LGBT rights in Portugal

LGBT rights in Portugal

Location of  Portugal  (dark green)

– in Europe  (light green & dark grey)
– in the European Union  (light green)  –  [Legend]

Same-sex sexual activity legal? Legal since 1982;
Age of consent equalized in 2007
Military service Gays and lesbians allowed to serve openly
Discrimination protections Sexual orientation and gender identity protections (see below)
Family rights
Recognition of
relationships		 Unregistered cohabitation since 2001,[1]
Same-sex marriage since 2010
Adoption Yes, since 2016

Lesbian, gay, bisexual and transgender (LGBT) rights in Portugal have improved substantially in the past decade and are now among the best in the world. After a long period of oppression during the Salazar dictatorship, Portuguese society has become increasingly accepting of homosexuality,[2] which was decriminalized in 1982,[3] eight years after the Carnation Revolution. Portugal has wide-ranging anti-discrimination laws and is one of the few countries in the world to contain a ban on discrimination based on sexual orientation in its Constitution. Since 5 June 2010, the state became the eighth in the world to recognize same-sex marriage.[4][5][6][7] On 1 March 2011 the President ratified the Law of Gender Identity, said to be the most advanced in the world, which simplifies the process of sex and name change for transgender people.[8][9] Same-sex adoption is allowed since 1 March 2016.[10]

Law regarding same-sex sexual activity

Same-sex sexual activity was first decriminalised in 1852, under Mary II and Ferdinand II, but it was made a crime again in 1886, under Louis I, and Portugal gradually became more oppressive of homosexuals until and throughout the dictatorship years.[11] It wasn't until 1982 that same-sex sexual activity was decriminalised again, and the age of consent was equalized with different-sex activity at 14 years of age in 2007.

Gender identity/expression

Discrimination based on gender expression is illegal by the Portuguese law. Formal approval of sex reassignment is recognised.

On 19 January 2015, the Portuguese Parliament voted for the inclusion of gender identity as a protected ground of discrimination in the field of employment. Gender identity will now be added to sexual orientation and several other grounds in the non-discrimination clauses of the Portuguese Labour Code.[12]

Discrimination protections and hate crimes laws

In 2003, laws against discrimination based on sexual orientation in employment came into effect concerning three particular measures: access to work and employment, protection against discrimination in work and against sexual harassment.[13] Since 2004, the Constitution prohibits any form of discrimination based on sexual orientation, making Portugal one of the only countries in the world to enshrine a ban on discrimination based on sexual orientation in its constitution.[13][14] A new Penal Code in 2007 came in force which strengthened the anti-discrimination legislation much further, containing several provisions that relate to sexual orientation in three aspects: recognition of same-sex relationships through protection in the same means as to different-sex relationships, such as against domestic violence and murder; equal age of consent between same-sex and different-sex relationships; and sexual orientation being considered an aggravating circumstance relating to homicide, thus, organizing, supporting or encouraging discrimination and violence towards persons or groups based on sexual orientation (like other discriminations such as race and religious beliefs) is criminalized.[15]

In 2013, the Portugal Parliament passed a law that adds "gender identity" to the hate crimes provision in the Penal Code - that already includes "sexual orientation" since 2007.[16]

In 2015, the Portuguese Parliament unanimously approved a measure to formally adopt 17 May as the 'National Day Against Homophobia and Transphobia'. In doing so, the Parliament committed to "engage in fulfilling national and international commitments to combat homophobic and transphobic discrimination".[17]

Recognition of same-sex relationships

Portugal has recognized unregistered cohabitation since 5 May 2001, and same-sex marriage since 5 June 2010.[18] Same-sex marriage was legalized under the second term of the Socrates Socialist Government, and passed the Portuguese Parliament with the support of other leftist parties. Same-sex married couples are granted all of the rights of different-sex married couples. The law that provides the rights to jointly adopt children and to have access to IVF has been enforced starting 1 March 2016.[19] The Penal Code was amended in 2007 to equalize the age of consent and to criminalize domestic violence in same-sex relationships, thus equalising treatment with opposite-sex couples.[15] The bill was fiercely opposed by conservatives.

Adoption and family planning

See also: LGBT adoption

Since 2016, Portuguese law has allowed adoption of children by same-sex couples. Prior to that reform, same-sex couples were barred from adoption rights and informally forbidden of receiving children in a refuge family or of any legal kind, although there have been several court rulings sending children to live with same-sex family couples. The 2015/16 legislative reforms also made access to IVF services available to same-sex couples, where previously such couples were banned from the service. Surrogacy remains prohibited.

In the past, Portugal has been forced to pay a fine due to homophobic statements from a court that ruled against a gay father's right for his daughter's custody. The European Court of Human Rights received the case and ruled in favor of the father in 1999, demanding the custody back to him and issuing a penalty for the country. In March 2011 the President ratified the new Law of Gender Identity, which, among other things, does not impose sterility for transsexuals, thus recognizing biological LGBT parenting, concerning cases of lesbian or bisexual transwomen who keep their semen before therapy and surgery to be able to later conceive with their spouses, creating a perfectly legal and recognized case of children with biological same-sex parents. This will certainly open discussion for the legal contemplation of other LGBT parenting rights.

On 17 May 2013, the Parliament rejected a bill allowing same-sex couples to adopt children, in a 104-77 vote. On the same day the parliament approved in the first reading a bill allowing same-sex married couples to adopt their partner's children (i.e. step-child adoption).[20] However, a bill was rejected in the second reading on 14 March 2014, in a 107-112 vote.[21] Another bills granting adoption rights to same-sex parents and carers, as well as in-vitro fertilisation for lesbian relationships, were introduced in Parliament by the current opposition Socialist and Left Block parties on 16 January 2015.[22] On 22 January, Parliament rejected the proposals.[23]

On 23 September 2015, parties from the Left majority in Parliament submitted bills to grant same-sex couples full adoption rights as well as access to intro-vitro fertilisation.[24][25][26] On 20 November 2015, 5 proposals regarding adoption rights were approved by the parliament in the first reading.[27] The bills were then moved to the Constitutional Affairs, Rights, Freedoms and Guarantees Committee where they were merged into one project and approved on 16 December 2015.[28] On 18 December 2015, the bill was approved by Parliament.[29][30] On 25 January 2016, one day after the presidential election, the outgoing President Aníbal Cavaco Silva vetoed the adoption bill.[31] The Left majority in Parliament announced their intention to override the veto. On 10 February 2016, the veto from outgoing President was overturned by Parliament.[32] The President begrudgingly signed the bill into law on 19 February 2016.[33] It was published in the official journal on 29 February. The law took effect the first day of the first month after its publication (i.e. 1 March 2016).[34]

Living conditions

Gay Pride in Lisbon

Although there are several cases of public prejudice against LGBT people, there is a dynamic gay scene in Lisbon,[2] Porto and in the main touristic cities in the Algarve[2] region, like Faro, Lagos, Albufeira and Tavira, with gay bars, pubs, nightclubs and beaches (in the Algarve). Other smaller cities and regions such as Aveiro, Leiria, Coimbra, Braga, Évora and Madeira have more discreet gay communities, not very visible to the public eye. In Lisbon, most LGBT-oriented businesses are grouped around the bohemian Bairro Alto[35] and the adjacent Príncipe Real[35] and Chiado neighbourhoods.[36][37] In both Lisbon and Porto there are also annual Gay Pride Parades that attract thousands of participants and spectators. Lisbon is also host to one of the largest LGBT film festivals in Europe – Queer Lisboa – the Lisbon Gay & Lesbian Film Festival. Some Portuguese beaches are popular among LGBT population, like 19 Beach, near Costa da Caparica, and Barril Naturist Beach (an official naturist beach) or Cacela Velha beach, both of them near Tavira.[36][38]

Public opinion

A Eurobarometer survey published in late 2006 showed that only 29% of Portuguese surveyed support same-sex marriage and 19% recognise same-sex couple's right to adopt (EU-wide average 44% and 33%).[39]

Opinions on same-sex marriage have considerably changed in 2009 with the discussion of the same-sex marriage bill. A survey by the Universidade Catolica reveals that 42% of the inquired citizens were in favour of same-sex marriage and another recent survey by Eurosondagem, Radio Renascenca, SIC TV, and the Expresso newspaper stated that about 52% of the Portuguese are in favour of same sex marriages.[40][41] Most recently, an Angus Reid poll on 11 January 2010, showed that 45.5% of those polled were in support of same-sex marriage, but this was less than the 49.3% that opposed. A Eurobarometer survey published in 2015 showed that support for same sex marriage had risen significantly to 61%.[42]

Views on adoption had not been changed significantly at the time same-sex marriage was passed into law: only 21.7% favor adoption while 68.4% oppose allowing gay couples to adopt.[43] However, during the debate on the parliament's initiative to legalize joint-adoption for same sex-couples, polls showed the majority of the population supported both joint-adoption and full adoption rights [44]

Eurobarometer

Below is the share of respondents in Portugal who agreed with the following statements in the 2015 Special Eurobarometer on discrimination.[45] The last column is the change from the 2006 Eurobarometer where respondents were presented the slightly different statement "Homosexual marriages should be allowed throughout Europe".[46]

Member state "Gay and lesbian people
should have the same rights
as heterosexual people"		 "There is nothing wrong
in a sexual relationship between
two persons of the same sex"		 "Same sex marriages should be
allowed throughout Europe"		 Change from 2006
on last statement
 Portugal 71% 59% 61% +32

Military Service

Portugal allows all citizens to serve openly in the military regardless of sexual orientation, as the constitution explicitly forbids any discrimination on that basis, therefore openly allowing lesbians and gays to serve in the military.[47]

In April 2016, Portugal's armed forces chief General Carlos Jerónimo resigned, days after being summoned to explain comments about gay soldiers made by the deputy head of the military college. President Marcelo Rebelo de Sousa accepted the resignation of Jerónimo, who took up the post of chief of staff in 2014. The resignation came after António Grilo, deputy head of the military college, admitted advising parents of young military students in the Portuguese army to withdraw their sons if they were gay "to protect them from the other students". Defence Minister Azeredo Lopes considered any discrimination "absolutely unacceptable".[48]

Summary table

Unofficial flag of the Portuguese LGBT community
Same-sex sexual activity legal (From 1852 to 1886; and since 1982)
Equal age of consent (Since 2007)
Anti-discrimination laws in employment (Since 2003)
Anti-discrimination laws in all other areas (Since 2004)
Homophobia and transphobia hate/speech crime (Since 2007 for homophobia and since 2013 for transphobia)
Same-sex marriage (Since 2010)
Recognition of same-sex unions (Since 2001)
Step-child adoption by same-sex couples (Since 2016)
Joint adoption by same-sex couples (Since 2016)
Gays allowed to serve in the military (Since 1999)[49]
Sex reassignment allowed (counseling, therapy and surgery) (Since 2011)
Right to change legal gender (Since 2011)[50]
MSMs allowed to donate blood (Since 2010)[51][52]
Sexual orientation/gender identity for asylum recognition (Since 2005)[53]
Automatic parenthood for both spouses after birth (pending)
Access to artificial insemination/IVF for lesbian couples (pending)
Commercial surrogacy for gay male couples (Illegal for all couples regardless of sexual orientation)

See also

References

  1. ↑ International: Global Summary of Registered Partnership, Domestic Partnership, and Marriage Laws, stand as of November 2003, International Gay and Lesbian Human Rights Commission
  2. 1 2 3 Mark Ellingham, John Fisher, Graham Kenyon: The rough guide to Portugal, Rough Guides, 2002, ISBN 9781858288772, p. 49.
  3. ↑ (Portuguese) PortugalPride.org
  4. ↑ (Portuguese) Lei n.° 9/2010 de 31 de Maio Permite o casamento civil entre pessoas do mesmo sexo
  5. ↑ (Portuguese) Segunda-feira já vai ser possível celebrar casamentos entre pessoas do mesmo sexo
  6. ↑ Portugal becomes the sixth country in Europe to legalise gay marriage, Kate Loveys, Daily Mail, 18 May 2010
  7. ↑ Portugal's president to ratify same-sex marriage law, BBC News, 17 May 2010
  8. ↑ (Portuguese) Statement of the Presidency of the Republic on the bill referring to sex change in civil registries
  9. ↑ Cavaco Silva ratifies the bill referring to sex change in civil registries
  10. ↑ Lei n.º 2/2016 de 29 de fevereiro
  11. ↑ (Portuguese) O Estado Novo dizia que não havia homossexuais, mas perseguia-os
  12. ↑ ILGA-Europe
  13. 1 2 (Portuguese) Homossexualidade é crime em 75 países
  14. ↑ (Portuguese) Constituição da república Portuguesa
  15. 1 2 (Portuguese) Vigésima terceira alteração ao Código Penal, Alterações Lei N° 59/2007 de 4 de Setembro
  16. ↑
  17. ↑
  18. ↑ Portugal's president ratifies gay marriage law, Business Week, Barry Hatton
  19. ↑
  20. ↑ Portugal Expands Adoption Rights for Gay Couples
  21. ↑ (Portuguese) Projeto de Lei 278/XII
  22. ↑ Duffy, Nick (11 January 2015). "Portugal: Opposition party to table same-sex adoption bill". Pink News. Retrieved 25 July 2015.
  23. ↑ "Portuguese parliament votes against gay couples adopting". Agence France-Presse (MSN News). 22 January 2015. Retrieved 25 July 2015.
  24. ↑ Projeto de Lei 5/XIII: Elimina as discriminações no acesso à adoção, apadrinhamento civil e demais relações jurídicas familiares, procedendo à segunda alteração à Lei n.º 7/2001, de 11 de maio, e à primeira alteração à Lei n.º 9/2010, de 31 de maio
  25. ↑ Projeto de Lei 2/XIII: Eliminação da impossibilidade legal de adoção por casais do mesmo sexo. Primeira alteração à Lei n.º 9/2010, de 31 de maio e segunda alteração à Lei n.º 7/2001, de 11 de maio
  26. ↑ Projeto de Lei 6/XIII: Segunda Alteração à Lei n.º 32/2006, de 26 de Junho, alargando o âmbito dos beneficiários das técnicas de Procriação Medicamente Assistida
  27. ↑ Portugal Allows Same-Sex Adoption, Artificial Insemination
  28. ↑ Votação na Reunião da Comissão nº. 7 em 2015-12-16
  29. ↑ Votação final: 17 deputados do PSD votaram a favor da adoção plena
  30. ↑ Cavaco decide promulgação da adopção gay e interrupção da gravidez até ao fim de Janeiro
  31. ↑ Portugal's outgoing president vetoes gay adoption bill
  32. ↑ Reuters: Portugal parliament overturns veto on adoption by gay couples
  33. ↑ "Cavaco promulgou adoção gay e alterações à lei do aborto". TSF Radio Noticias. 19 February 2016.
  34. ↑ Lei n.º 2/2016 de 29 de fevereiro
  35. 1 2 David J. J. Evans: Cadogan Guides Portugal, New Holland Publishers, 2004, p. 56., ISBN 9781860111266
  36. 1 2 Lisbon Gay Travel Guide & Map – Bars, Clubs, Hotels
  37. ↑ (Portuguese) O que é que o Chiado tem?
  38. ↑ The natural delights of Faro
  39. ↑ Eight EU Countries Back Same-Sex Marriage
  40. ↑ (Portuguese) Somos uma sociedade homofóbica?
  41. ↑ Portuguese support same-sex marriage, by a smidge
  42. ↑ https://www.reddit.com/r/MapPorn/comments/3qbl9l/eurobarometer_2015_same_sex_marriage_support_in/?
  43. ↑ Portuguese Split on Same-Sex Marriage
  44. ↑ http://expresso.sapo.pt/portugueses-querem-referendo-sobre-coadocao=f855888
  45. ↑ "Special Eurobarometer 437: Discrimination in the EU in 2015" (PDF). European Commission. October 2015.
  46. ↑ "Eurobarometer 66: Public opinion in the European Union" (PDF). European Commission. December 2006.
  47. ↑ Archived March 10, 2012, at the Wayback Machine.
  48. ↑ Zee News India, Portugal military chief resigns over remark on gay soldiers, 08.04.2016
  49. ↑ LGBT World legal wrap up survey
  50. ↑ (Portuguese) Comunicado na Presidência da República sobre o diploma relativo ao procedimento de mudança de sexo no registo civil
  51. ↑ (Portuguese) Aprovado diploma para permitir que homossexuais possam dar sangue
  52. ↑ (Portuguese) AR aprova diploma que permite a homossexuais dar sangue
  53. ↑ ILGA-Europe Annual Review 2015: Portugal
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