The Inter-American Court of Human Rights has spoken about gender identity and non-discrimination against same-sex couples. Would States listen?
On January 9th 2018, the Inter-American Court of Human Rights (IACtHR) released an Advisory Opinion, requested by Costa Rica in 2016, recognizing important features of the right to gender identity and non-discrimination against same-sex couples.
Source: Leiry C. Chavez
In summary, the IACtHR was asked to provide clarification on the interpretation and scope of articles 11 (2) (right to privacy: private life, family life, home and reputation); 18 (right to a name); and 24 (right to equal protection: non-discrimination before the law); in combination with article 1 (obligation to respect the rights of protected by the American Convention without discrimination), in relation to the following questions:
- Does the protection of gender identity, recognized by the American Convention, include the recognition and implementation of a mechanism for the change of name of individuals in accordance with their own gender identity?
- If so, is the existence of a judicial procedure for the change of name, instead of an administrative one, contrary to the American Convention?
- According to the American Convention, is the current Costa Rican judicial procedure for the change of name not applicable to individuals who wish to change their name based on their gender identity? Should they rather be given the possibility of resorting to a free, fast and accessible administrative procedure?
- Considering the right not to be discriminated against based on sexual orientation, should the State recognize all patrimonial rights stemming from a same-sex relationship?
- If so, is it necessary the existence of legal institution regulating the legal status of same-sex couples for the State to recognize all patrimonial rights stemming from such relationship?
This is certainly not the first time the IACtHR has dealt with questions regarding discrimination based on sexual orientation. For instance, in the cases of Atala Riffo and daughters v. Chile (2012), and Flor Freire v. Ecuador (2016), the IACtHR declared that sexual orientation and gender identity are categories protected by the American Convention and therefore any discriminatory norm, act or practice based on these categories are prohibited by it. Thus, the IACtHR demonstrates that it does not shy away from highly sensitive topics in the Latin-American context. Indeed, although some States include in their legal orders varied forms of protection for LGBTI rights, discrimination by State organs, its agents and society in general greatly prevents members of the LGBTI community from the fulfilment of a dignified life (vida digna). In the Advisory Opinion, the IACtHR reaffirmed its constant jurisprudence on these issues and used it to build a stronger and more advancing protection for the members of the LGBTI community. The conclusions of the IACtHR’s Advisory Opinion may be summarized as the following:
- The American Convention recognizes the right of individuals to change their name and to have the public registry and their identity documents modified accordingly, based on their gender identity. States are obliged to recognize, regulate and establish suitable procedures for such purposes.
- States must guarantee that procedures for modifying registry entries of gender or sex, changing name, and adapting images in the registry and/or identification documents are i) based on an self-perceived gender identity; ii) based on free and informed consent of the interested person without requiring medical or psychological certificates or other documents which may be unreasonable or pathologizing; iii) confidential, and amended documents should not reflect that changes were made based on gender identity; iv) expedient and, to the extent possible, without costs; v) not requiring the performance of surgical and/or hormonal treatments. Moreover, the IACtHR opined that administrative or notarial procedures are the most adequate ones for this type of request. States might offer an administrative procedure parallel to the judicial one allowing individuals to choose between them.
- The current Costa Rican judicial procedure for the change of name does not constitute a breach of the American Convention as long as its interpretation, based on the conventionality control, is performed respecting the standards set in this opinion.
- The Costa Rican State might incorporate said standards in a parallel administrative procedure established to comply with its obligation to guarantee the effective protection of human rights.
- The American Convention protects, based on the right to private and family life, and the right to family protection, the family bond stemming from a same-sex couple’s relationship.
- The State must recognize and guarantee all rights stemming from a family bond made up by same-sex couples.
- It is necessary that all States extend all legal institutions already existing in their legal orders –including the right to marriage – to secure the protection of the rights of all families formed by same-sex couples.
These findings have been welcomed by numerous human rights organizations and part of the Latin-American population, as they constitute an immense contribution to the continuous search for recognition of the rights of the LGBTI community. Moreover, some State organs’ representatives immediately reacted to the release of the Advisory Opinion stating they would comply with its conclusions. However, the media has also informed of negative reactions to the opinion coming from civil society and religious organizations. States have not yet released an official reply to the document.
Given the contentious nature of these findings, the reading of the advisory opinion reveals many interesting elements of the rationale followed by the IACtHR, and sheds light on current discussions about the legitimacy and self-awareness of this regional judicial organ. It must be recalled that the IACtHR has faced serious criticism about other controversial topics (e.g. Amnesties favoring perpetrators of human rights crimes) and some States have left (or considered to leave) its jurisdiction arguing lack of respect for their sovereignty and unlawful interference (e.g Venezuela, Dominican Republic).
Lack of regional consensus
Whereas the European Court of Human Rights resorts to the concept of consensus in order to either impose new standards or to allow a broad margin of appreciation to States when dealing with issues of high sensitivity and novelty (e.g the prohibition of the face veil, assisted sexual reproduction), the IACtHR has not been keen on using it in its practice. Such rejection is evident in this opinion, given that the IACtHR could have considered an evident growing regional State practice recognizing homosexual marriage (Argentina, Brasil, Colombia, Uruguay and some Mexican states) and civil partnership for same-sex couples (Chile and Ecuador) in order to argue for a growing consensus (see ECtHR, Christine Goodwin v. Uk). Nevertheless, it is perhaps the diversity and dissimilarity characterizing the regional process of recognition of LGBTI rights that makes the determination of those rights difficult to achieve. Such difficulties have been recognized by Costa Rica in its request for the advisory opinion, and have also been considered by the IACtHR itself when inter alia providing a list of (open and provisional) definitions of terms necessary to address the questions posed. Ultimately, the IACtHR concluded by refusing to give weight to the lack of consensus recognizing LGBTI rights, holding that it is not a valid argument to deny or limit rights or to perpetuate and reproduce historical and structural discrimination.
The influence and participation of civil society and individuals in IACtHR proceedings is not a novelty in the system. Such participation allows the IACtHR to consider positions that might not be strictly focused on the benefit of the parties to the case but on the rule of law and society in general. Yet, although advisory opinions have received a substantial amount of amicus briefs in the past (e.g. 30 organizations and individuals sent briefs in regard to the advisory opinion requested by Argentina on the limitations of designating ad hoc judges in interstate cases), it is noticeable that this controversial topic originated 91 briefs submitted by States, State, inter-State and international organizations, academic institutions, NGOs, and individuals. During public hearings, 40 delegations presented their arguments before the IACtHR. It is worth noticing that despite some States do not recognize same-sex unions or marriages, their submitted amicus briefs, often drafted by the executive, supported the recognition of patrimonial rights (e.g. Honduras, Mexico), revealing a clear discordance among State powers. Some others, however, based their positions on the subsidiarity principle arguing for the sovereign right of States to create their own legal institutions equivalent to heterosexual marriage (e.g. Guatemala, Bolivia).
International Law Sources
Demonstrating its willingness to maintain a permanent dialogue with other international and regional organs, the IACtHR did not limit itself to concepts developed by its own conventions and jurisprudence. Conversely, the IACtHR resorted to several international and regional instruments in order to give content to the rights of the American Convention. Many of those instruments are not binding agreements per se, but rather considered to be soft-law as they have not been directly subjected to the consent of States. The up-to-dateness of some of those instruments (e.g. the Yogyakarta Principles plus 10 launched in November 2017) indicates that the IACtHR is constantly reviewing the advances of international human rights law. Moreover, resort to those instruments is needed and justified by the fact that no international binding treaties specifically deal with gender identity and same-sex marriages.
 See www.efe.com/efe/america/sociedad/poder-judicial-peru-debe-respetar-decision-de-corteidh-sobre-matrimonio-gay/20000013-3489894
 Although the IACtHR based these arguments on the development of international and national law, their rationale can be traced to its decision in the Atala Riffo and daughters case against Chile.