A growing number of countries are legalising same-sex marriage, and Chile is no exception. However, this recognition of the rights of lesbian, gay, bisexual, and transgender (LGBT) Chileans is the product of years of debate.
The project on legislating equal marriage dates back to March 2008, when a group of parliamentarians presented the initiative but did not have sufficient support for its approval. Then, in 2010, the initiative was again proposed, but it was also rejected.
In 2015, a Civil Union law was passed and recognised the union between same-sex couples but differentiated it from civil marriage itself. Even though civil union law made some progress in protecting family diversity, it did not provide equal rights, for example, parental and adoption rights.
So, on 28 August 2017, former President Michelle Bachelet sent the equal marriage bill to the National Congress. Processing began in September 2017, and finally, on 10 December 2021, the Equal Marriage Law (Law No. 21,400, which ‘Amends Various Legal Texts to Regulate on Equal Terms the Marriage of Persons of the Same-Sex’), was published. On 10 March 2022, the law entered into force.
The main message of the law is that the family is the nucleus of society, and therefore marriage should be recognised as having a special, preferential, and protected status. It recognises the right of all individuals to have access to the institution of marriage, regardless of their sexual identity or orientation.
The new law grants equal access to civil marriage to individuals of the same sex. This leads to several consequences in Chilean legislation. Among them, is the recognition of ‘filiation’ (having a child) for same-sex families, whether by assisted reproduction or adoption, and access to patrimonial property regimes: a same-sex couple can now choose between separation of property or joint property when they marry.
In relation to employment, it modifies several regulations, such as the Labour Code, Law No. 16,744 on Occupational Accidents and Occupational Diseases, and DFL No. 150 on the Unified System of Family Benefits and Unemployment Benefits System. The consequences are mainly related to expressions such as ‘married woman’ or ‘wife’, which have been replaced by a generic form of ‘spouse’ that applies to married people of the same sex.
This states that working mothers’ maternity protection rights (regulated in that part of the Code) will apply to the mother or pregnant person, regardless of her registered sex (covering situations where gender identity and registered sex differ).
This means the mother or pregnant person will have the same rights as the working mother, regardless of gender identity, so maternity leave, and sick leave for a child under one year of age, among other rights, will also apply. The rights granted to the father will also be extended to the non-pregnant parent.
As a result, the new law extends full parental rights to same-sex parents and expands spousal benefits and adoption rights for married same-sex couples.
With this law, Chile has brought its legislation into line with eight other Latin American countries that already allow same-sex marriage.
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