This is a short summary of the article “Overcoming the limits of Legal Opportunity Strctures – LGBT rights’ Divergent Paths in Costa Rica and Colombia, written by Bruce M. Wilson and Camila Gianella-Malca (published in the journal “Latin American Politics and Society”). The article is part of the LawTransform project Sexual and Reproductive Rights Lawfare: Global Battles.
Full article is available at: https://www.cambridge.org
Costa Rica and Colombia were amongst the first Latin American countries that aimed to protect LGBT rights. In the mid-2000s there was strong mobilization for the amplification of these rights, including through litigation for same-sex marriage. However, these attempts sparked much controversy, and led to a major anti-LGBT backlash from religious and conservative groups.
Colombia legalized same-sex marriage in 2016. Costa Rica still has not. Through judicial politics literature and a comparative perspective on the two countries, the article aims to explain this divergent outcome. It explores the role of courts in the improvement and setback of LGBT rights, and how courts – although receptive to many individual LGBT rights claims – are inclined to defer the question of legalization to popularly elected branches. However, whilst the Costa Rican courts showed complete deference, the Colombian court set conditions, deadlines and consequences. The article thus demonstrates that the courts can defer in different ways, and that this could have an impact on the effectiveness of the deference.
Despite limitations in the litigation strategy, the article demonstrates that courts can play an important role for marginalized groups whose rights are not being sufficiently protected by the popularly elected bodies. However, the litigation strategy may have different outcomes in different court systems.