COSTA RICA: ‘Once legal change achieved, public policy should continue to focus on structural exclusion’

On 26 May 2020, Costa Rica became the first country in Central America to recognise same-sex marriage. CIVICUS speaks with Herman Duarte, a lawyer practising in Costa Rica and El Salvador and the director of Simple Legal Consulting as well as the Latin America Liaison Officer of the International Bar Association’s Human Rights Committee and the founder and president of Foundation Igualitxs. Fundación Igualitxs is a leading think tank working on LGBTQI+ rights in Central America, focused on promoting equal civil marriage across the region. It works towards this goal by conducting strategic litigation at the national and inter-American levels, promoting its ideas in academic circles and partnering with high-level international allies.

Herman Duarte

What roles have civil society and the government played in the process leading to the legalisation of same-sex marriage in Costa Rica?

Costa Rica is a constitutional democracy structured as a unitary state with three branches of government – legislative, executive and judicial – that are in principle independent. At least in theory, the principles of the rule of law and equal legal treatment of all citizens are respected. But Costa Rica is also a confessional state: its constitution expressly recognises Catholicism as its official religion. In recent decades, evangelical congregations have expanded in number, reaching nearly 3,800. By 2017, more than 80 per cent of the population identified themselves as Catholic or evangelic; clearly, Costa Rica is culturally a conservative country.

In the context of a decades-long struggle by the LGBTQI+ rights movement, the kickstart came from the Government of Costa Rica, which in May 2016 asked the Inter-American Court of Human Rights for an advisory opinion regarding the patrimonial rights of same-sex couples. This consultation opened a window for all interested parties to present their arguments, which more than 90 very diverse actors did, including states, international organisations, civil society organisations (CSOs), universities and individuals. Hearings took place on 16 and 17 May 2017 and we took part in them.

The momentum generated by this event was reflected in the organisation of the First Equal Marriage Congress, held in San José, Costa Rica, in November 2017, which brought together more than 54 speakers from all over the region. In January 2018, the Inter-American Court published its decision, which stated that state parties should regulate the status of non-heterosexual families, opening the doors of civil (non-religious) marriage to same-sex couples. A group of 60 LGBTQI+ organisations in the region celebrated the decision as the most important in the history of LGBTQI+ rights to date.

At that time great discussion was elicited around whether the opinion of the Inter-American Court was binding for Costa Rica. The Constitutional Chamber of the Supreme Court of Justice of Costa Rica settled this debate in August 2018, when it argued that the sections of the Family Code that limited civil marriage to heterosexual couples were unconstitutional. The ruling gave the Legislative Assembly 18 months to amend legislation; otherwise, all restrictions would be lifted automatically, and as of 26 May 2020, any couple could marry with no obstacles in Costa Rica. And so it happened, since there was no legislative consensus to create new legislation.

On the path to the entry into force of the Court's ruling, important civil society campaigns were developed to increase social acceptance to accompany legal change.

Did you face backlash from anti-rights groups?

Conservative reaction has been brutal. It is important to understand that the LGBTQI+ community has framed its struggles around the demand for recognition of their human dignity and their equal value as human beings and that religious groups have mobilised as identity groups – groups whose identity is defined in a narrow, not universalistic way, in opposition to an enemy. These groups channelled resentments brought about by legal changes that advanced equality and gave hope to those who had felt displaced by them, leading to the rise of religious political parties.

In such context, the 2018 presidential elections became some sort of referendum on the rights of LGBTQI+ people, and specifically on equal marriage. An evangelical pastor, Fabricio Alvarado, then the lone congressman from an evangelical party, ran for the presidency, exploiting conservative people’s feelings of outrage and fear at the Supreme Court ruling. The candidate was noted for his incendiary statements; he declared, for example, that homosexuality was “caused by the devil.” This is how he climbed to the top of pre-electoral polls: in just one month, he went from three per cent to 17 per cent of voting preferences, and came first in the first round of the presidential elections, winning 14 of the 54 legislative seats as well. This represented a 1,300 per cent increase in the legislative presence of his political party.

The runoff presidential election revolved around the rights of the LGBTQI+ population. The runner-up, Carlos Alvarado, was the candidate of the incumbent party and was favourable to LGBTQI+ rights. His position eventually prevailed, but the elections forced us to confront the enormous power achieved by evangelical churches. Carlos Alvarado’s victory can be explained by several factors, one of which was the formidable mobilisation of civil society. Among the civil society campaigns that had an impact was that of the Coalition for Costa Rica, which sought to generate an informed and inclusive debate, disseminating the candidates’ proposals so that citizens could deliberate before voting, and ‘For all families’, a campaign that Igualitxs launched a week before the elections to spread an inclusive message and demand equal treatment for the LGBTQI+ population.

The deep division created around the elections has had consequences. Politicians who use religion to polarise society continue to abound. They protest because they think that the government is biased towards addressing the problems of the LGBTQI+ population. This tension has increased with the entry into force of equal marriage and the proposal of bills to censor hatred and discriminatory speech.

Do you think that the legal change has been accompanied by a change in attitudes? What is civil society doing to promote acceptance of LGBTQI+ people?

Legal change is one thing and cultural change is another. Legal change has offered human rights progress and has been a way to achieve the universal application of the law. It has been the result of a decades-long struggle by the LGBTQI+ community. But there is still homophobia, discrimination and violence against LGBTQI+ people. Once legal change has been achieved, public policy should continue to focus on structural exclusion. Because legal change by itself does not necessarily improve the feeling of belonging to a community. As the political theorist Bikku Parekh explains, while citizenship is a matter of status and rights, membership is achieved when one is accepted and feels welcome. And there is still much to do for this to happen. People’s attitudes do not change automatically just because a law is implemented. The law sets an objective parameter of what is allowed, but much more work needs to be done to modify the parameters of what is considered normal or morally acceptable.

Therefore, to prepare the ground for legal change, in the 18 months between the publication of the Supreme Court ruling and the entry into force of the decision, more than 35 local CSOs developed the ‘Yes, I accept’ campaign, calling for recognition of the equal dignity of all human beings. This campaign was accompanied by the media, by companies that are part of the advertising union, unions such as the Business Development Association, the United Nations and embassies such as those of Canada and the Netherlands.

The campaign featured testimonies from LGBTQI+ individuals, couples and families, as well as their relatives, neighbours and friends, with the aim of promoting acceptance and changing perceptions of what it means to be an LBGTQI+ person in Costa Rican society. It was activated nationwide, with videos that were broadcast for months not only on social media but also on national television. It is the best campaign that has ever been developed on the subject, and we owe it to Mrs Nisa Sanz, president of the CSO Familias Homoparentales and director of marketing for the private company Pozuelo, as well as Gia Miranda, the campaign’s official spokesperson.

The videos appeal to emotion and generate empathy. They led thousands of people who were not politically involved to give up their sacred right to privacy and stand up to exist as a reality rather than an abstraction. It put a human face on the abstract idea of ‘gays’, as presented by newspapers. By telling people that they would not be rejected, it created the conditions for them to lose their fear, since most LGBTQI+ people suffer some type of rejection in their daily lives, regardless of their social status. As a result, an active citizenry took part in the campaign, making it known that with or without a pandemic it would not take a step back from ground that had been won. This was decisive in making legislators who were trying to sabotage equal civil marriage understand that it would not be possible for them to stop it.

This was one of the most important civil rights campaigns in history, and will remain in memory as a light that shone amid the darkness of the pandemic. Just one day before access to civil marriage took effect for all adults in Costa Rica, the Catholic Bishop of Alajuela delivered a message that said: “We are glad that there are different types of human relationships, different ways of being a family, and I think that where there is a demonstration of affection and family love, in a way God manifests himself, and we have to favour this.” Although not necessarily reflecting the position of the entire institution, the words of this religious representative were the result of the excellent work done by activists to achieve the cultural change that was necessary to gain acceptance of LGBTQI+ people.

It is remarkable how Costa Rica went from criminalising homosexuality in the 1970s and closing gay bars deemed to be ‘perverse’ and persecuting gays with raids under the pretence of public health in the 1980s, to requesting an advisory opinion from the Inter-American Court in 2016 and, after a presidential election focused on the issue, appointing a presidential commissioner for LGBTQI+ affairs in 2018 and recognising equal marriage two years later.

We have just left behind another unjust law. And many people have understood that the fact that the union and life plans of two same-sex adults receive legal protection does not affect them in any way – if anything, it validates the institution of marriage in which they are also part – and that there is nothing wrong with being gay, and in any case no one ‘becomes gay’ as a result of this normalisation.

 

What is the regional significance of the progress achieved in Costa Rica?

Central America is one of the most hostile regions in Latin America for LGBTQI+ people. Murders of homosexual and trans people are frequent in El Salvador, Guatemala and Honduras. Costa Rica, as the first Central American country to approve equal marriage, should be a model for the entire region. The advisory opinion of the Inter-American Court is valid for the 20 countries of the Americas that recognise its jurisdiction. Panama could soon follow the path of Costa Rica: an unconstitutionality demand based on the ruling of the Inter-American Court has been filed, and the Iguales Panamá Foundation is coordinating the participation of international and domestic civil society in the process that is taking in Panama’s Supreme Court.

The Igualitxs Foundation has also long been working along the same lines in El Salvador, my country of origin. Salvadoran civil society has made immense progress. Based on the regressive leanings of the Legislative Assembly regarding equal civil marriage, for a decade and a half our efforts have focused on filing demands for the restrictive articles of the Family Code to be declared unconstitutional. I filed one of those lawsuits, titled Equality Lawsuit, on 11 November 2016. Shortly afterwards, several CSOs, such as Asociación Entre Amigos, Comcavis and Hombres Trans El Salvador, as well as numerous independent activists, filed a similar lawsuit.

As in Costa Rica, conservative sectors reacted strongly. In the Legislative Assembly they rushed to start the ratification process of an exclusionary constitutional reform that had been stagnant for years, and that would give constitutional status to the restrictive definition of marriage that we were questioning in the Family Code, which would effectively ban same-sex marriage. In the face of this, we requested a precautionary measure against the constitutional reform process and got the Supreme Court to stop it. It was as a result of this demand that the Igualitos movement was created, which would later become the Igualitxs Foundation.

The two unconstitutionality demands filed in 2016 were eventually admitted in August 2019, and in January 2020 a justice of the Constitutional Chamber of the Supreme Court announced that the court would shortly rule on this issue, and admitted that this is one of the court’s major outstanding overdue decisions. So we may be close to achieving our goal.

What support does civil society advocating for LGBTQI+ rights need from international civil society?

In the context of the COVID-19 pandemic, the situation is becoming increasingly difficult. States have their resources committed to fighting the pandemic, CSOs face budgetary constraints and the crisis is affecting everyone. In addition, many people are turning to faith to cope with the crisis and some religious groups are taking advantage and launching campaigns against LGBTQI+ people. However, it is still possible to take substantial measures and actions such as, in El Salvador, the approval of a bill that dozens of organisations are pushing for that would provide recognition to human rights defenders.

With regard specifically to our organisation, which has no funding and is entirely based on volunteering, we are taking it one day at a time, to regain the control that we have lost due to the pandemic. I think it is time to ask ourselves not only what we want and can get from life, but also what we can give back. This way we enter a zone of power, in which we retain agency despite limitations. Thus we leave our comfort zone to enter a growth zone. Starting from the acceptance of our reality, we need to do deep introspection to reinvent ourselves. This is the time to go back to believing that all of us have the potential to do great things and leave a mark if we act not to obtain flattery and gain popularity, but out of the satisfaction that comes from doing what is right and just, achieving positive impact in the world.

Civic space in Costa Rica is rated as ‘open’ by the CIVICUS Monitor.
Let in touch with Fundación Igualitxs through its website and Facebook page.

 

 

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