Photo: Members of the LGBTI community demonstrate outside the hall of justice in Port of Spain, Trinidad and Tobago. Source: Andrea de Silva/Reuters.
At the end of 2022, LGBTI activists in Barbados achieved a stunning victory: the High Court of Barbados ruled that the criminalization of consensual same-sex intimacy is unconstitutional. Like many former British colonies, Barbados inherited penal codes with proscriptions against “buggery” and other vaguely defined acts that had been used to directly target LGBTI people. The Barbados Sexual Offences Act of 1992 imposed sentences of up to life in prison if convicted. While many of these laws on the books are selectively enforced, they are nevertheless dangerous and stigmatizing signals of disapproval that can lead to violence and discrimination against LGBTI people.
The recent Barbados ruling seems to reflect a marked shift in a region that had long stood out compared to other countries in the Western Hemisphere for its intransigence on LGBTI rights. In 2022, two other Eastern Caribbean countries—Antigua and Barbuda and Saint Kitts and Nevis— struck down legal provisions criminalizing same-sex conduct. Two earlier lawsuits also successfully led to decriminalization—a 2016 ruling by the Belize Supreme Court and a 2018 judgment in Trinidad and Tobago. By some measures, the Caribbean is finally starting to catch up to the rest of the Americas, which has been a global leader in the recognition of LGBTI rights.
Now there are signs that these positive trends may be reversing. Throughout the Americas, anti-LGBTI rhetoric and policies are increasingly deployed by religious conservatives and right-wing populists to secure electoral gains, while violence against LGBTI people in the region is at an all-time high. As such, recent advances in the Caribbean come at a critical inflection point in the hemisphere, where democratic backsliding and growing backlash to LGBTI rights threaten to imperil hard-won gains.
The previous three decades brought an unprecedented expansion of LGBTI rights in the Americas. By the late 1990s, a majority of countries in the region had decriminalized same-sex relations (with notable outliers including the United States, which did not decriminalize until 2003). As countries in Latin America emerged from decades of authoritarian rule, constitutional reforms in many jurisdictions directly incorporated international human rights norms into domestic law. Countries such as Argentina and Colombia created new legal mechanisms that allowed citizens to easily contest laws that violated the constitution. While the experiences of individual countries vary, LGBTI activists broadly capitalized on this ascendant human rights discourse and new constitutional procedures to challenge laws and policies that discriminated on the basis of sexual orientation and gender identity.
In particular, advocacy groups have focused on changes in antidiscrimination laws, including military service, family rights, and legal gender recognition. By 2016, 15 countries in Latin America had strong legal protections against discrimination on the basis of sexual orientation, with 13 allowing gays and lesbians to serve openly in the military. In 2010, Argentina became the first country in Latin America to legalize same-sex marriage. Brazil (2013), Uruguay (2013), and Colombia (2016) followed in succession. Argentina has also been a leader in codifying protections for transgender people. In 2012, Argentina passed a law allowing individuals to change their name and gender marker on legal identity documents without requiring medical intervention. Likewise, a 2021 law in the country established a quota reserving 1% of public sector jobs for transgender people.
Advances on LGBTI rights in Latin America have been aided by strategic, coordinated advocacy at the regional level. This activism culminated in a 2017 landmark opinion by the Inter-American Court of Human Rights (IACtHR) affirming that same-sex couples are entitled to the full protections of civil marriage under the American Convention on Human Rights. Judicial rulings legalizing same-sex marriage in Ecuador (2019) and Costa Rica (2020) explicitly cited the Inter-American Court’s opinion, and both Chile and Cuba approved marriage equality last year. The same opinion by the IACtHR, which is binding on all states party to the Court, also held that countries are required to provide a streamlined administrative procedure for individuals to change their name and gender marker on legal identity documents without requiring medical intervention.
Yet legal progress has been met with considerable backlash, and countries throughout the Americas are now seeing increasing resistance to LGBTI rights. Led by a growing constituency of Evangelicals and Pentecostals, opponents of LGBTI rights are mobilizing to block further advances and creating strategic alliances with conservative political parties eager to broaden their electoral base. In Colombia, for example, conservative forces mobilized in 2016 to stop an effort by the Minister of Education (an out lesbian) to enact a new school curriculum inclusive of sexual and gender diversity. That same year opponents in Mexico successfully campaigned to defeat a proposal by then-President Peña Nieto to legalize same-sex marriage nationwide.
More recently, homophobic and transphobic rhetoric and policies are finding fertile ground in the rise of populist authoritarian leaders. In Brazil, evangelicals were instrumental in the election of Jair Bolsonaro, who publicly proclaimed that he “would be incapable of loving a gay son” and pledged to “combat gender ideology”—a vague concept that right-wing activists and politicians weaponized to oppose women’s rights, transgender rights, and same-sex marriage, among others. Similarly, former U.S. President Donald Trump was buoyed into office through the strength of evangelicals who supported his public opposition to the rights of transgender people, including access to life-saving healthcare.
Indeed, legal changes have not necessarily brought social transformation in the acceptance of LGBTI people. The LGBTI Global Acceptance Index uses public opinion data from 175 countries to score countries from 0 to 10 on their support for LGBTI people, with higher scores indicating greater acceptance. Compared to highly accepting countries, such as Norway (9.38), Spain (8.77), and Canada (9.02), Latin American countries with strong legal frameworks on LGBTI rights, including Argentina (7.07), Colombia (6.1), and Mexico (6.5), nevertheless continue to be less accepting. Moreover, violence against LGBTI people in the region persists at high rates. According to data reported by civil society organizations, more than 1,075 LGBTI people were killed in Colombia alone between 2014 and 2021, more than 647 in Mexico, and nearly 100 in Perú. Additional research by the Inter-American Commission on Human Rights (IACHR) finds that the life expectancy for transgender women in the region is between 30 and 35 years old.
Against this backdrop, the legal victories in the Caribbean offer a glimmer of hope that the moral arc on LGBTI rights continues to bend toward justice in the Americas. While six countries in the Caribbean still criminalize same-sex intimacy, they are increasingly outliers in the region. Furthermore, activists continue to engage in strategic advocacy at national and international levels that increase pressure on countries to enact change. A December 2020 ruling by the IACHR called on Jamaica to repeal its laws criminalizing same-sex intimacy, noting for the first time that such prohibitions violate international human rights law. As evidenced throughout the region, any legal gains must be accompanied by social mobilization that embeds norms of acceptance and inclusion within society to ensure more lasting change.
Ari Shaw is a Senior Fellow and the Director of International Programs at the Williams Institute, specializing in international human rights, LGBTI politics, and U.S. foreign policy. He was previously on the senior staff at Columbia World Projects and has worked on human rights, global governance, and LGBTI issues for the Open Society Foundations, the Gill Foundation, the Council on Foreign Relations, and the United Nations Association of the USA, among others.
