Costa Rica’s advances towards inclusion—with some detours

Over the past three decades, Costa Rica has made important legislative advances towards greater inclusion and respect for LGBTIQ+ rights.

Having moved from the arrests of same-sex couples because their presence in bars was considered illegal in the 80s, to the implementation of marriage equality in 2020, the country is now working to sensitize its officials about the need to carry out their work without discrimination.

When Margarita Salas had her first girlfriend as a university student 20 years ago, expressions of love and affection—normal for any young couple in love—were often alibis.

“We walked along the street hand in hand like any couple. We hugged. We kissed. They threw us out of every bar, restaurant, public monument, shopping center that existed in the country,” explains Salas, a well-known LGBTIQ+ activist who until recently served as the Presidential Commissioner for LGBTI Affairs.

Twenty years ago, “there was no greater social mobilization or clarity about resources we could use to defend ourselves,” Salas adds, recalling that members of the LGBTIQ+ community faced discrimination in many places with now response or support. “Now, we have public institutions that issue decrees and guidelines to protect the rights of LGBTIQ+ people, celebrate special dates to commemorate [the community] and LGBTIQ+ commissions in the various institutions,” among other improvements.

While Costa Rica still faces a long path ahead, it’s clear that, little by little, the country has taken small steps that represent significant progress towards human rights, respect and inclusion for LGBTIQ+ people.

Article 133 of our Political Constitution, in effect since 1949, says that “everyone is equal before the law, and no discrimination against human dignity may be practiced.” However, even a brief reviewing of the last decades of the 20th century reveals multiple instances of discrimination.

In the 80s, gay bars, called “bares de ambiente,” used a light or a reflector that they turned on to warn their customers that police were near, since raids were sometimes carried out. The presence of same-sex couples in a bar was considered illegal, and people were at risk for arrest or mistreatment.

In 1990, prior to the Latin American and Caribbean Feminist Lesbian Conference, then-President Oscar Arias Sánchez issued a directive instructing officials to deny entry to the country to lesbian women en route to the meeting—that is, women who traveled alone and were “suspicious” as possible lesbians. At the farm where the meeting took place, men arrived in vans that circled around the place and threw stones and sticks at the property, according to testimonies of the participants who appear in the virtual exhibition Let’s Kiss, published by the Equal Rights Front (FDI).

Years after this event and during his second term, Arias Sánchez signed the decree that established the National Day Against Homophobia in 2008, an action that some activists say can be credited, along with the struggles of civil organizations, for opening the door to other related decrees.

At the public policy level, a sea change commenced in the second decade of the new millennium. In 2015, the administration of President Luis Guillermo Solís issued Executive Decree 38999, which declared that “the Presidency of the Republic and Government Ministries are institutions that respect and promote human rights, free from discrimination towards sexually diverse populations.”

Then-Vice President Ana Helena Chacón stated on May 15, 2015, that the decree “not only lays the foundations to end discrimination, but will also allow the construction of internal regulations that promote and respect the rights of sexually diverse people.”

On May 18, 2016, the Solís Administration presented an advisory opinion to the Inter-American Court of Human Rights (IACHR) on the interpretation and scope of various articles of the American Convention on Human Rights. The consultation revolved around the recognition of name changes related to gender identity, and the recognition of economic rights derived from same-sex relationships.

Advisory Opinion No. OC-24/17 was issued by the IACHR in November 2017 and determined that Costa Rican family law adversely affected the human rights of same-sex couples by preventing same-sex civil marriage.

The opinion triggered a series of events that eventually resulted in Costa Rica becoming the 29th country in the world to approve equal marriage on May 26, 2020. It also paved the way for the Supreme Elections Tribunal (TSE) to approve, in 2018, name changes for trans people in their identification cards, a change that took effect after regulatory approval by the administration of President Carlos Alvarado.

Alvarado took office on May 8, 2018 after elections dominated by differences in positions on sexual diversity in general and, in particular, the Inter-American Court’s opinion. The presidential contest went to a second round, where Carlos Alvarado defeated National Restoration Party candidate Fabricio Alvarado, a staunch opponent of equal marriage.

Alvarado began his government by creating a brand-new position: the Presidential Commissioner for LGBTI Affairs, a position in which Margarita Salas was appointed in June 2020 after the departure of Luis Salazar. In December 2018, the government signed a regulation to recognize migratory rights of same-sex couples, and a declaration of public and national interest of the protocol for Comprehensive Care for Trans People, which implemented hormone treatment in the public health care system.

Likewise, it signed the Regulation for the recognition of the right to sexual and gender identity of foreigners in the Identity and Immigration Document for Foreigners and a guideline addressed to the Housing Mortgage Bank for Access to family housing bonds for couples of the same sex.

Education and awareness

Decrees such as these have been fundamental in advancing respect for the rights of the LGBTIQ+ population. But are these enough to generate changes in the way the country’s institutions treat LGBTIQ+ citizens? What about local governments?

The answer given by interviewees in the public and private sectors, and civil society, is no. There is still a long way to go, walls and prejudices to tear down. However, this is not to say that the outlook is grim. Many committed people are working hard to create change and comply with the new regulations and guidelines to make public entities more inclusive and respectful of diversity.

Executive Decree 38999, from the year 2015, gave rise to the existence of institutional commissions that monitor its implementation and train personnel to eradicate discrimination against LGBTIQ+ people.

These commissions, as well as the Presidential Commission on LGBTIQ+ Affairs, have been key in the implementation of the “National Training and Awareness Strategy for Personnel of Public Institutions, on Non-Discrimination and the Inclusion of LGBTIQ+ People: Walking Towards Equality.” This strategy was developed by the Ombudswoman’s Office in 2020 in an intersectoral alliance with entities such as the General Directorate of Civil Service, the Humanist Institute for Cooperation with Developing Countries, the National Learning Institute (INA) and the United Nations Development Programme (UNDP), among others.

The strategy also opened the door to having civil society organizations coordinate training processes in order to strengthen the capacities of public institutions and their officials to ensure services and spaces free of stigma and discrimination for the LGBTIQ+ population.

The training process seeks “the provision of respectful, inclusive services, free of stigma and discrimination” and consists of a virtual course that informs participants about issues related to the rights of LGTBIQ + populations, and allows them to reflect on these issues.

The strategy also includes face-to-face training for certain officials who must complete a 16-hour workshop in order to deepen their awareness and give them tools that allow them to carry out their work without discriminatory practices.

The goal of this strategy is that by 2022, 40% of the public workers assigned to take face-to-face training will have completed the process, and 90% of public sector officials will have completed the virtual option.

According to Margarita Salas, statistics generated by the course’s virtual platform show that more than 24,000 people from 78 different institutions have received the virtual training course, a number that is still far from the total payroll of the public sector. Data provided by the Costa Rican Social Security Fund (CCSS) show that in April 2021, there were almost 330,000 public sector officials in the country’s central government, public financial and non-financial companies, local governments, and decentralized entities.

Progress towards training goals differs from one institution to another. According to representatives of some of the entities, these variances stem from the diverse characteristics and dynamics of each institution. In some, 90% of the officials have already taken virtual and face-to-face training, while others show a great delay, Salas explains.

As an example, she points out the case of the Ministry of Public Education (MEP), where there have been great delays caused by the pandemic: teachers have had to take many other forms of training in order to prepare themselves for virtual teaching.

Among the positive aspects of the process, Salas indicates that organizations have compiled their training materials and now have “a repository of awareness-raising materials, including more than 121 videos that can be used for training, some produced by the institutions themselves.”

She added that many institutions also created graphic materials, such as the Ministry of Environment and Energy, which produced eight bulletins that address issues such as what is an inclusive space and the challenges faced by organizations to advance towards equality.

Some institutions find ways to adapt the process to their own goals, such as the workshops created by the Planning Ministry to address doubts that came up during the process, or adapting special spaces for face-to-face workshops, which are currently suspended due to the pandemic.

A bucket of cold water

In the work carried out by public institutions to achieve greater respect for the human rights of Costa Rica’s LGBTIQ+ population, two events in recent months have affected the progress of internal processes and have been classified as a bucket of cold water.

In 2020, two officials of the Ministry of Finance presented a motion of unconstitutionality against Executive Decree No. 38999; also, the Legislative Assembly approved a clause that allows officials to refuse human rights training by alleging a conscientious objection.

“Public servants may inform the administration, by means of a sworn statement, about their right to conscientious objection when their religious, ethical and moral convictions are violated, for the purposes of the education and training programs that are determined to be mandatory for all servants.” Thus reads a subsection to Article 21 of the draft Public Employment Framework Law, the inclusion of which was negotiated by the government of Carlos Alvarado in the Legislative Assembly in order to access a loan with the International Monetary Fund (IMF).

The approval of the conscientious objection clause and the support for it by President Carlos Alvarado led to the resignation of Margarita Salas as Presidential Commissioner for LGBTI Affairs. She argued that “the current administration negotiated our human rights in exchange for votes.”

In a statement released after her resignation in April, Salas wrote, “This opens a door to violate the rights not only of the LGBTIQ+ population, but also of women, people with disabilities, Afro-descendants, and any population with adequate conditions of exclusion.”

New Republic legislator Jonathan Prendas, supporter of the clause, indicated on his social networks the day of its approval that its inclusion in the bill “guarantees Costa Ricans the human right to develop their personal and work life without renouncing their beliefs and convictions.”

During the recent panel “Conscientious Objection, Public Service, and Access to Justice for the LGBI Population,” organized by the Judicial Branch, the human rights, gender and diversity lawyer Larissa Arroyo indicated that conscientious objection is a right that must be guaranteed, but cannot be used to discriminate.

The unconstitutionality action against Executive Decree No. 38999 has not been resolved, while the Public Employment Law continues its process through the Assembly. This will include consultations with public institutions, discussion by legislators, a first debate vote, consultation before the Constitutional Chamber of the Supreme Court (Sala IV), and, finally, a second debate vote.

Pending tasks

Salas, the former presidential commissioner for LGBTIQ+ Affairs, highlights the progress made in recent years in the area of ​​human rights but points out that many tasks remain, such as the recognition of the full identity of trans people.

She argues that Costa Rica needs a framework anti-discrimination law and support for the employment of trans people, “many of whom are on the street and in commercial sex situations where they do not want to be. In the context of the pandemic they have seen their possibilities to earn a living drop significantly,” said Salas.

She adds that it is urgent to penalize conversion therapy: there are still parents who send their children “to camps where they apply therapies such as electroshock to try to change their sexual orientation, especially in rural areas, sometimes under the disguise of a religious element. This is cruel, and drives some of these boys and girls to suicide.”

Despite the fact that progress is being made in the training of officials on human rights, there are still people who resist, she indicates, such as local health clinic (EBAIS) officials who receive trans people with their new documents and insist on calling them by an incorrect name.

With regard to the training courses for Walking Towards Equality, members of the institutional commissions interviewed for this piece said that the courses have succeeded in raising awareness among officials, but for some more support is needed, especially in the virtual course.

“We have been working with the gender office to try to clarify initial doubts that the course does not clarify,” explains the Deputy Minister of Public Security Eduardo Solano, noting that it is a very complex issue. “Understanding all the complexity involved in the LGBTIQ+ population” requires more than two or four hours of training.

The appointment of the new Presidential Commissioner for LGBTI Affairs, a key position in monitoring the training strategy, has been pending since last April, when Margarita Salas submitted her resignation. The Ministry of Communication confirmed to El Colectivo 506 that the person who will replace Salas has not yet been appointed.

Despite the many obstacles and hate speech left to overcome, but there are also many people who, in different roles, are doing hard work—sometimes almost invisibly—to make a change, little by little. They’re contributing to the understanding that we all deserve the same treatment in our public services and work environment.

Next week: Our search for public officials who, from their positions, are carrying out actions that promote equality.