On behalf of Human Rights Watch, I urge you to vote against the approval of the “Integral Protection for Marriage and Family Act.” This legislative initiative would write discriminatory treatment of families into law.
- Exclude almost 40% of Guatemala’s families and children from the protection given to other families (the bill would eliminate single-parent or other non-nuclear families from the definition of “family,” and bar same-sex couples and their families from any form of legal recognition);
- Exclude children who were conceived thanks to artificial insemination and other treatments, potentially barring them from the definition of “family”;
- Commit Guatemala to endorse this restrictive definition of the family at all international as well as national gatherings, and punish Guatemalan government representatives who publicly support a different definition.
The United Nations Development Programme has reported that 39.86% of families in Guatemala are non-nuclear ones. 1 This bill attacks the rights and legal status not only of these diverse forms of the family, but of the children reared in them. Guatemala should stand on the side of children and their families—not deprive them arbitrarily of recognition and rights.
The act would establish that “family essentially originates, exclusively, from the conjugal union between a man and a woman, and its legal foundation, in harmony with its essence, its purity, its nature, its reason of being, its values and original meaning, through marriage, as well as through a legally declared de facto union and other social forms, such as a religious ceremony or ritual, custom or cultural practice, among others.” (article 1 (a))
In addition to its definition of marriage, the act would restrict civil unions (uniones de hecho) to the partnership of a man and a woman with the capacity to marry, thereby eliminating any possibility for the legal recognition of same-sex relationships. It would declare that the family extends only to “procreation in the natural form,” and includes only “children procreated as a result of the natural union between both partners,” with a sole exception for adoption—thus vaguely but sweepingly bringing the status of children born through assisted reproductive technologies into question. And it would enforce upon all representatives of the Guatemalan state the obligation to support this definition, in international as well as national settings, making it a crime to do otherwise.
Article 1 of the Guatemalan Constitution states that the Guatemalan State is founded, among other goals, to protect the family. Article 47, commits the state to protecting families “on the legal basis of marriage, the equality of rights for spouses, responsible parenting, and the right to family planning.” However, the Constitution does not define either a family or marriage in terms of the union of a man and a woman or suggest that protection will only be given to a family composed of a man and a woman. Rather, the Constitution affirms equality in a manner inconsistent with this bill—declaring that “[i]n Guatemala, all human beings are free and equal in dignity and rights.”
By contrast, the proposed law shows a clear intent to codify discrimination against certain family structures. Vice President of the Congress, Oliverio García Rodas has indicated that its principal aim is discriminatory: to restrict any state recognition of the families formed by same-sex couples. García Rodas has stated that “Congressmen are worried by a news report related to the celebration of same-sex marriages.” Yet the bill would also adversely affect single-parent families, divorced parents, and many unmarried heterosexual couples, as well as many indigenous family structures. It could potentially affect the legal status of children born with the assistance of reproductive technologies.
The Law of Social Development, passed in 2001, has already expanded the concept of nuclear family to include single mothers and fathers as well as indigenous family structures, opening reproductive health services and other forms of family care to them. 2
This law would potentially endanger such vital service provision. The bill’s proposed definition would encode not only indifference but prejudice toward the multiple forms of family in society.
The American Convention on Human Rights, to which Guatemala is a party, establishes the rights pertaining to family in Article 17(1). It states that as “the natural and fundamental group unit of society,” the family “is entitled to protection by society and the state.” 3 The Convention does not restrict the concept of family but leaves room to include different structures. The Inter-American Court recognized this in its judgment in Aloeboetoe and others v Surinam, explaining “that it is necessary to take into account the family structure” of a particular indigenous group in allocating compensation to survivors, regardless of whether that structure is recognized by the state in the form of marriage.4
Other international bodies recognize the need for respect towards different forms of families. The UN Committee on the Rights of the Child, which interprets the Convention on the Rights of the Child, has stated that with regard to the “family environment,” the Convention reflects “different family structures arising from various cultural patterns and emerging family relationships” and “refers to various forms of families, such as the extended family, and is applicable in a variety of families such as the nuclear family, re-constructed family, joint family, single-parent family, common-law family and adoptive family.”5 The UN High Commissioner for Refugees has gone further and specifically recommended that the right to family unification include same-sex partners. In its view, States should adopt “a pragmatic interpretation of the family. … Families should be understood to include spouses; those in customary marriage; long-term cohabitants, including same-sex couples; and minor children until at least age eighteen.”6
The discriminatory aim of the law also contravenes international human rights protections for equality. The UN Committee on the Elimination of Discrimination against Women (charged with interpreting and monitoring compliance with the UN Convention on the Elimination of all Forms of Discrimination against Women, or CEDAW, to which Guatemala is a party since August 1982) has stressed that women’s enjoyment of rights and access to services should not depend on their marital status. 7
The International Covenant on Civil and Political Rights (ICCPR), to which Guatemala acceded without reservations in 1992, affirms the equality of all people in its articles 2 and 26. In the 1994 case of Nicholas Toonen v Australia, the United Nations Human Rights Committee, the international body of experts that monitors compliance with the ICCPR, found that both these provisions should be understood to include sexual orientation as a status protected against discrimination. Specifically it held, that “reference to ‘sex’ in articles 2, para. 1 and article 26 is to be taken as including sexual orientation.”8 The UN Human Rights Committee has held that same-sex relationships must be recognized for the purposes of pensions and other benefits in the cases of Young v Australia 9 and, most recently, in X v Colombia.10
Similarly, the Inter-American Commission on Human Rights also has concluded that gender-based distinctions in rights in relation to the family cannot be justified. In Maria Eugenia Morales v Guatemala, the Commission found a violation to the rights of family life in reference to Article 16(1) of CEDAW.11 It found Guatemala in breach of its international obligations and determined that “specific steps … must be taken to ensure substantive equality in family law and family relations.”12
The Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity, released in 2007, draw together these international protections for family and for non discrimination. The Principles hold that “[e]veryone has the right to found a family, regardless of sexual orientation or gender identity. Families exist in diverse forms. No family may be subjected to discrimination on the basis of the sexual orientation or gender identity of any of its members.”
The Principles urge states to “[e]nsure that laws and policies recognise the diversity of family forms, including those not defined by descent or marriage, and take all necessary legislative, administrative and other measures to ensure that no family may be subjected to discrimination on the basis of the sexual orientation or gender identity of any of its members, including with regard to family-related social welfare and other public benefits, employment, and immigration.”
They also urge that “in all actions or decisions concerning children … the best interests of the child shall be a primary consideration, and that the sexual orientation or gender identity of the child or of any family member or other person may not be considered incompatible with such best interests.”
Neither children nor adults should have to face the state’s discrimination or rejection of their families. By voting down this bill, the Guatemalan Congress will protect all families and their members.
Sincerely,
Scott Long
Director
Lesbian, Gay, Bisexual and Transgender Rights Program
C.C.
Office of the High Commissioner for Human Rights
Inter-American Commission on Human Rights
1UNDP, Guatemala: Ethnic-Cultural Diversity, National Human Development Report, December 2005, p. 353. http://www.desarrollohumano.org.gt/UserFiles/PDF/Informes/Diversidad%20E... (accessed September 27, 2007). According to the Report, nuclear families are only composed of the head of the family (woman/man), its spouse (man/woman), and their children.
2 Law of Social Development, Decree No. 42-2001, art. 6.
3 American Convention on Human Rights (“Pact of San José, Costa Rica”), adopted November 22, 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992), ratified by Guatemala in August 12, 1982.
4 Inter-American Court of Human Rights, Aloeboetoe and others Case, Judgment on Reparations and Costs of September 10, 1993, Inter-Am.Ct.H.R., (Ser. C) No. 15 (1993), para. 59.
5 UN Committee on the Rights of the Child, “Fortieth Session: Day of General Discussion, Children without Parental Care”, CRC/C/153, March 17, 2006, para. 644.
6 UN High Commissioner for Refugees, “Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection,” 2003, p. 584, http://www.unhcr.org/publ/PUBL/419dbf664.pdf (accessed September 27, 2007).
7 U.N. Committee on the Elimination of Discrimination against Women, General Recommendation No. 21, Equality in marriage and family relations, (13th session, 1994), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.7 (2004), p. 257. Article 16 of the Convention states: “States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations.”
8UN Human Rights Committee, Decision: Nicholas Toonen v Australia, CCPR/C/50/D/488/1992, December 25, 1991, para. 8.7, http://www1.umn.edu/humanrts/undocs/html/vws488.htm (accessed September 27, 2007).
9 UN Human Rights Committee, Decision: Young v Australia, CCPR/C/78/D/941/2000, September 18, 2003, http://www.unhchr.ch/tbs/doc.nsf/0/3c839cb2ae3bef6fc1256dac002b3034?Open... (accessed September 27, 2007).
10 UN Human Rights Committee, Decision: X v Colombia, CCPR/C/89/D/1361/2005, May 14, 2007, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/51537efd406147c3c125730600464373?Opendocument (accessed September 27, 2007).
11 Inter-American Commission on Human Rights, Maria Eugenia Morales Case, Report No. 4/01, Case 11.625, January 19, 2001, http://www.cidh.org/annualrep/2000eng/chapteriii/merits/guatemala11.625.htm (accessed September 27, 2007).
12 Ibid., para. 41.
