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RIGHTS-ARGENTINA: Lesbians Want Real Marriage

Marcela Valente

BUENOS AIRES, Feb 16 2007 (IPS) - The Argentine Civil Registry Office’s refusal to register a lesbian couple for a civil marriage prompted a legal claim for homosexuals to enjoy the same rights as heterosexuals.

“We demand the same rights that the state accords any heterosexual couple, otherwise we’re being discriminated against,” María Rachid, one of the applicants, told IPS. She and her partner of seven years, Claudia Castro, belong to the lesbian association La Fulana.

Already certain that they would be rejected, the women went to the registry accompanied by the president of the National Institute Against Discrimination (INADI), María José Lubertino, and by lawyers who had already drawn up an injunction “for discrimination” to be presented to the judicial authorities.

“INADI supports this claim for equal rights for same-sex couples, so we’re going to ask the judge for permission to take part in the case as ‘amicus curiae’ (friend of the court), and we will also remind the National Congress of the need to pass laws to guarantee equal rights,” Lubertino said. An “amicus curiae” is a non-litigant third party who offers an opinion in order to help resolve a case.

The city of Buenos Aires pioneered the first law in Latin America, in 2003, providing for the civil union of two persons whatever their sexual orientation. However, this law does not contemplate the right to inheritance, adoption, or a survivor’s pension in the case of the decease of one of the partners.

These matters would require changes in national law codes, and are incorporated in a draft law of national scope which has been presented to Congress by members of the Argentine Homosexual Community (CHA), but has not yet been debated.

In an interview with IPS, César Cigliutti of the CHA supported Rachid and Castro’s legal proposal. “We want to achieve civil unions nationwide, because it seems to us to be a step forward, and a more agile and modern institution than marriage, but we agree that we are all entitled to the same rights.”

According to Cigliutti, then, homosexual couples should be able to choose between marriage and civil unions as provided under a future national law. At the moment only heterosexual couples have this choice between the two recognised institutions – and only if they live in the federal district of the Argentine capital.

Marriage in Argentina is regulated by some 300 articles which include penalties, the category of “adultery” for infidelity, and rights to obligatory inheritance and a survivor’s pension. In contrast, civil union has only half the number of regulations and affords couples more freedom of action.

As for adoption, this is not restricted to married couples only. In fact single people, and people living together, even same-sex couples, have been able to adopt children, but in these cases the child is given in adoption to one of the partners, and if that person should die the fate of the child is uncertain.

In spite of these limitations, many heterosexual couples have opted for civil unions since the law came into effect, because they view it as more modern and less restrictive of individual freedoms than marriage.

According to the Buenos Aires Civil Registry Office, 344 civil unions were registered in 2006, of which 239 were heterosexual couples, 65 were male and 40 were female same-sex couples.

“It’s a more up-to-date institution, which is often preferred to marriage because the state interferes less, fidelity is not obligatory, and there are fewer obstacles to dissolving the relationship,” Cigliutti explained.

But to the extent that it does not regulate cases of adoption, the decease of a partner, or inheritance, it fails to guarantee the full rights of the contracting parties, Rachid and Castro argue. They entered into a civil union in 2003, soon after the law was approved.

“We don’t want to be second class citizens. We think it’s great that there should be a national law providing the option of civil unions, but we still ought to have the same rights as heterosexual couples, the right to equality before the law and the right to a family,” Rachid emphasised.

As an example of the current inequality, she explained that if she were to become pregnant by artificial insemination and raise a family with Castro, her child would legally be hers only. Should she die, Castro would have to initiate adoption proceedings in order to obtain custody.

In order to assert their wider rights, Rachid and Castro went to the Civil Registry Office on Feb. 14, St. Valentine’s Day, and asked for a date to be married. The attending Justice of the Peace, Liliana Gurevich, was the same person who celebrated their civil union over three years ago. She told them that, much as she would like to give them a marriage date, the law forbade it.

“Although the Civil Code doesn’t specify that marriage must be a union between a man and a woman, in practice couples of the same sex can only be joined in a civil union,” Gurevich said.

The women’s lawyers then declared that they would appeal to the civil courts to demand that the refusal of the right to marry be ruled “unconstitutional,” on the grounds that their clients were being “discriminated against” by this refusal.

Florencia Kravetz, one of the lawyers advising the couple, said that the injunction was drafted after studying the range of laws on marriage of homosexuals that apply in countries like Spain and Belgium.