Chile | Discrimination | News

Inter-American Court of Human Rights Rules On First Gay Discrimination Case

OASFlagsSome good news out of the Inter-American Court of Human Rights today: the court, a judicial arm of the Organization of American States, ruled that Chile violated Karen Atala's rights by not granting her custody of her children after she left her husband for another woman.

The Chilean government must now pay Atala, a judge, $50,000 in damages and $12,000 for legal fees, the New York Times reports.

While this doesn't sound like huge news, it could actually have a notable impact across the Americas.

It is the first time the Court has ruled on a case of discrimination based on sexual orientation.

Additionally, the court affirmed that in regards to the right to equality and non-discrimination, “sexual orientation and gender identity are protected categories in the American Convention under the phrase ‘other social condition’ established in article 1.1 of the Convention.” and that no legal decisions — whether made by governmental authorities or not — can “diminish or restrict, in no way, a person’s rights because of their sexual orientation.”

The Court also found the Chilean State, through its Supreme Court ruling, “internationally responsible” of violating other principles found in the Convention, including the right to privacy, the protection of family, and the right of children to be heard.

The United States is a member of the OAS, so this techically includes us, but obviously the US isn't about to bend to this court's ruling. Still, a symbolic win is better than none at all.

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Comments

  1. "symbolic win is better than none at all" ?????

    This is a huge, huge victory for people across South and Central America and the Caribbean. The most important regional human rights instrument (Inter-American Convention on Human Rights) has been now been interpreted to bar sexual orientation discrimination for the first time - in a strongly-worded decision issued by a unanimous court (at least on that issue). The Chilean government has been ordered by the Inter-American Court to publicly recognize its violation of human rights, train its judges and judicial officers on homophobia issues, offer government-paid counseling and mental health treatment to the victims of the violations (if they want it), and take other measures to ensure this doesn't happen again. Countries throughout the Americas are bound by the American Convention, moreover, so the ruling affects them directly (and how they treat gay people, including gay parents). The US and Canada have not accepted the court's jurisdiction, but in the rest of the Americas this is a huge huge victory for human rights. This isn't just a "symbolic" win. And it reinforces similar trends around the world.

    Posted by: Mike | Mar 22, 2012 6:32:24 PM


  2. This is, indeed, excellent news for the entire western Hemisphere!

    Human rights are advancing throughout the Americas and the United States is a key participant in this progression. This court holds tremendous influence throughout the Americas and this decision will reverberate throughout the region.

    So many advances have been made in the region:

    - The Republic of Argentina ratified its national same sex marriage legislation in 2010

    - Uruguay ratified the first national same sex civil union law in Latin America in 2007

    - Several nations, including Chile, Colombia, Brasil, Uruguay and others are considering same sex marriage laws

    This court decision is exceptional news for our LGBT community in the western Hemisphere

    Posted by: Xavi | Mar 22, 2012 7:38:35 PM


  3. Actually, it doesn't include the US. A quick 2 minute google search would have revealed that the US is not a signatory to the American Convention on Human Rights, which is what the IACHR is charged with enforcing.

    http://en.wikipedia.org/wiki/American_Convention_on_Human_Rights

    Posted by: Terrible reporter | Mar 22, 2012 9:40:20 PM


  4. Well, the US' connection with the Inter-American Court of Human Rights is hazy. We are members of the OAS and we have signed the IACHR's convention, but never ratified it. We have, however, had judges on the court. So, that said, we are part of it, symbolically, but legally not bound.

    Posted by: Andrew Belonsky | Mar 22, 2012 9:50:22 PM


  5. "the US is not a signatory to the American Convention on Human Rights"

    And a good thing it isn't. The hypocrisy alone would probably cause pestilence and disaster...

    Posted by: BobN | Mar 22, 2012 10:14:28 PM


  6. I like the result of the ruling, but I am completely opposed to all supra-national governments. I'm glad the United States has not subjected itself to the jurisdiction of this "court." We are subject only to the laws and constitution of the United States of America, as ultimately interpreted by our Supreme Court.

    Posted by: Bill S. | Mar 23, 2012 7:40:53 AM


  7. "We are subject only to the laws and constitution of the United States of America, as ultimately interpreted by our Supreme Court."

    Well, plus quite a few treaties! Like, just as one example of many, the Convention Against Torture, which we ratified. The binding force of treaties is explicitly recognized in our Constitution, and always has been, i.e. That provision was in our Constitution since the start and hasn't changed. But I suppose your point is just that you don't want supranational *courts* deciding whether we've complied with our treaty obligations? ... which is not a totally unreasonable position.... Just be careful to draw the distinction.

    Also, when you say "completely opposed to all supra-national governments," I assume you mean you are opposed to the *US* subjecting itself to those supra-national governments' jurisdiction? (i.e., Why would you oppose Chile's democratic government subjecting itself *voluntarily* to the Inter-American court's jurisdction?)

    And wouldn't it be nice if, say, the Syrian or North Korean or Iranian governments respected international human rights treaties?

    Posted by: MikeJ | Mar 23, 2012 9:01:12 AM


  8. I understand that treaties, ratified under the lawful authority of the United States, are considered the Supreme Law of the Land along with the Constitution and all laws made in pursuance thereof.

    Ultimately however, these laws and treaties must be in accordance with the United States Constitution. We could not, for example, ratify a treaty that would make Christianity the official religion of the United States.

    I would be against any treaty that would bind us to the jurisdiction of any international governing body, like the court in this article.

    Posted by: Bill S. | Mar 23, 2012 9:39:46 AM


  9. "We could not, for example, ratify a treaty that would make Christianity the official religion of the United States."

    True that.

    Incidentally, if we were to comply with the treaty at issue in this case, we would fun afoul of our own Constitution, at least as interpreted by our Supreme Court. There are protections in the Inter-American treaty for life starting at conception, which conflict with our 14th amendment protections for pregnant women's liberty; and there some protections for honor/reputation that conflict with our First Amendment jurisprudence regarding free speech + press. Neverthless it's at least great news for Latin America that the equality provisions have been interpreted as LGBT inclusive....

    Posted by: MikeJ | Mar 23, 2012 3:33:34 PM


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