Mexico: Mexico Becomes the Second Country in Latin America to Provide National Anti-Discrimination Protection for LGBTs

SUMMARY

Last week, the Mexican Parliament unanimously passed a "Federal Law to Prevent and Eliminate Discrimination" that includes "Sexual preferences" as a protected category. The law creates the National Council to Prevent Discrimination, a body with the power to investigate discriminatory acts committed by public officers.

Up to now, the only country in Latin America having nation-wide protection against discrimination on the basis of sexual orientation was Ecuador.

BACKGROUND

Article 4 of the Federal Law to Prevent and Eliminate Discrimination defines discrimination as "every distinction, exclusion or restriction based on ethnic or national origin, sex, age, disability, social or economic status, health, pregnancy, language, religion, opinion, sexual preferences, civil status or any other, impedes recognition or enjoyment or rights and real equality in terms of opportunities for people".

Article 9 defines as "discriminatory behavior" -among others- "impeding access to public or private education … prohibiting free choice of employment, restricting access, permanency or promotion in employment… deny or restrict information on reproductive rights …deny or condition medical services …impede participation in civil, political or any other kind of organizations … to impede the exercise of property rights … to offend, ridicule or promote violence through messages and images displayed in communications media …to impede access to social security and its benefits … to impede access to any public service or private institution providing services to the public, as well as limiting access and freedom of movement in public spaces … to exploit or treat in an abusive or degrading way …to restrict participation in sports, recreation or cultural activities …incitement to hatred, violence, rejection, ridicule, defamation, slander, persecution or exclusion … promote or indulge in physical or psychological abuse based on physical appearance or dress, talk, mannerisms or for openly acknowledging one's sexual preference [emphasis added].

The National Council to Prevent Discrimination is created by Article 16. Its mission is to "formulate and promote public policies for equal opportunity and treatment … coordinate all actions aimed at preventing and eliminating discrimination" (Article 17)
Article 31 creates an Advisory Assembly that will advice the Council. Between 10 and 20 citizens, from the "private, social and academic sectors" will be its members. Non-governmental organizations can propose candidates for the Assembly.

Organizations as well as individuals might submit complaints if they feel affected by discrimination in any form (Article 43). The Council will provide legal advice to victims of discrimination (Article 45). Complaints might be submitted in person, by phone or email.

In the case of discriminatory acts committed by public officers, the Council will first demand an explanation from the accused party. If the public officer involved does not reply, the discriminatory act will be taken as proven. (Articles 60-61). Then, the Council will call both parties for a conciliation hearing (Article 65). During the proceedings, both parties will argue their case and the Council will suggest different solutions for solving the problem (Art. 66). If an agreement is reached, a document will be signed by both parties and by the Council. If no agreement is reached, the Council is entitled to punish the public officer guilty of discriminatory acts, after having investigated the allegations.

If the discriminatory act was committed by an individual or private institution, the Council will suggest a conciliatory hearing and do their best to mediate between the parties (Article 82).

The Council will promote non-discriminatory behavior at public institutions through sensitivity workshops and specific campaigns (Article 84).

INTERNATIONAL LEGAL FRAMEWORK

The right to be free from discrimination is protected by the Universal Declaration of Human Rights (UDHR) in its Articles 2 and 7, by the International Covenant on Civil and Political Rights (ICCPR) in its Articles 2 and 26, and by the Interamerican Convention on Human Rights (ICHR) in its Articles 1.1 and 24.

The United Nations Human Rights Committee affirmed in its decision in Toonen v Australia (1994) that existing protections against discrimination in Articles 2 and 26 of the ICCPR should be understood to include sexual orientation as a protected status. Numerous other human rights mechanisms of the United Nations have subsequently condemned discrimination based on sexual orientation.

Countries that have nation-wide protection against discrimination based on sexual orientation include Canada (Canadian Human Rights Act, since 1996); Ecuador (Article 23 in the Constitution, since 1998), Ireland (Equal Status Act, since 2000), New Zealand (Human Rights Act, since 1993), South Africa (Article 98 in the Constitution, since 1996) and Switzerland (Article 8 in the Constitution, since 1999).

Also, several countries prohibit discrimination based on sexual orientation in their Penal Codes. Among them are Denmark (since 1987), Finland (since 1995), France, Iceland (since 1996), Lithuania (since 2000), Luxembourg (since 1997), the Netherlands (since 1991), Norway (since 1981), Slovenia (since 1994), Spain (since 1995) and Sweden (since 1987).