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By Vero Ferrari, from Lima

Photo: Susel Paredes, Oscar Ugarteche and Fidel Aroche archive 

The Eleventh Constitutional Court of the Superior Court of Justice of Lima ordered the National Registry of Identification and Civil Status (Reniec) to register without restrictions the marriage certificate of Susel Paredes – a politician and activist – and Gracia Aljovín , who married in Miami in 2016. They initiated the process to have their marriage recognized in Peru, but Reniec denied their request at two administrative levels. Therefore, the couple filed a constitutional protection lawsuit, which has been resolved in their favor at the first instance.

Susel Paredes

Reniec's arguments for denying recognition were that the Constitution does not recognize the right to marriage between people of the same sex (but neither does it prohibit it), and that the Civil Code, in its article No. 234, only allows heterosexual marriages (but this is a rule of lower rank than the Constitution).

According to Reniec, the request was intended to impose “personal ideas.” Using the same logic, they indicated, the recognition of “polygamous marriages of Peruvians converted to Islam” would be demanded.

"The Constitution does not restrict same-sex marriage."

The Peruvian judiciary responded that the Constitution "does not expressly or implicitly restrict same-sex marriage." They also noted that the Inter-American Court of Human Rights issued a binding advisory opinion in 2017, ordering member states to recognize same-sex marriage and the rights of families in their broadest sense.

READ: States in the region must guarantee gender identity and marriage equality

The Judiciary concluded that the National Registry of Identification and Civil Status (Reniec), by refusing to register the marriage of Paredes and Aljovín, is violating the couple's fundamental rights. Therefore, it ordered that Article 234 of the Civil Code not be applied and that the Constitution be upheld.

How does the legal process continue?

It is highly likely that, although not mandatory, Reniec will appeal. In that case, the lawsuit will continue its course in the judicial system, awaiting further rulings in favor of Paredes and Aljovín. This could take several years.

“We still have a long way to go, but we have a lot of hope, enthusiasm, and strength. What we demand as the LGBTQ+ community is to be treated as equals in dignity and rights, and just as we pay our taxes, we demand that the State recognize our rights,” Susel wrote in Perú 21 after the news broke . “But beyond the law, what my partner and I aspire to is to live in a society where people are happy, and to build a prosperous country of happy people.”

READ MORE: How the Inter-American Court of Human Rights' decision to respect LGBT rights affects Peru

The struggle of Oscar and Fidel

Another couple has been seeking recognition of their marriage in Peru since 2012. They are Oscar Ugarteche (founder of the Lima Homosexual Movement) and his Mexican partner, Fidel Aroche . They married in 2011 and began the registration process in 2012, but the National Registry of Identification and Civil Status (Reniec) declared their request inadmissible three times.

The couple went to the Judiciary and the Fourth Civil Chamber of the Superior Court of Justice of Lima, in 2013, declared the resolutions of Reniec null and void, an institution that appealed again, so the Seventh Constitutional Court, in 2015, declared the couple's claim founded and ordered that the marriage certificate be registered.

Reniec filed an appeal for exception of prescription for not complying with the procedural deadlines (a formality) and the Fourth Civil Chamber declared the couple's claim inadmissible, so they elevated the case, in 2016, to the Constitutional Court, which must issue its resolution these days.

With the Constitutional Court's ruling, which is expected to be positive, Peru could join other countries in the region that have already legislated in favor of same-sex marriage and that protect and guarantee the formation of LGBTI families.

The regional context: in favor

“It is also necessary to take into account that, in addition to the State where this marriage ceremony was held (Florida, United States of America), the unrestricted recognition of the marriage union is in force in several countries of Europe and Latin America, such as; Argentina, Mexico, Brazil, Uruguay and Colombia , at the national level or in several of their States, according to their legislation, likewise civil unions are recognized in Ecuador and Chile .

This recognition has been carried out, in many cases by decisions of their courts of justice or by the legislature, through laws, so it can be considered that there is an understanding of the countries of the region in the process of adopting this type of marriage in their legislation and their jurisprudence , in many cases before the OC 24/17 was issued by the IACHR, so it is possible to consider that it is already a widely recognized right” (p. 16), the ruling says.

The ruling

“Those of us who constitute a majority of heterosexual people must accept change with tolerance, evolving legal concepts as rights and the concepts themselves expand. In this sense, the Peruvian Constitutional Court has changed since, in STC 139-2013, it considered homosexuality a pathology, deeming the validity of marriage between these individuals a form of legal activism; to a position more in line with the development of Conventional Law (STC 6040-2015 AA/TC) and the law already in force in positive laws in many countries of the world, considering this condition as dysphoria, which implies that it is not an illness (pathology), and cannot be classified as such according to medical standards, stipulating that the change of identity (which implies gender identity) is a justiciable matter in the ordinary courts, that is, understanding that a right exists in relation to said condition. In the specific case at hand, then, the plaintiffs seek recognition under Peruvian law, What is valid in the country where it was contracted, and should be valid in Peru, because there are international norms that protect this right, but also because the national norms were given in a pre-constitutional and pre-conventional circumstance (understanding that the later norms tacitly repeal the previous ones, if they oppose), that, likewise, societies must advance towards organizations and States of democratic tolerance, where minorities can access rights under equal conditions and without suffering, due to a certain condition, situations or norms that discriminate against them” (p. 17).