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(Un)fit citizens, (un)fit parents? The Rights of Lesbians, Gays, and Bisexuals in Portugal

(Un)fit citizens, (un)fit parents? The Rights of Lesbians, Gays, and Bisexuals in Portugal

0 Comments 🕔08.May 2014

This article is part of our Over the European Rainbow feature.

Dutch-Moms2

Lesbian Mothers. Credit: Oriana Eliçabe

by Ana Maria Brandão and Tânia Cristina Machado

The consequences of the modern gay and lesbian movement born on June 27, 1969, in the United States were also felt in Portugal, although with an obvious delay compared with its Western counterparts. Late industrialization and the country’s semi-peripheral situation[1] hindered the development of gay and lesbian enclaves and, therefore, the emergence of a common identity.[2] Additionally, the dictatorship that ruled the country between 1933 and 1974, along with its censorship and repressive mechanisms, strongly limited the circumstances and opportunities for political mobilization, particularly for sexual minorities.[3] These factors are crucial to explaining the absence of a movement similar to Gay Lib in Portugal. In spite of some mobilization attempts immediately after the 1974 revolution, a visible and consistent gay and lesbian activism would only emerge during the 1990s.[4] It was born from friendship networks formed inside the first non-governmental organizations linked to AIDS.[5] Since then, changes have been quick and distinct from other Western countries. They have been largely due to Portugal’s swift modernization; to the joint efforts of the leaders of lesbian, gay, and bisexual (LGB) organizations, many of whom had lived in countries where the gay and lesbian movement had already flourished; to the mass media’s sympathy for the LGB cause; but also to the full-member status of Portugal in the Council of Europe, the Organization for Economic Co-operation and Development (OECD) and, especially, of the European Union (EU), whose normative and legal precepts are compulsory. In short, in addition to swift economic and socio-cultural changes, Portuguese activists were also able to benefit from the work of the international gay and lesbian movement.[6]

 

Legal victories

In Portugal, full decriminalization of consensual homosexual acts took place in 1982 following the amendment of the Penal Code. This was not the result of any visible social or political pressures, but rather of legislators’ move toward the less normative principles of democracy. However, new clauses set different ages of consent for heterosexual and homosexual acts, and in spite of the relevance of the matter to the LGB population, Portuguese activists decided to focus on the Constitution instead.[7]

The end of the 1990s was marked by the consolidation of Portuguese LGB activism and a clearer politicization of its agenda.[8] The struggle now focused on changing Article 13 of the Constitution – the ‘Principle of Equality’. In 2004, the latter included, for the first time, the express prohibition of discrimination on the grounds of sexual orientation. The year before, the Labor Code had been amended to prohibit discrimination in employment and work on the same grounds. It was a legal change imposed by European Directive 2000/78/CE. However, the amendment of the ‘Principle of Equality’ was probably the major achievement of Portuguese activists because the Constitution is the fundamental legal text. It is according to the constitutional wording that some legal clauses may more evidently appear as discriminatory – or, at least, be depicted as such. In fact, the elimination of unequal treatment based on the age of consent took place in 2007, after the Constitution was amended on the grounds that the provision was unconstitutional.

It was also by the end of the 1990s that Portuguese activists focused on the legalization of same-sex unions. This was strongly encouraged by AIDS, since the death of one partner often meant that the surviving partner lost the couple’s remaining assets, often as a result of legal action taken by the dead partner’s family. The year 2001 marked a historic success due to the approval of Laws 6/2001 and 7/2001 on May 11: the former created and regulated the regime of common economy and the latter changed the cohabitation law. Both laws encompassed same-sex unions.[9]

This legislation was not easily passed. Parliamentary debates show that most political parties doubted whether equal rights should be granted to same-sex couples. In fact, inheritance rights, adoption, and access to reproductive technologies by same-sex couples were left out of both laws. This and the symbolic importance of marriage, especially in Catholic societies such as the Portuguese, pushed activists to continue their struggle, this time advocating for civil marriage. But it was precisely for the same symbolic reason that some social sectors and political parties opposed the legalization of same-sex marriage, favoring alternative juridical terms.[10]

In 2010, with the approval of Law 9/2010 on 31 May, Portugal became the fourth EU country to legalize same-sex marriage despite opposition from the Catholic Church.[11] The initiative had been included in the Socialist Party’s government plan and was championed by its leader and future Prime Minister, José Sócrates. The Portuguese were now more favorable to homosexuality.[12] But the approval of the bill on same-sex marriage – essentially, though not exclusively with the votes coming from the left – also benefited, as Santos contends, from the discursive ‘containment’ – even ‘(hetero)normative compliance’ – of most of its supporters, including activists themselves.[13]

In fact, the legalization of same-sex marriage can be included in an overall trend toward ‘normalization’, namely considering the conjugal model the law stands for – stable, monogamist, and resting on cohabitation.[14] Additionally, the Portuguese same-sex marriage law is one of the most restrictive within the EU context: apart from the right to be assisted by one’s spouse, it ignores common patrimonial rights. This means that one spouse can only bequeath to the other spouse the ‘available’ part of ‘his/her’ patrimony in testament.[15] What is more, it preserves the symbolic centrality of heterosexuality and its link to both biological and non-biological parenthood by not granting same-sex couples any parental or reproductive rights as couples.

 

What is yet to be conquered?

Though the legal situation of Portuguese lesbians, gays, and bisexuals has improved, their status as citizens is still incomplete. This is most obvious when we look at the legal restrictions they are still subject to, both as actual and as potential parents. In fact, the true focus of contention during the debates about same-sex unions had to do with parental and reproductive rights. The subject was conspicuously avoided until very recently. But whenever it surfaced, the arguments illustrated the persistence of prejudice.

Currently, in Portugal, access to medically assisted reproduction is regulated by Law 32/2006, of July 26.[16] Its requirements include being involved in a stable heterosexual union (i.e., living together for at least two years) and having been declared infertile or, exceptionally, suffering from a serious illness and/or infectious disease. As such, single women (regardless of their sexual orientation) and same-sex couples are excluded from medical assistance to procreate. According to the law, this is due to the ‘subsidiary nature’ of reproductive technologies: these are not meant to be an alternative procreation method or to replace the (potentially) procreative nature of (hetero) sex, but to solve a medical problem. In short, as Anne Dana contends, the infertility diagnosis activates or inhibits medical assistance to procreate, depending on the context: it legitimates medical help to heterosexual couples but not to same-sex couples or single women.[17] As such, it emerges more as a moral than as a medical apparatus.

In 2012, a few Members of Parliament (MPs) tried to redefine reproductive technologies as complementary means of procreation, hence rendering them accessible to single women and lesbian couples. Bills were introduced in Parliament and rejected allegedly due to the need to discuss same-sex parental rights more broadly in the context of Portuguese society.

The case of adoption is even more curious. Both joint adoption and second parent adoption are legally unavailable to same-sex couples in Portugal. However, singular individuals, regardless of their sexual orientation, can adopt a child. In 2013, the matter finally arrived to Parliament thanks to the radical left (represented by the Left Block), the Greens, and some Socialist MPs. Whereas the Block championed joint adoption by same-sex couples and the Greens favored all forms of adoption, the Socialist MPs adopted a cautious position and stuck to second parent adoption. Once again, the arguments used by the latter during debates assumed an appeasing and normalizing tone: the need to avoid the institutionalization of a child following the death of his/her legal parent instead of leaving him/her under the custody of the other (legally non-existent) parent.[18]

The Socialist MPs’ bill was thus presented as an attempt to protect the ‘child’s best interests’ and to legalize the situation of children who were already being reared by same-sex parents. It was finally approved on May 15, 2013, by a mere five votes. Almost all the left-wing and 16 Social-Democrat MPs voted for it.

The Catholic Church rose up against this outcome. The spokesman for the Portuguese Episcopal Conference emphasized that, according to the Church, adoption is not a right that belongs to the adults but rather to the child, and he repeated an time-worn argument: “every child, throughout his/her evolution towards adulthood, needs the masculinity/femininity complementarity that is offered first and foremost by the biological father and mother or by the substitute family.”[19]

Nevertheless, the matter seemed to be closed, as the bill was simply awaiting detailed regulation. Yet, in January 2014, the youth organization of the Social-Democrat Party put forward a motion for a referendum on second parent and joint adoption by same-sex couples. The arguments that supported this parliamentary initiative were as follows: (i) adoption by same-sex couples had already been rejected twice in Parliament; (ii) there was no overall consensus among the experts called to advise the MPs about the adoption bills and so the matter should be subject to national debate; (iii) the matter referred to fundamental values and rights and, for this reason, the Portuguese should vote according to their consciousness; (iv) the Socialist MPs’ initiative was ‘disruptive’ and ‘partial’, since it covered only part of the situations included in the matter of adoption by same-sex couples.[20] The motion came with the imposition of disciplinary measures on Social-Democrat MPs and apparently it was approved exclusively for this reason.

The reasons for this political twist are yet to be known. The fact is that it unleashed the vocal protests of the other political parties and LGB activists and led to the resignation of the Vice President of the Social-Democrat Party, who had voted for the second parent adoption bill.

The Constitutional Court pronouncement issued in February 2014 considered the request to be both unconstitutional and illegal, since the questions that were to be subject to a referendum focused on two different matters – second parent adoption and joint adoption – and were therefore likely to influence one another and confuse the voters.[21] Additionally, the petition intended the referendum to pertain only to Portuguese citizens living in Portugal, clearly limiting, according to the majority of the Constitutional Court judges, the citizenship rights of those who live abroad. As a result, the motion was returned to Parliament and the regulation of the bill on second parent adoption was rescheduled to March 2014, only to be rejected by some scarce four votes.

 

Concluding remarks

The victories of Portuguese LGB activists have been swift and accomplished, with no major social or political conflict. In two decades, Portuguese lesbians, gays, and bisexuals achieved the decriminalization of consented homosexual acts, the legal protection of same-sex unions, and the approval of different laws that punish discrimination on the grounds of sexual orientation. Surely this has been due to gradual changes in mores; but it also reflects the fundamental role that both LGB activists and political leaders can have in social changes.

The latest Eurobarometer data on the Europeans’ position regarding same-sex marriage and adoption date back to 2006. Back then, only 29 percent and 19 percent of the Portuguese favored same-sex marriage and adoption, respectively.[22] A more recent survey showed that Portugal was the fifth country of the EU27 where discrimination on the grounds of sexual orientation was more persistent according to the perception of the respondents, placing it slightly above the middle position on the scale of acceptance of a gay or lesbian political leader.[23] In 2012, a survey of the lesbian, gay, bisexual, and transgender population (LGBT) of EU27 + Croatia revealed that 51 percent of the Portuguese respondents considered they had been discriminated against in the prior 12 months due to their sexual orientation or gender identity, a percentage close to the EU27 + Croatia average (47 percent).[24] Direct or indirect experience of discrimination in schools, where negative comments and attitudes toward LGBTs appear to be common, was particularly high (always 80 percent or more) regardless of nationality; however, it reached 95 percent among the Portuguese. Disbelief in the possibility of changing such state of affairs and awareness of its ordinary nature were the two main reasons provided by LGBTs for not reporting such incidents.

Such data show the persistence of beliefs in the inadequacy of non-normative sexualities, identities, and families. And this is important to understanding why the legal protection and rights that come with heterosexual unions are usually more extensive than those granted to same-sex unions. In Portugal, this is particularly obvious when we focus on parental and reproductive rights. While a thorough analysis of parliamentary and public debates on this subject is yet to be accomplished, it seems clear that LGBs continue to be commonly portrayed as unfit parents. The future will show whether this state of affairs is about to change.

 

Ana Maria Brandão is an Adjunct Professor in the Department of Sociology and a Fellow Researcher of the Social Sciences Research Center at the University of Minho (Portugal). Her major research interests include socio-legal studies; gender, sexuality, and identity; and social research methodologies.

Tânia Cristina Machado is a Junior Researcher at the Social Sciences Research Center at the University of Minho (Portugal). Her major research interests include gender, sexuality, family, and law. She is currently working on her doctoral dissertation, which focuses on lesbian motherhood in Portugal and is funded by the Portuguese Foundation for Science and Technology.

 


[1] Immanuel Wallerstein, The Modern World-System, vol. I (New York: Academic Press, 1974).

[2] Octávio José Carreira Gameiro, “Do Acto à Identidade: Orientação sexual e estruturação social”, (master’s thesis, Instituto de Ciências Sociais da Universidade de Lisboa, 1998).

[3] Gameiro, “Do Acto à Identidade”; António Fernando Cascais, “O Associativismo GLBT português,” Revista Crítica de Ciências Sociais 76 (2006): 109–29.

[4] Cascais, “O Associativismo GLBT português”; Ana Cristina Santos, A Lei do Desejo: Direitos humanos e minorias sexuais em Portugal. Porto: Afrontamento, 2005.

[5] Cascais, “O Associativismo GLBT português”; Ana Luísa Amaral and Gabriela Moita, “Como se faz (e se desfaz) o armário: Algumas representações da homossexualidade no Portugal de hoje,” Indisciplinar a Teoria: Estudos Gays, lésbicos e queer, organized by António Fernando Cascais, 99–115. n.p.: Fenda, 2004; Gameiro, “Do Acto à Identidade.”

[6] Ana Maria Brandão, “Not Quite Women: Lesbian Activism in Portugal,” in Transforming Gendered Well-Being in Europe: The Impact of Social Movements, ed. A. Woodward, J.-M. Bonvin, and M. Renom (Farnham: Ashgate, 2011); Nuno Carneiro and Isabel Menezes, “From an Oppressed Citizenship to Affirmative Identities: Lesbian and Gay Political Participation in Portugal,” Journal of Homosexuality 53, no. 3 (2007): 65–82; Cascais, “O Associativismo GLBT português”; Ana Cristina Santos, “Molduras públicas de performatividade queer e representação mediática em Portugal.” ex-aequo 20 (2009): 97–112 and “Are We There Yet? Queer Sexual Encounters, Legal Recognition and Homonormativity,” Journal of Gender Studies 22, no. 1 (2013): 2–11.

[7] Santos, A Lei do Desejo, 123.

[8] Cascais, “O Associativismo GLBT português”; Santos, A Lei do Desejo.

[9] The common economy regime refers to a life arrangement between two or more people (at least one of which must be over 18 years old) who live in a “communion of table and residence for more than two years and who have set a common living based  on  shared  assistance  and  resources”  (Article  2). Unlike  cohabitation,  the common  economy  regime  does  not  grant  to  the  surviving  partner(s)  access  to social   security    or   to   a  survival    pension     upon    the   other    partner’s    death.

[10] For a detailed analysis of the legal changes regarding same-sex unions in Portugal, see Ana Maria Brandão and Tânia Cristina Machado, “How Equal is Equality? Discussions about Same-Sex Marriage in Portugal,” Sexualities 15, no. 5–6 (2012): 662–78.

[11] Along with Spain, Belgium, and the Netherlands.

[12] Jürgen Gerhards, “Non-Discrimination towards Homosexuality: The Union’s Policy and Citizens’ Attitudes towards Homosexuality in 27 European Countries,” International Sociology 25, no. 5 (2010): 5–28; and Tom W. Smith, “Cross-National Differences in Attitudes towards Homosexuality,” GSS Cross-national Report 31 (2011): 1–33.

[13] Santos, “Are We There Yet?”, 4.

[14] Diane Richardson, “Claiming Citizenship? Sexuality, Citizenship and Lesbian/Feminist Theory,” Sexualities 3, no. 2 (2000): 255–72; Diane Richardson, “Desiring Sameness? The Rise of Neoliberal Politics of Normalisation,” Antipode 37, no. 3 (2005): 515–35; and Roger Raupp Rios, “Para um direito democrático da sexualidade,” Horizontes Antropológicos 26 (2006): 71–100.

[15] Roughly this corresponds to one third of the individual’s patrimony. The law determines how the remaining two thirds are to be divided by his/her heirs. However, it is not uncommon for the part of the patrimony that the individual may, in principle, dispose of freely to be disputed in court by his/her (other) heirs.

[16] For a finer analysis of this matter, see Tânia Cristina Machado and Ana Maria Brandão, “Regulating Lesbian Motherhood: Gender, Sexuality and Medically Assisted Reproduction in Portugal,” Laws 2 (2013): 469–82.

[17] Anne Dana, “The State of Surrogacy Laws: Determining Legal Parentage for Gay Fathers,” Duke Journal of Gender Law & Policy 18, no. 2 (2011): 353–90.

[18] Partido Socialista, “Projecto de lei n.º 278/XII – Consagra a possibilidade de co-adoção pelo cônjuge ou unido de facto do mesmo sexo e procede à 23.ª alteração ao Código do Registo Civil,” Diário da Assembleia da República II series A (223/XII/1, 2013): 5–9.

[19] Agência ECCLESIA, 2013, “Igreja contra coadoção por homossexuais,”Agência ECCLESIA, 17 May, <www.agencia.ecclesia.pt/cgi-bin/noticia.pl?id=95526>.

[20] Partido Social Democrata,“Projeto de resolução n.º 857/XII – Propõe a realização de um referendo sobre a possibilidade de co-adoção pelo cônjuge ou unido de facto do mesmo sexo e sobre a possibilidade de adopção por casais do mesmo sexo, casados ou unidos de facto,” Diário da Assembleia da República II series A (14/XII/3, 2013): 35–36.

[21] The questions were: 1: “Do you think the spouse or partner of a same-sex couple should be able to adopt the child of his/her spouse or partner?” and 2: “Do you think same-sex couples should be able to adopt?”

[22] European Commission, Eurobarometer 66: Public Opinion in the European Union (Brussels: European Commission, 2007).

[23] Average of 5.7 in a 10-position scale. The UE27 average was 6.6. European Commission, Special Eurobarometer 393: Discrimination in the EU in 2012 (Brussels: European Commission, 2012).

[24] European Union Agency for Fundamental Rights, European Union Lesbian, Gay, Bisexual and Transgender Survey: Results at a Glance (Luxembourg: Publications Office of the European Union, 2013).

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