Same-sex marriage

Article 14 (inciso 6) of Costa Rica's Family Code makes same-sex marriage legally impossible (Diario Extra 16 Aug. 2003a). Further, Article 176 of the Penal Code stipulates a punishment of six months' to three years' imprisonment for anyone who participates in a homosexual marriage, including the person who performs the ceremony (ibid.; Al Día 13 Aug. 2003; AP 18 Sept. 2003).

According to several sources, in August 2003, Yashin Castrillo, a lawyer and former official with the Judicial Investigations Police, filed a lawsuit with the Constitutional Court asking it to overturn specific legal norms that prevent legalization of same-sex marriage (Al Día 13 Aug. 2003; Diario Extra 16 Aug. 2003a; La Nación 5 Sept. 2003; The Tico Times 4 Sept. 2003). The lawsuit followed a family court decision in Alajuela that rejected Castrillo's request to have a union ceremony performed for him and his partner (ibid. Aug. 14 2003; Al Día 13 Aug. 2003; Diario Extra 16 Aug. 2003a). According to Castrillo, the decision by the family court was unconstitutional because it was based on provisions of the Family Code and Article 176 of the Penal Code, which violate equality rights entrenched in the Costa Rican Constitution (CAR 19 Sept. 2003). Castrillo's lawsuit rests on the alleged violation of equality principles outlined in Articles 28, 33 and 39 of the Constitution (Al Día 13 Aug. 2003; Diario Extra 16 Aug. 2003a). For example, Article 33, which was modified on 27 May 1999, stipulates that all persons are equal before the law, and prohibits discrimination that violates human dignity (Costa Rica 1949). In an article for the Gay Costa Rica.com Website, Jorge Angulo states that all norms, codes, laws and regulations must be in accordance with the terms of the Costa Rican Constitution (Gay Costa Rica n.d.).

The Constitutional Court agreed to review some aspects of the question of unconstitutionality raised by Castrillo (AP 18 Sept. 2003; Gay Costa Rica n.d.; La Nación 5 Sept. 2003). While the court agreed to review the legality of Article 14 of the Family Code, it refused to study Article 176 of the Penal Code (Gay Costa Rica n.d.). The Gay Costa Rica Website speculates that the reason for this decision could be that the magistrates saw no reason to consider Article 176, which sets out penalties for particular actions and is not in itself discriminatory (ibid.). However, if Article 14 (inciso 6) of the Family Code were deemed unconstitutional, there would be no need for penalties such as those stipulated in Article 176 of the Penal Code (ibid.). The Associated Press (AP) reported on 18 September 2003 that the Attorney General of Costa Rica disapproved of efforts to legalize same-sex marriages and recommended that the Constitutional Court reject Castrillo's case (AP 18 Sept. 2003). The same article stated that the Attorney General acts as an advisor to the Constitutional Court on all cases before it (ibid.).

In addition to filing the Constitutional Court lawsuit, Castrillo simultaneously had the family court decision appealed to the Superior Family Court in San José (Al Día 13 Aug. 2003; Diario Extra 16 Aug. 2003a). His attempt to have the decision by the family court revoked was unsuccessful (ibid.; Al Día 13 Aug. 2003).

In 7 October 2004 correspondence, the Executive Director of the Central American Human Rights Research and Promotion Centre (Centro de Investigación y Promoción para América Central de Derechos Humanos, CIPAC) stated that Castrillo's case was still pending in the Constitutional Court as of the production date of this Response.

Social security for same-sex couples

Regarding the treatment of sexual minorities in Costa Rica, Francisco Madrigal of CIPAC reported in 2003 that:

discrimination against homosexuals is not expressed in physical attacks as in past decades, but rather in terms of the ability to exercise civil and economic rights. These limitations impede homosexual persons from passing a pension to their partner, obtain[ing] joint credits or insur[ing] their partner within the Costa Rican Social Security System (CAR 19 Sept. 2003).

On 26 June 2003, the National Insurance Institute (Instituto Nacional de Seguros, INS), at the request of CIPAC in order to clarify the definition of beneficiaries, announced that it would make same-sex couples and their families eligible for social security (IGLHRC 16 July 2003; Diario Extra 16 Aug. 2003b). This decision will allow gays, lesbians, bi-sexuals and transgendered (LGBT) persons to name their partners or friends as the beneficiaries of their insurance policies (IGLHRC 16 July 2003). The announcement, which was signed by the INS Executive Director, states that "'a potential insurance holder can appoint as beneficiary any person on whom she/he has an insurable interest, with no discrimination whatsoever in terms of race, age, sexual preference or any other status'" (ibid.). This decision also allows same-sex partners with INS insurance policies to apply for state-funded house loans, which are more affordable than private bank loans (ibid.).

Treatment of sexual minorities

Sources report that, in late September 2004, Luis Gerardo Mairena, a transvestite, was granted custody of a 10-year-old boy who he had cared for since he was a baby (Al Día 29 Sept. 2004; EFE 29 Sept. 2004; Terra n.d.). The family court decision gives Mairena the option to legally adopt the boy (EFE 29 Sept. 2004). According to the Minister for Children and Adolescents, Rosalía Gil, the Costan Rican government had always been in favour of the court granting custody of the boy to Mairena since that option was in the boy's best interest (ibid.; Al Día 29 Sept. 2004; Terra n.d.). Gil stated that every custody decision is made on a case-by-case basis and that the Mairena decision did not set a precedent for homosexuals who wish to gain custody of children (EFE 29 Sept. 2004).

On 27 June 2004, the LGBT community, supported by CIPAC and a number of organizations that host Websites catering to the LGBT population (Ticosos.com, Internet Café, 1@10, Revista Gente 10, and GayCostaRica.com) celebrated the second annual Gay Pride Festival at the Plaza de la Democracía in San José (La Nación 27 June 2004; Gay Costa Rica 27 June 2004). The purpose of the celebration, according to Francisco Madrigal, director of CIPAC, was to make visible an important sector of the population that is [translation] "systematically discriminated against" (La Nación 27 June 2004). During the celebration, participants named the Ombudsman, José Manuel Echandi, the homophobic personality of the year for failing to assist the LGBT community in legalizing same-sex marriages (ibid.; Diario Extra 26 June 2004). According to Madrigal, Echandi did not effectively deal with the issue of same-sex unions that was brought to his attention several months before the festival (ibid.). CIPAC had begun working with Echandi to draft a motion contesting the legality of certain laws that "discriminate" against homosexuals, but Echandi later retracted the motion (The Tico Times 21 June 2004). The Ombudsman responded to the concerns of the LGBT community in a 9 June 2004 letter by stating that he could do nothing on the issue of same-sex unions, and that it was best to leave this issue for legislators of the National Assembly who could draft a bill on the matter (Diario Extra 26 June 2004). CIPAC planned to lodge an official complaint against the Ombudsman with the Legislative Assembly, as well as two international human rights groups (The Tico Times 21 June 2004).

Madrigal noted that there are significant gaps in Costa Rican legislation that facilitate discrimination against homosexuals (La Nación 27 June 2004). According to Madrigal, the most important issues facing homosexual rights now are discrimination in the workplace, the legalization of same-sex unions and hatred of homosexuals by society (ibid.). The Executive Director of CIPAC stated in 7 October 2004 correspondence that there are cases today where lesbians are sexually abused or face insults once their sexual orientation is known in the workplace. CIPAC conducted a study on workplace discrimination and met with women who had lived through such abuse at the hands of their superiors or managers and were forced to leave their place of work for fear of more reprisals (CIPAC 7 Oct. 2004). According to the Executive Director, lesbians are no longer assaulted by police in bars or clubs, as they were in past years, since the courts issued of a resolution describing such actions as unconstitutional (ibid.).

The Executive Director of CIPAC stated that there were cases of police abuse of sexual minorities pending before the Office of the Ombudsman and that attacks on the streets were still going unreported (7 Oct. 2004). Additional and/or corroborating information on police abuse of sexual minorities could not be found among the sources consulted.

Regarding the attitudes of Costa Rican society, Madrigal stated in The Tico Times that "[w]e have seen a change in Costa Rican society about acceptance of sexual diversity...We (also) have legislators in the country who believe couples should have rights" (14 Aug. 2003). The same article states that "homosexual relationships have just begun to be accepted socially" (The Tico Times 14 Aug. 2003). A Website advertising gay and lesbian commitment ceremonies in Costa Rica, which are not legally binding, states that "Costa Rica is a nation which is exceptionally tolerant of religious, ethnic and sexual diversity" (Viajes Lujosos n.d.).

Gay culture and programs

The Executive Director of CIPAC stated that in addition to CIPAC, other organizations that support the LGBT community in Costa Rica include the Comunidad Arco Iris, a spiritual group, the Costa Rican Movement Against HIV/AIDS (Movimiento costariccense de lucha contra el VIH/SIDA), a group that establishes prevention programs against AIDS, and Tertulia entre mujeres, a recreational group for lesbians (7 Oct. 2004). CIPAC also manages a documentation centre and a free information and help line (800-247-2227) and offers assistance to the LGBT community via its Website (Executive Director 7 Oct. 2004).

The Executive Director stated that the only existing government program is called Global Fund (Fondo Global), an AIDS prevention program of the Ministry of Health that targets gay men (ibid.). The Global Fund project has also facilitated CIPAC's ability to offer psychological assistance until late 2005, to organize self-help groups for gays, lesbians, persons living with AIDS, and transgendered persons, and to create recreational space for various leisure activities (ibid.).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of additional sources consulted in researching this Information Request.

References

Associated Press (AP). 18 September 2003. "Costa Rica: Procuraduría contra unión de homosexuales." http://espanol.news.yahoo.com/030918/1/m0n2.html [Accessed 12 July 2004]

Central America Report (CAR) [Guatemala]. 19 September 2003. "Debate on Homosexual Marriages."

Centro de Investigación y Promoción para América Central de Derechos Humanos (CIPAC), San José. 7 October 2004. Correspondence sent by the Executive Director.
Costa Rica. 1949. Constitución Política de la República de Costa Rica de 1949, actualiza con la Reforma 8106/2001. http://www.georgetown.edu/pdba/Constitutions/Costa/costa2.html [Accessed 19 Oct. 2004]