Monday, 6 January 2014

David Gold: Chilean Senate to discuss same-sex marriage

In Chile, a bill providing for the legalization of same-gender civil unions is now before the Senate and after 11 March 2014 a national debate on the legalization of same-gender civil marriage will probably begin

6.1.2014 by David Gold

1.  During the campaign leading up to the presidential election of 2006, Michelle Bachelet and Sebastián Piñera, the two leading candidates, expressed support for the legalization of gender-neutral civil unions (though see paragraph 13). Bachelet won and with her election she became the first open supporter of marriage equality ever to be the elected the head of government of any country in the world.

2.  In 2009, a bill providing for the legalization of gender-neutral civil unions was introduced in Congress (“Presentaron el Pacto de Unión Civil en el Parlamento Chileno,” AG Magazine Info, 14 October 2009, available at, where it enjoyed the support of members belonging to several parties, but not enough to pass.

3.  Sebastián Piñera won the presidential election of 2010. Three attempts were made during his term of office to legalize some kind of official recognition for same-gender couples:

4.A.  In 2010, a member of the Senate, Fulvio Rossi, introduced a bill providing for the legalization of same-gender marriage, but when he saw it would not get enough votes to pass, he withdrew it and threw his support behind a bill introduced by another senator, Andrés Allamand, which provided for the legalization of same-gender civil unions, which did not not pass either.

4.B.  In 2011, Piñera publicly expressed support for the legalization of gender-neutral civil unions and had his office draft a bill for consideration by Congress. On 10 April 2013, the Committee on the Constitution, Law, and Justice of the Senate, by a vote of 4 to 1, approved and sent it to the full Senate for consideration Senate. If approved, the bill would grant same-gender couples fewer than all the benefits, privileges, protections, and rights that different-gender married couples now enjoy in Chile, but half a loaf is better than none (and more rights could be granted later). The full text of the bill may be found by searching for “Gobierno de Chile: Proyecto de ley que establece y regula el Acuerdo de Vida en Pareja.”

4.C.  Also in 2011, the Constitutional Court heard arguments in favor of declaring Article 102 of the Civil Code, which prohibits same-gender marriage, unconstitutional. It has yet to rule.

5.  In 2013, heading a coalition of parties called Nueva Mayoría ('New Majority'), Michelle Bachelet was re-elected president of Chile by a plurality of 46.7 percent of the votes cast on the first ballot and a majority of 62.16 percent of those cast on the second. She will take office on 11 March 2014.

6.  Whereas in 2006, Bachelet said relatively little in public about her support for marriage equality and her coalition's platform (Plan de Gobierno) did not mention it at all, in the campaign of 2013 she was more outspoken and the coalition's platform did mention same-gender marriage and two related matters:

6.A.  One goal of the coalition is holding “un debate abierto con participación amplia para la elaboración y posterior envío de un proyecto de ley” ('a public debate between a wide range of participants that would lead to the drafting of a bill') providing for the legalization of same-gender civil marriage.

6.B.  Another goal is passage of the previous government's bill on gender identity, which is still before Congress and, if approved, would “permitir a las personas transexuales adecuar su nombre y sexo registral de acuerdo a su propia identidad de género" ('allow transgender people to choose their gender identity, allow them to choose given names they feel are appropriate to their chosen gender, and require the Civil Registry to record the gender and the names a person choses').

6.C.  A third goal is making sex education in the public schools “laica y humanista” ('secular and humanist'). At present, sex education is taught in accordance with the doctrine of the Roman Catholic Church. See paragraph 14.

7.  On 22 March 2005, a bill was introduced in Congress that would outlaw discrimination. After no significant action was taken on it for over seven years, the Senate finally approved it on 9 May 2012 by a vote of 25 in favor, 3 against, and 3 abstentions, a short time after which it took effect.

7.A.  The law prohibits arbitrary discrimination. "Se entiende por discriminación arbitraria toda distinción, exclusión o restricción que carezca de justificación razonable, efectuada por agentes del Estado o particulares, y que cause privación, perturbación o amenaza en el ejercicio legítimo de derechos fundamentales" (“by 'arbitrary discrimination' is meant all differentiation, exclusion, or restriction by government officials or by private persons that lacks reasonable justification and constitutes a deprivation of or a hindrance or a threat to the legitimate exercise of one's basic rights').

7.B.  According to the law, discrimination is arbitrary if it is based on a person's “raza o etnia, nacionalidad, situación socioeconómica, idioma, ideología u opinión política, religión o creencia, participación en organizaciones gremiales, sexo, orientación sexual, la identidad de género, estado civil, edad, filiación, apariencia personal y enfermedad o discapacidad" ('race or ethnicity, nationality, socio-economic status, language, ideology or political opinions, religion or creed, membership in labor organizations, gender, sexual orientation, gender identity, marital status, age, origin, personal appearance and illness or handicap'). The full text of the law may be seen by searching for “Ley no. 20.609: Ley Antidiscriminación.”

8.  We would be failing in our duty to report the full story if we did not mention the following:

9.  From the day the bill outlawing arbitrary discrimination was introduced to the day it was approved, the Chilean police recorded 223 cases of discrimination against gays (including the murder of at least 18 persons for being gay) – and that's not counting numerous “minor” (and maybe even some major) instances of anti-gay discrimination which went unreported.

10.  During those seven years and almost two months from 22 March 2005 to 9 May 2012, the presidents of the country – Ricardo Escobar, Michelle Bachelet (!), and Sebastián Piñera (!) – did not seem to lift a finger to accelerate its approval.

11.  Of the 223 recorded cases, the saddest was the murder of Daniel Zamudio, a 24-year-old gay man tortured for six hours in a premeditated attack by a gang of neo-nazis on 2 March 2012 – we know it was premeditated, because one of his attackers had told him some months earlier, “Yo sé donde trabajai y donde te pille te voy a matar” ('I know where you work and wherever I catch you, I'm going to kill you'). They dragged him on the ground, severely injured his brain, cut off part of one of his ears, repeatedly dropped a heavy rock on his stomach and legs, broke one of them, burned his skin with lighted cigarets, and drew swastikas on his chest and arms. After an agony of 26 days, he died.

12.  Just after Daniel Zamudio died, the President of Chile, Sebastián Piñera, issued a statement: “La brutal y cobarde agresión y muerte de Daniel Zamudio hieren no solo a su familia sino también a todas las personas de buena voluntad. Quiero expresar a los padres, familia y amigos de Daniel Zamudio mis más profundos sentimientos de cariño y solidaridad. Su muerte no quedará impune y refuerza el compromiso total del gobierno contra toda discriminación arbitraria y con un país más tolerante” ('The brutal and cowardly aggression committed against Daniel Zamudio and his death pain not only his family but also all people of good will. To his parents, family, and friends, I want to express my deepest feelings of affection and solidarity. His death will not go unpunished. His death strengthens the total commitment of the government to oppose all arbitrary discrimination and to make our country more tolerant'). Beautiful words, but they came three years after Piñera was sworn in as president (11 March 2010), during which time he seems to have done nothing to get the bill passed (see paragraph 3).

13.  Not that approval of the bill before Daniel Zamudio's torture could have prevented it. Rather, our point is that only his ordeal impelled the legislature to pass it – and there still seems to be no realization in government circles that (1) human beings are not born with hatred in their hearts, (2) rather, older people instil hatred in younger ones, and (3) parents, the schools, humanist organizations, and religious organizations must, therefore, take the initiative to teach children tolerance (possibly, secular and humanist sex education, mentioned in paragraph 7.C, will contribute to that end).

14.  The four criminals were caught, tried, and sentenced: life imprisonment with the possibility of parole after twenty years; 15 years' imprisonment; 15 years' imprisonment; and 7 years' imprisonment. The condign punishment, which might also deter more such crimes, would have been, for each one, six hours of torture equal in intensity to theirs of Daniel Zamudio.

Daniel Mauricio Zamudio (3 August 1987 - 27 March 2012)

1 comment:

  1. Update: On 7 January 2014, the Chilean Senate, by a vote of 28 in favor, 6 against, with 2 abstentions, approved a bill creating registered partnerships for all consenting adult couples, no matter their gender, no matter their sexual orientation.

    During the debate, Senator Alberto Espina noted that "es de una arbitrariedad inaceptable que si dos personas son homosexuales no tengan hoy día ninguna posibilidad jurídica de regular una relación que nace del afecto. ¿Qué razón existe para que dos personas que son seres humanos, que tienen una relación afectiva, pero que son homosexuales no puedan tener un amparo legal para que se regule su relación afectiva, de cariño […] A este proyecto le doy un valor moral enorme, porque el Estado de Chile, que es inclusivo, abierto y solidario, tiene que permitir que se regulen las relaciones que existen entre seres humanos, sobre todo cuando nacen del cariño."

    That is, 'It is unacceptably arbitrary that in our day the law should not recognize a relationship born of affection between two homosexual persons. For what reason should the affectionate relationship forged by two persons – two human beings – not be under the protection of the law simply because they are homosexual? I find this bill to be of enormous moral value because the Republic of Chile, which is inclusive, open, and supports solidarity, must allow interpersonal relationships to be recognized legally, especially if they spring from affection'.

    The bill was then sent to the Senate's Committee on Constitutional Affairs for discussion and a vote. On 8 January 2014, the Committee, by a vote of 4 in favor and 1 against, approved the bill.

    The bill has now returned to the full Senate, where it will be discussed in greater detail and amendments, if proposed, will be put to a vote. Any amendments approved will be incorporated into the bill. Then, another vote will be taken on the (possibly amended) bill.

    The bill as approved on 7 and 8 January 2014 is a blend of (a) the one introduced by Andrés Allamand (mentioned in paragraph 4.A of the foregoing report), (b) the one introduced by the government when Sebastian Piñera was president (mentioned in paragraph 4.B of that report), and (c) amendments introduced earlier by the Senate's Committee on Constitutional Affairs in the bill mentioned in paragraph 4.B.

    The present version of the bill provides that all couples contracting a registered partnership will enjoy all the benefits, privileges, protections, and rights granted to couples contracting a civil marriage. Thus, civil marriage for same-gender couples but under a slightly different name.

    David Gold