The Politics of Sexuality in Latin America: A Reader on Lesbian, Gay, Bisexual, and Transgender Rights

Sexual Rights of Gays, Lesbians, and Transgender Persons in Latin America: A Judge’s View

Sexual Rights of Gays, Lesbians, and Transgender Persons in Latin America A Judge’sView Roger Raupp Rios T  situation concerning the rights of gays, lesbians, and transgender persons (hereinafter referred to as “ sexual rights”) in Latin America can be examined from various perspectives. These include analyses of the successes and failures , the limits and possibilities, and the levels of formal recognition of these rights by Latin American national states, in an approach pertaining more to political science . Adopting a more sociological perspective, studies can also be proposed to examine the effectiveness of existing rights, based on the degree of commitment by various government institutions involved in their enforcement. Anthropological research can also point to the impacts that formal recognition of these rights can have on the social representations concerning these groups, both inside and outside the groups themselves. We may also examine the current situation regarding the rights of gays, lesbians, and transgender persons from a legal perspective.What does such an analysis entail? What is the relevance of a legal approach to this issue? One should begin by distinguishing between a legal analysis and a mere inventory of legislation and case law on the topic. A legal analysis involves more than compiling data; on the contrary, it requires a critical examination of the prevailing legislation and its potential and limits 251 for dealing with these rights, whether or not the legislation is explicit in relation to sexual rights. A legal analysis should also cover the trends regarding and challenges to the recognition and enforcement of these rights, serving as important material for a more adequate understanding of reality, to be incorporated by researchers and activists . To the extent that the law (whether in its official wording or its enforcement by legal bodies) is also a fact of social reality, we must both understand and analyze it in order to adequately reflect on and practice it. Hence the relevance of a legal approach to the sexual rights of gays, lesbians, and transgender persons. Typology of Legal Frameworks Concerning LGBT Rights The relationship between the law, viewed as a legal framework (that is, the set of normative state instruments prevailing at a given moment in a given country, encompassing both legislative acts and court decisions), and sexuality is not new. Traditionally, state law was produced as an instrument to reinforce and preserve the majority and dominant sexual moral norms. In other words, state law acts to confirm hegemonic sexual relations and practices. Examples include the consecration of the petit bourgeois nuclear family, the attribution of sexual rights and duties between spouses, and the criminalization of homosexual acts. With the emergence of social movements vindicating the acceptance of practices and relations divorced from this model, the issue of sexual rights, and especially that of  rights, was shifted into the political arena and thus into the legal debate. The emergence of these demands and the recognition of some rights (albeit slowly and unevenly) launched a new modality in the relationship between these legal frameworks and sexuality. Historically, and concentrating on modernity, one observes the emergence of these rights in the s, when a landmark decision by the European Court of Human Rights overruled a law criminalizing sodomy, on the grounds that said legislation violated a basic human right, namely the right to privacy. Since then it has been possible to speak of various levels of protection for the sexual rights of gays, lesbians, and transgender persons, and hence the following proposed typology of legal frameworks: . legal frameworks with a minimal degree of protection: those that have revoked the traditional prohibition of sexual practices that depart from hegemonic standards (especially linked to penal law); . legal frameworks with an intermediate level of protection: those which besides not criminalizing such sexual practices also institute measures to penalize discriminatory acts, especially by prohibiting discrimination on grounds of sexual orientation; . legal frameworks with a maximum degree of protection: those which besides not criminalizing the above-mentioned practices and penalizing discriminatory acts 252 / Roger Raupp Rios also establish positive measures for the protection and recognition of the sexual practices and identities of gays, lesbians, and transgender persons. In the Latin American context, the application of this typology of legal frameworks vis-à-vis the degree of protection of  rights allows one to evaluate the situation regarding such rights in the region. To map the situation in each individual country would require a joint e...