Same-sex marriage is finally legal throughout Mexico

This week, the local congresses of the Mexican states of Guerrero and Tamaulipas made history by becoming the last of Mexico’s 32 states to end their local bans on same-sex marriage. The country’s LGBTQ+ rights movement had been on a roll for the last month, after seeing same-sex marriage laws passed in three other states, Durango, Tabasco and the state of Mexico (which comprises most of the suburbs of Mexico City, and is the country’s most populous).

It’s the culmination of a years-long, state-by-state struggle to win the right to marry that began when Mexico City became the first place to legalize same-sex marriage in Mexico in 2009. Back then, only seven countries had legalized same-sex marriage; today 34 do.

But while LGBTQ+ Mexicans are celebrating, the fight for queer equality and acceptance still has a long way to go. Violence and discrimination against queer people is so endemic in Mexico that the BBC recently declared it the second-most dangerous country in the world for trans people. 

“It’s quite complicated,” says Ninde MolRe, advocacy director of the LGBTQ+ activist group México Igualitario (Equal Mexico). “Finally, we are going to be citizens in all of the country and we won’t have to move to other towns and cities to have the right to marry. But we still have a long journey for all our rights.” 

The long road to marriage equality

The fight for same-sex marriage in Mexico began more than 13 years ago when Mexico City passed the nation’s first same-sex marriage law. Under Mexico’s federal system, marriage is an issue that is controlled by the individual states, so the fight for equal marriage required buy-in from legislators across the country. 

In the first six years after Mexico City passed a same-sex marriage law, only three other states allowed it: Coahuila, which is up by the U.S. border and passed its own law; its neighbour Chihuahua, whose governor simply stopped enforcing the ban; and Quintana Roo, where you’ll find Cancún, whose administration realized its marriage statutes were already gender-neutral and then allowed same-sex couples to start marrying.

In 2015, the Mexican Supreme Court ruled that same-sex couples had a right to marry under the non-discrimination clause of the federal constitution. Unfortunately, under the Mexican judicial system, the Supreme Court cannot simply strike down existing laws. Instead, the court’s “jurisprudential thesis” allowed individual couples to sue their states for an injunction or amparo to obtain a marriage licence. While this route was effective, it was time-consuming and expensive, putting it out of reach for many couples. 

“[The Supreme Court case] changed the movement because if the legislators didn’t do their work, we were going to force them. It changed a lot because the law allowed a lot of people to have their rights even if the politicians didn’t want to change the law,” MolRe says.

Unfinished business

The decision also kick-started action to demand state congresses update their marriage laws. But while all states now allow same-sex couples to marry, that’s not the full story. Two states, Chihuahua and Guanajuato, only allow it because governors have stopped enforcing laws that remain on the books—a decision that could be reversed by a future governor. Another three—Aguascalientes, Nuevo León and Chiapas—have had their bans on same-sex marriage invalidated by the Supreme Court under a rare process that allows the Court to invalidate laws that it finds unconstitutional only if they’re challenged shortly after they’re passed. All five need to have their laws formally amended to give same-sex couples legal certainty of their rights.

The states have not been consistent about updating their laws about adoption and recognition of parenthood for same-sex couples. Although the Supreme Court ruled in 2015 that same-sex couples must have equal access to adoption, 12 states maintain bans on same-sex couple adoption in their laws. Adoption bans and administrative procedures that don’t recognize same-sex parents can create expensive and stressful legal headaches for queer parents and would-be parents.

Mexico’s new president brings LGBTQ+ progress, but rising militarization and violence are a growing concern

One of the main drivers of legislative progress on LGBTQ+ issues since 2018 has been the rise to power of Mexican president Andrés Manuel López Obrador and his National Regeneration Movement party (called MORENA in Spanish) in the federal and many state governments. 

MORENA is a left-wing populist movement that views itself as leading a revolution in human and social rights, including the rights of queer people, women and racial minorities. López Obrador campaigned on a promise to support same-sex marriage and LGBTQ+ rights; in power, the party has passed bills on many LGBTQ+ issues, including marriage, adoption, hate crimes, gender recognition and conversion therapy. 

Activists say MORENA’s record remains a mixed bag. Many of the party’s broad coalition members come from Evangelical Christian groups and trans-exclusionary radical feminists who oppose LGBTQ+ rights, and these elements have thrown up roadblocks and delays on many issues. 

“MORENA has allowed many changes in many states that didn’t want to recognize many rights, like abortion, equal marriage, LGBTQ+ rights, gender identity. But in MORENA there are many trans-exclusionary feminists who are pushing against rights for LGBTQ+ people. That’s why equal marriage is advancing, but we don’t have this advance in gender identity recognition,” MolRe says.

Some activists say that López Obrador’s reforms to the justice system, which have involved a massive militarization of policing and the public service, ostensibly to crack down on drug cartels and corruption, have put queer people in greater danger. 

“In the last two years, we’ve been seeing militarization from the government. It’s harmful for all human rights. Many of the attacks on LGBTQ+ people in general come from police and military,” MolRe says. “In a meeting with the UN, some trans women shared their stories about being harassed by cartels, police and military.” 

Tragically, the numbers bear out this fear. In 2019, at least 117 LGBTQ+ people were murdered in Mexico, a 27 percent increase from the previous year, more than half of whom were trans women. Ironically for a left-wing government, deep cuts to social services and government agencies have worsened social conditions for many of the country’s most vulnerable, including the poor, women and queer people. 

“In the last few years we have seen an increase in violence in public spaces, in malls, in public bathrooms. This year we had two attacks on two lesbian couples in the streets in Mexico City. That was really an alarm for the movement, because we always thought Mexico City was a safe place for queer people in the country,” MolRe says. 

“I had to move here from Hidalgo because of my activism because I’m a lesbian. I came to the city because I was looking for a safe place, but in the last two years, the violence has increased. We have seen a change in the law and the authorities, [but] society is becoming more intolerant. We are really worried because we don’t know where to move,” she says. “Some towns are really open to LGBTQ+ people, but it depends where you are and who you are, because it intersects with racism and classism.”

Queer migrants face particular risks

Although the headline issue around migrants in Mexico is large numbers of people attempting to enter the United States, Mexico is also a destination for queer refugees from across Latin America, as well as a large number of queer internal migrants who relocate to larger cities because they fear for their safety. 

But activists say the Mexican law does not take into consideration the particular needs of queer migrants. Mexico does not recognize anti-LGBTQ+ violence as a reason to claim asylum, leading many queer migrants from Latin America to press on to the United States and Canada where they hope to reach asylum. 

“In Latin America, the situation for LGBTQ+ people is very hard. They actually are immigrating because of the violence against them. We need that recognition from the government, so they can have a job and buy things,” MolRe says. “What we saw is that they are asking for asylum in Canada and [the] U.S., because when they arrive here they see that things aren’t so good.”

Additionally, internal migrants can face difficulties accessing services when they are forced to relocate across state lines. 

“Mexico doesn’t recognize yet this kind of movement inside the country that we are facing because of the increase in the violence in general,” MolRe says.

How LGBTQ+ activists are fighting back

Despite the danger, Mexico’s LGBTQ+ communities are increasingly organized and fighting back to claim their rights as citizens. Pride marches are more and more common across the country, and LGBTQ+ activists routinely demonstrate in front of state legislatures during debates on queer issues.

LGBTQ+ activists appear to be remarkably unified on the key issues they want to see advanced in law: passing laws to allow legal gender change (currently legal in only 19 states) and non-binary identities (only legal in Mexico City); passing hate crime laws (currently only passed in 17 states); and banning conversion therapy (currently banned in 11 states, with a federal ban currently being debated in congress). 

The push for greater LGBTQ+ rights has found a natural ally in Mexico’s strong women’s movement, which has been galvanized by government cutbacks to social services that support women and a staggering rise in femicides. The women’s movement won a major victory this year when the Supreme Court ruled that state bans on abortion are unconstitutional, but now must work state by state to get legislators to remove bans from state penal codes, just as the LGBTQ+ movement had to do with equal marriage. Not only is the fight similar, but anti-LGBTQ+ legislators frequently tie their moral opposition to queer rights with their opposition to abortion, underscoring how the two movements are inextricably related. 

Despite the obvious challenges, Mexico’s queer people have made remarkably quick progress on securing their legal rights.

As México Igualitario tweeted shortly after Tamaulipas became the final state to legalize same-sex marriage, the organizations and networks developed over the decades-long, ongoing fight for queer equality, will continue to boldly fight to protect the gains they’ve made and secure true equality and freedom.

“… if the fight for marriage has taught us anything, it is that we are stronger, resilient, patient and tenacious. There is much to fight for and there is much to defend, but we will continue to break down the barriers.”