuality has never been punishable since Venezuelan independence, except under the "Vagrants and Thugs' law" (Ley de vagos y maleantes) (pre-criminal behavior laws as in place in Europe and Latin America during the 20th century). In Venezuela, contrary to Spain, this law did not refer expressly to homosexuals. However, it was occasionally applied to homosexuals and transgender individuals engaged in prostitution, as well as sex workers in general as reported by Amnesty International. People submitted to this law by "administrative measures" could be placed under "re-educational programs" in special "confinement places" without trial, as has also happened in many other countries, including Spain.[1] This law was declared unconstitutional by the former Supreme Court of Justice in 1997.[2] The universal age of consent is equal at 16.[3]

Recognition of same-sex relationshipsEdit

 
Poster demanding same-sex union rights in Venezuela.

The Constitution of Venezuela, adopted in 1999, defines marriage as a union between a man and a woman, thus constitutionally banning same-sex marriage.[4] Article 77 of the Constitution reads as follows:[5]

Marriage between a man a woman, which is based on free consent and absolute equality of rights and obligations of the spouses, is protected. A stable de facto union between a man and a woman which meets the requirements established by law shall have the same effects as marriage.

Also, there is no legal recognition of same-sex couples explicitly in Venezuelan law.

In 2003, a LGBT NGO called Unión Afirmativa (Affirmative Union) submitted an appeal to the Supreme Court for legal recognition of economic rights (pensions, inheritance, social security, common household, etc.) for same-sex partners. The ruling, issued on 28 February 2008 despite recognizing that "same sex partners enjoy all of the rights, civil, political, economic, social and cultural rights- they do have not special protection similar to concubinage or marriage between a man and a woman, that is, in the same terms than heterosexual partners have. Notwithstanding this, the National Assembly is the government body with the mandate to legislate to protect such rights for same-sex partners." The decision also indicated that these rights were covered under the Constitution of the Bolivarian Republic of Venezuela.[6]

On 20 March 2009, Chamber of Deputies member Romelia Matute announced that the National Assembly would explicitly legalize same-sex unions and recognize them as asociaciones de convivencia (association by cohabitation) as part of the Gender and Equity Organic Law.[7] This initiative was never discussed. Further other initiatives concerning this subject and recognition of identity of transgender people were submitted by the civil society to the National Assembly, but no formal discussion has ever taken place.

On 31 January 2014, during a debate on a civil code reform bill, LGBT activists submitted a proposal seeking to legalize same-sex marriage.[8]

In January 2015, a lawsuit for the right to marry was filed before the country's Supreme Court. On 28 April 2016, the Supreme Court announced it would hear the case. The lawsuit seeks to declare Article 44 of the Civil Code unconstitutional because it states that marriage is only legally valid between a man and a woman in Venezuela.[9][10]

In June 2016, Venezuela's opposition announced that it will work on a civil union bill. A prominent committee member said that the new Registry Law will allow couples to seek some benefits.[11]

In November 2017, President Nicolás Maduro expressed his personal support for same-sex marriage, and said that the Constituent Assembly would agree to discuss legalising same-sex marriage.[12][13] In September 2018, Hermann Escarrá, a member of the Constituent Assembly, said that there are currently discussions to allow same-sex marriage under the new Constitution of Venezuela,[14] and that there is majority support in the Assembly.[15] Discussion on the new Constitution is expected to begin at the end of 2018 or early 2019.[16][17]

Adoption and parentingEdit

Same-sex couples in Venezuela are unable to legally adopt children. However, lesbian couples are allowed to access IVF.[18]

On 15 December 2016, the Supreme Tribunal of Justice ruled that a baby boy can be registered in the Venezuelan Civil Registry with the surnames of both his mothers. Basing its ruling on Article 75 of the Constitution, the court declared that the state shall provide protection without distinction to all families, including to children and teenagers born into same-sex families. Additionally, such children must enjoy all the rights and guarantees enshrined to other children born into opposite-sex families.[19] From now on, children with same-sex parents in Venezuela may be registered with the surnames of both their parents, regardless of whether the parents are biological or not.

Discrimination protectionsEdit

In Venezuela, few legal instruments, in some specific areas (workplace, rental housing, and banking system), protect LGBT people from discrimination. However, even when protections do exist these laws lack mechanisms to implement real and effective strategies to prevent discrimination and inequality.[20]

Since 2012, the Organic Labor Law, prohibits discrimination based on sexual orientation. Previously, discrimination in labor on the basis of "sexual option" was outlawed in 1996.[21]

Article 4 of the Organic Law of the People's Power (2010), states that "The Popular Power is designed to ensure the life and welfare of the people, by creating mechanisms for their social and spiritual development, ensuring equal conditions for everyone freely develop their personality, direct their destination, enjoy human rights and attain the supreme social happiness; without discrimination on grounds of ethnic origin, religion, social status, sex, sexual orientation, gender identity and expression, language, political opinion, national origin, age, economic status, disability or any other personal, legal or social circumstance which has the effect of nullifying or impairing the recognition, enjoyment or exercise of human rights and constitutional guarantees."[22]

Article 173 of the Law for Banking Sector Institutions (2010), includes "gender identity or expression" as protected categories against discrimination.[23]

Article 5 of the Law for the Regulation and Control of Housing Leasing, enacted in 2011, bans discrimination and provides protection to those who are especially vulnerable, or vulnerable to discrimination on the basis of sexual orientation and gender identity, among others.[24]

In the process leading up to the adoption of the new 1999 Venezuelan Constitution, anti-discrimination provisions were proposed; however, due to forceful opposition from the Roman Catholic Church, they were dropped from the final draft. In 2001, there were renewed attempts to include them in the Constitution. In 2002, then-President Hugo Chávez voiced his regret for their exclusion, signaling that they may be included in future rounds of constitutional reform.

The Venezuelan constitutional referendum in 2007 would have outlawed discrimination based on sexual orientation but both of the two reform packages, which covered a wide range of social and economic measures, were narrowly defeated.[25]

Many LGBT groups have proposed to the National Assembly to legislate on equality since 2009 to 2015, the proposed anti-discrimination laws have never been considered in the agenda.

State lawsEdit

The state of Mérida prohibits all forms of discrimination on the basis of sexual orientation and gender identity in its state Constitution.[9]

Gender identity and expressionEdit

 
Transgender women in Bobure beach, state of Zulia.

Venezuelan law does not allow transgender people to change their name and legal gender on official documents.

In September 2016, the Administrative Service of Identification and Migration Affairs (SAIME), through a petition by the Public Ministry, announced that transgender people may request a new identity card according to their gender identity. The photograph on the identity card will be adequate to the gender that manifests the person, regardless of biological sex.[26]

Military serviceEdit

The Military Justice Code, in force since 1998, bans same-sex sexual activity.

Article 565 states "The official who commits acts that affront or debase their dignity or allow such acts without trying to stop it by means authorized by law, shall be punished with imprisonment of one to three years and separation of the Armed Forces. The same penalty shall apply to any military who commit sexual acts against nature".[27]

A number of cases have been known in recent years that some members of the military have been harassed or dismissed for being gay.[28]

Living conditionsEdit

 
LGBT supporters at an anti-government march in 2014 shortly after the arrest of Leopoldo López

Venezuela is home to a thriving gay community. Since 2000, the International Day Against Homophobia has been marked, while recently the Government has begun participating in Pride events for the first time. However, police harassment and homophobia in the workplace remain serious problems.

During the 2015 parliamentary election, transgender activist Tamara Adrián was elected as Alternate Deputy to the National Assembly for the Popular Will party, becoming the second transgender member of a national legislature in Latin America, after Uruguay's Michelle Suárez Bértora.[29] Adrián has stated in various occasions she intends to push forth legislation to legalize same-sex marriage and enhance the state's protection of LGBT people.[30] Rosmit Mantilla, also an LGBT rights activist from Popular Will and openly gay, was elected as an Alternate Deputy in the 2015 election as well;[31] the two are the first-ever LGBT members of Venezuela's Legislature.

In May 2016, the National Assembly unanimously approved a resolution establishing 17 May as the International Day Against Homophobia, Transphobia and Biphobia, in order to raise awareness in society and to promote the fight against discrimination, stigmatization, violence and denial of rights to individuals on the basis of their sexual orientation or their gender identity or expression.[32] In August 2016, however, the Supreme Court suspended the resolution.[33]

Public opinionEdit

According to a Pew Research Center survey, conducted between 8 November 2013 and 12 February 2014, 28% of Venezuelans supported same-sex marriage, 61% were opposed.[34][35]

A 2013 Pew Research Center opinion survey showed that 51% of Venezuelans believe homosexuality should be accepted by society, while 42% believe it should not.[36] 57% of people between 18 and 29 believe it should be accepted, 51% of people between 30 and 49 and 45% of people over 50.

In May 2015, PlanetRomeo, a 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. Venezuela was ranked 45th, just above Suriname and below Ecuador, with a GHI score of 48.[37]

Summary tableEdit

 
Flag of the LGBT community of Venezuela
Same-sex sexual activity legal   (Since 1997)
Equal age of consent (16)   (Since 1997)
Anti-discrimination laws in employment only   (Since 1996 based on "sexual option", since 2012 based on sexual orientation)
Anti-discrimination laws in the provision of goods and services   (Since 1996 based on "sexual option", since 2012 based on sexual orientation)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech)  /  (In the state of Mérida only)
Same-sex marriages   (Same-sex marriage constituionally banned since 1999, proposed)
Recognition of same-sex couples   (De facto union constituionally banned since 1999, proposed)
Adoption by single LGBT persons  
Stepchild adoption by same-sex couples  
Joint adoption by same-sex couples  
Automatic parenthood on birth certificates for children of same-sex couples   (Since 2016)
LGBT people allowed to serve openly in the military  
Right to change legal gender  
Access to IVF for lesbians  
Conversion therapy banned on minors  
Commercial surrogacy for gay male couples  
MSMs allowed to donate blood  

See alsoEdit

ReferencesEdit

  1. ^ La construcción de la protesta en el movimiento gay español: la Ley de Peligrosidad Social (1970) como factor precipitante de la acción colectiva
  2. ^ Sentencia por la cual fue derogada la ley de Vagos y Maleantes
  3. ^ Age of Consent in Venezuela
  4. ^ "Constitución de la República Bolivariana de Venezuela" (PDF) (in Spanish). Retrieved 14 April 2016.
  5. ^ Constitución de la República Bolivariana de Venezuela
  6. ^ "SALA CONSTITUCIONAL Magistrado Ponente: PEDRO RAFAEL RONDÓN HAAZ". EL TRIBUNAL SUPREMO DE JUSTICA. 28 February 2008. Archived from the original on 19 August 2015.
  7. ^ Same-Sex Unions Not On the Table After All?, Queerty
  8. ^ Becker, Sabina (29 January 2014). "Equal marriage: coming soon to Venezuela?". News of the Restless.
  9. ^ a b "The Struggle isn't Over": Venezuela Moves Towards Marriage Equality". Venezuelanalysis.com. 5 May 2016.
  10. ^ Piden al TSJ modificar el Código Civil para permitir matrimonio igualitario
  11. ^ ‹See Tfd›(in Spanish) AN promoverá leyes para reconocer unión de personas del mismo sexo
  12. ^ ‹See Tfd›(in Spanish) Maduro: "Creo que todo el mundo se puede casar, aunque sea homosexual" shangay.com, 20 November 2017
  13. ^ ‹See Tfd›(in Spanish) ¿Está Maduro a favor de legalizar el matrimonio homosexual y despenalizar el aborto en Venezuela? La Sexta, 20 November 2017
  14. ^ Comunas, milicia y matrimonio gay; posibles en nueva Constitución
  15. ^ Nueva Constitución podría legalizar el matrimonio gay en Venezuela
  16. ^ MATRIMONIO GAY PODRÍA LEGALIZARSE EN VENEZUELA
  17. ^ En el 2019 se podría legalizar el matrimonio gay en Venezuela
  18. ^ LGBT world legal wrap up survey
  19. ^ ‹See Tfd›(in Spanish) Histórico: Tribunal de Venezuela falla a favor de las familias homoparentales
  20. ^ "Human Rights Situation of Lesbian, Gays, Bisexual, Trans and Intersex persons in Venezuela" (PDF). May 2015.
  21. ^ "Ley Orgánica del Trabajo, los Trabajadores y las Trabajadoras" (PDF). Retrieved 20 September 2016.
  22. ^ "Ley Orgánica del Poder Popular" (PDF) (in Spanish). Retrieved 20 September 2016.
  23. ^ "LEY DE INSTITUCIONES DEL SECTOR BANCARIO" (PDF). www.asambleanacional.gob.ve (in Spanish). Retrieved 20 September 2016.
  24. ^ "Ley para la Regularización y Control de Arrendamientos de Viviendas" (PDF) (in Spanish).
  25. ^ New York Times, 3 December 2007, Venezuela Hands Narrow Defeat to Chávez Plan
  26. ^ UNIVERSAL, EL (14 September 2016). "Saime adecuó la cédula de identidad para reconocer a los transgéneros" (in Spanish).
  27. ^ Código Orgánico de Justicia Militar
  28. ^ Estado homofóbico: En Venezuela ser gay es un delito militar
  29. ^ "Venezuela Elects First Transgender Congresswoman in the Americas". Out, December 7, 2015.
  30. ^ "Venezuela's first transgender candidate Tamara Adrián to run for Congress". Sydney Morning Herald, August 8, 2015.
  31. ^ "Amnistía Internacional declara preso de conciencia a Rosmit Mantilla, diputado y activista gay". El Mundo, December 13, 2015.
  32. ^ ‹See Tfd›(in Spanish) Por primera vez Venezuela conmemora el Día Nacional contra la Homofobia, la Transfobia y la Bifobia
  33. ^ ‹See Tfd›(in Spanish) Sentencia del TSJ suspende decreto del día contra la Homofobia en Venezuela.
  34. ^ Religion in Latin America Chapter 5: Social Attitudes
  35. ^ Religion in Latin America Appendix A: Methodology
  36. ^ The Global Divide on Homosexuality
  37. ^ The Gay Happiness Index. The very first worldwide country ranking, based on the input of 115,000 gay men Planet Romeo