Brazil’s flag is emblazoned with the words ‘order and progress’; and although the order part might be debatable and the progress prone to happen in fits and starts, 2010 nevertheless proved to be a particularly progressive year for gay rights in the country. Because while the legal privileges granted to gay couples may not be as all-encompassing as those of Argentina and Mexico City, where gay marriage is legal, Brazil’s incremental march toward equality is nonetheless well underway.
The royal ban on buggery was lifted as far back as 1830, but it wasn’t until the late-1980s that the right of gays and lesbians to shack up with each other in any meaningful way began to crystallise. Brazilian jurisprudence, set on a foundation of out of wedlock births, cross-class liaisons and other such aspects of human relations dating back to the colonial period, was always a bit less prudish than others in the ways of the flesh, despite (or possibly because of) a heavy Catholic influence.
The country’s most recent Constitution, passed in 1988, guarantees equal rights to all citizens under the law, regardless of a wide range of differences, including sexual orientation. Brazil started out with baby steps, ratifying anti-discrimination legislation at the state level but sitting on a civil union bill introduced fifteen years ago. Judges moved to the front lines, ruling on court cases establishing same-sex partnerships as similar to common-law unions, although not going as far as to extend the same rights and privileges as a heterosexual, common-law couple.
‘Unlike the US, Brazil’s legal system is not based on previous court decisions and judges may interpret the laws with a high degree of freedom in every case. This leads to diverse jurisprudence depending on the particular judge,’ says attorney Orlando Camara of Brazil’s legal climate. ‘In a country where over 3 million people attend one single Gay Pride parade and yet so many live under the strong influence of the Catholic Church, the result could not be any different.’
Same-sex couples are relegated to establishing an união estável (stable union), essentially a glorified business partnership. Originally limited to joint property ownership and bank accounts, several court cases fleshed out the ‘family’ aspect of the unions, awarding custody of a child with two deceased biological parents to the lesbian partner of the mother, granting employee benefits in Rio de Janeiro to the same-sex partners of state workers and allowing the foreign partners of Brazilians residency visas for immigration purposes.
By 2006, two gay adoptions were on the books: one by a lesbian couple in Porto Alegre, followed by a male gay couple in São Paulo state. Just as Mexico City’s landmark gay marriage law was kicking in, high-ranking federal judges in Brazil advanced four major elements of gay rights policy. In April, the Superior Court granted gay and lesbian couples the right to adopt children. In May, the court ruled that health insurance companies must accept same-sex partners as dependents. Government pension benefits were awarded to gay unions in June; and in July, joint income-tax benefits came online.
But that’s where the progress halts. Gay couples can’t collect alimony in case of separation, can’t receive guaranteed time off from work because of a partner’s death, and can’t have conjugal prison visits. Most worryingly, one half of a gay couple can’t make decisions regarding her partner’s health in an emergency situation.
‘These rights so far have only been affirmed in a Swiss-cheese fashion,’ says Kevin Ivers, an American who lived in São Paulo for four years and only recently returned to the USA with his Brazilian husband and their dog. ‘How does it reflect the letter and the spirit of the Brazilian constitution to affirm shared public retirement benefits, but to force a man to go to court to make emergency health decisions for his his partner of 30 years in an emergency room?’