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Political Rights for Cubans Should Not Start with a Marriage Equality Referendum

Published in: Miami Herald
Figurine representing grooms displayed in the home of a same-sex couple in Matanzas, Cuba, in 2021.  © RAMON ESPINOSA AP

Cubans might have a chance this year to do something they’ve done very rarely: cast a meaningful vote. The government, which rarely consults its people, says it will allow Cubans to “have their say” in a referendum, with respect to whether same-sex couples, a minority, can marry.

Cuba’s government has a well-documented history of violating citizens’ right to vote in free and fair elections and to take part in public affairs. The Communist Party, the only one allowed in the country, has governed since the 1959 revolution without giving citizens the option to vote its leaders out of office—or even to protest their actions.

But now, authorities are subjecting basic rights to a political football between advocates for equality and non-discrimination and their opponents, some of whom mischaracterize their work as “gender ideology.”

To be sure, the inclusion of marriage equality in the draft Family Code, which has been undergoing a “public consultation” since February, is a positive development. It includes a gender-neutral definition of marriage, thereby opening the door to marriage between same-sex couples.

The draft Family Code also strengthens women’s rights in domestic law by reinforcing their sexual and reproductive rights and upholding the equitable distribution of domestic and care work. It also expands children’s rights by, for example, enshrining their rights to be heard and to physical integrity, as well as the principle of progressive autonomy, to allow children to participate in decisions affecting them based on their age and maturity. The right of same-sex couples to be free from discrimination, however, is proving the be among the most contentious of the draft Code’s provisions.

The “public consultation” process ended on April 30 and the draft will be put to a referendum vote later this year. But there’s serious reason to doubt that the plebiscite will fully respect voters’ rights. Given that the administration of Miguel Díaz-Canel controls all branches of power and severely restricts freedom of expression, respecting people’s will in the polls will ultimately be up to the administration.  

What’s also troubling is the political pageantry of putting individual rights, including the right of gay and lesbian couples to be free from discrimination, to a popularity vote. In Cuba, this comes after public protests in 2019 against redefining marriage to include same-sex couples in the draft of a new constitution. In response to this outcry, the government withdrew that provision from the draft, approved that same year, and punted the marriage equality question to this Family Code referendum.

Other countries have tried this. Ireland (which was required by law to hold a referendum to change the constitution) and Australia upheld the rights of same-sex couples when citizens voted overwhelmingly in favor of marriage equality. Bermuda and Taiwan’s referendums rejected same-sex marriage (Taiwan’s legislature later passed it).

Referendums can be an important component of democracy and can, in some circumstances, help break the political inertia to uphold rights and promote rights-respecting policies. Yet, ultimately, the recognition of the rights of minorities, including LGBT people, should not hinge on a popularity vote. That is an affront to the human dignity of already marginalized people subject to violence and discrimination, and could expose their lives and identities to unnecessary and harmful public debate, scrutiny, evaluation.

What would we say if the referendum was about whether a religious minority could practice their religion openly? Or, whether an ethnic minority should enjoy freedom from discrimination? This would provoke moral outrage. There should be no differences when the right of same-sex couples to be free from discrimination is at stake.

What’s worse, in Cuba, news and government reports suggest the vote may be close, a prospect that is not helped by the Catholic Church describing the Family Code as attacking “the nature of the family” and constituting “gender ideology.” Evangelical and other churches have also opposed the Code’s provisions on these grounds.

“Gender ideology” is a vacuous catch-all term generally intended to denote an ill-defined gay and feminist conspiracy to wreak havoc on traditional values. Far-right movements and politicians worldwide, including Brazil’s Jair Bolsonaro and Florida’s Ron Desantis, have peddled disinformation to popularize the term, using it to attack LGBT, children’s, and women’s rights. Yet, what in Cuba they are calling “gender ideology” is really about gender equality.

Cuba should urgently rectify its miserable rights record, including by allowing people to participate in periodic free and fair elections. But this would-be referendum is categorically misguided. The people’s will should certainly guide public policy, but not dictate whether well-established international human rights will be upheld. Instead of passing on its duty to the electorate, Cuban authorities should themselves uphold these rights, including if the referendum fails to do so.

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