MEXICO CITY, MEXICO – Lawyer Jaime López was diagnosed with kidney cancer in 2008. But he did not have health insurance to cover his treatment.
As a sole practitioner, López did not have access to any public social security services available in Mexico through its two social security agencies. The Instituto Mexicano del Seguro Social offers these benefits to employees of private companies, and Instituto de Seguridad y Servicios Sociales de los Trabajadores del Estado offers them to government employees.
David González, López’s partner of 10 years, had health insurance through IMSS and tried to enroll López as his beneficiary. But IMSS denied their request because they were not married. The laws governing the social security agencies extend benefits to only spouses and concubines.
By that point, López had already had his left kidney surgically removed to prevent the cancer from spreading.
Since 2008, he has been receiving medical care at the Instituto Nacional de Cancerología, a public hospital in Mexico City for people without social security. He must pay for services out of pocket.
López says he does not know how much money he has spent on his medical treatment. But he has had two operations and currently obtains medical consultations, which cost 400 pesos ($33), every six months.
In March 2010, López and González became one of the first four couples to marry in Mexico City, only one week after the legalization of same-sex marriage took effect in the federal district.
Once married, González again attempted to enroll López as a beneficiary. But IMSS denied them again – this time because the social security law governing the agency did not recognize same-sex marriage.
Since then, López has pushed for changes in legislation governing the IMSS and ISSSTE to recognize the right of same-sex couples to share social security benefits.
On May 13, ISSSTE changed its internal policy to enable same-sex couples to register their spouses. But ultimately, it is up to Congress to revise the social security laws governing the agencies, the Ley del Seguro Social and the Ley del ISSSTE.
López has been instrumental in legislation that the Chamber of Deputies has passed to enable same-sex couples to share benefits. He is currently working with senators to develop legislation that would clear both bodies.
Three years after same-sex marriage became legal in Mexico City, spouses are still not guaranteed access to each other’s benefits because of technicalities that have stalled proposals to modify the social security laws in Congress. Some couples have found alternative legal routes to obtain this right. ISSSTE changed its internal policy in May 2013, but the Senate is still developing its proposal to modify the social security laws. Meanwhile, legal experts and same-sex couples call on judges and society to broaden their definitions of marriage to prevent discrimination.
The Mexico City government recognized marriage between people of the same sex in December 2009. Since the legalization took effect in March 2010, more than 2,000 couples have married in the federal district, López says.
But as López and González have learned, marriage does not carry equal rights for heterosexual and homosexual couples, such as the right to share social security benefits. Social security benefits in Mexico include health insurance, pensions, housing credits, child care and financial assistance for funerals.
The national Chamber of Deputies passed an initiative in November 2010 to reform the social security laws to include same-sex marriage, says López, who has been involved in the process through the civil association that he leads, Agenda LGBT. But the Senate rejected it on a language technicality because it included civil unions such as cohabitation, which could also include people who live together but are not in a partnership.
The Senate returned the proposal to the Chamber of Deputies, which introduced another initiative. But it again included civil unions, so the Senate rejected it anew. So far, these technicalities have prevented the reformation of the social security laws to enable married same-sex couples to share benefits, López says.
This has forced couples to take lengthy alternative legal routes.
Like López and González, Lol Kin Castañeda, 37, and Judith Vázquez, 48, were also one of the first same-sex couples to legally marry in Mexico City. They, too, could not share social security benefits.
Castañeda has health insurance through IMSS. In April 2010, she tried to register her wife, but staff at the medical unit of IMSS told her it could not process her request because the electronic system did not accept the registration of two women.
Calling the argument absurd, they again presented their application to the medical unit’s registration office. The office forwarded the request to the higher-level regional subdelegation. Four months later, the office responded that the social security law did not include the option to enroll same-sex couples.
But Castañeda says she and her spouse possessed all the requirements to add a spouse as a beneficiary under the law: identification of the insured, a document indicating the insured’s social security number, the spouse’s information and a certified copy of their marriage certificate.
“If I have the marriage certificate, what is the limitation?” she asks. “There is not one.”
So in August 2010, Castañeda and Vázquez solicited an injunction, a legal resource for citizens to protect their fundamental rights in front of an act of authority. In November, a judge granted it to them under the argument that the interpretation of the law was discriminatory and did not guarantee the recognition of their human rights. Castañeda was finally able to add her wife to her insurance in January 2011.
“Up to nine months later,” she says. “It is a 15-minute process. And you have to deal with looks, jokes, lack of training of the employees, investing in a lawyer. That is how unequal it is.”
She and López say this reflects the discrimination that still exists against the gay community in Mexico, both socially and institutionally.
In March 2013, two married men, who declined to be named to avoid reprisal for being gay, found another legal route. They filed a complaint of a human rights violation with the Comisión Nacional de los Derechos Humanos, the national human rights commisson.
The one spouse, 56, receives his social security from IMSS. His spouse, 60, attains his coverage through ISSSTE. Although they married in March 2010, they were not able to access each other’s benefits, which is a particular concern at their age, they say.
“For us, as a married couple, it is important that inheritance rights and being able to protect your partner in difficult situations are recognized, including in the case of death of one of the two,” the 60-year-old spouse says.
They first presented their case to ISSSTE, which denied their application on the grounds that the law governing the agency did not include the possibility of registering a same-sex marriage. Several months later, they tried to file an injunction, but the legal deadline to do so had passed.
“As we had neither the legal knowledge nor a counselor to advise us,” the 56-year-old says, “we did not know we had a deadline.”
They decided to seek legal help and met López, who suggested they file complaints of a human rights violation with the human rights commission and and of discrimination with the Consejo Nacional para Prevenir la Discriminación, the national discrimination prevention council.
In March 2013, the human rights commission ruled in their favor and immediately directed them to ISSSTE, which added the one spouse as a beneficiary of the other two days after the ruling. Now, they plan to use the same legal tactics to achieve mutual membership in the IMSS.
“For me, it means one step more in the recognition of the rights that every human being should have without any discrimination, without any distinction,” the 56-year-old says.
But the fact that same-sex couples have to undergo this kind of process to access a right remains discriminatory, he says.
“If a couple formed by a man and a woman does not have to do all these legal proceedings, why does a [same-sex couple] have to do it, if we are not doing anything wrong?” he asks.
Slowly, this situation is changing.
On May 13, ISSSTE began enabling same-sex couples to register their spouses after modifying its internal policies.
The social communication office at IMSS has not responded to interview requests to find out whether it will follow suit or to comment on allegations of discrimination.
The Senate’s Comisión de Seguridad Social is preparing a new initiative to reform the social security laws that govern both agencies, López says. They already include marriage and concubinage of heterosexual couples but need to explicitly include homosexual couples.
“The changes to the laws of IMSS and ISSSTE are to provide security, not to recognize legal forms,” López says.
Sen. Fernando Mayans Canabal, chairman of the committee, did not respond to repeated interview requests made through his private secretary, Francisco Martínez, about the commission’s progress.
Meanwhile, Daniel Márquez, a social law researcher at the Instituto de Investigaciones Jurídicas at the Universidad Nacional Autónoma de México, says there is no need to change the laws to explicitly give same-sex couples access to social security benefits. Rather, judges must properly interpret the current laws.
A marriage is simply a civil contract between two people, says Márquez, who has his doctorate in law. So the principle must also apply to the protection of social security and inheritance for both heterosexual and homosexual couples without having to explicitly say so.
“It has become an excessively literal interpretation of the law,” Márquez says.
The 56-year-old who recently obtained access to his partner’s benefits says it is not just judges who have to expand their interpretations of marriage. Discrimination will end only when there is a cultural change in society to accept same-sex marriage.
“A simple change in the laws does not give automatic equality or rights,” he says.
Interviews were translated from Spanish.
