London, 3 April 2012 

 

On March 21, the Inter-American Court of Human Rights published its landmark judgment in Atala Riffo and daughters v Chile. In its first case concerning discrimination on grounds of sexual orientation, the Court established that both “sexual orientation” and “gender identity” are grounds falling within the protection against discrimination enshrined in Article 1 of the American Convention of Human Rights (the Convention). 

  

The case concerned a woman who, having separated from her husband, was denied custody of her children. The Supreme Court of Chile had relied on the fact that the applicant was living with her same-sex partner in deciding that it would not be in the children’s best interests to live with her. 

  

The Court determined that the Chilean court’s decision was not based on any clear evidence, but rather on abstract, stereotyped, and discriminatory ideas, in violation of the right to equality before the law and the prohibition on discrimination contained in the Convention. The Court held that by discriminating against the applicant, the Supreme Court of Chile had also violated the rights of her children. 

  

Article 1 of the Convention contains states’ obligation to respect and ensure the exercise of the rights contained therein without discrimination on a list of grounds, as well as “any other social condition”. In this case, the Court established that both sexual orientation and gender identity fall within the notion of “other social condition”. Article 24 contains the right to equality before the law and equal protection of the law. The Court found that Chile had violated Article 24 together with Article 1. 

  

The Court also found violations of the right to respect for private and family life (Article 11(2)) with Article 1, the rights of the family (Article 17(1)) with Article 1, the right to a fair trial (Article 8(1)) with Article 1, and the rights of the child (Article 19) with Article 1. 

  

The Court not only ordered the Chilean government to pay damages, but also  to ensure that the applicants had access to necessary health services to treat them for any harm done. The Court further urged the Chilean government to continue to educate all public officials, including the judiciary, on the obligations contained in the Convention. 

  

To read the judgment in Atala Riffo and Daughters v Chile (Spanish only)  click here.