Abstract
This chapter explores the protection granted to the rights of lesbian, gay, transsexual, bisexual and inter-sex persons (LGTBI) in the Inter-American system of human rights protection. It takes into consideration all the measures adopted in such a framework to combat violence and discrimination against LGTBI individuals, paying special attention to the adoption of precautionary measures and the establishment of a Special Unit charged with consultative and monitoring powers in the field of sexual orientation, gender identity and gender expression. A thorough analysis is devoted to cases brought before the Inter-American Commission on Human Rights and to the case-law of the Inter-American Court on Human Rights. The analysis highlights that important legal development have been taking place on a continent where violence suffered by homosexuals is still very significant and where cultural suspicion and ostracism toward them is still widely practiced.
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- 1.
This is the acronym usually adopted by the Inter-American Commission on Human Rights.
- 2.
In its 1999 Annual Report to the OAS General Assembly (OEA/Ser.L/V/II.106, Doc. 6 rev., April 13, 1999), the Commission condemned the arbitrary arrests of homosexuals in Ecuador in the context of a state of emergency (see Chapter IV, para. 46). In the Annual Reports of 2005 and 2006 the Commission limited itself to acknowledging that no improvements had been recorded with respect to the material and legal inequality faced by groups traditionally subjected to discrimination, such as homosexuals (see OEA/Ser.L/V/II.124, Doc. 5, 27 February 2006, Introduction, para. 3; OEA/Ser.L/V/II.127, Doc. 4 rev. 1, 3 March 2007, Introduction, para. 5). In its 1983 Country Report on the situation of human rights in Cuba, the Commission denounced, among other things, that homosexuals were conscripted into forced labor for the Government (see OEA/Ser.L/V/II.61, Doc. 29 rev. 1, 4 October 1983, Chapter VII, para. 27). In the 1993 Country Report on the situation of human rights in Colombia, IACHR reported that homosexuals had been victims of social cleansing in the past decade (see OEA/Ser.L/V/II.84, Doc. 39 rev., 14 October 1993, Chapter VII). A similar conclusion was reached in the 2001 Country Report concerning the situation of human rights in Guatemala (see OEA/Ser.L/V/II.111, Doc. 21 rev., 6 April 2001, Chapter V, paras 32 and 41).
- 3.
IACHR is entitled to adopt such reports under Art. 41, lett. g, of the American Convention.
- 4.
They are adopted according to Art. 18, letter (c), of the IACHR Statute.
- 5.
Serious concern was expressed by the Commission concerning the increase in the number of assaults by the police and armed forces against LGTBI persons in Venezuela and Honduras (see IACHR, 2011 Annual Report of the Inter-American Commission on Human Rights, OEA/Ser.L/V/II., Doc. 5, rev. 1, 7 March 2011, Chapter IV, paras 390–392 and 522–525).
- 6.
“The Commission was disturbed to find that one of the most serious problems in the region when defending the rights of LGTBI persons is that in some countries of the hemisphere, any sexual orientation other than a heterosexual one continues to be criminalized as offenses labeled “sodomy” (or “buggery“), “gross indecency”, “unnatural crimes” and so on. While during the follow-up period the Commission was pleased to learn that some countries like Nicaragua had decriminalized homosexuality, it nonetheless observes that in many Caribbean countries crimes of this kind are still on the books, with the result that the right of association for purposes of promoting and defending the rights of LGTBI persons is prohibited, the argument being that their organizations and activities are “illegal.” Laws criminalizing behavior based on non-heterosexual orientation have been adopted in Antigua and Barbuda, in the Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, St. Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines and Trinidad and Tobago: see the Second Report on the Situation of Human Rights Defenders in Americas, OEA/Ser.L/V/II, Doc. 66, 31 December 2011, para. 334.
- 7.
IACHR, 2011 Annual Report, para. 272 concerning the LGTBI situation in Cuba. The Commission particularly stigmatizes the use of the legal concept of “pre-delictive dangerousness” to convict and sentence young Cuban homosexuals to prison.
- 8.
See the Resolutions No. 2435 (XXXVIII-0/08), No. 2504 (XXXIX-0/09), No. 2600 (XL-0/10), and No. 2653 (XLI-0/11).
- 9.
On same-sex couples in Mexico, Central and South America see the chapter by Cabrales Lucio in this volume.
- 10.
In its reports the Commission does not ignore the opportunity to urge States to take measures to prevent and respond to human rights abuses against LGTBI, including the adoption of public policy measures as well as amendments to the laws to bring them in keeping with the American Convention on Human Rights. The Commission also constantly monitors those States that have made progress in this field in order to grant that such improvements (especially law reforms and judgments in favor of LGTBI persons’ rights) are being concretely applied. See IACHR, 2001 Annual Report, paras 143–145, concerning Colombia in which the Commission notes that observance of the rights of LGTBI has improved since 1980, when homosexuality was decriminalized through a reform of the Criminal Code. It also takes note that between 2007 and 2008 Colombia’s Constitutional Court granted same-sex couples the same pension benefits, social security benefits and property rights that heterosexual couples enjoy. Moreover, in 2009 the Constitutional Court decided to amend provisions that appeared in several laws in order to provide same-sex civil unions the same rights that cohabiting heterosexual unions enjoy. However, the Commission denounces that although the Colombian Constitution and Colombia’s laws recognize the rights of LGTBI persons and provide for a number of remedies, access to those remedies and their effectiveness are limited in practice by the discrimination that LGTBI persons have traditionally experienced.
- 11.
Rules of Procedure of the Inter-American Commission on Human Rights, approved by the Commission at its 137th regular period of session held from 28th October to 13th November 2009 and modified on 2nd September 2011 (available at http://www.oas.org/en/iachr/mandate/Basics/rulesiachr.asp).
- 12.
Many precautionary measures have been granted in 2012: a detailed list is at http://www.oas.org/en/iachr/decisions/precautionary.asp.
- 13.
See Honduras: Amplification of Precautionary Measures, PM 196-09.
- 14.
IACHR, 2011 Annual Report, Chapter III, para. 25.
- 15.
See, for instance, the Country Report adopted in 2009 concerning Honduras (Honduras: Human Rights and the Coup d’État, OEA/Ser.L/V/II, Doc. 55, 30th December 2009, paras 39–41). It is reported that during its on-site visit and thereafter, the Commission was informed that when some beneficiaries of the precautionary measures asked the competent authorities to implement them, they become the targets of attacks and threats. Other beneficiaries were forced to sign documents waiving the protection granted under the precautionary measures.
- 16.
Report No. 71/99, Case 11.656, Giraldo v. Colombia, 4th May 1999.
- 17.
“No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation.”
- 18.
It is presumed that the petitioner had desisted from her petition according to Art. 41 of IACHR’s Rules of Procedures. Had she not done so the Commission would have had to initiate the petition on the merits (see Art. 36(2) of the Rules of Procedures).
- 19.
Report No. 96/01, Petition 19/99, Pérez Meza v. Paraguay, 10th October 2001.
- 20.
According to it, “[t]he States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.”
- 21.
Report No. 1/10, Petition 2723-02, Homero Flor Freire v. Ecuador, 15th March 2010.
- 22.
In the petitioners’ view the terms “unlawful sexual acts” were referred to sexual relationships between heterosexual individuals in the absence of or outside of marriage.
- 23.
Report No. 150/11, Petition 123-05, Admissibility, Duque v. Colombia, November 2, 2011.
- 24.
It is worth noting that the Commission applied Art. 46(2)(a), of the Convention concerning the exception to the rule of the prior exhaustion of domestic remedies, concluding that Colombian domestic law did not provide for appropriate remedies to protect the right of a homosexual to succeed in the pension of his deceased partner.
- 25.
IACHR, Application before the Inter-American Court of Human Rights in the Case of Karen Atala and daughters (Case 12.502) against the State of Chile, 17th September 2010.
- 26.
The case was referred to the Inter-American Court because IACHR concluded that the State had not complied with the recommendations contained in its Merits Report No. 139/09.
- 27.
IACtHR, Atala Riffo and Daughters v. Chile, judgment of 24th February 2012.
- 28.
Ibidem, para. 91.
- 29.
IACHR, Application before the IACtHR in the Case of Karen Atala, paras 86 and 88.
- 30.
IACtHR, Atala Riffo and Daughters v. Chile, paras 124–125.
- 31.
Ibidem, para. 108.
- 32.
“Speculations, assumptions, stereotypes, or generalized considerations regarding the parents’ personal characteristics, or cultural preferences regarding the family’s traditional concepts are not admissible”: ibidem, para. 109.
- 33.
Ibidem, paras 115–131. What the Court has to say about the argument that the child’s best interest might be affected by the risk of rejection by society is very effective: “[the] potential social stigma due to the mother or father’s sexual orientation cannot be considered as a valid “harm” for the purposes of determining the child’s best interest. If the judges who analyze such cases confirm the existence of social discrimination, it is completely inadmissible to legitimize that discrimination with the argument of protecting the child’s best interest”: para. 121.
- 34.
Ibidem, paras 122 and 131–132.
- 35.
Ibidem, para. 133.
- 36.
Ibidem, paras 133–139.
- 37.
Ibidem, paras 139–140. The Court went beyond what was necessary when it stated that “to require the mother to limit her lifestyle options implies using a “traditional” concept of women’s social role as mothers, according to which it is socially expected that women bear the main responsibility for their children’s upbringing and that in pursuit of this she should have given precedence to raising her children, renouncing an essential aspect of her identity”: para. 140.
- 38.
Ibidem, para. 145.
- 39.
Ibidem, para. 165.
- 40.
IACtHR, Rosendo Cantú et al. v. Mexico, judgment of 31st August 2010, para. 119, and IACtHR, Fernández Ortega et al. v. Mexico. Preliminary Objection, Merits, Reparations, and Costs, judgment of 30th August 2010, para. 129.
- 41.
IACtHR, Atala Riffo and Daughters v. Chile, paras 164–166.
- 42.
The Court also ruled that the disciplinary investigation carried out by the Chilean judicial authority against Ms. Atala had been performed in such a way as to violate her privacy and discriminate against her on the grounds of her sexual orientation: ibidem, paras 225–230.
- 43.
IACHR, Application before the IACtHR in the Case of Karen Atala, para. 116.
- 44.
Ibidem, para. 122.
- 45.
IACtHR, Atala Riffo and Daughters v. Chile, paras 176–177.
- 46.
Ibidem, para. 178.
- 47.
In his partially dissenting opinion annexed to the judgment, Judge Alberto Pérez Pérez criticized the Court’s choice to rule that Art. 17(1) had been violated. The Judge seems to hold that only the notion of family in Art. 11(2) should encompass families composed by same-sex partners, while he did not consider it prudent to do the same in regard to Art. 17. In his opinion this could be taken as an implicit pronouncement on the interpretation of different provisions of Art. 17(18 and 24). He states that Art. 17 could be interpreted in a way that presupposes that the family is based on a heterosexual marriage or de facto union: para. 18. It is not totally clear which risks the Judge wanted to exclude. Maybe that the door was open to an interpretation of Art. 17(2)—the provision protecting the right to marry—in the sense that it imposes an obligation to Contracting States to grant this right also to same-sex partners. Whatever the Judge’s opinion may be, it does not seem reasonable to assume that under the Inter-American Convention two notions of family may exist, the one protected, pursuant to Art. 17, and the other in accordance with Art. 11(2). This is so mostly because, according to Art. 27(2) of the Convention, States are not allowed to depart from the rights protected under Art. 17. The adoption of two different notions of family would tend to suggest that the heterosexual family (married or de facto) may receive greater protection than the other.
- 48.
Schalk and Kopf v. Austria, judgment of 24th June 2010, paras 92–95. See the chapter by Pustorino in this volume.
- 49.
Ibidem, paras 27–34.
- 50.
ECHR, X, Y and Z v. The United Kingdom, judgment of 22nd April 1997. See the chapters by Crisafulli and Pustorino in this volume.
- 51.
One might be under such an impression after reading the part of the judgment where the Court is asked to judge whether the custody decision was apt to protect Ms Atala’s daughters from the social discrimination they might have suffered because of the mother’s sexual orientation. Indeed, the Court states: “While it is true that certain societies can be intolerant toward a person because of their race, gender, nationality, or sexual orientation, States cannot use this as justification to perpetuate discriminatory treatments. States are internationally compelled to adopt the measures necessary “to make effective” the rights established in the Convention, as stipulated in Art. 2 of said Inter-American instrument” (para. 119).
- 52.
The quest for a consensus among the Contracting States would have been expected. Indeed scattered references to internal legislations and case law of national judges of the Contracting States appear in the judgment (especially in the footnotes). See, for instance, para. 19, which quotes the Constitution of Ecuador as recognizing the stable union between same-sex individuals as a family union. See also footnote No. 113, where the Court recalls that the Constitutions of Bolivia and Ecuador explicitly prohibit discrimination based on sexual orientation and that the national legislations of Argentina and Uruguay grant homosexuals the same rights as heterosexuals. Several references to the case law of the Contracting States’ national courts are also made in the judgment. For instance, in footnote No. 114 the Court recalls that the Constitutional Court of Colombia declared unconstitutional a provision that considered homosexuality in the armed forces as a disciplinary infraction. In paragraph 136 of the judgment the Court also quotes the judgment of the Supreme Court of Justice of Mexico, which considered sexual orientation as an expression, among others, of the free development of an individual’s personality. See the chapter by Cabrales Lucio in this volume.
- 53.
ECHR, X, Y and Z v. The United Kingdom, para. 37.
- 54.
Since the cases Christine Goodwin v. The United Kingdom, judgment of 11th July 2002, paras 100–104 and I. v. The United Kingdom, judgment of 11th July 2002, paras 80–84, the Court held that individuals who had undergone operations to perform sex change and entertained an emotional relationship with a person of the opposite biological (or chromosomal) sex—identical to their original sex—also had the right to marry under Art. 12 of the Convention. In the Court’s opinion, the law of a Contracting State which had allowed them to marry only persons of opposite biological sex seriously jeopardized their right to marriage.
- 55.
See ECHR, Schalk and Kopf v. Austria, paras 27 and 58 and, more recently, Gas and Dubois v. France, judgment of 15th March, 2012, para. 66.
- 56.
Gas and Dubois v. France, Decision on the Admissibility, 31st August, 2010.
- 57.
Ibidem p. 12. Surprisingly, the Court did not repeat this assertion in its merits judgment.
- 58.
IACtHR, Fermin-Ramirez v. Guatemala, 20th July 2005, para. 130, lett. a; IACtHR, Hilaire v. Trinidad & Tobago, 21st July 2002, para. 214; IACtHR, Castillo Petruzzi v. Peru, 30th May 1999, para. 221.
- 59.
Ibidem, Fermin-Ramirez v. Guatemala, para. 130, lett. c.
- 60.
IACtHR, Herrera-Ulloa v. Costa Rica, 2nd July 2004, para. 195.
- 61.
IACtHR, Acosta-Calderon v. Ecuador, 24th June 2005, para. 165; IACHR, Cantoral-Benavides v. Peru, 3rd December 2001, para. 78.
- 62.
E.g., IACtHR, Berenson-Mejia v. Peru, 25th November 2004, para. 239; IACtHR, Suarez-Rosero v. Ecuador, 20th January 1999, para. 76.
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Magi, L. (2014). Same-Sex Couples Before the Inter-American System of Human Rights. In: Gallo, D., Paladini, L., Pustorino, P. (eds) Same-Sex Couples before National, Supranational and International Jurisdictions. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-35434-2_19
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