From February 2 to April 30, 2022, Cubans debated the proposed Families Code in 79,000 public meetings across the country. In these public meetings, and in social media, Cubans shared their fears, some stoked by neofundamentalist Christian preachers and feeding long-held prejudices, and others based in a cautious reading of recent history, in which the Cuban state has at times seemed to waffle in its commitment to guarantee the rights of LGBTQ+ Cubans and their families.
What Is the Families Code, and Why Has It Been Controversial?
In September 2021, the Cuban Ministry of Justice published a draft of the new Families Code to replace the 1975 Cuban Family Code which currently regulates marriage, divorce, adoption, paternity, custody, and support. When it came into effect on International Women’s Day in 1975, it was a victory for women’s equality on the island. Moving away from Spanish Civil Law, this Family Code was part of the “Revolution within the Revolution,” radical in the protections that it offered Cuban women, declaring that women and men have equal rights within marriage and making all marital property, including wages, joint property. It also gave women equal rights in access to divorce, with both parents retaining responsibility for the care and support of children. The following year, the 1976 Constitution carried the torch a step further, establishing that women enjoyed “the same rights as men in the economic, political and social fields as well as in the family” (Article 41) and guaranteed the right to work to both men and women (Article 43).
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However, much has changed in the world, and in Cuba, since the 1975 Family Code. Families have changed, and so has Cuban society. The plural “Families” that has replaced “Family” in the new code is a recognition that today Cuban families take many different forms, beyond the nuclear family dominated by a male father figure that was once idealized in Cuban law. For decades, Cuban jurists, psychologists, and social scientists have been advocating for a law to address the changing needs of Cuban society. They have also been busy behind the scenes drafting a law designed to empower and protect children, adolescents, women, the elderly, and people with disabilities.
The draft of the new Families Code, shared with the public in September 2021, was the twenty-second draft written by experts. In addition to legalizing same sex marriage, the new Code removes barriers to family formation through adoption and assisted reproduction that previously excluded same-sex couples and unmarried adults, as well as recognizing multiparentality and extending protections to families formed through surrogacy and gamete donation. The new law also outlaws child marriage, raising the legal age for marriage to eighteen.
LGBTQ+ Cubans today fear that they may once again see their rights bargained away to appease fundamentalist Christians with an agenda to impose their beliefs on others through new laws.
Despite all it has to offer, from the get-go the proposed Families Code has become the latest battlefield in an ongoing conflict that surfaced in 2018 during the public debates around the new Cuban Constitution between socially conservative anti-LGBTQ+ Christian churches and progressive forces on the island.
Fears of LGBTQ+ Cubans
LGBTQ+ Cubans today fear that they may once again see their rights bargained away to appease fundamentalist Christians with an agenda to impose their beliefs on others through new laws. Their weariness of the state’s current commitment to defend LGBTQ+ Cubans began in the summer of 2018, when the government made public the text of the new Constitution. The draft included Article 68 with language that would end the discriminatory exclusion of same-sex couples from marriage. For many progressive Cubans this was a welcome change.
“I remember thinking, ‘It’s about time!” said Alejandra, a thirty-five year old heterosexual mother of two in Havana. “This is the Cuba I want to live in, this is the country that I want for my children, for the next generation.”
“I remember we just all had our fingers crossed, just waiting for them to release the text of the Constitution and hoping, hoping that same-sex marriage would make it into the proposal”, says Miguel who identifies as a gay man. “I was ecstatic when I heard that same-sex marriage had been included. I felt like a door was opening to me. That I was included. I felt like the state was saying that I mattered, that my family mattered, and for a minute all the homophobia we deal with everyday seemed unimportant. With the state on our side I really had hope that could all change too.”
For LGBTQ+ Cubans the introduction of Article 68 in the proposed Constitution was a moment they will never forget.
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“For people of my generation I think in the beginning it was hard for us to understand exactly how much the inclusion of Article 68 meant to our LGBTQ+ elders, who have suffered from generations of exclusion and homophobia, to finally see the state positioning itself as defending their rights,” explains Daniela, a LGBTQ+ activist in her twenties. “For them it felt like a recognition, an apology that they have been waiting their whole lives to hear.”
However, shortly after the text became public, a small group of Evangelical churches calling themselves the defenders of family “as biblically defined” began their crusade against Article 68. Pastors from the Western Cuba Baptist Convention, “Asambleas de Dios” Evangelical Pentecostal Church, the Eastern Baptist Convention, the Evangelical League of Cuba, and the Methodist Church of Cuba sent an official letter of complaint and mobilized their flocks, threatening to undermine the new Constitution, and with it the legitimacy of the new president.
“We are talking about recognizing and protecting fundamental human rights, that is not something that should be decided by referendum…”Claudia, Cuban LGBTQ+ Activist
President Miguel Diaz-Canel had just taken office a couple months before, and was eager to prove that his government enjoyed widespread popular support and represented continuity with the Revolution despite the lack of Castros in the government. There was fear that if the new Constitution did not pass by overwhelming majorities that it could be used by enemies abroad as “proof” that Diaz-Canel’s government did not enjoy popular legitimacy, even justifying foriegn intervention.
To avoid such scenarios, in December 2018 the National Assembly conceded to demands to remove Article 68, adding a rider to the Constitution that promised that the question of marriage would be defined in the new Families Code which could only be approved by voters in a National Referendum after extensive grassroots consultation. As William Leogrande, a professor of government at American University has described, “They kicked the can down the road to not put the referendum at risk.”
In February 2019, 86.85% of ballots cast voted to approve the new Constitution, but that would not be the end of the story. Activists in Cuba have widely criticized the addition of the rider, which added a new hurdle for LGBTQ+ Cubans seeking legal protections of their basic human rights. After the approval of the new Cuban Constitution more than 70 laws must now be updated, but the much debated Families Code is only one to be submitted to an extensive consultation process and approval by referendum.
“We are talking about recognizing and protecting fundamental human rights, that is not something that should be decided by referendum. People don’t get to deny others’ basic human rights,” said Claudia, an LGBTQ+ activist on the island. “The state is handing over that power, the power to exclude and discriminate.”
“I think right now, after all that we have fought to help people understand how important the new Families Code is for all Cubans, my biggest fear is that they might do the same thing that they did with Article 68, just cave in and take it out,” said another young activist.
On May 14, in a special legislative session of the National Assembly, the National Electoral Council will report on the results of the consultation and the 397,000 comments collected in the three months of official listening sessions. The committee that drafted the Families Code is expected to make revisions and the Ministry of Justice will present the final version of the law during the special session next week. According to the 2019 Cuban Constitution, this law, and only this law, must be approved by a simple majority in a national referendum. No official date has been set for this important vote, but it is rumored that it may occur in September 2022.