LGBT rights in El Salvador

Rainbow over the Constitution Monument in San Salvador

Today El Salvador is considered one of the most homophobic countries in Latin America. Even within the homosexual community itself problems persist. Domestic violence within homosexual couples has become a problem in the LGBT Salvadoran society. Also, there is a lack of unity among female and male homosexuals, as well as homosexuals of different economic classes.[1][2]

There is also a cultural and social view among homosexuals in El Salvador, where if you are the dominant partner and if you don't kiss, then that means you are "not gay", unlike the passive partner or flamboyant homosexuals. In matters of Top, bottom and versatile,  playing the passive role in El Salvador is seen as gay and many Salvadoran homosexuals see female mannerisms as negative, where as playing a dominant role and having macho mannerisms is seen as positive and a sign of virility. These views among homosexuals might encourage young teen boys to only have either Platonic love or none romantic relationships, limited to oral and Intercrural sex only.

In prisons, homosexual inmates are strictly forbidden to dress or behave in a effeminate manner. Most of the problems and attitudes within the homosexual community in El Salvador are the result of El Salvador's embedded machismo culture which frowns upon Homoeroticism and Homosociality. During the civil war in the 80's, many young Salvadorans were kidnapped and raped, but very few came forward to report it because they were ashamed and more afraid of being stigmatized, ostracized, and ridiculed by society than to look for justice. In El Salvador, 76 percent of male political prisoners told researchers they had experienced sexual torture.[3][4]

However, due to globalization, things are slowly changing in El Salvador's young LGBT community. Today young Salvadoran homosexuals encouraged the older homosexuals to come out and face the problems within El Salvador's homosexual community. However the LGBT community still faces heavy unacceptance and discrimination by the rest of the population driven by a religious and heavy machismo based culture. Homosexual adults usually have same sex relationships during their youth, however once they grow to adults, they leave behind these activities, become married and have children, living a heterosexual life in Salvadoran society. The nation's male name "El Salvador" evokes masculinity, and to be Salvadoran means to be virile.[5]

Heterosexuals in El Salvador usually are afraid of defending or having homosexual friends because of the fear of being stigmatized, ostracized and ridiculed by their peers, and being accused of being gay themselves. Heterosexuals usually shy away from homosexual subjects that trouble the country due to society, religious and machismo culture. Heterosexual Salvadorans hide their feelings about the homosexuals in their society, and they either do not give opinions or go completely against homosexuality. For the heterosexuals in El Salvador, being gay friendly is seen as  being against nature, being anti-religious, anti-masculinity and even diabolic in Salvadoran society.[6]

Same-sex sexual activity has been legal since 1822. In 1826, El Salvador enacted its first Penal Code, which made no mention of homosexuality.[7] As such, sexual relations between people of the same sex are legal.[8][9] The age of consent is 18.

Same-sex marriage is not recognized. Since 2006, there have been proposals to change the Constitution of El Salvador to restrict the recognition of same-sex marriage, even when these are couples married legally outside of the country.[10] Individuals can adopt, but same-sex couples cannot adopt as a couple.[8] The Law on Family Violence (Spanish: Ley contra la Violencia Intrafamiliar) also does not apply to same-sex couples.[8]

In August 2016, a lawyer in El Salvador filed a lawsuit before the country's Supreme Court asking for the nullification of Article 11 of the Family Code which defines marriage as a heterosexual union. Labeling the law as discriminatory and explaining the lack of gendered terms used in Article 34 of the Constitution's summary of marriage, the lawsuit sought to allow same-sex couples the right to wed.[11][12] On 20 December, the Salvadoran Supreme Court rejected the lawsuit on a legal technicality.[13]

A second lawsuit against the same-sex marriage ban was filed on 11 November 2016.[14] On 17 January 2019, the Supreme Court dismissed the case on procedural grounds.[15][16]

In January 2018, the Inter-American Court of Human Rights (IACHR) issued a ruling, in which it held same-sex marriage to be a human right protected by the American Convention on Human Rights. The ruling is expected to facilitate the recognition of same-sex marriage in El Salvador.[17] That same month, the Constitutional Court declared a proposed ban on same-sex marriage unlawful.

In August 2019, a lawsuit to recognize same-sex marriage was admitted for a hearing before the Constitutional Court.[18]

Discrimination against LGBT people in El Salvador is very widespread.[19] Polls show high levels of prejudice directed at LGBT people, and there are many reports of anti-gay harassment and bias-motivated violence.[20]

Much of the nation's advocacy on behalf of LGBT rights comes from William Hernández, and his partner, Joaquin Caceres and the other members of Asociación Entre Amigos (Among Friends Association), who have faced harassment and even death threats for their activism.[10]

In April 2009, the Ministry of Public Health and Social Assistance published new guidelines banning discrimination against LGBT people and HIV-positive people in health services.[21][22]

On 4 May 2010, President Mauricio Funes issued a presidential decree banning discrimination based on sexual orientation and gender identity in the public sector.[8] At the same time, President Funes created a Sexual Diversity Division within the Secretary of Social Inclusion, which was headed by an openly lesbian woman.[10]

Although there have been gains on removing discrimination, activists report that outside of the government and administrative areas, discrimination is still ongoing.[10]

In 2015, the Salvadoran Parliament passed a law adding sexual orientation and gender identity to the Criminal Code's hate crime provisions. The Code provides a penalty of between three and six years imprisonment for those who commit a crime based on the victim's race, ethnicity, political affiliation, sexual orientation or gender identity.[23][24]

In April 2018, the Government approved the Institutional Policy for the Care of the LGBT Population (Política Institucional para la Atención de la Población LGBT). The policy, written by the Government with the aid of LGBT activists, as well as the national police and public security officials, allows LGBT people to file legal complaints against people who discriminate against them. Claims of crimes, torture and cruel, inhuman and degrading treatments against LGBT people will also be fully investigated by police forces. This was done with the aim of guaranteeing and protecting the rights of LGBT people.[25][26]

Lesbian, gay and bisexual people are allowed to serve openly in the Armed Forces of El Salvador.[8]

Gay and bisexual men are allowed to donate blood. Blood donation policy prohibits those who "engage in risky behaviours" from donating (people with mutiliple sex partners, for instance).[27]

While some legal advances for LGBT rights have made, public attitudes about LGBT people are often still negative, even violently intolerant.

A major reason for these negative public attitudes about LGBT people are the traditional teachings of the main religions in the country; namely the Catholic Church and several conservative and evangelical Protestant denominations. These religious denominations believe that homosexuality and cross dressing are signs of immorality, and many of their leaders have organized opposition to LGBT rights legislation.

In July 2017, the capital city, San Salvador, authorised the permanent painting of several crossroads with the colours of the rainbow in support of LGBT rights.[28]

A 2010 poll revealed that El Salvador had some of the lowest support for legalizing same-sex marriage in Latin America at 10%.[34]

The 2017 AmericasBarometer showed that 19% of Salvadorans supported same-sex marriage.[35]

• LGBT rights in the Americas
• Recognition of same-sex unions in El Salvador
• Human rights in El Salvador