Sexuality Policy Watch

Habemus equal marriage

Carlos Figari* and Mario Pecheny**

In July 15th, 2010, at 4 am, the Argentine Senate voted for the reform of civil marriage. The project had been previously discussed and approved by the Chamber of Deputies. The new law incorporates same-sex couples into civil marriage, with the same rights and obligations, including adoption, and under the same denomination.

This fundamental step in the legal recognition of LGBT rights in Argentina results from an intense work of activism: political, academic and social.

In a first stage, a slow but effective activist work led to the recognition of same-sex civil unions, proposed by pioneer organizations (Gays for Civil Rights, Homosexual Community of Argentina) in the context of struggles for non-discrimination and the recognition of LGBT rights. In 2010, when gay marriage was discussed in Congress, Argentina has had civil union laws in four jurisdictions, for almost a decade: the cities of Buenos Aires, Villa Carlos Paz (Córdoba) and Rio Cuarto (Córdoba), and the province of Rio Negro.

A lesson had been learned: the approval of a law that recognizes LGBT rights need political consensus. The agenda of the LGBT movement, in the context of a broader agenda of rights related to feminism, gender, reproduction, health and sexuality, has been installed for several years and crosses all the political spectrum (i.e., it is “transversal”). In 2010, you find both supporters and opponents to the law within every political party present in Congress.

More recently, a strategy has been developed by different organizations, particularly by the Argentine Federation of Lesbians, Gays, Bisexual and Trans: at the Civil Office (where marriages take place in Argentina), as any ordinary couple, same-sex couples inscribed themselves and asked the officer to marry them. They were communicated that it was not possible; judicial claims followed to question the constitutional status of the prohibition of same-sex marriage. This strategy proved to be effective. Several judges authorized the marriages and some even declared that the exclusion of the same-sex couples of the Civil Code was not constitutional. In less than a year, nine couples got married. A judge tried to revoke all those decisions, but the marriages have been ratified. Presently, the Supreme Court faces the challenge to make a statement about this issue. In any case, those marriages are still valid and several same-sex couples are getting married even before the implementation of the new law.

These processes installed the issue within the public opinion and the media. The issue has been framed as a question of equality before the law, without discrimination of sexual orientation. Legislators of the more progressive parties as well as the most progressive legislators of all parties agreed on a common project to reform some articles of the Civil Code. The law is simple: it replaces the reference to men and women, husband and wife, and allows any person with no discrimination of sex, to get married.

A crucial step was to block an alternative project of “civil unions”, presented by the opponents to the gay marriage. This project had the explicit aim to “preserve” the dignity of heterosexual marriage, exclude same-sex couples of adoption (even though LGBT individuals already have the right to adopt) and prohibit them the assisted fertilization (while this practice is not regulated yet in Argentina). This project was grounded on religious or moral arguments and “scientific data”, provided by Catholic institutions. These arguments and data have been publicly questioned by more than 600 scientists of public universities and the National Council on Science and Technology.

The “solution” of the religious right when it was losing the battle was to propose an unequal civil union, but no marriage. This has been rejected by social movements and by the legislators favorable to equal marriage.

The polarization of the debate reenacts a never-ending cultural struggle between religious interventions and the secular state. The Catholic Archbishop and priests talked about the struggle between the plan of God and the plan of the Devil. Then President Cristina Kirchner courageously intervened in the debate, characterized those expressions as inquisitive and medieval, and declared herself favorable to guarantee minority rights.

Thirty-three Senators voted for the law, against twenty-seven who voted against. Gay marriage is now legal in Argentina.

The Final of the World Championship, organized by South Africa, a country with gay marriage, has been played by teams of two countries with gay marriage, Spain and the Netherlands. At that occasion, Argentina was not able to reach the podium, but with the approval of this law Argentina joined yesterday, with happiness, the podium of those countries that have abolished an Apartheid that is still legal in almost every other country. However, we know, the championship of equality is only starting.

* Carlos Figari
PhD in Sociology (IUPERJ-Rio de Janeiro)
Researcher CONICET- University of Catamarca and of Buenos Aires, Argentina
Grupo de Estudios sobre Sexualidades (GES) – Institute Gino Germani

** Mario Pecheny
Ph D in Political Science (U. of Paris III)
Researcher CONICET – Professor at the University of Buenos Aires
Grupo de Estudios sobre Sexualidades (GES)  – Institute Gino Germani

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