Respect for sexual diversity in Central/Latin America

2013 Claire Gunner 100x150 Claire Gunner

Last Tuesday, I went to a panel sponsored by the Inter-American Institute of Human Rights and the Institut français. Sexual Diversity in Central America: Political, Social, and Juridical Integration was hosted by the University of Costa Rica, just around the corner from the Inter-American Court of Human Rights.

One of the speakers is a lawyer for the Court, and he presented on the impact of one of the Court’s recent, well-known, and hotly debated decisions, Atala Riffo and Daughters v Chile (Judgment of February 24, 2012).

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Karen Atala Riffo, the petitioner (and herself a Chilean judge), brought a complaint to the Inter-American Commission of Human Rights after the Supreme Court of Chile awarded her ex-husband sole custody of their children on the basis that Ms. Atala Riffo was in a relationship with a woman. The Supreme Court of Chile reasoned that Ms. Atala Riffo’s relationship would risk damaging her children’s development.The Inter-American Court ruled in favor of Ms. Atala Riffo, finding that she had been discriminated against in the custody decision on the basis of her sexual orientation, which is incompatible with the American Convention on Human Rights (article 1(1), regarding “the obligation of the States Parties to respect and guarantee the full and free exercise of the rights and freedoms acknowledged therein ‘without any discrimination'”, at para 78 of the Court’s decision).

Although Chile has complied with the Court’s ruling, its implications for Central American states are unclear. The Court’s decision is a positive development in international human rights jurisprudence, especially given that international human rights organisms are frequently much more conservative than one might anticipate (see, for example, almost any application of the “margin of appreciation” by the European Court of Human Rights). Atala Riffo doesn’t readily serve arguments in favor of obliging members states to, for example, legalize same-sex marriage.

The first person to speak at the event, Magistrada Eva Camacho Arias, is a member of Colegio de abogados y abogadas de Costa Rica’s Comisión de diversidad sexual. The Comisión was established following the approval of a national policy of respect for sexual diversity in 2011. At one point there were only two constituents because public speculation as to other members’ sexual orientation led to the withdrawal of their participation – a disappointing (to put it mildly) sign for a working group focused on inclusiveness. Now, the Comisión has five members. Despite the slow progress, Magistrada Camacho Arias wants Costa Rica to be the first Latin American country to implement a policy of respect for sexual diversity so that Atala Riffo‘s message of non-discrimination can be felt throughout the Organization of American States.

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