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Mexican Supreme Court finds gay marriage ban unconstitutional

Ruling cites two U.S. Supreme Court cases on racial segregation

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Oaxaca, gay marriage, marriage equality, same sex marriage, Mexico

Oaxaca, gay marriage, marriage equality, same sex marriage, Mexico

Lawyer Alex Ali Mendez Diaz represented three same-sex couples from the Mexican state of Oaxaca whom local authorities denied marriage licenses. (Photo courtesy of Alex Ali Mendez Diaz)

The Mexican Supreme Court on Monday formally released its ruling that found a Oaxacan law that bans same-sex marriage unconstitutional.

The 56-page decision cites two U.S. Supreme Court cases that specifically addressed race-based discrimination and segregation: Loving v. Virginia that found state bans on interracial marriages unconstitutional and Brown v. Board of Education that struck down laws that allowed separate public schools for black and white students.

“The historic disadvantages that homosexuals have suffered have been amply recognized and documented: public scorn, verbal abuse, discrimination in their places of employment and in the access of certain services, including their exclusion from certain aspects of public life,” the judges wrote. “In comparative law it has been argued that discrimination that homosexual couples have suffered when they are denied access to marriage is analogous with the discrimination suffered by interracial couples at another time.”

They further point out the U.S. Supreme Court said in Loving v. Virginia that restricting marriage on the basis of race is “incompatible” with the Equal Protection Clause under the 14th Amendment of the Constitution.

“In connection with this analogy, it can be said that the normative power of marriage is of little use if it does not give the possibility to marry the person that one chooses,” the judges wrote.

The court released its decision more than two months after the judges unanimously struck down the Oaxaca law that defined marriage as between a man and a woman.

Three couples tried to apply for marriage licenses in the state, but local authorities denied their applications. Lawyer Alex Alí Méndez Díaz filed lawsuits on behalf of two of the couples in Aug. 2011 and a third in Jan. 2012 who sought legal recourse — an “amparo” in the Mexican judicial system — to ensure local authorities would protect their constitutional rights.

The ruling also comes roughly six weeks before the U.S. Supreme Court will hear oral arguments in cases challenging the constitutionality of California’s Proposition 8 and the Defense of Marriage Act.

“They do it when in our country there is no previous rulings on the subject,” Méndez told the Washington Blade from Mexico City when asked whether it is common for Mexican Supreme Court judges to cite cases from other countries in their decisions. “These rulings are the first at the national level that support the topics in the way in which we had planned.”

Marriage debate continues throughout Latin America

Same-sex couples have been able to legally marry in the Mexican capital since 2010, and the Mexican Supreme Court has ruled other states must recognize gay marriages legally performed in Mexico City. Gays and lesbians have also married in Quintana Roo on the Yucatán Peninsula, while the state of Coahuila offers property and inheritance rights and other limited legal protections to same-sex couples.

The Uruguay House of Representatives in December overwhelmingly approved a bill that would allow gays and lesbians to tie the knot. Same-sex marriage advocates expect the measure will easily pass in the country’s Senate in April — President José Mujica has said he will sign it into law.

A Colombian Senate committee in December also approved a same-sex marriage bill. A court in the Brazilian state of São Paolo later that month ordered registries to begin offering marriage licenses to same-sex couples without a judge’s approval.

Argentina has allowed same-sex couples to marry since 2010, while Chilean President Sebastián Piñera in 2011 said he would introduce a bill that would allow gay men and lesbians to enter into civil unions. Same-sex couples would be allowed to tie the knot and adopt children in French Guiana under a proposal the French Senate is scheduled to begin debating on April 2.

The Inter-American Court of Human Rights in Feb. 2012 ruled in favor of lesbian Chilean Judge Karen Atala who lost custody of her three daughters to her ex-husband in 2005 because of her sexual orientation. Three gay couples from Chile who had been denied marriage licenses filed a lawsuit with the tribunal last September after the South American country’s Supreme Court ruled against them.

The Mexican Supreme Court cited the Atala case its decision that only applies to the three same-sex couples who had sought marriage licenses in Oaxaca.

“It just confirms that fighting for marriage equality on a federal level makes more sense and is becoming an increasingly global trend,” Enrique Torre Molina, an LGBT activist and blogger in Mexico City, told the Blade.

The Mexican Supreme Court on Wednesday is expected to formally announce its decision on whether the Oaxacan law that defines marriage as between a man and a woman is discriminatory. The judges will have to rule on an additional “amparo” from Oaxaca before gays and lesbians can legally tie the knot in the state.

“For there to be same-sex marriage throughout the country, if there is not a reform of the civil laws of each state, we will need five rulings in each one of the states that comprise the federation [of Mexico,]” Méndez noted.

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South America

Argentina’s president seeks to dismantle anti-discrimination agency

Activists have sharply criticized Javier Milei’s move

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Argentine President Javier Milei (Screen capture via YouTube)

Argentinian President Javier Milei’s proposed closure of his country’s National Institute Against Discrimination, Xenophobia and Racism has sparked widespread criticism among LGBTQ activists and human rights defenders.

Alba Rueda, the former Undersecretary of Diversity Policies in the Women, Gender and Diversity Ministry who was also the country’s Special Representative on Sexual Orientation and Gender Identity under Alberto Fernández’s government, and gay Congressman Esteban Paulón in exclusive interviews with the Washington Blade talked about the Feb. 22 announcement’s implications and the impact it will have on Argentine society at a time marked by an acute economic, political and social crisis.

Rueda said INADI’s closure is a serious setback in the fight against discrimination and the advancement of human rights in Argentina. 

“INADI is a human rights agency that has been in force in Argentina for almost 30 years, which emerged as a response to the international attacks we suffered,” she pointed out. “This body has been fundamental in the attention of discrimination cases, including strategic litigation such as the (murder) of Diana Sacayán (a prominent transgender rights activist) in 2015.” 

Paulón said INADI’s closure is part of a broader policy of harassment towards diversity and state institutions that Milei’s government has carried out.

“INADI, along with the already eliminated Women Ministry, has been fundamental in the defense of the rights of LGBTQ+ and queer people,” said Paulón.

“In practical facts, the government cannot close INADI because INADI has been created by a law and it would require another law to close it,” he added. “Therefore, it has been raised that there is going to be a restructuring of personnel, a readjustment of resources that are going to continue processing complaints, but that they are going to pass to the orbit of the Justice Ministry, where INADI already is, but let’s say, they would pass without the institutionalism and that it would remain as an empty shell until the government achieves the consensus of a law to eliminate.”

Both agreed that INADI’s closure represents a serious setback in the protection of human rights in Argentina and a threat to the most vulnerable groups in society, including LGBTQ people. They also stressed Milei’s government has used this announcement as part of a broader strategy to dismantle democratic institutions and the country’s human rights agenda.

INADI cannot be closed unilaterally, despite the announcement, because a law created it and another statute would be required to dismantle it. There are, however, concerns the government may attempt to dismantle the institution or reduce its operational capacity.

“The decision to close INADI responds to an ideological position,” said Rueda. “They believe that INADI is the policeman of this, the ideological policeman. It is a body that functions autonomously whose president is appointed by the Congress and which also has a board of directors of social organizations.”

Critics of Milei’s government argue INADI’s closure is part of a strategy to consolidate power and repress dissent. They say the government is using the economic crisis as a pretext to implement authoritarian measures that limit civil liberties and weaken democratic institutions.

Milei’s supporters, on the other hand, defend the move as part of a broader effort to reduce public spending and promote liberal economic policies. They argue INADI’s closure is necessary to eliminate waste and corruption in government, and that its impact on human rights and LGBTQ protection is overstated.

“For LGTB people in particular, the closure of INADI would leave us without a place where we could basically receive attention in the face of discrimination,” Rueda pointed out. “And another issue that INADI also did is that it generated public policy recommendations or developed public policies for the prevention and awareness of these changes that have to take place in society.”

“So, not only do we run out of spaces for denunciation, but also of where to change this culture of discrimination, culture of discrimination that are present in the labor market that Milei presents or points out to you, as a success and that this is self-regulated,” she added. 

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South America

Alleged masterminds of Rio councilwoman’s murder arrested

Marielle Franco and her driver were killed on March 14, 2018

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Marielle Franco (Photo courtesy of Facebook)

Brazilian authorities on Sunday arrested two people who they say masterminded the 2018 murder of Rio de Janeiro Municipal Councilwoman Marielle Franco and her driver.

The Associated Press reported the country’s federal police arrested Congressman Chiquinho Brazão and his brother, former Rio de Janeiro Legislative Assemblyman Domingos Brazão, who advises the state’s Audits Court. Authorities on Sunday also took into custody former Rio police chief Rivaldo Barbosa and charged him with obstruction of justice.

Authorities say two former fire fighters — Elcio de Queiroz and Ronnie Lessa — shot Franco and Anderson Gomes in Rio’s Lapa neighborhood on March 14, 2018.

Franco, a bisexual woman and single mother of African descent, grew up in Maré, a favela in the northern part of Rio that is close to the city’s international airport. Franco, among other things, was an outspoken critic of police raids in Rio’s favelas that have left hundreds of people dead.

Authorities last July arrested Maxwell Simões Correia, a former firefighter who allegedly hid the guns that De Queiroz and Lessa used to shoot Franco and Gomes. The Brazilian Supreme Court last week approved a plea agreement into which Lessa entered. 

The AP reported Federal Justice Minister Ricardo Lewandowski at a press conference told reporters the Brazão brothers have “multiple interests” and Chiquinho Brazão, who was a member of the Rio Municipal Council in 2018, was angry about Franco’s bill that would have zoned land for public housing in the city. The Brazão brothers also have reported ties to militias in the city.

“At this moment we have it very clear who are the perpetrators of this hateful, heinous crime of political nature,” said Lewandowski.

Franco’s widow, Mônica Benício, who was elected to the Rio Municipal Council in 2020, discussed the status of the investigation with the Washington Blade during a March 2022 interview in Rio.

“The struggle for justice to find out who ordered the murder and how high up they were indicates we are still far from knowing,” said Benício.

Franco’s family in a statement said their fight for justice will continue.

“This case reflects the structural impunity in cases of crimes committed by agents or former agents of the State against the lives of human and civil rights defenders, such as Marielle and Anderson Gomes, segments of society that suffer widespread damage to rights in society and have structural difficulty in accessing justice,” it reads.

Domingos Brazão’s lawyer has denied the allegations against his client, saying he “did not know Marielle.” Chiquinho Brazão and Barbosa have also proclaimed their innocence. 

The three men, who were arrested in Rio, will be transferred to Brasília, the country’s capital.

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Africa

Ugandan MP introduces anti-gay surrogacy bill

Sarah Opendi’s measure mirrors attempt in Kenya

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(Image by rarrarorro/Bigstock)

Uganda has joined Kenya in seeking to ban same-sex couples who want to use a surrogate or in vitro fertilization to become parents.

MP Sarah Opendi on March 5 introduced the Human Assisted Reproductive Technology Bill 2023, which would limit access to these treatments to only people with infertility challenges. She notes there has been an increase in the number of Ugandans seeking to have children through human assisted reproductive technology over the years, but without a legal framework. 

“The increasing demand for the use of human assisted reproductive technology has been necessitated by the growing cases of primary and secondary infertility, and other health-related challenges among persons seeking to have children,” Opendi states in the bill. 

Legal gaps the law seeks to address include regulating access to the use of human assisted reproductive technology by a state’s medical body; designating medical units or facilities as fertility centers; setting up sperm, oocyte (a female egg) and embryo banks within fertility centers and a register of data collected from services rendered through the technology.  

The bill’s Clause 20 would block gay couples from having children via surrogacy and would give a registered medical practitioner the power to establish the infertility condition of an individual before accessing services. 

The medical professional would have to certify that the intending parent “suffers primary or secondary infertility” or “suffers health challenges which affect the ability to reproduce.” 

The bill would also bar same-sex couples from surrogacy services for parenthood, stating they apply to “a man and a woman” who jointly seek to use human assisted reproductive technology to obtain a child. The proposal would also apply to a man and a woman where “either the man or woman or both” suffer primary or secondary infertility or health-related challenges that affect the man or woman’s ability to reproduce.     

The proposed law, which a parliamentary health committee is considering for public input before its reintroduction in the House for debate, has been criticized by some Ugandan LGBTQ activists as “draconian.”

“The same sponsors of the anti-gay law are the same introducing this bill which is well influenced by American anti-gay and anti-gender groups,” Frank Mugisha told the Washington Blade.

His comments came three days after the U.S. denied Opendi a visa that would have allowed her to attend a Commission on the Status of Women at the U.N. meeting in New York.

Reports indicate the visa denial is because of anti-LGBTQ comments that include the castration of gay men that she made during the parliamentary debate on the Anti-Homosexuality Act. Mugisha applauded the U.S. decision, saying she should not be able to promote hate against LGBTQ people “anywhere else.”

“The bill is very draconian, has so many limitations for our men and families that do not conform to old draconian conservative ideologies,” said Mugisha in response to the surrogacy bill. “The bill would outlaw women who are not married from having IVF and we need to pay attention to this bull and stop it.” 

The Ugandan surrogacy bill limiting same-sex couples from parenthood adds to a list of recent anti-LGBTQ measures like Anti-Homosexuality Act that saw the country sanctioned.

The Court of Appeal on March 12 declared it is illegal for LGBTQ rights groups to register in Uganda. Parliament Speaker Anita Among, a strong anti-homosexuality crusader, during the parliamentary session two days after the ruling commended Chief Justice Alfonse Owiny and the Ugandan judiciary he leads for saving the country from “values that are alien and want to destroy our society.” 

Kenya’s proposed surrogacy law, dubbed the Assisted Reproductive Technology Bill 2022, is also before the parliamentary health committee. MP Millie Odhiambo last May reintroduced the bill, which would prohibit gay and lesbian couples from having children via surrogate.

The measure stalled in the Kenyan Senate in 2022. House rules rendered it “dead” when the parliamentary term ended because of that year’s general election. It could only be saved through a reintroduction in the new Parliament. 

The Kenyan surrogacy bill, just like the one that Opendi introduced, would only permit a man and a woman (intending parents) with certified infertility problems to have children via surrogate and IVF.

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