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Mexican Supreme Court rules against same-sex marriage ban

Three gay Oaxacan couples challenged denial of marriage licenses, ruling opens possibility of same-sex marriage throughout the country.

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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 Wednesday unanimously struck down a law in the southern state of Oaxaca that defined marriage as between a man and a woman.

Three couples — Lizeth Citlalli Martínez Hernandez and María Monserrat Ordóñez Narváez, Jesús Reyes Álvarez and Guillermo Emmanuel Martínez Pimental and Karina Mendieta Pérez and Gabriela Castellanos Mota — tried to apply for marriage licenses in Oaxaca, 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 January who sought legal recourse, known as an “amparo” in the Mexican judicial system, that would ensure local authorities would protect their constitutional rights. Geraldina González de la Vega, a lawyer who advised Méndez, noted to the Washington Blade this “remedy can be used against laws or acts of authority” in Mexico.

A Oaxacan court in April ruled in favor of Martínez and Ordóñez, but against Reyes and Martínez and Mendieta and Castellanos. An appellate judge in August cited the Mexican constitution that bans anti-gay discrimination in his ruling that ordered Oaxacan authorities to allow same-sex marriages.

The state’s governor and Congress petitioned the Mexican Supreme Court to review the case — Méndez also asked the tribunal to determine the criteria under which the Oaxacan marriage law should be understood.

“The court did not declare the unconstitutionality of the law, but the effect of its application is that the justices said that one would have to understand marriage is a contract celebrated between two people without any reference to the sex of those who enter into it,” Méndez told the Washington Blade during an interview from Mexico City hours after the justices issued their decision.

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 same-sex marriages legally performed in Mexico City. Same-sex couples have also married in Quintana Roo, which includes the resort city of Cancún on the Yucután Peninsula.

The state of Coahuila offers property and inheritance rights and other limited legal protections to same-sex couples.

The latest Mexican Supreme Court decision only applies to Oaxaca, but advocates maintain these cases will open the doors to same-sex marriages across the country.

González noted the court needs to issue five rulings before the “amparo” will “have general effects” throughout the country.

“We already have three,” she said.

“These cases set a precedent that can be invoked in any other state in Mexico,” Méndez added. “While it is not obligatory for those who must resolve these new cases, there is a high possibility that the result will be the same as what we have obtained in Oaxaca.”

Enrique Torre Molina, an LGBT activist and blogger in Mexico City, agreed.

“It’s not going to be long before same-sex marriage is a reality in the whole country,” he told the Blade on Wednesday. “It’s a matter of same-sex couples who have been thinking about getting married and haven’t done it either because they’re not in Mexico City and traveling is not an option or because they were going to get no for an answer. It’s just a matter of time of trying it out as these couples in Oaxaca [did] and sort of contribute to this history.”

The Mexican Supreme Court issued its ruling hours after a Colombian Senate committee approved a measure that would legalize same-sex marriage. Senators in the South American country are expected to debate the bill on Tuesday.

Same-sex couples have been able to legally marry in Argentina since 2010. Neighboring Uruguay allow civil unions for gays and lesbians, but the country’s lawmakers are expected to debate a same-sex marriage measure on Tuesday.

The Inter-American Court of Human Rights in February 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 Chilean couples who had been denied marriage licenses filed a lawsuit with the tribunal in September after the country’s Supreme Court ruled against them.

The Mexican Supreme Court cited the Atala case in its decision.

“Our country has already been sanctioned on many occasions by the IACHR,” Méndez said. “Our country, being part of this Inter-American system, will have to follow this trend in regard to protecting the human rights of the LGBT community.”

J. Lester Feder, a former Politico reporter who has covered the same-sex marriage throughout Latin America for four months for his blog AfterMarriage.org, noted to the Blade from Oaxaca that courts throughout the region often look to those in other countries in reaching their own decisions. He said the Atala case is one of the legal precedents the Oaxacan couples used in their successful lawsuits.

Justice José Ramón Cossío told CNN en Español he expects the same-sex marriage could become a reality throughout the country within a few months.

“The three cases are effective with respect to the state of Oaxaca,” he said. “By the position that we have on the Supreme Court as the country’s highest tribunal, it is foreseeable that if other people from other federal entities challenged a code that had a similar condition, the court would reiterate its criteria and within the next few months will guarantee the juris prudence that will become mandatory.”

Feder agreed.

“It means that it’s very likely universal marriage rights are going to be available in Mexico well before the United States,” he said. “International human rights law in the Americas is [increasingly interpreting] marriage rights as human rights, but the United States legal system doesn’t internalize international norms. We’re not participating in that trend.”

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5 Comments

5 Comments

  1. Phil Reese

    December 6, 2012 at 10:37 pm

    So the USA may soon be bordered by marriage equality both to the north AND the south.

  2. Alfonso Valenzuela

    December 8, 2012 at 4:20 pm

    USA others priorities like legalizing POT for recreation

  3. Russell Lindsay

    December 12, 2012 at 5:32 pm

    Get with the program America. Being a “world leader” also involves being non-discriminatory, forward-thinking and leading the world… not holding it in the dark ages.

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World

Petition urges White House to develop plan to protect LGBTQ Afghans

Taliban regained control of country on Aug. 15

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Two men in Kabul, Afghanistan, in July 2021 (Photo courtesy of Dr. Ahmad Qais Munzahim)

More than 10,000 people have signed a petition that urges the Biden administration to do more to help LGBTQ Afghans who remain in Afghanistan after the Taliban regained control of the country.

The Human Rights Campaign; the Council for Global Equality; Immigration Equality; Rainbow Railroad; the Organization for Refuge, Asylum and Migration and the International Refugee Assistance Project on Friday presented to the White House the petition that urges the administration to adopt “a 10-point action plan … to expedite and ease the refugee and asylum process for LGBTQI Afghans.”

The same six groups last month urged the Biden administration to adopt a plan that would “prioritize the evacuation and resettlement of vulnerable refugee populations, including LGBTQI people, and ensure that any transitory stay in a third country is indeed temporary by expediting refugee processing.” The groups, among other things, asked the White House to “speak out forcefully against human rights abuses by the new Taliban regime and any increased targeting of vulnerable communities, including LGBTQI people, and use existing mechanisms to sanction and hold accountable perpetrators of human rights abuse.”

The Taliban entered Kabul, the Afghan capital, on Aug. 15 and regained control of the country.

A Taliban judge in July said the group would once again execute people if it were to return to power in Afghanistan.

Rainbow Railroad and Immigration Equality are among the other groups that have continued their efforts to evacuate LGBTQ Afghans since American troops completed their withdrawal from the country on Aug. 30. Some of the 50 Afghan human rights activists who Taylor Hirschberg, a researcher at the Columbia Mailman School of Public Health who is also a Hearst Foundation scholar, has been able to help leave the country are LGBTQ.

“We reiterate our call for President Biden to adopt the 10-point policy plan which will expedite and ease the refugee process for LGBTQI Afghans,” said Human Rights Campaign Senior Vice President for Policy and Political Affairs JoDee Winterhof in a press release. “The 10,000+ people who signed our petition have demonstrated that they want the United States, long a beacon of refuge for those fleeing persecution, to take action to protect LGBTQI Afghans—a vulnerable group who risk oppression, even death, simply for who they are or who they love. Now is the time for action.”

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Putin describes transgender rights as ‘crime against humanity’

Russian president made comment in Sochi speech

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Russian President Vladimir Putin (Photo public domain)

Russian President Vladimir Putin on Thursday described transgender rights as “a crime against humanity.”

The Washington Post reported Putin made the comment in a speech he delivered in Sochi, a resort city on the Black Sea where the 2014 Winter Olympics took place.

Putin specifically said the idea that children are “taught that a boy can become a girl and vice versa” is “on the verge of a crime against humanity.” Putin, according to the Post, also said trans activists are demanding an end to “basic things such as mother, father, family or gender differences.”

Activists in Russia and around the world have sharply criticized the Kremlin’s LGBTQ rights record, including a 2013 law that bans the promotion of so-called gay propaganda to minors. Putin also has close ties to Chechen President Ramzan Kadyrov, who is behind a brutal anti-LGBTQ crackdown in the semi-autonomous Russian republic.

The European Court of Human Rights in July ruled Russia violated the rights of a trans woman who authorities prevented from visiting her children because of her gender identity. The decision is the first time the court used Article 14 of the European Convention on Human Rights in an anti-trans discrimination case.

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Report details anti-LGBTQ discrimination, violence in Kenya refugee camp

March 15 attack left gay man dead

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Ugandan refugees, gay news, Washington Blade
The Kakuma refugee camp in Kenya (Photo by the E.U. Civil Protection and Humanitarian Aid Operations via Flickr)

A new report released on Wednesday indicates nearly all of the LGBTQ people who live in a Kenya refugee camp have experienced discrimination and violence because of their sexual orientation and/or gender identity.

The Organization for Refuge, Asylum and Migration and Rainbow Railroad in May 2021 surveyed 58 LGBTQ asylum seekers who live at the Kakuma refugee camp and the Kalobeyei Integrated Settlement that opened in 2016 to help alleviate overcrowding at Kakuma. The groups also interviewed 18 “key informants.”

More than 90 percent of the LGBTQ asylum seekers who spoke with ORAM and Rainbow Railroad said they have been “verbally assaulted.”

Eighty-three percent of them indicated they suffered “physical violence,” with 26 percent of them reporting sexual assault. All of the transgender respondents “reported having experienced physical assault,” with 67 percent of them “reporting sexual assault.”

Eighty-eight percent of respondents said they had been “denied police assistance due to their sexual identity.” Nearly half of the respondents told ORAM and Rainbow Railroad they had to be “relocated from their allocated shelters to alternative accommodation due to the constant abuses directed at them by neighbors.”

Kakuma, which is located in northwest Kenya near the country’s border with Uganda and South Sudan, is one of two refugee camps the U.N. Refugee Agency operates in the East African nation. The other, Dadaab, is located near Kenya’s border with Somalia.

The report notes upwards of 160,000 refugees from South Sudan, Sudan, Somalia, the Democratic Republic of Congo, Burundi, Ethiopia and Uganda were living in Kakuma as of January.

Those who responded to the ORAM and Rainbow Railroad survey are from Uganda, Burundi, the Democratic Republic of Congo, Sudan, South Sudan, Rwanda, Afghanistan, Yemen and Ethiopia and all of them have asked for asylum in Kenya. Ninety-four percent of them live in Kakuma, while the remaining six percent live in Kalobeyei.

The report also estimates there are 350 LGBTQ asylum seekers in Kakuma and Kalobeyei. UNHCR in 2020 created Block 13 in Kakuma that is specifically for LGBTQ refugees.

Gay man died after Block 13 attack

Two gay men suffered second-degree burns during an attack on Block 13 on March 15. One of the men died a few weeks later at a hospital in Nairobi, the Kenyan capital.

Forty-one of the Block 13 residents who participated in the ORAM and Rainbow Railroad survey said that “relocation to a safer place as a priority.” The report also notes some respondents who live outside Block 13 “said that the activism in Block 13 was affecting the overall relationship between LGBTQI+ asylum seekers and service providers in the camp.”

“They expressed concern with some activities conducted as part of their activism,” reads the report. “For example, they alleged that some activists were conducting staged attacks on individuals and false claims of violence to attract media attention as part of their advocacy.”

The report notes “allegations of activity from activists in Block 13 have not been confirmed.” Some of the “key informants” who ORAM and Rainbow Railroad interviewed for their report, however, “observed that LGBTQI+ activists from different countries have been supporting the advocacy in Block 13 without considering the local context and potential negative or unintended consequences.”

“They allege that the advocacy has been antagonizing LGBTQI+ members with other refugees in the camp and service providers,” reads the report. “For example, some of the LGBTQI+ asylum seekers were reported to have deserted their allocated shelters, moved to Block 13 and were persistently demanding new shelters.”

An attack at the Kakuma refugee camp in Kenya on March 15, 2021, left two gay refugees with second-degree burns. One of these men later died. (Photo courtesy of Gilbert Kagarura)

UNHCR in a statement after the March 15 attack noted Kenya “remains the only country in the region to provide asylum to those fleeing persecution based on sexual orientation, gender identity or expression,” even though consensual same-sex sexual relations remain criminalized. The ORAM and Rainbow Railroad report acknowledges both points.

“Asylum seekers and refugees in Kenya are not immune to pervasive anti-LGBTQI+ attitudes in the community,” it reads. “As the number of LGBTQI+ asylum seekers and refugees increases rapidly, it is important to understand their unique protection needs and plan for safe and dignified service delivery to meet those needs.”

The report notes more than 70 percent of respondents have gone to Kakuma’s main hospital the International Rescue Committee operates in order to receive HIV/AIDS-related services. More than 85 percent of respondents said they “preferred to seek all other health services beyond HIV and AIDS services at the main hospital, since the facility was friendly and provided a stigma-free environment for the LGBTQI+ community in the camp.”

“Respondents reported traveling long distances in order to visit the main hospital,” reads the report.

The report notes limited access to cardiologists and other specialists at the eight health facilities in the camp that UNHCR partner organizations operates. Roughly a third of respondents also said they have “been stigmatized in some of the health clinics.”

“This included being referred to as shoga (a derogatory Kiswahili term used to refer to homosexuality) either by staff members or other refugees in the waiting room while waiting to see a provider, or some providers just directing them to the main hospital with snide remarks about how they do not entertain LGBTQI+ persons in their facility,” reads the report.

The African Human Rights Coalition, the Refugee Coalition of East Africa and Upper Rift Minorities are among the other groups that work with the camp’s LGBTQ residents.

The report notes only a third of respondents “were actively engaged in economic activity at the time of the study, a majority depended on the food rations distributed in the camp.” It also contains 10 recommendations, which are below, to improve conditions for LGBTQ refugees in Kakuma.

1) The Refugee Affairs Secretariat of Kenya must fast-track refugee status determination of LGBTQ asylum seekers with further support from UNHCR and civil society organizations.

2) The Refugee Affairs Secretariat of Kenya and UNHCR must create more responsive and sensitive protection services for LGBTQ refugees in Kenya.

3) Civil society organizations and their supporters should provide livelihood support and other support to meet the immediate needs of LGBTQ refugees in Kakuma.

4) Governments of resettlement countries must resume and fast track resettlement of LGBTQ refugees from Kenya.

5) UNHCR and civil society organizations must continue to build skills development programs for employability.

6) LGBTQ civil society organizations should work more closely with refugee-led organizations and collectives to build self-protection services.

7) Donor communities should participate in more long-term development programming for LGBTQI+ refugees in Kenya.

8) LGBTQ civil society organizations providing support to refugees in Kenya must coordinate more closely.

9) LGBTQ civil society organizations and refugee-led organizations should continue to advocate for more inclusive human rights in Kenya.

10) Civil society must continue the push for LGBTQ human rights globally, including decriminalization of same sex intimacy.

“This much-needed report underscores the challenges, dangers and complexities of life that LGBTQI+ refugees and asylum seekers face in Kakuma refugee camp,” said ORAM Executive Director Steve Roth in a press release that announced the report’s release. “The refugees themselves have spoken and they want to be heard. UNHCR, governments and civil society organizations must work together to ensure the immediate safety and well-being of this community while also addressing the longer term, durable solutions we recommend in the report.”

Rainbow Railroad Executive Director Kimahli Powell added refugee camps cannot “become permanent solutions to crises of forced displacement.”

“The findings of this report confirm a key goal of Rainbow Railroad—to fast track resettlement of LGBTQI+ refugees,” he said. “Rainbow Railroad and civil society partners are ready to provide support to LGBTQI+ persons at risk and assist in further resettlement. Ultimately, we need the UNHCR, the government of Kenya and governments of countries that are destinations for refugees to step up an ensure that LGBTQI+ asylum seekers in the camp are resettled in safer countries.”

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