LGBT rights in Peru

This article is concerned with the situation in the modern Peruvian state. For information about homosexuality in antiquity, see homosexuality in ancient Peru.
LGBT rights in Peru

Same-sex sexual activity legal? Legal since 1836-37[1]
Gender identity/expression Transgender people allowed to change name following surgery
Military service Gays and bisexuals allowed to serve openly since 2009
Discrimination protections No
Family rights
Recognition of
relationships		 No
Adoption No

Lesbian, gay, bisexual, and transgender (LGBT) persons in Peru may face legal challenges not experienced by non-LGBT residents. Same-sex sexual activity among consenting adults is legal.[2] However, households headed by same-sex couples are not eligible for the same legal protections available to opposite-sex couples.

Homosexuality can also be used as grounds for separation or divorce. Laws meant to protect "public morals" are often used against lesbians and gays.[2] Society's attitude towards homosexuals is generally hostile and is heavily influenced by the Catholic Church. In the 1980s the founding of the organisation Movimiento Homosexual de Lima (MHOL) managed to bring about at least a slight change in the way the media treated homosexuality. Known LGBT persons may face persecution by the public. During the first Lima pride parade in 2002, most demonstrators wore masks to avoid persecution by the public.

Legality of same-sex sexual activity

The age of consent in Peru has changed several times during recent years, and has been subject to political debates,[3][4] but today it is fixed at 14, regardless of gender and/or sexual orientation, in accordance with a 2012 decision of the Constitutional Court of Peru.[5]

Recognition of same-sex unions

On 26 July 2010, Deputy José Vargas of the ruling party Alianza Popular Revolucionaria Americana announced that he would introduce a bill legalizing civil unions.[6][7] However, in early 2011, the bill died in the Justice Committee because some of its members believed it would be necessary to change the Constitution in order to approve the law.[8]

Months prior to the 2011 Peruvian general election, two of the main candidates for president, Keiko Fujimori and Alejandro Toledo, showed their support to legalize civil unions for same-sex couples,[9][10] but neither of them won. The winner of the election, Ollanta Humala, has stated that he opposes legal recognition for same-sex couples.[11] On April 2014, legislator Carlos Bruce received a petition signed by 10 thousand people in favor of allowing civil unions for same-sex couples.[12] Bruce, who put forward the change in the law in September last year, hopes that it will alleviate the discrimination faced by gay Peruvians.

The bill was scheduled to be debated on 7 April in front of the Commission of Justice and Human Rights, but ultimately was postponed until after Easter. While the country has a history of rejecting bills that protect gay people, supporters and allies are hopeful that the Peruvian Congress will move forward with the bill.[13] In June 2014, bills taking on different forms of recognition, some with more rights than others, were discussed in Congress. After a dramatic debate, it was decided by politician Carlos Bruce, who had earlier announced to the public that he was gay, that the original civil union bill he submitted with more rights should be voted on separately from other proposals. More than one bill allowing for recognition of same-sex relationships will be discussed in the next parliamentary session which begins in August, though the debate was eventually postponed once more.[14]

In mid-December 2014, during the last week of the 2014 Legislative year, it was announced that the bill would be the first thing on the Government's agenda in the new Parliamentary session which begins in early March 2015.[15] On 10 March, Bruce's civil union bill was rejected on a vote of 7-4 with 2 abstentions and 2 absences in the Justice Committee. One senator called for Congress to reconsider the bill and the motion was scheduled for a vote on 17 March, but the meeting was suspended due to a lack of attendance by senators. Also on the agenda was an alternate proposal called a solidary union which was scheduled for a vote within two weeks, though the meeting never materialised.[16] On 14 April 2015, the bill was officially shelved by the Justice Committee after receiving only two votes in favor of its reconsideration.[17]

Congressmen Carlos Bruce and Alberto de Belaunde, from the center-right Peruvians for Change, reintroduced a civil union bill in Congress in October 2016.[18][19]

Recognition of marriages performed abroad

On 16 September 2016, the Registry Tribunal of the National Registry of Identification and Civil Status ruled in favor of a same-sex couple married abroad, considering that same-sex marriage does not contravene international law and order. The couple, married in Belgium, sought to register property they purchased in the country. However, the public registrar refused. On 3 February, the court determined that the applicable law in this case was Belgian law and not Peruvian law. As such, it ruled that the couple can purchase and register property in Peru. The public registrar again refused, saying that although in this case the marriage had been contracted under Belgian law, this contravened international law and order under international treaties signed by Peru. In September, the court ruled that the marriage could not be incompatible with international public order because same-sex marriage is allowed in many countries and again ruled that Peruvian law was not applicable to the case because it is a marriage governed under the laws of Belgium. As a result, same-sex couples who have married in a foreign country will have no problems in registering property they purchased in Peru and have their economic rights recognized.[20]

Discrimination protections and hate crime laws

Peru's Constitution Art. 2.2 stipulates that 'Every person has the right to equality before the law. No person shall be discriminated against on the basis of origin, race, sex, language, opinion, economic status, or any other distinguishing feature'. Sexual orientation and gender identity can be included under 'any other distinguishing feature', but are not explicitly mentioned.

Nevertheless, since May 2004, the Constitutional Procedure Code (Law 28.237) expressly provides that the writ of amparo, a constitutional guarantee to protect people from the threat or violation of the rights recognized in the Constitution, can be used in the case of discrimination based on sexual orientation.[21][22]

The country's anti-discrimination law does not specifically protect individuals from discrimination based on sexual orientation or gender identity.[23]

In July 2013, Congress voted down, 56-27 with 18 abstentions, a bill to amend Peru's hate crime laws to include sexual orientation and gender identity.[24]

As of February 2016, a new Penal Code has been drafted and is pending within the Justice and Human Rights Committee. It would establish explicit protection to LGBT people against discrimination, persecution and incitement to hatred.[25]

Gender identity and expression

Transgender people are allowed to change their name, so that it matches their gender identity, following sex reassignment surgery. In May 2014, the Peruvian Constitutional Court ruled that a transgender woman could not change her gender on her national identity document.[26]

Military service

Until 2009, military and police personnel, who engaged in same-sex sexual activity, could be punished with between 60 days to 20 years imprisonment or discharge from the forces.[2] However, in December 2009, the Supreme Court of Peru ruled that homosexual or bisexual orientation or engaging in homosexual sex cannot be an impediment to membership of the police forces and the military.[27]

Blood donation

There is no official prohibition on gay and bi men donating blood in Peru.[28]

Public opinion

In August 2010, a poll revealed 21.3% of Peruvians approved of same-sex marriage, with higher percentage amongst people from Lima and younger people.[29]

According to Pew Research Center survey, conducted between 13 November 13 and 16 December 2013, 26% of Peruvians supported same-sex marriage, 65% were opposed.[30][31]

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. Peru was ranked 56, just above South Korea and below Panama, with a GHI score of 44.[32]

Summary table

Same-sex sexual activity legal (Since 1836-37)
Equal age of consent (Since 2012)
Anti-discrimination laws in employment (Pending)
Anti-discrimination laws in the provision of goods and services (Pending)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) (Pending)
Same-sex marriage
Recognition of same-sex couples (e.g. civil unions) (Pending)
Stepchild adoption by same-sex couples
Joint adoption by same-sex couples
Gays, lesbians and bisexuals allowed to serve openly in the military (Since 2009)
Right to change legal gender (Since 2016)
Access to IVF for lesbians
Commercial surrogacy for gay male couples
MSMs allowed to donate blood

See also

References

  1. ↑ Ottosson, Daniel (May 2009). "State-sponsored Homophobia: A world survey of laws prohibiting same sex activity between consenting adults" (PDF). International Lesbian and Gay Association (ILGA). Retrieved 2014-01-10.
  2. 1 2 3 Legal survey: Peru Retrieved on 23 August 2007.
  3. ↑ Lindsay Goldwert (2007-06-22). "Peru Lowers Age Of Consent To 14". CBS NEWS. Retrieved 2009-12-02.
  4. ↑ "Pleno Reconsidero Exoneracion de Sedunda Votacion a Proyecto Sobre Libertad Sexual" [House Reconsidered and Excluded Second Vote for Project on Sexual Freedom] (in Spanish). El Heraldo. 2007-06-27. Retrieved 2010-09-02.
  5. ↑ "Demanda de inconstitucionalidad interpuesta por diez mil seiscientos nueve ciudadanos contra el artículo 1° de la Ley N° 28704 que modifica el artículo 173°, inciso 3° del Código Penal, sobre delito de violación sexual contra víctima entre 14 y 18 años de edad" (PDF) (in Spanish). 2013-01-07.
  6. ↑ (Spanish) Vargas afirma que uniones de hecho entre parejas del mismo sexo son "un derecho humano"
  7. ↑ (Spanish) Legislador peruano anuncia proyecto para legalizar uniones homosexuales
  8. ↑ (Spanish) Comisión de Justicia discutió la unión civil entre homosexuales
  9. ↑ (Spanish) Toledo hizo polémicas declaraciones sobre consumo de drogas y aborto
  10. ↑ (Spanish) Keiko difiere con Kenji sobre adopción de niños por parejas homosexuales Archived 8 November 2011 at the Wayback Machine.
  11. ↑ (Spanish) Perú: aspirante izquierdista Ollanta Humala se suma a rechazo de iglesia a bodas gay
  12. ↑ 10 thousand sign petition in favor of civil union for gay couples, Peru this Week, 2 April 2014
  13. ↑ "Peru Compiles Signatures For LGBT Civil Unions". HuffPost. 2014-04-10.
  14. ↑ (Spanish) La unión civil y unión solidaria volverán a debatirse en agosto en Perú
  15. ↑ (Spanish) El Proyecto de Ley de Unión Civil está como punto número 1 en la agenda de la Comisión de Justicia y por lo tanto será el 1° punto que se verá en la próxima legislatura los primeros días de marzo
  16. ↑ Unión Solidaria: Se suspendió debate del dictamen por falta de quórum
  17. ↑ Unión civil fue archivada definitivamente por este Congreso
  18. ↑ (Spanish) Unión civil: Nuevo proyecto de ley se presentaría la siguiente semana y estas serían algunas de sus novedades
  19. ↑ (Spanish) Unión civil: bancada de PPK presentará nuevo proyecto de ley
  20. ↑ (Spanish) Matrimonios gay pueden adquirir e inscribir bienes en el Perú
  21. ↑ CÓDIGO PROCESAL CONSTITUCIONAL
  22. ↑ Gloobal - Discriminación por orientación sexual en Perú: Situación de las lesbianas, trans, gays y bisexuales en Perú
  23. ↑ Legislación
  24. ↑ Peruvian Congress voted down gay rights law
  25. ↑ #AlertaPerú : Congreso eliminaría orientación sexual e identidad de género como motivos de discriminación - Sin Etiquetas
  26. ↑ Peru rejects change of gender for transgender individuals on national identity document
  27. ↑ Author Carlos A. Quiroz (2009-12-10). "Peru's Constitutional Court ordered Police School to accept expelled Gay Student". Peruanista.blogspot.com. Retrieved 2011-01-19.
  28. ↑ Blood donation: Frequent questions
  29. ↑ (Spanish) ESTUDIO DE OPINIÓN PÚBLICA A NIVEL PERÚ URBANO - Informe de resultados - (5 al 9 de agosto de 2010) Archived 14 August 2011 at the Wayback Machine.
  30. ↑ Religion in Latin America Chapter 5: Social Attitudes
  31. ↑ Religion in Latin America Appendix A: Methodology
  32. ↑ The Gay Happiness Index. The very first worldwide country ranking, based on the input of 115,000 gay men Planet Romeo
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