(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
Homosexual acts were decriminalized in Chile in 1999. Prior to that, all homosexual activity was illegal under Article 365 of the Penal Code. This was repealed by law number 19617 as a result of 8 years of ongoing pressure both from the international community and within Chile itself.
However, there is still a difference between the ages of consent for homosexual and heterosexual couples. The age of consent for heterosexual couples in Chile is 14, whilst the age of consent for homosexual couples is 18. There is fierce campaigning to change this allow equal rights and access to healthcare.
Since 2015, same-sex couples have had the same legal protections available to opposite-sex married couples, within a civil union, except for adoption rights and the title of marriage. There has been little movement towards legalising same-sex marriage, in fact Chile has been moving backwards.
Gender identity as an issue has not been addressed at state level. There have been numerous attempts to introduce anti-discrimination legislation into the Chilean legal system in order to end discrimination against homosexuality and gender identity. Until recently, the anti-discrimination bill had not been passed in the senate (see below)
Atala Riffo y Niñas v Chile (in Spanish- see a summary in English here) was a landmark decision made by the Inter American Court of Human Rights. The case involved a female judge, Mrs. Atala, who had divorced her husband and been granted custody of their three daughters. Some time after the divorce, the ex-husband came to know that Mrs. Atala lived with her same-sex partner in a home with their three children. He filed again for custody on the grounds that Mrs. Atala was incompetent as a mother because of her sexual orientation. The Supreme Court of Chile then granted the custody of the daughters to the father (joint custody does not exist in Chile so Mrs. Atala effectively no longer had custody).
Mrs. Atala appealed to the Inter American Court of Human Rights, and the decision was made on the 24th of February 2012 that the Supreme Court of Chile had erred in its decision to remove Mrs. Atala’s rights of custody as they were based on a stereotypical view with no evidence the prove that the family environment that Mrs. Atala was engaged would have been detrimental to her daughters.
PUBLIC ATTITUDES AND/OR STATE’S CAPACITY TO PROTECT
In June 2020, the Constitutional Court refused to accept the request of a lesbian couple who were married in Spain to have their marriage recognised in Chile. The language in the ruling was denigrating to the rights of the LGBTI community and highlighted the need for Congress to pass a same-sex marriage bill. The court argued that the absence of same-sex marriage in Chilean law is not discriminatory against LGBTI individuals as ‘a homosexual person can contract marriage in Chilie if they do it with a person of the opposite sex.’ This creates an undestanding that the court believes the LGBTI community only deserve equal treatment if they stop being themselves.
Until the 8th of November 2011, the anti-discrimination laws in Chile did not extend to include sexual orientation. This meant that although homosexuality was decriminalized, there was no actual state protection for any discrimination stemming from this and so the state could not protect its citizens from treatment that did not respect these rights.
Now that the anti-discrimination law has been passed, it remains to be seen whether or not it will make a difference to the number of people claiming abuse and/or discrimination by state authorities such as the police. The year 2011 saw 186 complaints and cases, including 3 murders on the grounds of sexual orientation. The report written by MOVILH (in Spanish) makes it clear that despite seeing a great improvement in the political and therefore some public attitudes towards same sex marriages and anti-discrimination legislation, 2011 had been the worst year by far in terms of public attitudes from certain groups – not just those that were openly homo- or transphobic, such as the Catholic church, which has a fundamental role in Chilean society, but also from state authorities.
The possible issue with state authorities is that regardless of the legislation that surrounds same-sex relations, gender identity is still a widely undefined and unaddressed issue that leaves ‘trans-‘ people open to exploitation and abuse through state authorities. In fact, the majority of cases brought to the attention of the readers of MOVILHs report are abuses against transsexuals, transvestites and transgenders, and two out of three of the victims of murder were classed as transsexuals.
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
*We have contacted the organization below but we have not yet received responses from them.
MOVILH – Movimiento de Integracion y Liberacion Homosexual
COUNTRY OF ORIGIN SPECIALISTS
We have no specialist on LGBTI for Chile, but would welcome suggestions.
Researched by: Shenaz Bharvaney Daswani