Evolution of the Sexuality Law in Cuba

AuthorNorka Garcia
PositionSt. Thomas University School of Law
Pages899-931
e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2017 e Institute for Migrant Rights Press
I dedicate this article to my daughter, who is only ve years old for whom I which
a better world, free of prejudice about sex orientation or of any other kind. I would
also like to dedicate this paper to my best friend, Mariam Rodriguez, who is gay
and is still living in Cuba, who suered because still today, at her 33 years old, had
been unable to get out as a lesbian because she is afraid of her mother reaction to the
change, still suering the impact of the Cuban Revolution on the old generations in
regards to the perception toward homosexuals and transgenders. Finally I would like
to dedicate this paper to all the people that in Cuba, and any other country in this
world, are currently suering any kind of discrimination for their sexual orientation.
To my Professor Amy D. Ronner, for all the support and eort she had put on me,
for believing on me and for help me out with all my work in this project. Further I
would like to thanks my partner and father of my daughter for all his comprehension
on this journey through Law School and all his support.
EVOLUTION OF SEXUALITY LAW IN CUBA
FROM 1959 TO THE PRESENT, WITH AN EMPHASIS ON
THE TRANSGENDER PERSONS
Norka Garcia
St. omas University School of Law
E-mail: norka1031@yahoo.com
I. INTRODUCTION
Aer the Cuban Revolution on January 1, 1959,1 the government on
the island managed many changes. A new form of government started
to emerge,2 and aspirations about human rights and democracy were
1. República de Cuba [Republic of Cuba], www.ecured.cu. See also W,
Cuban Revolution, http://en.wikipedia.org/wiki/Cuban_Revolution “e rev-
olution began in July 1953 and continued sporadically until the rebels nally
ousted Batista on January 1st, 1959, replacing his government with a revolu-
tionary socialist state.
2. República de Cuba [Republic of Cuba], www.ecured.cu. See also W,
IV Indonesian Journal of International & Comparative Law 899-931 (October 2017)
900
Garcia
present all over the island. Years passed, and the people began to see
how everything became dierent from what the country had experi-
enced before. Education and medical treatments started to be public
and free.3 e Cuban Constitution4 also established: “[e Estate] guar-
antee the men liberty and whole dignity, the enjoyment of his rights . .
. . And the complete development of his personality.5 Questions arise:
What does the Cuban Constitution mean by “guarantee the men, liber-
ty, dignity and complete development of his personality? Does this lan-
guage of the Constitution mean that a person can develop his personal-
ity as girl, or boy, as he or she may desire, independently of the gender
with which the person was born? Can this language in the Constitution
be read as a right to a person to develop into a transgender person, for
example, or does “complete development of personality” mean some-
thing else? is paper, posing and answering these questions, will try
to provide a history of the situation the transgender community had
confronted during the era of Socialism in Cuba, and demonstrate that
this language in the Constitution does not encompass the right to be a
transgender person.
Politics of Cuba, http://en.wikipedia.org/wiki/Politics_of_Cuba. “Cuba has
had, according to the Constitution, a democratic centralist political system
since 1959 based on the “one state-one party” principle.
3. Constitución de la República de Cuba [Constitution] Feb. 24, 1976, art. 9. (Ex-
plaining all the services and rights the Cuban government promise to facilitate
to Cubans) [Translated from the Spanish Language by the author.] e public
healthcare system in Cuba covers all citizens. Private hospitals, doctor’s prac-
tices, and other private medical facilities do not exist. Instead, all health-related
facilities and services are run by the government. Universal vaccinations and
other universal programs have almost eradicated diseases like polio, rubella,
tuberculosis, or chicken pox. e education is also free and run by the govern-
ment.
4. WIPO, Cuba: Constitution of the Republic of Cuba, www.wipo.int/wipolex/
en/details.jsp?id=10663. “e current Constitution of Cuba was adopted by
referendum on February 24, 1976, and was amended three times in 1978, 1992
and in 2002. It establishes that Cuba is an independent, sovereign and social-
ist State of workers (Articles 1), whose governmental organs are the National
Assembly of the Popular Power, the State Council and the Council of Minis-
ters, and Supreme Popular Court with the rest of the Courts,” www.wipo.int/
wipolex/en/details.jsp?id=10663.
5. Constitución de la República de Cuba [Constitution] Feb. 24, 1976, art. 9.
[Translated from the Spanish Language by the author.]
901
Evolution of Sexuality Law in Cuba
Garcia
is note will explore the dierent movements to support the
transgender community, and more importantly, will focus its attention
on the more recent changes toward recognition of gay and transgender
person’s rights in Cuba. While the Cuban government has been
recognizing more and more rights for the transgender persons for the
good of that community, much work still needs to be done, that is, the
transgender community is facing issues and is deprived of rights that
heterosexuals enjoy freely.
e rst part of this project will explain the Cuban form of
government to provide the reader with an idea of how laws are created
in Cuba and the role of judicial power in that country. is last aspect
will become relevant when analyzing the last two decades of the
revolution and its movement toward acceptance of certain rights for
the transgender community. Next, the second part will focus on the
rst years of the Cuban revolution and their impact on the transgender
community. How through “work camps” and medical experiments,
the socialist government of Fidel Castro was trying to eradicate the
problem of homosexuality and transgender on the island.
e third part is designed to explore the more recent years of the
Revolution and to explain how the transgender community has been
gaining acceptance from the government, and to demonstrate that
even though there are still rights that are not given to transgender
persons, they are making many improvements on the rights they
are enjoying. is part is also designed to introduce and explain the
impact of the CENESEX6 in the transgender community in Cuba
and to provide a legal analysis of some articles of the Cuban Family
Code and Decree Law 76 of the Republic of Cuba relating to who can
adopt in Cuba and how. In the same way, the paper briey exposes the
changes presented to the National Assembly of Popular Power in order
to provide transgender persons and LGBTQ community the right to
have their marital unions recognized by the government. Even though
the propositions never give them the right to a legal marriage,7 all the
6. ECURED, Centro Nacional de Educación Sexual [National Center for Sex Edu-
cation], https://www.ecured.cu/Centro_Nacional_de_Educacion_Sexual.
7. Gerardo Arreola, Analizan en Cuba reformas para otorgar derechos legales a
uniones homosexuales, [Cuba discusses reforms to grant legal rights to homo-
sexual unions], June 17, 2007. CUBAINFORMACION, http://www.cubain-
formacion.tv/index.php/politica/27346-analizan-en-cuba-reforma-para-otor-

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