LGBT rights in Panama

Lesbian, gay, bisexual, and transgender (LGBT) persons in Panama may face legal challenges not experienced by non-LGBT residents. Both male and female same-sex sexual activity are legal in Panama, but same-sex couples and households headed by same-sex couples are not eligible for the same legal benefits and protections available to opposite-sex married couples.

LGBT rights in Panama
StatusLegal since 2008
Gender identityChange of legal gender allowed following sex reassignment surgery
MilitaryHas no military
Discrimination protectionsNo
Family rights
Recognition of relationshipsNo
AdoptionNo

In March 2017, a lawsuit seeking to legalise same-sex marriage was filed before the Supreme Court. The lawsuit provoked a lot of discussion in Panamanian society, prompting many public figures to announce their support for LGBT rights and/or civil same-sex marriage, including the Vice President, the First Lady and the Attorney General.

Same-sex marriage and adoption by same-sex couples are likely to soon become legal in Panama, per a 2018 Inter-American Court of Human Rights ruling. A constitutional amendment banning same-sex marriage was approved by the Panamanian National Assembly on 29 October 2019, but requires a second vote in 2020 and ratification by referendum.[1][2]

History

The Guna people of northeastern Panama recognise a third gender. Such individuals as known as omeggid (literally like a woman; also spelt omegiid). In Guna society, if a young boy begins showing a tendency to act female, the family naturally accepts him and allows him to grow up in this way. Very often, omeggids will learn a skill that is typically associated with women, such as crafting molas. The omeggids are rooted in Guna mythology. According to Guna mythology, "the original leaders who brought the traditions, rules and guidelines for the Guna people to live by [are] a man named Ibeorgun, his sister Gigadyriai and his little brother Wigudun", who is an omeggid. According to certain reports, the Guna people are also accepting of homosexuality.[3]

Following Spanish colonisation and the subsequent 300 years of Spanish rule, sexuality and LGBT issues became taboo in Panama. Sodomy was punished with death.[4] The Guna people were able to keep their traditions and customs, despite suppression by the Spanish and the subsequent post-independence Panamanian state.

Legality of same-sex sexual activity

Same-sex sexual activity has been legal in Panama since 2008; Panama was the last Spanish-speaking country in the Americas to overturn its anti-sodomy law.[5][6] The age of consent is equal at 18. Homosexuality was declassified as a mental illness in 2008.[7]

Recognition of same-sex relationships
Homosexuality laws in Central America and the Caribbean Islands.
  Same-sex marriage
  Other type of partnership
  Unregistered cohabitation
  Country subject to IACHR ruling
  No recognition of same-sex couples
  Constitution limits marriage to opposite-sex couples
  Same-sex sexual activity illegal but law not enforced

There is no recognition of same-sex couples. A proposal that would have allowed same-sex civil unions was defeated in 2004, mainly due to pressure from the Roman Catholic Church.[8]

On 15 April 2014, in the run-up to the 2014 presidential elections, five of the seven presidential candidates signed a document called the Pact of National Commitment for Life and Traditional Family. The document stated that "the country should guarantee freedom of religion and should modify the law to protect the traditional structure of the family, defined as the union of a man and a woman."[9]

On 8 May 2014, the Code of Private International Law (Spanish: Código de Derecho Internacional Privado) was approved, prohibiting same-sex marriage in Panama and clarifying that the country would not recognize marriages performed in other countries. Article 40 specified that "same-sex marriages are strictly prohibited in the country".[9]

2016–present lawsuit

On 17 October 2016, a married same-sex couple filed a lawsuit seeking to recognize same-sex marriages performed abroad in the country. Magistrate Luis Ramón Fabrega was assigned to the case and had to decide whether to admit the case to the 9-member Supreme Court of Justice.[10][11] In early November, the case was admitted to the Supreme Court.[12] On 24 March 2017, another lawsuit against Article 26 of the Panamanian Civil Code was introduced to the Supreme Court, who agreed to hear the case. Article 26 specifies that marriage is between a man and a woman and as such bans same-sex marriage. This case seeks to legalize same-sex marriage in Panama.[13][14][15] In June 2017, the Supreme Court united the two lawsuits.[16]

On 14 April 2017, Vice President Isabel Saint Malo announced her support for equal marriage rights for same-sex couples.[17] In mid-May, Attorney General Rigoberto González issued a statement to the Supreme Court, asking it to legalise same-sex marriage. While admitting that same-sex marriage was a controversial issue in Panamanian society, González argued that his position was in line with the value of dignity for all human beings as well as the Panamanian Constitution.[18][19]

In October 2017, one Supreme Court judge preliminarily published a draft ruling rejecting the same-sex marriage case.[20] On 21 December 2017, LGBT advocacy group Fundación Iguales Panama presented a recusal request before the Supreme Court against Justice Cecilio Cedalise, who spoke against same-sex marriage in 2015. The marriage case was put on hold, pending the outcome of the recusal request.[21] On 15 February 2018, the aforementioned draft ruling was withdrawn.[22] The Supreme Court will now take into account the ruling of the Inter-American Court of Human Rights (see below) in its decision. A ruling was expected on 20 December 2018,[7][23][24] but was postponed.[25]

In May 2018, it was reported that a lesbian couple had also filed a suit with the Supreme Court in order to have their marriage recognised.[26]

2018 Inter-American Court of Human Rights ruling

On 8 January 2018, the Inter-American Court of Human Rights (IACHR) ruled that the American Convention on Human Rights mandates and requires the recognition of same-sex marriage. The ruling was fully binding on Costa Rica and set binding precedent in other Latin American and Caribbean countries including Panama.[27]

On 16 January, Vice President Isabel Saint Malo announced that the country would fully abide by the ruling. Official notices requiring compliance with the ruling were sent out to various governmental departments that same day.[28][29]

The IACHR ruling was strongly condemned by the Catholic Church and other religious groups. Several deputies similarly expressed their opposition to the ruling, with one deputy labelling it "a danger to the human race".[30] In early February, a citizen submitted an application to the Parliament to investigate the Vice President for allegedly overstepping her functions and abusing authority when she announced government compliance with the ruling.[31]

On 2 February, the Attorney General announced that the country cannot ignore the IACHR ruling, reiterating that the ruling is fully binding on Panama.[32][33]

2019 constitutional amendment

Under the presidency of the more socially conservative Laurentino Cortizo, a constitutional amendment was approved by the National Assembly to ban same-sex marriage by stating in the Constitution that marriage is between a man and a woman. The amendment must be voted on again in 2020 and then submitted to referendum.[34] However, protests against this and other amendments led President Cortizo to criticize the lawmakers, and a committee was established to analyze the more controversial amendments.[35]

Adoption and parenting

Same-sex couples are unable to legally adopt in Panama. However, IVF and artificial insemination are available to lesbian couples in the country.[36][37]

Discrimination protections

There are no laws protecting LGBT people from discrimination. Article 39 of the Constitution forbids the creation of "companies, associations or foundations" that are contrary to moral or legal order. In the past, this was used to refuse registration of gay organisations.

In August 2015, a bill to ban discrimination on the basis of sexual orientation and gender identity was introduced in the National Assembly.[38] However, the law has not advanced since then.

Gender identity and expression
See also: Legal aspects of transgenderism

Since 2006, transgender persons in Panama can change their legal gender and name on their birth certificates, but only after having undergone sex reassignment surgery.[39]

In May 2016, a 22-year-old Panamanian transgender woman was allowed to change her name, so that it matches her gender identity, without having undergone surgery.[40] This was the first time a transgender person in Panama was able to change their name without first undergoing reassignment surgery.

In January 2018, the Inter-American Court of Human Rights ruled that requiring transgender people to undergo surgery to change their legal gender is a violation of the American Convention on Human Rights.[27]

Blood donation

Gay and bisexual men in Panama are banned from donating blood.[41]

LGBT rights movements in Panama

In 1996, Panama's first lesbian and gay organisation Asociación Hombres y Mujeres Nuevos de Panamá (AHMNP; "New Men and Women of Panama Association") was founded. It received legal recognition in 2005 after a three-year battle with the authorities and the Catholic Church. In 2004, they presented a petition calling for partnership rights. In June 2005, Panama's first Gay Pride march was held with 100 AHMNP demonstrators.

In May 2015, the second LGBT rights organisation was formed in Panamá: Unión de la diversidad.[42] In June 2016, a new foundation named Convive Panamá was launched strongly based on the mission, ideas and working methods of Unión de la diversidad.[43] In 2017, Fundación Iguales Panamá, a non-profit organization that promotes the observance, promotion and respect of human rights, was created. The group has impacted public opinion towards tolerance and inclusion for all, and has been in the frontline of defending LGBT rights.

In April 2017, it was announced that First Lady Lorena Castillo would participate in the 2017 Gay Pride parade in Panama City.[44]

Public opinion

According to a Pew Research Center survey, conducted between 13 November and 8 December 2013, 23% of respondents supported same-sex marriage, 72% were opposed.[45][46]

In May 2015, PlanetRomeo, an LGBT social network, published its first Gay Happiness Index (GHI). Gay men from over 120 countries were asked about how they feel about society's view on homosexuality, how do they experience the way they are treated by other people and how satisfied are they with their lives. Panama was ranked 55th with a GHI score of 44.[47]

According to a public survey conducted in April 2017, 78% of Panamanians opposed same-sex marriage.[48]

The 2017 AmericasBarometer showed that 22% of Panamanians supported same-sex marriage.[49]

Summary table
Same-sex sexual activity legal (Since 2008)
Equal age of consent
Anti-discrimination laws in employment
Anti-discrimination laws in the provision of goods and services
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech)
Same-sex marriages (Challenge admitted to the Supreme Court; legalisation required per a 2018 IACHR ruling)
Recognition of same-sex couples (Challenge admitted to the Supreme Court; legalisation required per a 2018 IACHR ruling)
Stepchild adoption by same-sex couples (Challenge admitted to the Supreme Court; legalisation required per a 2018 IACHR ruling)
Joint adoption by same-sex couples (Challenge admitted to the Supreme Court; legalisation required per a 2018 IACHR ruling)
LGBT people allowed to serve openly in the military Has no military
Right to change legal gender (Since 2006)
Access to IVF for lesbians
Homosexuality declassified as an illness (Since 2008)
Conversion therapy banned
Commercial surrogacy for gay male couples (Surrogacy takes place and is not prohibited, but there are currently no laws regulating the practice)[50]
MSMs allowed to donate blood

See also

References
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  2. "Panamá busca impedir con una reforma constitucional el matrimonio igualitario". Mundo. 29 October 2019. Retrieved 29 October 2019.
  3. Egle Gerulaityte (14 August 2018). "Guna Yala: The islands where women make the rules". BBC Travel.
  4. Kamen, Henry, The Spanish Inquisition, p. 259.
  5. "Decreto Ejecutivo Nº 332 de 29 de julio de 2008" (PDF). Gaceta Oficial (in Spanish). Retrieved 7 August 2008.
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  8. "Panama: Support Civil Union Proposal Now under Attack by the Catholic Church". Global LGBT Human Rights. 16 September 2004.
  9. "Panama: Controversy Erupts over Gay Marriage Ban". 12 May 2014.
  10. González, Nimay (20 October 2016). "Surge preocupación ante recurso para que se reconozca el matrimonio igualitario en Panamá". Telemetro.
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  15. Gerdes, Stefanie (4 April 2017). "Same-sex marriage could come to Panama if activists win legal fight". Gay Star News.
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  17. "Canciller De Saint Malo, a favor del matrimonio gay". Critica. 15 April 2017.
  18. (in Spanish) Posibilidad de matrimonio igualitario dispara alarmas en Panamá
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  25. "El Dato 27 de diciembre de 2018". La Verdad (in Spanish). 27 December 2018. Archived from the original on 10 April 2019. Retrieved 27 December 2018.
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  27. "Inter-American Court endorses same-sex marriage". Agence France-Presse. Yahoo7. 9 January 2018. Archived from the original on 9 January 2018. Retrieved 9 January 2018.
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  40. "Por primera vez, una transexual logra en Panamá cambiar su nombre en la cédula". ELESPECTADOR.COM. 12 May 2016.
  41. Grodira, Fermín (1 December 2014). "Cerca de 50 países impiden a los hombres homosexuales donar sangre" – via elpais.com.
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  46. "Appendix A: Methodology". Pew Research Center. 13 November 2014.
  47. The Gay Happiness Index. The very first worldwide country ranking, based on the input of 115,000 gay men Planet Romeo
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