|Apinda Mpako, Pan Africa ILGA|
|Apinda Mpako, Pan Africa ILGA|
The Inter-American Court of Human Rights' ruling that sexual orientation cannot be used to deny custody rights is a landmark case for lesbian, gay, bisexual, and transgender (LGBT) people throughout the Americas. The judgment, in Atala Riffo and Daughters v Chile, was issued on February 24, 2012, and made public on March 21.
The court concluded that the Chilean Supreme Court had acted discriminatorily and violated the American Convention on Human Rights when it denied Karen Atala custody rights over her three daughters because she is a lesbian living with a same-sex partner.
"This is a landmark ruling for the region because the Inter-American Court clarified for the first time that sexual orientation and gender identity are categories protected against discrimination by the American Convention under the term ‘other social condition,'" said Boris Dittrich, advocacy director in the Lesbian, Gay, Bisexual and Transgender Rights Program at Human Rights Watch. "This judgment promises to have far reaching impact on the jurisprudence of all members of the Organization of American States and hopefully on respect for the rights of all LGBT persons in the region."
Chile's Supreme Court had ruled against Atala, contending that having the children live with her and her same-sex partner would not be in the children's best interests. The Inter-American Court determined that such a conclusion was not based on any clear evidence, but rather on abstract, stereotyped, and discriminatory arguments in violation of the right to equality before the law and the prohibition on discrimination, guaranteed in articles 24 and 1.1 of the American Convention respectively.
The Inter-American Court also held that by discriminating against their mother on grounds of sexual orientation, the Supreme Court decision had also harmed the children and violated their right to protection without discrimination.
The Inter-American Court required the Chilean government to pay Atala damages as reparation for the harm done to her, to ensure she and her children have free access to necessary health services for any harm done, and to continue to educate all public officials, including the judiciary, on the obligations of the American Convention.
Human Rights Watch called on the Chilean government to ensure that the harm resulting from the Supreme Court's decision is addressed by ensuring that the decision is set aside. The Chilean government should also ensure that any custody disputes are reconsidered in a non-discriminatory manner on the basis of the best interest of the children and with full respect for the rights of all parties involved.
The Inter-American Court of Human Rights is the judicial entity of the Organization of American States, established in 1979 to enforce and interpret the provisions of the American Convention on Human Rights. Judgments of the court are binding on the parties to the case. Human Rights Watch was party to an Amicus briefsubmitted in this case.
"This ruling is a celebration for non-discrimination and equality and will boost lesbians, gays, bisexuals, and transgender people - whose human rights are violated on a daily basis - to stand up against injustice," Dittrich said.