Case Watch: Protecting Sexual Orientation Under Human Rights Mechanisms

In our “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to their work to advance human rights law around the world.

The right to live free from discrimination is a pillar of human rights enshrined in international law.  The Inter-American Court of Human Rights reiterated this fundamental tenet in its landmark decision in Karen Atala v. Chile (in Spanish) by affirming that sexual orientation and gender identity are protected categories under the American Convention on Human Rights.

In 2004, the Chilean Supreme Court awarded custody of Atala’s three daughters to her ex-husband on the grounds that her sexual orientation made her an unfit parent. The decision disregarded the findings of two appellate courts that Atala’s sexual orientation did not impair her ability to be a good parent. The Supreme Court based its decision on the notion that lesbian parenting is harmful for children because their integral development was at risk as they would be confused about gender roles and suffer from social discrimination and isolation.

The Inter-American Court rejected the contention that homosexual parenting is incompatible with the best interests of a child. It ruled that sexual orientation and gender identity are encompassed within the “other social condition” established in Article 1.1 of the American convention, which requires that rights be enjoyed fully and without discrimination, and as such cannot be restricted or diminished. Furthermore, the court eliminated parental sexual orientation as an element in child custody cases. It stated that the best interest of the child standard cannot serve as a shield against prohibited discrimination. The court condemned the Chilean authorities’ failure to exercise due diligence and rejected their reliance on unfounded stereotypes.

The court extended sexual orientation beyond the condition of being homosexual. It linked it to the concept of freedom and self-determination making sexual orientation an essential component of a person’s identity. Additionally, the court defined the concept of family life broadly rejecting a single family model and mandating the protection of diverse family formulations. As a result, the court concluded that the separation of daughters from their mother represented an arbitrary interference with the right of private and family life.

The Atala ruling has regional implications as well: some countries’ constitutions mandate the Inter-American Court rulings as supreme to those of their own, thus strengthening LGBT advocacy around the region.

On the other side of the Atlantic Ocean, a similar issue regarding sexual orientation took place at the European Court of Human Rights. In Gas and Dubois v. France, a lesbian couple alleged discrimination because unlike a married couple they could not adopt a child. The court found that the refusal to allow a woman to adopt her same-sex partner’s child was not discriminatory given that heterosexual couples living in civil partnerships were also barred from such adoption. It further reaffirmed that the European convention does not guarantee access to the right to marry and that a signatory state has a margin of appreciation in marriage matters.

Notwithstanding the unfavorable ruling to the applicants, the court, like the Inter-American Court, affirmed that sexual orientation is a protective class under Article 8 of the European Convention of Human Rights. Thus, the jurisprudence speaks loudly across different hemispheres paving the way toward bigger challenges against discriminatory treatment based on sexual orientation.