THE COST OF BEING DIFFERENT - THE ECONOMIC AND SOCIAL CONSEQUENCES OF DISCRIMINATION AGAINST LESBIANS IN LATIN AMERICA:
Claudia Hinojosa / Alejandra Sardá

In the current context of steadily increasing economic inequalities we frequently hear the reaffirmation of the false dilemma between the agenda to combat poverty and the agenda for women's sexual self-determination: the former is considered "what is really important", while the latter is, at best, a "secondary" concern, or even a shamelessly frivolous one "in the face of the extreme situation of economic injustice".

In this paper we shall attempt to reflect on the economic and social consequences of discrimination against Latin American women whose sexual-affective preference is for other women. Our starting point will be the conceptual framework of the right to development (understood as human development), and our aim to transcend -even minimally- the supposed opposition mentioned above, and to return to a notion of rights as indivisible as are the male and female members of the human race, and as impossible to denote as more or less important as we are, too.

The family: the focal point of inequality

We share the definition of "family" proposed by the United Nations Special Rapporteur on Violence Against Women, Radhika Coomaraswamy: "...the family should not be defined in a formalistic, nuclear construction as a husband, wife, and children. The family is the place where individuals learn to care, to trust, and to nurture each other." According to this definition -which focuses on the functions that a family should serve rather than on the gender of its members- families are also:

The couples (or trios, or quartets, or...) of lesbians, who are involved in an erotic / emotional relationship and share a life project, both those who do not, and those who do, have children, whether these are the product of previous heterosexual relationships, assisted reproduction or adoption;

At present, these non-traditional families lack any kind of legal protection in countries in the region.

In a few cases courts have returned verdicts supporting same sex couples' claims to inheritance rights (in Brazil) and medical attention (Colombia, Argentina) (until now all of these couples have been male, and one or both have been suffering from AIDS in a terminal state). In any case, these are isolated cases that do not subsequently require judges to pass similar sentences when deciding other claims, nor do they generate rights for others who form part of non-traditional families

Some bills have been presented to grant certain basic civil rights to such families. Bills are currently under legislative debate in Argentina (at both national and local level, in the city of Buenos Aires), Brazil (at federal level), Colombia (at national level) and Mexico (in the Federal District of Mexico). These bills have generated huge opposition among right-wing political parties and their religious allies. In Brazil, the first vote in 1997 was lost, and the debate is at present stalled, with denominational parties forcing legislatures in some states (like Santa Catarina) to recommend that their representatives in the federal parliament vote against the bill. In Argentina, the national bill has had to be re-presented twice because MPs cannot reach an agreement to discuss it in on the floor of the House, while the bill presented to Buenos Aires's legislature is currently the target of a virulent campaign orchestrated by the Catholic Church. In the Federal District of Mexico, pressure from the Church led to certain legislators using some fancy legal footwork to block the vote on the bill during the final session of the 2002 term, and sending it back to be "studied" by committees that had already approved it. In Colombia, the Senate has just passed the bill, but the Catholic Church has already launched a petition campaign to try and influence the next step, which is its discussion in the Chamber of Deputies

The right wing in these four countries coincide in calling these bills "attacks against marriage and the family".

What is the destructive potential of the rights that these projects guarantee and what does the lack of those rights imply for people who live in alternative families?

1. The right to inherit

Since there is no legal bond between the members of a lesbian couple, they cannot inherit from each another automatically, as happens in the case of married couples. Nor can they inherit by proving their relationship through witness testimony, as is possible in the case of mixed sex common-law couples. In the latter case, states have recognized that cohabitation generates rights over the goods of the cohabitant, since both members of the couple always contribute to the generation of those goods. No logic other than prejudice could lead one to conclude that different rules should be applied when the members of the couple are two women (or two men).

The only option available for non-traditional families is to sign private contracts covering their possessions. Heterosexuals can allow themselves the luxury of forgetting about the possibility of their future demise, because the law looks after their families. In contrast, lesbians must bear it in mind if they do not want to condemn their partners to a state of total lack of protection.

2. The right to social security, health, medical attention and family benefits

Since lesbian families are formed by women, they are more exposed to poverty than are families with male members (both heterosexual and gay). According to statistics from the Inter-American Development Bank, Latin American women always earn less than their male counterparts, across all levels of schooling.

On this issue we are faced with a dilemma. The state in Latin America has gradually been withdrawing from the provision of services in key areas, like health, education and pensions, which have been left in the hands of private companies that do not serve any social function and therefore only attend to the needs of higher income sectors. When we demand the right to social security for non-traditional families, we know that we are addressing states that no longer guarantee that right even for the most traditional of families. We know that our states do not have the financial resources to attend to the needs of their populations -in this case they do not discriminate- since they spend their budgets on meeting the obligations that derive from their foreign debts, and on arming their armies and police in order to better repress internal conflicts. Claiming these rights is a matter of principle; it has to do with complying with the rights to equality before the law and non-discrimination, which constitute the foundational basis of the human rights framework. For this reason, we shall continue to claim them. But we know that parallel to this struggle we need to work in alliance with the rest of society which is affected by neo-liberal policies. Without a radical change in economic and government policy in our region, there is no real hope for change in the situation of exclusion experienced by lesbians (and homosexuals, bisexual and transgender people).

In the case of those who depend on the dwindling trade union social services that still provide medical coverage, if one member of the couple loses her job, she has no possibility at all of using her partner's health coverage. Just a few isolated trade unions (the union of bank workers in Uruguay, of aeroplane pilots in Argentina, of public employees in some cities in Brazil, like Recife and Sao Paulo) recognize the rights of the partner in same sex couples to medical coverage.

In the case of retirement and other work-related pensions and benefits, no Latin American state guarantees the right of a lesbian to receive the pension of her deceased partner. Nor can lesbian partners be registered with private pensions companies, meaning that lesbian couples face paying a compulsory double contribution.

The lack of other family benefits also has a damaging impact on lesbian families, as is the case with leave from work. The lucky minorities who still have stable jobs in which they are granted compassionate or family sick leave, cannot make use of those benefits if it is their partner who has died or who needs looking after, since in the eyes of labour law, she is a stranger. Nor can a woman who is not the biological mother, but lives with her partner who is the biological mother, apply for leave if one of their children is ill. (The vast majority of women who are employed in precarious jobs have no rights to leave of any kind, no matter what their sexual preference.)

3. The right to bank loans, mortgages and other forms of financial credit

The fact that they are not considered "families" in the legal sense of the word excludes lesbians from applying for state home-buying loans, which are the most accessible in terms of the amounts and rates of repayment.

Private banks have no fixed policy, but depending on the case might agree to calculate on the basis of the combined incomes of both members of the couple, and issue them with a joint mortgage, under the concept of "jointly and severally liable debtors". Obviously, the repayments are much higher, as is the interest due.

The intersection between exclusions based on class and sexual-emotional preference is what makes the states' refusal to fulfil its obligations to guarantee equality before the law without discrimination even harsher. Those who suffer most from the lack of state protection for alternative families are poor lesbians, who in our region are in general also affected by ethnic, linguistic and age-based exclusions (older lesbians are a sector of the population who are extremely vulnerable economically, in particular those who have long lost the support of their families of origin).

4. The rights of children in alternative families

Children who live in lesbian families suffer the negative effects of the lack of protection detailed above. This situation flagrantly violates the universally recognized rights of all children, "without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status" (International Convention on the Rights of the Child, article 2.1).

Children who live in lesbian families are brought up by two mothers, whom they recognize, love and enjoy as such. But in the eyes of the law there is only one mother, who is such by birth or by adoption, the other woman being a perfect stranger.

For example, when the biological mother is unemployed, there is no way that her children can be covered by the other mother's health policy, which means that they are unprotected in case of illness, when this could easily not be the case. Nor can they receive their non-biological mother's pension, even when it is the only household income and/or the children are disabled. For our states, the fear of confronting the condemnation of the traditional Churches and their right-wing allies outweighs their determination to fulfil their international commitments and protect all children by legally recognizing the diverse range of families in which they may live.

Claudia Hinojosa is co-founder in 1978 of the Lambda Group, one of the first lesbian and gay organizations in Mexico and Latin America. She is currently adviser to deputy Enoé Uranga, President of the Human Rights Committee of the Legislative Assembly of Mexico City.

Alejandra Sardá is the coordinator of the Latin American and Caribbean Programme of the International Gay and Lesbian Human Rights Committee (IGLHRC). She was born in Argentina and lives in Mexico.

Translation from Spanish to English by Niki Johnson

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