Various South American countries already recognize the right of gay couples to get married or have given priority to this subject in their legislative agendas. Argentina was the first to pass a bill on gay marriage in 2010, and last August, Uruguay took the same path. Similarly, while a bill regulating gay marriage in Brazil is still pending approval, in May the Brazilian National Council of Justice mandated that notaries have the obligation to perform civil weddings when so requested by same-sex couples. In Colombia, the Constitutional Court gave Congress a June 20th deadline to legislate on gay couples rights, giving gay couples the alternative of resorting to a judge or notary to legalize their union should Congress fail to legislate by the imposed deadline. Given that came to be the case, gay couples in Colombia have been legalizing their unions before judges or notaries since last July.
Contrastingly, last September a draft bill on “non-matrimonial civil union between same-sex people” was presented before Peru’s Congress. It was no surprise to those familiar with Peru’s sentiment on the subject, that soon after, the maximum authority of the Catholic Church (the most widespread religion in Peru) expressed its strong and firm opposition to such proposal. According to Peru’s Constitution, Peru is a secular State, therefore religious opinions should not influence decisions taken by Congress. However, recent surveys show that approximately 70% of Peruvians are opposed to the draft bill; confirming that Peru is a conservative country characterized by a traditional “macho” mentality. Moreover, Peru lagged behind most Latin-American countries in passing legislation granting women the right to vote, has yet to improve mechanisms for the effective and full compliance of policies on work related discrimination and sexual harassment involving women, and has not taken appropriate measures to curve the increasing rate of violence against women.
The Peruvian Constitution clearly stipulates that we are all equal before the Law and that no one can be discriminated against for any reason whatsoever. Hence, at least constitutionally speaking, there are no grounds to deny gay couples the right to get married. Moreover, Peru’s Constitution does not define the matrimonial institution; it is rather explicit in determining that matrimony should be regulated by law. Peru’s Civil Code defines the institution of matrimony as a voluntary union agreed upon by a man and a woman. While the Civil Code may require to be amended to support gay marriage, approval of such modification appears much simpler than undergoing a constitutional amendment. To date, however, no one has put forward a draft bill to amend the Civil Code.
The “non-matrimonial civil union” draft bill is currently awaiting discussion by the Justice Committee of Peru’s Congress. However, this draft bill does not aim for gay couples’ unions to be treated as regular “civil partnerships”, as these are presently regulated in Peru (which would likely involve yet a new amendment to Peru’s Constitution, with a complicated approval process). Neither does the draft bill propose the marriage of same-sex couples or the possibility to adopt children. The bill proposed basically introduces a new institution to regulate the rights of gay couples.
The author of this draft bill has referred to it as “a different institution, for a different type of couple”, seeking to achieve legal recognition and protection of same-sex couples’ rights. Why create a new institution? Most people who support this draft bill acknowledge that Peru’s society has not experienced such a change in its idiosyncrasy as to allow for fair debate over gay marriage and, while awaiting this change, the rights of same-sex couples are being kept on hold. Although a vast majority of Peruvians may still not be ready to accept gay marriage (even as a civil union), the “non-matrimonial civil union” draft bill constitutes an important first attempt towards legal protection for gay couples. Among the most important rights that the draft bill seeks to recognize for gay couples are: entitlement to the same rights as first degree relatives (visiting rights in case of hospitalization, right to make decisions in case of an urgent surgery, to acquire Peruvian nationality if one is a foreigner), and to be able to hold joint assets.
The “non-matrimonial civil union” draft bill may not be perfect and it may need amendments, but this is a challenge that needs to be met by the Peruvian Congress. Though unlikely, Congress could approve a gay marriage bill and take a significant step towards legislation in Peru recognizing a reality of Peruvian society. More importantly, Peruvian legislators should keep in mind that regardless of the position one may take about this matter, the discussion needs to focus on the rights that every person is entitled to have, based on the sole reason of being a person. Any religious or conservative traditions in this respect should be set aside, as these can only provide biased contradictions to the issue.