SAN JOSÉ, COSTA RICA — On May 27, 2018, Carlos Alvarado was sworn in as Costa Rica’s president. He won the second round of the presidential elections on May 8 after one of the most polarizing political campaigns the country had ever seen following the hate speech and attacks on women and LGBTI people by the opposing candidate. Since then, and under its new leadership, Costa Rica has been on a steady road to recognizing the rights of LGBTI citizens, but not without some hurdles along the way.
Everything started January 9, 2018 when the Inter American Court of Human Rights made public the Advisory Opinion OC/24-17, in which they answered a consultation made by Ana Helena Chacón, Costa Rica’s Vice President in 2017, instructing all the states member of the Organization of American States (OAS), to recognize marriage equality and trans rights to identity, including the possibility for folks to change their names and correct their gender in their IDs. This happened just before the first round of the presidential elections and shifted the focus of the election season.
In response, Alvarado made the public commitment to make the Advisory Opinion a reality in the country:
Comparto plenamente la opinión emitida por la Corte Interamericana de DDHH. La cual esta reflejada y es coincidente con lo plateado en nuestra campaña.
Esto basado con nuestra profunda creencia de la igualdad y la defensa de los Derechos Humanos #LoveWins
— Carlos Alvarado Quesada (@CarlosAlvQ) January 9, 2018
In this program, he also promised to create a national policy to make Costa Rica free of discrimination by sexual orientation, gender identity and expression, and biological sex; to promote inclusivity for LGBTI people in the public services; jobs, education, health services and opportunities for trans and intersex people; the development of a system to gather data about LGBTI people in the country; and the creation of the title of Presidential Commissioner for LGBTI Affairs to oversee all of these programs.
During the administrations first speech, in a watershed moment, President Alvarado and Carolina Hidalgo, the first woman to be President of the Congress in 18 years, assured Costa Rica they would keep the promises.
Today, about one year from the Advisory Opinion, and eight months into the first of four years of Alvarado’s government, we take a look at the promises he has kept and the ones yet to be fulfilled.
Right to Identity
The Advisory Opinion answered two questions former Vice President Ana Helena Chacón and a team of lawyers, including Luis Salazar, asked the Inter American Court of Human Rights. The first one was about the patrimonial rights a same-gender couple has, and the second one was about the right of trans people to identity—meaning to change their names and correct their genders in their ID’s to match who they are.
The answer by the Court was clear: these are human rights, and the countries that are part of the OAS have the obligation to recognize those rights by making legal marriage equality, and by developing a system for trans people to make that change and correction free of charge, confidentially and through an easy and administrative way.
In May of 2018, just after President Alvarado was sworn in, he fulfilled his promises of appointing a Presidential Commissioner for LGBTI Affairs, Luis Salazar (of the Advisory Opinion legal team), who got to work immediately with LGBTI local and international organizations.
Also, that month the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones) made the decision to reform the Civil Bylaw creating a system for the Registry Office, that to date has allowed more than 313 trans people to change their name to match their identity, but not to correct their gender.
“The Advisory Opinion hasn’t been fulfilled,” Natasha Jiménez told Latino USA, “The possibility of changing our name is a big step, but the Tribunal and the Registry Office don’t recognize our identity yet because we can’t correct our gender assigned at birth, the information has just been removed from the ID’s but it still is public information that educational institutions and employees can access to find out we are trans and discriminate against us.”
Jiménez is a trans and intersex activist founder of the trans organization Mulabi, and Alternative Secretary of the Council of Latin American chapter of the International Association of Lesbians, Gays, Intersex and Trans People (ILGA).
“This is happening to trans people right now. Trans women appear as men with feminine names, trans men appear as women with masculine names, and non-binary people who have neutral names appear as one of these two genders,” she added, “It is a mess”.
Salazar said because “of the principle of Power Separation between the Executive Power” that he represents, and the electoral power that the Supreme Electoral Tribunal integrates, neither he nor the President can “change the decision the Tribunal made in May”.
But he explained that the strategy to make the Opinion a reality is to work with the deputies of the government party, the Citizens Action Party (Partido Acción Ciudadana, PAC), and their allies in the National Assembly (Congress), to pass the Gender Identity Law that will allow the correction of the gender marker and has been in discussion since January 2016.
Enrique Sánchez is the first openly gay man to be elected as deputy. He is part of the PAC group in the Assembly, and said he is committed to “review the Gender Identity Law, to remove what has already been accomplished, and to add other important points like the recognition of gender identity in trans kids and teens, and the right to jobs, education, and health of trans people”.
He aims to pass this bill this year, after working with nonprofit organizations to gather the votes that are needed. He explained that this will complement the Executive Order issued December 21, 2018, that recognized the identity rights of trans-migrant people. Soon, the first ID’s for foreign trans citizens with the change of name and gender correction will be issued.
In their decision from May, the Tribunal also said they couldn´t allow the inscription of marriages or civil unions of same-gender couples in the Registry Office because it was against the Family Code, which prohibits same sex marriage in article 14-6. The Superior Council of Notaries also prohibited notaries to marry these couples and stated that anyone who did could be sanctioned.
The decision about marriage equality in the country was then a responsibility of the Constitutional Chamber of the Judicial Power, who had several cases about this right waiting to be discussed.
Finally, in August 2018 they did. In their longest session in 30 years, 12 hours later they told Costa Rica in a press conference at 11:00 pm that, following what was stipulated by the Advisory Opinion, they found articles 14-6 and 242 of the Family Code, and article 4 of the Youth Law, that prohibits marriage equality and the civil union, to be unconstitutional, and they would stop being legal 18 months after the ruling was published in its full version.
The Chamber made public the complete ruling by November 26, meaning that by May 26 of 2020, Costa Rica will have marriage equality, and one more of President Alvarado’s promises will be fulfilled.
Also, in the ruling, the Chamber instructed the National Assembly to use this time to review and modify all the laws and norms in the country that would be in contradiction with marriage equality.
“[This is] to avoid any legal uncertainty; the marriage between two people of the same gender must have the same rights that a heterosexual one, and the families that are formed under them,” said Salazar.
And that is what concerns Nisa Sanz, an activist of Homoparental and Diverse Families of Costa Rica. She married a woman, Christine, in Switzerland and had three kids with her in Madrid, but in Costa Rica, her birthland, they are not recognized as a family. Recently, on December 21, an Executive Order was issued that finally recognized binational same-gender couples and their rights, meaning Christine will have now a working permit and a residency as Nisa’s wife.
“Right now, in Costa Rica, the children with same-gender parents, as mine, are only registered as children of only one of the parents, as [if] he or she were a single parent. Homoparental families don´t exist. So, to make it happen in a short term we need to make a set of rules and protocols, especially before May 2020, when marriage equality becomes a reality”, Sanz argued.
Adoption is also complicated.
“Legally, it is not explicitly forbidden that a same-gender couple can adopt,” Sanz said, “but the social workers in charge don’t allow it. So, it is hard for the couples that choose to have adopted children to accomplish it.” Salazar said he is working with Nisa’s organization and others, to write those rules and to educate all the public servers that are involved in the process, of recognizing and forming a homoparental family.
Visibility and Inclusion
Marriage equality and the recognition of the identity of trans people is just the tip of the iceberg: many other human rights of LGBTI people have yet to be recognized in Costa Rica, and government institutions have no data to know how big the problem is.
That’s why one of the promises in the governmental program of Alvarado, was that all the state institutions start collecting data taking into consideration sexual orientation, gender identity and expression, and biological sex, to give visibility to LGBTI people, to have information to make decisions and to develop public policies for them.
To date, this is not yet a reality.
“The first steps we took to make this a reality was with the help of the United Nations Population Fund, which hired two consultants that generated a technical recommendation about how to start collecting data from LGBTI people that was presented to the organizations, and the study of how other countries had done it successfully,” explained Salazar. “We hope to have a procedure in place in the first six months of this year to start applying it in institutions like the Public Health System (Caja Costarricense del Seguro Social, CCSS) and the Women’s National Institute (INAMU)”.
Three fundamental rights that have been denied to trans people in Costa Rica are education, jobs, and access to health services. Salazar said they started developing an education and job program at the end of last year with the United Nation Program for Development (PNUD), and governmental institutions.
“The next step is to start working also with the private sector and nonprofit organizations to create a system in which trans people can study safely and without discrimination, and also establish a number of trans people that companies and institutions have hired”, he said, “we want to change the life projection of trans people, giving them real opportunities”. They do not have yet an estimate date for when this policy will be ready.
“This is a viable way to make it happen, only if this policy comes with an education and sensibilization program for the institutions and companies that will take part in it” said trans and intersex activist Jiménez.
She argued, “there are too many negative messages about trans people in Costa Rica. We have been presented as sex workers and butch lesbians. That is why we must show them that we deserve to work and study, that we want to be productive members of society, so this policy doesn´t fail.”
This comes with another action which is the development of a protocol that establishes the process that will allow trans people to receive the hormone replacement therapy, to physically transition, through the public health system, that was signed as of “Public Interest” by the President on December 21 of last year and went into effect January 25.
Hoy fueron publicados otros de los decretos firmados recientemente en favor de la población LGBTIQ+:
1. Declaratoria de interés público y nacional del Protocolo de Hormonización para personas trans.
2. Inclusión de la bifobia en el Día Nacional contra la Homolesbotransfobia. 🏳️🌈 pic.twitter.com/QlocQOTXLA
— Luis Salazar (@lsalazarmunoz) January 25, 2019
An End to Discrimination
The final promises of President Alvarado’s program were about discrimination. The first one is the Anti-Discrimination Law, that deputy Enrique Sánchez has been working one since he was sworn in.
This project, he said, “wants to prevent and sanction all forms and types of discrimination, that’s why in its article 4 it has an extensive list of all the reasons why a person can be discriminated against, including sexual orientation, gender identity and expression, and biological sex”.
To prevent discrimination, Sánchez proposes in the project to incorporate prohibitions and sanctions in the education system, regulations and in the Work Code. And, to sanction more violent discrimination within the Criminal Code so it stipulates that those crimes that have a discrimination component will require a bigger sentence, as a first step towards Costa Rica’s recognition of hate crimes.
Thanks to the support of the Habitants Defends Office (Defensoría de los Habitantes), and different groups of nonprofit organization and activist, Sánchez estimates it is possible to defeat the conservative opposition to this law and to pass it this year.
The very last of Alvarado’s promises was to develop a national policy to make Costa Rica free of discrimination by sexual orientation, gender identity and expression, and biological sex, that will establish a national campaign about LGBTI rights.
On that topic, both activists Nisa Sanz and Natasha Jiménez said they agree that, without sensibilization and education of the citizens, the executive orders, laws, and policies will not change the discrimination and exclusion that LGBTI people face in Costa Rica every day in their fight for equality and their rights to have normal and fulfilling lives.