Summary
Discrimination (by both state and private actors) on the grounds of sexual orientation and gender identity is prohibited by the Establece Medidas Contra la Discriminación (Measurements against Discrimination), 2012. In the first ruling under the law, a court ordered a motel to pay a $4000 fine for refusing accommodation to a same-sex couple. Pamela Zapata Pichinae y Carla de la Fuente Vergara contra Sociedad Comercial Marin Limitada, Tercer Juzgado Civil de Santiago (December 5, 2012).
The Código Penal (Penal Code), as modified by the Establece Medidas Contra la Discriminación, 2012, labels violent crimes motivated by discrimination (including on grounds of sexual orientation and gender identity) as hate crimes, and this motivation is treated as an aggravating factor in sentencing.
The Código del Trabajo (Labour Code), as modified by the Establece Medidas Contra la Discriminación, 2012, prohibits discrimination in employment on the basis of sex, sexual orientation, gender identity, and marital status.
Same-sex sexual activity is legal in Chile (it was decriminalized in 1999 by Ley No 19617); however, sodomy laws set the age of consent for male same-sex sexual activity at 18 years whereas the age of consent for opposite-sex sexual activity is 14 years (Código Penal de Chile).
Same-sex marriage is banned by Article 102 of the Chilean Civil Code (“El matrimonio es un contrato solemne por el cual un hombre y una mujer se unen actual e indisolublemente, y por toda la vida, con el fin de vivir juntos, de procrear, y de auxiliarse mutuamente”). The Tribunal Constitucional recently ruled that it is within the exclusive jurisdiction of the Chilean Parliament to modify laws concerning marriage. See No. 1881-10, Tribunal Constitucional de Chile (November 3, 2011).
Currently, same-sex civil unions are not recognized in Chile. A civil union law was introduced by President Piñera in 2011 (Proyecto de ley que establece y regula el acuerdo de vida en pareja) but as of the writing of this report is still being debated.
In 2007, a landmark lawsuit brought by Andres Ignacio Rivera Duarte resulted in recognition of the rights of transgender persons to legally change their name and sex. Duarte was granted a change of sex without having had phalloplasty. Currently, however, there is no specific law that allows this reassignment. The decision must be supported by medical and legal documents and is left entirely to the discretion of the courts.
A sex and gender identity law (Proyectos de ley sobre identidad de género) was introduced to the Chilean legislature in 2012 but as of the writing of this report has not yet been passed. The proposed law would give transgender individuals the right to have their sex and gender identity recognized by the law and would regulate the process for gender reassignment surgery.
The current law allows for name changes only, and has no reference to a change of sex markers. An individual can change his/her name if the name produces discrimination and if the person has already been called by the new name for more than five years (Ley 17344: Autoriza el cambio de nombres y apellidos en los casos que indica, 1998).
In a custody case originating in Chile, the Inter-American Court of Human Rights ruled that sexual orientation is a protected ground under the American Convention and cannot be used as a reason to deny a parent custody of his or her children (Caso Atala Riffo y Niñas v Chile, 2012). Chile has stated that it will abide by this ruling.
link to full text in PDF: Chile-SOGI Legislation Country Report-2013-eng