The Supreme Courts and LGBT rights in Latin America

Abstract

Derived from the mapping of the recognition of national rights in favor of LGBT people in Latin America and the identification of the approval mechanisms that have been followed from 2002 to 2020 by the Observatory of Political Reforms in Latin America (REFPOL), an analysis is presented of the role that the Supreme Courts have had in the region regarding the recognition of these rights based on strategic litigation due to human rights that groups and organizations of non-heteronormative or cis-normative populations have undertaken, as an alternative to the invisibilizations, discrimination, and violence that the national democratic contexts still continue to exert upon these populations. When the path of approval of LGBT rights has been denied by Congresses in Latin American countries, the most frequent route to follow is that of strategic litigation, which finds a positive channel when the composition of the Court has attenuated its conservative features. It is observed that when the recognition of LGBT rights is achieved, it contributes to cracking the patriarchal-heterosexual-cisgender order in which liberal democracy was traditionally based; however, the access route to obtaining the right through the Supreme Courts perpetuates the judicialization of rights for LGBT people, which does not happen with cisgender-heterosexual people.