Mexico’s President Proposes Federal Recognition of Same-Sex Marriages and Gender Identification

Jim Burroway

May 17th, 2016

Los Pinos, the official office and residence of the President of Mexico.

Los Pinos, the official office and residence of the President of Mexico.

One important way to understand how a few things are supposed to work in Mexico is to recall that the country’s official name translates as the Mexican United States. This refers to the fact that like here in the U.S.A., Mexico’s system of government is designed to work on a federalist model, with some powers reserved for the national government, and some powers reserved for the states. Their lines on which powers go where are drawn differently than here in the U.S., but in one way they are the same: only states can regulate what constitutes a valid marriage. The federal government’s role, like in the U.S., is limited to deciding what marriages the government will recognize. Mexico’s federal government cannot mandate marriage equality nationwide, nor can it prohibit it. It can, however, make perfectly legal and valid same-sex marriages irrelevant with regard to what gets recognized at the federal level.

And so as was the case in the U.S. under the Defense of Marriage Act, which barred our federal government from recognizing same-sex marriage even in states where those marriages were legal, Mexico’s Federal Civil Code also bars the national recognition of same-sex marriage even in the eight of Mexico’s 31 states, plus the Federal District, where same-sex marriage is legal.

There are only two mechanisms by which the federal government can impose same-sex marriage on the states. The first involves a very lengthy multi-year long process by which the Mexican Supreme Court can strike down marriage restrictions in each individual state, but it can only do that one state at a time, and even then it can only do that if it reaches the same conclusion five times in a row in five individual states. The Supreme Court has already done this a number of times, and has more or less ordered lower court judges to do the same when similar cases are filed in their jurisdictions. The second method is via a constitutional amendment, which rarely happens and is fraught with political peril. For example, marriage equality opponents could hijack the process to impose a national ban on same-sex marriage.

With all of that taken together, this announcement that was posted to the Presidential web site seems so important. Here is a highly unofficial translation:

The President of the Republic, Enrique Peña Nieto, led the ceremony of the National Day of the Fight Against Homophobia, at the residence of Los Pinos.

“I reaffirm my Government’s commitment to non-discrimination and building a Mexico, like you, Ari also said so, truly inclusive, where all people can exercise their rights fully.”

…He submitted proposals to the Secretariat of the Interior [which formally presents the president’s bills to Congress — JB] and the National Council to Prevent Discrimination, so that together with the competent agencies, they can analyze each of the proposals and, where appropriate, take necessary actions to address them.

The first package of reforms sent to Congress stemming from the recommendations of the Dialogues for Everyday Justice, calls for the identification and reform of Mexican legal standards including discriminatory content.

From this, four presidential determinations were derived:

First. An initiative to reform Article 4 of the Constitution was signed to clearly incorporate the judgment of the Supreme Court of Justice of the Nation which recognized as a human right that people can marry without discrimination.

That is, that marriages are made without discrimination based on ethnic or national origin, disability, social status, health conditions, religion, gender or sexual preference. Thus, equal marriage would be explicit in the Constitution.

“I do it with the conviction that the Mexican State must prevent discrimination for any reason and to ensure equal rights for all people.”

Second. An initiative to reform the Federal Civil Code was sent to ensure equal marriage. So that it can be carried out without discrimination among people over 18 years, in line with what already establishes the General Law on the Rights of Children and Adolescents.

This reform proposal modernizes the language to avoid discriminatory expressions which still exists in the Federal Code. It also contemplates that consulates, in its role as Civil Registry Judges, can issue new birth certificates to recognize gender identity.

The Ministry of Foreign Affairs received directives to take the necessary steps so that, in the passport application process, it will recognize and accept, without any distinction, birth certificates which register a change in gender.

Third. The Legal Counsel of the Federal Executive, together with the institutions that participated in the Dialogs for Everyday Justice, are to identify any other federal, state or municipal law which could involve some form of discrimination, in accordance with the criteria of the Supreme Court of Justice of the Nation.

For this determination to be democratic and inclusive, a micro site on page of the Presidency of the Republic will open to receive citizen proposals. These will be analyzed by the Ministry itself, CIDE and the Institute of Legal Research of UNAM (the National Autonomous University of Mexico), in order to propose the necessary legal changes needed to eliminate discrimination.

In the case of local or municipal regulations, it will inform those authorities of those levels of government of proposals to initiate a reform process.

Fourth. Mexico, as an actor with global responsibility, will be part of the Nucleus Group on Homosexual, Lesbian, Bisexual, Transgender or Intersex Persons of the United Nations, in which 19 countries from different regions are involved, and which promote human rights internationally.

“Today, as we are here witnessing, having this meeting is very important in the evolution, that as a society we are taking a step. That the Government of Mexico has the conviction and wants to promote, and want to really ensure that in our country all and all Mexicans, regardless of their social status, religion, sexual preference, their ethnicity, no matter what his condition, has the opportunity to be fully realized, and has a chance to be happy.”

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