The Constitutional Court of Bolivia (Tribunal Constitucional Plurinacional). © 2016 Héctor A. Aramayo Martínez, CC BY-SA 4.0 https://creativecommons.org/licenses/by-sa/4.0/, via Wikimedia Commons

(Washington, DC) – Bolivia’s national civil registry (Registro de Servicio Cívico, SERECÍ) has discriminated against a lesbian couple by rejecting their application to register their relationship as a union, Human Rights Watch said today. All civil registries in the country should start legally recognizing same-sex relationships.

The lesbian couple, foreign citizens who legally reside in Bolivia, applied to La Paz civil registry in May 2021 to register a civil union, their lawyers told Human Rights Watch. In a June letter to those lawyers, the civil registry asserted that there is no current procedure to register same-sex unions in the country. The couple has begun administrative proceedings to appeal the decision. The letter ignores that the civil registry recognized the union of David Aruquipa and Guido Montaño, a gay couple, in December 2020, based on a court order. The civil registry claimed it needs to wait until Bolivia’s Plurinational Constitutional Court reviews the lower court ruling ordering Aruquipa and Montano’s registration.

“The national civil registry seems intent on doubling down on discrimination on the basis of sexual orientation,” said José Miguel Vivanco, Americas director at Human Rights Watch. “That only one same-sex couple in Bolivia has been able to register their union so far is unjust, and the civil registry should immediately give everyone the same opportunity to have their relationships legally recognized.”

In October 2018, Aruquipa and Montaño, who have been together for over a decade, tried to register their relationship as a free union (unión libre), which under Bolivian law has the same effects as a civil marriage, including with respect to the couple’s property and children. The national civil registry refused.

Following a two-year legal battle and a July 2020 order from the Second Constitutional Chamber of the La Paz Department Tribunal, the civil registry finally registered Aruquipa and Montaño’s relationship in December 2020. The July ruling is now under review by the Constitutional Court and will have implications for all same-sex couples in the country.

In March, Human Rights Watch submitted an amicus brief to the Constitutional Court supporting the right of same-sex couples to form a family, the right to privacy, and the rights to non-discrimination and equality before the law. The recognition of one’s relationship is important for a host of legal matters. For example, a partner in an unrecognized relationship may be denied the right to make medical decisions on the other partner’s behalf when needed; to share equal rights and equal responsibilities for children in their care; or to have their partner covered under their health or employment benefits. The lack of recognition also sends a strong signal to society that same-sex couples are second-class citizens, Human Rights Watch said.

Bolivia’s Constitution requires interpreting laws and administrative procedures in a manner consistent with the principles of equality and non-discrimination, including on the basis of sexual orientation. It states that international human rights treaties ratified by Bolivia’s Plurinational Legislative Assembly prevail over domestic law and that the rights and duties consecrated in the constitution shall be interpreted in accordance with these agreements.

In a landmark 2017 opinion, the Inter-American Court of Human Rights affirmed that under the American Convention on Human Rights, all rights applicable to the family relationships of heterosexual couples should also extend to same-sex couples. The ruling provides an authoritative interpretation of the American Convention on Human Rights, to which Bolivia is a party. In recent years, the constitutional courts of Costa Rica and Ecuador have ruled in favor of same-sex relationships, citing the Inter-American Court’s opinion.

The right to form a family is a fundamental right recognized in Article 23 of the International Covenant on Civil and Political Rights (ICCPR). International law does not limit the recognition of the right to heterosexual couples. The right to form a family is closely linked to the right to privacy. Article 17 of the ICCPR prohibits “arbitrary or unlawful interference with [a person’s] privacy, family, home or correspondence” and grants “the right to the protection of the law against such interference.”

The rights to non-discrimination and equality before the law are protected by multiple international human rights covenants and treaties, many of which contain open-ended provisions against discrimination and have been interpreted to include discrimination based on sexual orientation. For example, in Toonen v. Australia, the United Nations Human Rights Committee, the body charged with monitoring implementation of the ICCPR, held that discrimination on the basis of “sex” includes discrimination based on “sexual orientation.” The Inter-American Court has also taken this view in, for instance, Azul Rojas Marín v. Peru.

At a June event for Pride month, Bolivia’s presidential ministry expressed support for the rights of lesbian, gay, bisexual, transgender, and intersex (LGBTI) people. While it did not reference same-sex unions specifically, the government explained that “to improve the conditions of the LGTBI population is to guarantee a fairer world for all the generations to come and for those who today are struggling every day to live in freedom to be what they chose to be.” All government institutions, including the civil registry, should equally express support for LGBTI rights and, more specifically, for the fight for equality with respect to same-sex unions.

“Bolivia needs to abide by its obligations under international law and stop treating LGBTI people as second-class citizens,” Vivanco said. “Gay and lesbian couples deserve to be full members of society, including by having the benefits of relationships recognized by law.”