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A Minority Within a Minority

While some same-sex Hispanic couples enjoy new benefits, others fight for legal equality and acceptance

En español | On the day New York passed its marriage equality law, in June 2011, Alexis Rodriguez-Duarte lay in a Manhattan hospital bed with an intestinal infection. That scenario, says his partner, Humberto “Tico” Torres, convinced them to take advantage of the new law and get married.

See also: Defying the macho culture.

Despite 27 years of devotion and commitment to each other, they had no legal standing as a couple. Without being married, neither the hospital — nor any other institution — would recognize them as next-of-kin or allow one to make medical decisions if the other were incapacitated.

Two men embrace behind a rainbow flag, Same Sex Rights

Photo by: Corbis

“We realized that we really had no rights, that anything could happen to us at any time and we weren’t protected,” says Torres.

After Rodriguez-Duarte, 49, recovered, he and Torres, 50, signed up for a lottery to determine which gay and lesbian New Yorkers would be the first to legally marry in the Empire State. They said, “I do” on that historic first day: July 24, 2011.

Only New York, Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and the District of Columbia allow same-sex marriage. When it comes to the rest of the country, gays and lesbians do not have the choice — or the newly acquired benefits that come with it — that was presented to Rodriguez-Duarte and Torres.

“It was a beautiful day,” says Torres, “but bittersweet because [same-sex marriage is] a right being rejected across the country.”

As gay Latinos, photographer Rodriguez-Duarte and fashion stylist Torres consider themselves a minority within a minority. While some gay and lesbian Hispanics believe that Americans are more accepting of same-sex unions than people in their native countries, the couple isn’t so sure about tolerance in the Land of the Free.

Next: The right to decide. >>

“We live in the West Village [in lower Manhattan], a gay-friendly, bohemian neighborhood,” Torres says, “but on any day, you have to be careful.” In fact, a gay man was assaulted in late March in the neighborhood, apparently a hate crime. Even so, the two men take joy in introducing each other as “my husband,” and are pleased with the benefits marriage now affords them. They can make medical decisions if the other is incapacitated, for example, file joint state tax returns, and inherit the other’s assets in absence of a will.

Before getting married, the couple lived in Florida, where each landed after leaving Cuba in the 1960s. Torres grew up in Hialeah and Rodriguez-Duarte in Miami. The state has been slow in granting some rights to gays and lesbians; it was the last of all 50 to drop prohibitions against the adoption of children by homosexuals.

In Florida, the two paid an attorney about $3,000 to draw up documents protecting them with many rights heterosexual couples take for granted. “We had to put each other’s name on everything from our lease to bank accounts,” says Rodriguez-Duarte, speaking specifically to rights of survivorship.

Those rights are especially important, they say, when a partner dies. Despite a gay couple being together and amassing assets for 20 years or more, a partner’s family can legally come and take away everything that belonged to the deceased.

Elizabeth F. Schwartz, 40, a Miami attorney whose practice is devoted to issues the gay and lesbian community face, did the legal work for Rodriguez-Duarte and Torres. Laws like that recently passed by New York make a substantial amount of the paperwork Schwartz did unnecessary, she says, but no legislation can eradicate homophobia.

“It obviates some paperwork but doesn’t make all of it obsolete,” she says, noting that she advises all couples, straight or gay, to establish power-of-attorney for a spouse or loved one, even if they live in states where same-sex unions are legal.

Schwartz, a lesbian committed to the passage of marriage equality legislation not just in Florida but on the federal level, says, “Some of my most satisfying work comes from toiling away in a state where so much more work needs to be done.”   

Next: Two cultures, more challenges. >>

Two cultures, more challenges

Marcela Aguilar, 40, a public health manager in the Washington, D.C., metropolitan area, was born in Guatemala City, where gays and lesbians are not allowed to marry. Her fiancée, Ana, 43, comes from Mexico City, which passed a marriage equality law in December 2009.

The couple plans to marry in Maryland — where they live and which came close to passing marriage equality legislation in 2010 — when it’s legal to do so. “I live in the United States by choice,” Aguilar says, noting that laws in other countries, such as Argentina, make it much easier for gays and lesbians to live as they please.

Gay and lesbian Latinos in the United States, she says, negotiate the challenges of being homosexual in two cultures.  In the United States, for example, “people know we’re a couple,” she says. “We live openly and freely. Gay people are more visible on the streets and in the media.

“In Guatemala,” she says, “you don’t see [open homosexuality]. And if you see it, you don’t talk about it. You censor everything you say. It’s very tiring to be on guard day after day after day. People get beaten up and killed.”

It took her mother 15 years to tell relatives that her daughter was a lesbian. “Tears. Years of tears,” says Aguilar, whose relationship with her mom is repaired but still tenuous.

Of all the indignities she’s endured from her family, none was quite as distressing as two distinct conversations with her brother and sister, Aguilar says. Both professionals and raised in an upper-class Guatemalan household, they asked that she and her partner police their behavior and be “careful” when around their children. “I was upset,” she says, “very, very sad and upset.”

Aguilar’s upset, too, at how many fruits of a free and industrious society are denied her. “We are ineligible for thousands of benefits” available to the rest of the population, she says.

Under the 1995 Defense of Marriage Act, the federal government doesn’t recognize gay marriages. This means that same-sex couples, even if married in a state where it is legal, are ineligible for federal rights and protections in which marriage is a factor. In fact, there are at least 1,138 federal statutory provisions in which marital status can determine benefits and rights, according to a 2004 report by the U.S. Government Accountability Office. These include the ability to take family and medical leave or to receive Social Security survivors’ benefits or immigration benefits derived from being married to a U.S. citizen.

Even if a couple is legally married, federal law considers gay spouses to be domestic partners.  And while some employers might offer health insurance for domestic partners, whatever the employer pays for the partner is counted as taxable income. “We have to pay taxes on our health insurance. We can’t file joint tax returns,” says Aguilar. If Maryland doesn’t pass a gay marriage law in 2012, she and her partner plan to take their vows in Washington, D.C.

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