In November of 2019, forty lawyers from thirteen countries on the American continent, experts in LGBT litigation, They met in the city of Bogotá, Colombia, in order to create the first network of LGBT litigators in Latin America and the Caribbean (hereinafter Litigators Network). This alliance “seeks to advance rights and confront movements that seek to undermine legal precedents related to sexual diversity in the region.”[1]
As warned by the Inter-American Commission on Human Rights (hereinafter “IACHR”) in his thematic report of 2019, Recognition of Rights of LGBTI People, “The IACHR cannot fail to express its concern with the advance of anti-LGBTI rights sectors in the region, including within the powers of the State., which results in the adoption of laws and other state measures contrary to the rights of LGBTI people. In addition, “The Commission also observes with caution the proliferation of disinformation campaigns and demonstrations promoted by sectors opposed to the recognition of the rights of LGBTI people throughout the continent.”[2]
On the other hand, the International Lesbian Association, Gays, Bisexuals, Trans e Intersex (ILGA for its acronym in English), in his report State Homophobia 2019, warned that “the region of Latin America and the Caribbean is in a historic moment of transition and political dispute.”, where the alliances between the anti-rights religious fundamentalist sectors and the ultra-conservative political forces advance in a dangerous way, putting at risk the achievements achieved by our movements through social struggle., political and cultural after a stage that we can call a decade of achievements for LGBTI populations and women.”[3]
So things, Litigants in the region face a difficult climate, to say the least, to achieve the effective guarantee of LGBT rights in their countries., and actually, Creating effective tools to facilitate these efforts is especially important.
In this sense, in development of the activities of the aforementioned Litigators Network, The systematization of thematic standards of LGBT rights contained in this document has been carried out. This investigation, aims to be an instrument to facilitate the defense of human rights in the region, as they are, for instance, the advocacy actions and litigation work carried out by the Litigators Network.
The truth is that although there are a large number of favorable precedents and robust legal standards for the protection of LGBT rights in the region, A compilation of these will be a determining tool to improve the efficiency and success with which lawyers in the region will be able to carry out their work..
As established by the High Commissioner for United Nations for Human Rights (“ACNUDH”), in your report, Born Free and Equal, “[p]Protecting LGBTI people from violence and discrimination does not require the establishment of new rights, nor does it require the establishment of new standards of international law. For all the heat and complexity of the political debate on sexual orientation and gender identity at the United Nations, from a legal perspective, the problems are simple. The obligations of States to protect LGBTI people from human rights violations are well established and binding on all United Nations Member States.”[4]
So that, following this logic, The standards presented in this document focus especially on the interpretation of these obligations, that has been developed in the Universal System of Human Rights, the Inter-American Human Rights System, and in the national systems of several countries in the Latin American region. The materials selected for the construction of these standards will be stated and explained in the following section..
The content of the document is developed as follows: following this introduction, There is a section explaining the work methodology that was used to identify the legal standards presented. The main section of this paper begins by presenting a brief summary of all the standards developed in the document.. Then, having delved into the standards related to the general principle of equality and non-discrimination, the thematic standards of LGBT rights in the region are indicated, in particular for four critical issues, whose selection is justified and explained in detail in the methodology section. These topics are: (i) Discrimination based on Gender Identity; (ii) Diverse Families, (iii) Children, LGBTI Girls and Adolescents, y (iv) Violence Against LGBT People.
[1] Mariana Ramon Escobar, The first network of LGBT litigators in Latin America and the Caribbean is born in Bogotá, Available in: https://www.dejusticia.org/nace-en-bogota-la-primera-red-de-litigantes-lgbt-de-america-latina-y-el-caribe/
[2] Inter-American Commission on Human Rights. Progress and challenges towards the recognition of the rights of LGBTI people in the Americas, (2018), para 15
[3]International Lesbian Association, Gays, Bisexuals, Trans e Intersex, LONG, State homophobia, (2019), p.105
[4] Office of the United Nations High Commissioner for Human Rights, Born Free and Equal, 2nd Edition (2012), p. 89 (Own translation).
When starting this research work, The first decision that was made was to build the standards of this document based on topics, instead of rights or countries, for instance. The concept of "him" refers to the issues that raise legal discussions in the lives of LGBT people, such as family or childhood issues. The above, This was determined for several reasons.. The first, is that this methodology facilitates the growth of the project so that the effort to delve into the legal standards of LGBT rights in Latin America can be sustained over time and not simply an isolated exercise without the possibility of development and evolution.. In this sense, it will be possible, the future, expand the content of the research in a coherent and organized way, simply through adding new themes, as necessary. In addition, It will also be possible to add legal developments on topics that have already been addressed in previous research exercises.. The second reason, (and the reason why a construction of standards based on rights was discarded) is that within the same topic, in general, it is possible to identify the violation of various rights. This occurs especially from an intersectional perspective of the human rights violations faced by LGBT people in the region., which, of course, was accepted in this project. Finally, It should be added that the decision to adopt a thematic approach was also related to discussions that arose at the Litigators Network workshop, mentioned at the beginning of this document.
Determined the above, for this first research effort, The four major themes indicated in the introduction were selected. (discrimination based on gender identity, families, children, girls and adolescents and violence). All issues in which there is currently a special risk for the LGBT population in the region. The above, was corroborated taking into account the opinions of representatives of Colombia Diverse, organization with vast experience in the defense of LGBT human rights in Latin America. What's more, The urgency of these matters was also confirmed through consultations with several female attorneys participating in the LGBT Litigators Network, namely: (i) Myrtle Blackberries Mereles, consulted on 13 from December to 2019; (ii) Angelita Baeyens, consulted on 17 from December to 2019; (iii) Eleonora Lamb, consulted on 19 from December to 2019; y (iv) Fanny Catalina Gómez-Lugo, consulted on 27 from December to 2019.
Then, with a view to further delimiting the investigation, A concentration was defined in three levels for each of the topics to be studied.. (i) First, considering the international law standards available in both the Universal Human Rights System and the Inter-American Human Rights System. To build these standards, treaties were taken into account., pronouncements of treaty jurisdictional bodies, as well as non-jurisdictional pronouncements from human rights monitoring bodies and international organizations. (ii) Second, considering a comparative law perspective, studying the standards that have been developed by the national jurisprudence of several Latin American countries. (iii) And third, reviewing the standards of law reiterated in the Yogyakarta Principles and the Yogyakarta Principles +10, tool which will be delved into shortly.
Los Yogyakarta Principles, and the Yogyakarta Principles +10, They were a vital tool for this investigation. These, They are a guide to define the application of international human rights law to the reality of LGBT people.. And although, as it is not a norm of international law ratified by States, are not binding in the strict sense,[1] have been widely cited by organizations of the Universal System and the Inter-American Human Rights System. On the usefulness of these principles, It is also important to note that they can serve as a guide to identify binding norms of international and national law and in this way strengthen the legal arguments of litigants.. In this regard, it is worth bringing up the document Activist's Guide to Using the Yogyakarta Principles[2], which proposes multiple strategies to use these tools.
On the other hand, to find the universe of legal decisions cited throughout this document, several efforts were made. One of these was a bibliographic research that involved the review of forty-five relevant documents on the subject.[3]. These documents presented key legal decisions that in turn cite previous jurisprudence, which allowed a backward identification of data. In addition, Conversations with lawyers from the Litigants Network pointed to other relevant rulings from which the bibliographic regression exercise was carried out again., just mentioned. In the case of Latin American countries whose judicial branches have jurisprudence search engines that allow the introduction of keywords, for example, Mexico, Colombia Argentina, Ecuador and Costa Rica, A search was carried out using relevant words in relation to the topics to be discussed..
During the month and a half that this investigative effort lasted, It was possible to identify a total of two hundred nine legal decisions on LGBT rights, of which one hundred and thirty-nine were related to the selected thematic axes. Thirty-four on the issue of gender identity, seventy on the family matter, twenty-two on the topic of children, girls and adolescents, and thirteen on the issue of violence.
The standards that are reflected in the third section of this document, were constructed from the information contained in the reviewed bibliography, the legal decisions identified, and as mentioned above, what is established by organizations of the Universal System and the Inter-American System of Human Rights, as well as what is contained in multiple instruments of international law, for instance, the American Convention on Human Rights and the Universal Declaration of Human Rights[4].
To clarify, that the special focus on judicial decisions for the construction of legal standards was not a gratuitous decision. As mentioned in the introduction of this document, Although the international legal obligations of States regarding the protection of LGBT rights are established, by being, at least, the same obligations that apply to other human beings, The judicial interpretation of state duties has been a key factor in taking these rights from theory to practice.
About, the High Commissioner for Human Rights for the United Nations in the first edition of the report, Live Free and Equal, referred to the role of the judicial system in the protection of human rights, and stated that this “plays a fundamental role in protecting the rights of LGBT and intersex people, which includes: interpret and defend the fundamental human rights norms contained in international human rights law…”[5]
Finally, It is worth mentioning that this document is not intended under any circumstances to be an exhaustive research exercise.. In addition to being limited to the four topics already mentioned, It is clear that the vast Latin American legal universe could hardly be summarized in the month and a half that this investigation lasted.. In this sense, The document is intended rather to be a first approximation to the legal standards on LGBT rights in the region and a guide so that these efforts can be multiplied., and in the future, expand the thematic coverage of LGBT rights protection standards in Latin America.
[1] The Principles were presented on 26 March 2007 at the UN Human Rights Council, in Geneva. According to the Argentine organization Identity and Diversity, “[l]a International Commission of Jurists and the International Service for Human Rights, on behalf of a coalition of human rights organizations, developed a project that includes a series of international legal principles on the application of international human rights legislation. These principles are based on the positive progress of international law and function as an clarifying tool that helps understand how current human rights regulations should be applied in specific cases where the rights of the LGBT community may be violated.” In this regard see: https://identidadydiversidad.adc.org.ar/normativa/principios-de-yogyakarta-2006/
[2] Available in: http://ypinaction.org/wp-content/uploads/2016/10/Guia_del_activista_nov_14_2010.pdf
[3] All these documents are temporarily available in the following Google Drive folder: https://drive.google.com/open?id=1ocDLGoVwIjkIfDC2u521NInIU81M4OJM
[4] The complete list of the international instruments consulted is available in this document: https://docs.google.com/spreadsheets/d/1eBrL46oxWDrpanXMoMpCw-DYDrDAh2KhzvabiqbVYD4/edit?usp=sharing
[5] Office of the United Nations High Commissioner for Human Rights, OCNUDH, Live Free and Equal, First edition, (2016) p. 105
Before delving into each of the issues against which LGBT rights standards were systematized in the region, Below is a brief summary of the standards that were studied and developed in this document. Each of these will be reiterated again throughout the document., at the end of each thematic section.
To adequately address the topic that occupies this document, It is essential to refer to a legal standard that permeates all conversations about LGBT rights in the region: the principle of equality and non-discrimination. This principle is not only contained in the vast majority of political constitutions in Latin America[1], but it is also explicitly stated in the main instruments of the Universal System of Human Rights[2] and the Inter-American Human Rights System[3].
Referring to this principle in relation to the rights of LGBT people, at the United Nations General Assembly 2008, a declaration on human rights was issued, sexual orientation and gender identity, in which it was ratified “the principle of non-discrimination, which requires that human rights apply equally to all human beings, regardless of their sexual orientation or gender identity.”[4] Since then, multiple resolutions have been issued[5] and statements[6] to confirm the importance of this principle in the Universal Human Rights System.
A nivel regional, This principle has been welcomed and reaffirmed by the General Assembly of the Organization of American States, in nine resolutions on the subject that have been formulated since the year 2008.[7]
Added to this, the General Observation No. 20 of the UN Committee on Economic, Social and Cultural Rights, establishes that the phrase “any other social status”, contained in the article 2.2 of the International Covenant on Civil and Political Rights (“PIDCP”), on equality and non-discrimination, includes sexual orientation and gender identity as protected categories. So, The Committee stated that: “States parties must ensure that a person's sexual preferences do not constitute an obstacle to the realization of the rights recognized by the Covenant.”, for instance, for the purposes of accessing the widow's pension. Gender identity is also recognized as a prohibited ground of discrimination. For example, transgender, Transsexuals or intersex people are frequent victims of serious human rights violations, such as bullying in schools or in the workplace.”[8]
As in this document, There are multiple judicial decisions that consider the principle of equality and non-discrimination in light of LGBT rights in Latin America.. Nevertheless, There are two fundamental pronouncements of the Inter-American Court of Human Rights that are worth mentioning at the outset: the case Atala Riffo and Girls Vs. Chile and the Advisory Opinion 24/17.
Failure Atala Riffo and Girls vs. Chile It is the flagship case on the protection of LGBT rights in the region. In this, The Inter-American Court established an essential precedent regarding the right to equality and non-discrimination of LGBT people, and specifically regarding the scope of the article 1.1 of the American Convention on Human Rights, which establishes the obligation of States to respect the rights contained in the Convention, without any discrimination. About the individual, The Court determined that the expression “another social condition” contained in said article, contemplates sexual orientation and gender identity as a category protected by the Convention.
What's more, court, from the same case Atala Riffo and Girls vs. Chile, has explained that:
“the fact that sexual orientation and gender identity are considered categories protected by article 1.1 of the Convention, implies that any difference in treatment based on such criteria must be considered “suspicious.”, and consequently it is presumed incompatible with the American Convention.”….“it can be considered that the prohibition of discrimination based on gender identity is understood not only with respect to real or self-perceived identity, It must also be understood in relation to the externally perceived identity, regardless of whether that perception corresponds to reality or not. In that sense, It must be understood that all gender expression [also] constitutes a category protected by the American Convention in its article 1.1.”[9]
In addition to the above, It is important to highlight that for this Court “At the current stage of the evolution of international law, the fundamental principle of equality and non-discrimination has entered the domain of jus cogens. The legal framework of national and international public order rests on it and permeates [sic] the entire legal system.”[10]
Equally, in the Advisory Opinion 24 of 2017, The Court ruled again regarding the right to equality and non-discrimination of LGBT people. On that occasion, The Court reinforced the standard just mentioned by stating that “…sexual orientation and gender identity, as well as gender expression are categories protected by the Convention. For this reason, any norm is prohibited by the Convention, discriminatory act or practice based on sexual orientation, gender identity or gender expression of the person. Consequently, no standard, domestic law decision or practice, whether by state authorities or by individuals, can reduce or restrict, in any way, the rights of a person based on their sexual orientation, their gender identity and/or gender expression.”
Another issue that is important to bring up is that both the Human Rights Committee and the Inter-American Court agree that not every distinction necessarily implies discrimination.. In this sense, For the Committee, the distinction must be based on reasonable and objective criteria to verify that it is not an act of discrimination and therefore a violation of the article 26 of the International Covenant on Civil and Political Rights.[11]
For your part, The Inter-American Court has determined that when a measure establishes differential treatment through one of the categories protected by article 1.1:
“[l]The Court must apply strict scrutiny that incorporates especially demanding elements in the analysis, this is, that different treatment must constitute a necessary measure to achieve a conventionally compelling objective. So, in this type of exam, To analyze the suitability of the differentiating measure, it is required that the purpose it pursues is not only legitimate within the framework of the Convention, but also imperative. The chosen medium must be not only adequate and effectively conducive, but also necessary, that is to say, that cannot be replaced by a less harmful alternative means. Additionally, the application of a proportionality judgment in the strict sense is included, according to which the benefits of adopting the measure in question must be clearly superior to the restrictions that it imposes on the conventional principles affected by it.”[12]
This standard has been accepted by several high courts in the region, in particular the Supreme Court of Justice of the Nation of Mexico, the Constitutional Court of Ecuador, the Supreme Court of Justice of Costa Rica, and the Constitutional Court of Colombia. Reference will be made below to the jurisprudence of these courts..
The Supreme Court of Justice of the Nation of Mexico,[13] has emphasized that “since all sexual orientations and gender identities [sic] are protected by the free development of the personality, the restriction of the rights of LGBT people, by virtue of their sexual orientation and gender identity are unconstitutional unless they pass the strict scrutiny test…”[14]
The Constitutional Court of Ecuador ruled in a similar sense in the Sentence 10-18-CN-19, when analyzing the norm that regulated marriage in Ecuador. This introduced a differentiation based on the sexual orientation of people and therefore, for the Court, was suspected of being discriminatory. In this regard he stated: “…This suspicion of discrimination makes the questioned legal norm unconstitutional unless it manages to pass an equality test - which is nothing more than an application of the principle of proportionality - which consists of strict scrutiny of the constitutionality of the law.. What would be impossible, Well, I wouldn't even pass the first phase of the test., Given the…there is no constitutional purpose, neither explicit nor implicit, that can be invoked for the deprivation of the right of same-sex couples to marry. With which, the test will conclude right there.”[15]
The Constitutional Chamber of the Supreme Court of Justice of Costa Rica stated in the same way, which reiterating what was established by the Inter-American Court of Human Rights, in the Resolution No. 12783 – 2018, I affirm that “…no standard, domestic law decision or practice, whether by state authorities or by individuals, can reduce or restrict, in any way, the rights of a person based on their sexual orientation. More clearly, in Advisory Opinion OC-24/17 of 24 of November of 2017 “It is indicated that establishing different treatment between heterosexual couples and those of the same sex in the way in which they can formally unite – whether through a de facto marital union or a civil union – fails to pass a strict test of equality.”[16]
This is also how the Colombian Constitutional Court ruled in the Sentence C-481 of 1998, in which he established that “in accordance with the Constitution and human rights treaties… any difference in treatment based on diverse sexual orientation amounts to possible discrimination on the basis of sex and is subject to strict constitutional control”[17].
Finally, It is worth highlighting that the standard of equality and non-discrimination, of course it is enshrined in the Yogyakarta Principles, whose second principle establishes that “[t]All people have the right to the enjoyment of all human rights, without discrimination based on sexual orientation or gender identity.”[18]
IN SUMMARY● States have the obligation to guarantee the principle of equality and non-discrimination. All people have the right to enjoy all rights under conditions of equality and without discrimination based on sexual orientation or gender identity.. ● Sexual orientation and gender identity are categories protected by international human rights law. Any differential treatment based on these categories is suspect and prohibited unless it passes a strict scrutiny test.. |
[1] See for example: article 33 of the Political Constitution of Costa Rica, article 14 of the Political Constitution of Bolivia, article 8 of the Political Constitution of Uruguay, article 46 of the Political Constitution of Paraguay, article 23.3 of the Political Constitution of Ecuador, article 13 of the Political Constitution of Colombia, article 16 of the Political Constitution of Argentina and article 19.2 Political Constitution of Chile.
[2] About, ver: the Universal Declaration of Human Rights: articles 1, 2.1 y 7; the International Covenant on Civil and Political Rights: articles 2.1, 2.2 y 26; and the International Covenant on Economic Rights, Social and Cultural: article 2.
[3]About, see the American Convention on Human Rights: articles 1.1 y 24.
[4] United Nations, General Assembly, Declaration on human rights, sexual orientation and gender identity, 22 from December to 2008, para. 3.
[5]See for example, United Nations, Human Rights Council, Resolution regarding human rights, sexual orientation and gender identity, 17 June 2011.
[6]See for example, United Nations, Joint declaration to stop acts of violence, and related human rights violations, directed against people because of their sexual orientation and gender identity, presented by Colombia before the United Nations Human Rights Council, 22 March 2011.
[7] (i) United Nations, AG/RES. 2908 (XLVII-O/17), Promotion and protection of human rights, 21 June 2017; (ii) United Nations, AG/RES. 2887 (XLVI-O/16), Promotion and protection of human rights, 14 June 2016; (iii) United Nations, AG/RES. 2863 (XLIV-O/14), Human rights, sexual orientation and gender identity and expression, 5 June 2014; (iv) United Nations, AG/RES. 2807 (XLIII-O/13) corr.1, Human rights, sexual orientation and gender identity and expression, 6 June 2013; (v) United Nations, AG/RES. 2721 (XLII-O/12), Human rights, sexual orientation and gender identity, 4 June 2012; (vi) United Nations, AG/RES. 2653 (XLI-O/11), Human rights, sexual orientation and gender identity, 7 June 2011; (vii) United Nations, AG/RES. 2600 (XL-O/10), Human rights, sexual orientation and gender identity, 8 June 2010; (viii) United Nations, AG/RES. 2504 (XXXIX-O/09), Human rights, sexual orientation and gender identity, 4 June 2009, y (ix) United Nations, AG/RES. 2435 (XXXVIII-O/08), Human rights, sexual orientation and gender identity, 3 June 2008.
[8] United Nations, Committee on Economic, Social and Cultural Rights, General Observation No. 20, (2009), para 32.
[9]Inter-American Commission on Human Rights. Progress and challenges towards the recognition of the rights of LGBTI people in the Americas, (2018), para 31.
[10] Inter-American Court of Human Rights. Atala Riffo and girls Vs Case. Chile. Sentence of 24 February 2012 (Bottom, Repairs and Costs), (2012), para. 79
[11] Human Rights Committee, Caso Young Vs. Australia, Communication No. 941/2000.
[12] Inter-American Court of Human Rights. Advisory Opinion OC-24/17 of 24 November 2017 requested by the Republic of Costa Rica. Gender identity, and equality and non-discrimination against same-sex couples, (2017), para 81
[13] This standard was also reiterated by the Supreme Court of Justice of the Nation of Mexico, in the Amparo under Review 704 of 2014.
[14] Supreme Court of Justice of the Nation of Mexico. Protocol of Action for Those who Provide Justice in Cases That Involve Sexual Orientation or Gender Identity, (2014) p.37
[15] Constitutional Court of Ecuador, Sentence 10-18-CN-19, para 65.
[16] Supreme Court of Justice of Costa Rica, Constitutional Chamber, Resolution No. 12783 – 2018, p.23
[17] Constitutional Court of Colombia, Sentence C-481 of 1998
[18] Yogyakarta Principles (2007), p. 10
Without a doubt, the general standards that apply to the issue of discrimination based on gender identity are those mentioned previously.. Nevertheless, In order to delve even deeper into the issue, It is essential to note other specific references that have been made on the subject, international law organizations and some high courts of the Latin American region. Then, the prohibition of this discrimination will be further illustrated, bringing up the cases of (i) change of name and/or sex in identity documents and (ii) gender identity affirming medical treatments.
The Inter-American Court of Human Rights defines gender identity[1] “as the internal and individual experience of gender as each person feels it, which may or may not correspond to the sex assigned at the time of birth. The above, It also leads to the personal experience of the body and other gender expressions., as are the clothing, the way of speaking and manners. In that line, for this court, The recognition of gender identity is necessarily linked with the idea according to which sex and gender must be perceived as part of an identity construction that is the result of the free and autonomous decision of each person, without having to be subject to his genitals.”[2]
In international human rights law, There is also what is established by ACNUDH in the second edition of the document Born Free and Equal: “Everyone has the right to be recognized before the law.”, including people with diverse gender identities. Each person's self-defined identity is integral to their personality and is one of the most basic aspects of self-determination., dignity and freedom. Legal recognition of the gender identity of transgender people is also important in relation to protection from violence, torture and mistreatment, discrimination, right to health, education, employment and housing, access to social security, political participation, and freedom of movement. This includes people who have non-binary gender identities.”[3]
This same United Nations office added that, “…States must respect the physical and psychological integrity of transgender people and recognize their self-identified gender without additional requirements that violate human rights.”. States must provide a simple administrative procedure, allow the recognition of non-binary identities and give minors access to recognition of their gender identity.”[4] This issue of legal recognition of identity will be discussed further below..
Below are cases of regional jurisprudence, particularly from Chile, Argentina, Costa Rica and Colombia, that adequately accommodate the general prohibition of non-discrimination based on gender identity.
For example, the Colombian Constitutional Court in the Judgment T-363 of 2016, spoke on this topic. In this case the Court protected the rights of a trans student, ordering an educational institution to refrain from interfering with the development and legitimate expression of a student's gender identity, “especially in aspects related to the way of dressing and the use of aesthetic accessories”. What's more, ordered the institution to provide the student “treatment consistent with the development and legitimate expression of [are] gender identity." In your reasoning, The Court indicated that “it must be considered that in view of the special constitutional protection that members of sexual minorities deserve and the historical discrimination of which they have been victims, any measure aimed at limiting expressions of your individuality must be fully justified, under penalty of being classified as an action based exclusively on sex - which for these purposes includes gender identity- y, but still, It is discriminatory.”[5]
In the Judgment of 5 of November of 2019, The Supreme Court of Justice of Chile protected the rights of a trans woman. On such an occasion, The Court heard the case of an employer who refused to respect the “name and social sex of a trans official” by not acceding to the woman's request to modify her personal information in the institutional email as well as in the records to which other officials of the institution had access, arguing that the data could not be modified until a legal change was made to the public record. In this regard, the Court, invoked Chile's Gender Identity Law, and stated that it was essential to adopt “all measures that are necessary to guarantee the dignity of every person and ensure full respect for their rights.”, among which is being treated socially in accordance with one's personal and internal conviction, to be a man or a woman, "as the person perceives himself."[6]. So, determined that the employer's refusal was arbitrary, affected the mental integrity of the appellant and violated her right to private life.
Another case of discrimination against trans people, that adopted the standards in question, was the case ALITE[7] resolved by the Supreme Court of Justice of Argentina. In this, The trial judge denied the Association for the Fight for Transvestite Transsexual Identity (ALITE) authorization to operate as a legal entity, under the argument that it did not comply with the common good. This Association, has as its end “fight so that the State and society do not discriminate against transvestism as its own identity, eliminating marginalizing and stigmatizing practices that link transvestism with violence and prostitution as the only alternative to life.”. The Supreme Court revoked the first instance decision and protected the rights of the association. About, stated that there had been a difference in treatment towards trans people, absolutely unjustified. In addition to recognizing them as a vulnerable sexual minority, under constant discrimination and violence, The Court held that it was impossible to maintain that the purpose of ALITE It was not for the common good..
Another valuable example is the case Nº 004524 – 2012, resolved by the Constitutional Chamber of the Supreme Court of Justice of Costa Rica. This was about a trans woman held in a prison., who was prohibited from dressing in feminine clothing. Although the sentence is problematic because it does not refer to trans women with feminine pronouns, nor refer to the fact that she was held in a facility for men, The Court protected his right to dignity and highlighted “the absolute prohibition of any type of discrimination contrary to that dignity.” In his argument, The Court affirmed that the limitation on the way of dressing constituted unjustified discrimination that had no factual or legal basis., but rather it was due to assumptions about an alleged disturbance to public order that this preference could cause..
The Constitutional Court of Colombia ruled in a similar sense in the sentence T-062 of the 2011, opportunity in which he protected the rights to human dignity, the free development of personality and equality of a trans woman, confined in a prison where she was threatened with cutting her long hair and confiscating her makeup products as well as the accessories she used to reaffirm her gender identity. In this sentence, The Court reiterated the prohibition of all types of discrimination based on gender identity. He also added that behaviors that censor and restrict a gender identity option, as well as those that impose sanctions or negative consequences based on prejudice, They are contrary to the Colombian Constitution.
Finally, It is also worth highlighting the Sentence T-099 of 2015 of the Colombian Constitutional Court, occasion in which a trans woman filed a tutela against the Colombian army, who intended to require him to fulfill obligations typical of men “regarding the regularization of the military situation and the payment of the fine for late arrival.” The Court protected the rights of women to the free development of personality, human dignity and equality and ordered the Colombian army to suspend all administrative action in relation to the plaintiff, who “as a transgender woman, “It is not the recipient of the regulations on recruitment and compulsory military service.” In addition, ordered the Ministry of Defense to create protocols to prevent cases like this from continuing to happen and urged the Congress of the Republic to enact a Gender Identity Law that protects the fundamental rights of transsexual women and men.. In this ruling the Court held that:
"Indeed, Gender identity and sexual orientation are aspects inherent to individuals that are part of their inner being., but they must have the possibility of being fully externalized, to be recognized and respected, even generating or excluding certain legal consequences. Any judicial or administrative action must accept that the full recognition of these rights is linked to the possibility that people can fully express their sexuality and that it cannot be the object of invisibility or reproach., especially by the state, who has a qualified duty of protection. This implies a duty to respect and guarantee dignity., the autonomy and free development of the personality of transgender citizens. Such obligations bind all State authorities and failure to comply may lead to disciplinary or criminal consequences, depending on the case.”[8]
The United Nations Human Rights Committee resolved a matter of this nature in the year 2017. So, in it failed G. Vs. Australia, The Committee evaluated the case of an Australian trans woman who claimed to be subject to discrimination based on her marital status and/or her status as a transgender person., in violation of the article 26 of the International Covenant on Civil and Political Rights, because the State party did not allow him to obtain a birth certificate in which his sex was correctly recorded, as long as I stayed married. In this regard, the Committee considered that “by denying married transgender people a birth certificate that correctly states their sex, unlike the treatment of transgender people and other unmarried people, “The Government is not granting equal protection under the law to the author and similarly situated persons as married transgender persons.” He added that the difference in treatment was neither necessary nor proportional to a legitimate interest, therefore it was unreasonable and thus considered that the Australian State had violated the articles 17 y 26 del PIDCP.
On this same matter, in the Advisory Opinion 24/17, The Inter-American Court of Human Rights determined that:
“[E]l the right of each person to autonomously define their sexual and gender identity and to have the data contained in the records, as well as in the identity documents are consistent or correspond to the definition they have of themselves, is protected by the American Convention through the provisions that guarantee the free development of personality (articles 7 y 11.2), The right to privacy (article 11.2), recognition of legal personality (article 3), and the right to the name (article 18). The above means that States must respect and guarantee to every person, the possibility of registering and/or changing, rectify or adapt your name and the other essential components of your identity such as your image, or reference to sex or gender, without interference from public authorities or third parties. In that line, what is expressed necessarily implies, that people who identify with diverse gender identities must be recognized as such. What's more, The State must guarantee that they can exercise their rights and contract obligations based on that same identity., without being forced to hold another identity that does not represent their individuality, even more so when this involves continuous exposure to social questioning about that same identity, thus affecting the effective exercise and enjoyment of the rights recognized by domestic law and international law.”[9]
The Inter-American Court has indicated that regardless of its formal nature (jurisdictional or administrative), procedures for adapting identity data in accordance with self-perceived gender identity[10] must meet five requirements:
“1. They must be focused on the comprehensive adaptation of self-perceived gender identity.
Regarding this last requirement, the Economic Rights Committee, Social and Cultural in the General Comment No. 22, on the right to sexual and reproductive health stated that “[l]The laws and policies that perpetuate…surgery or sterilization requirements for legal recognition of gender identity, constitute additional violations of the obligation to respect [personal freedom].”[12]
This issue of changes in the identity document of trans people, has been discussed by the courts of several countries in the region, such as Brazil[13], Costa Rica[14], Argentina, Chile, Colombia, Ecuador and Mexico.
So, for instance, a Judge from the Province of Tierra del Fuego in Argentina, recently resolved the case of a person who filed an amparo for discrimination, considering that their rights had been violated by denying them a name change and gender registration “non-binary/egalitarian.” On such an occasion, citing the Law No. 26743 from Argentina, that establishes gender identity as a human right, the Yogyakarta Principles and the Advisory Opinion 24/17 of the Inter-American Court of Human Rights, among other legal instruments, The Judge granted the protection and ordered the changes in the registry[15].
The Supreme Court of Chile ruled similarly., in the sentence of the 29 May 2018. In this ruling, The Chilean Court authorized the change of name and sex on the identity document of a trans woman. The Court argued that the right to gender identity is closely linked to human dignity, and the free development of personality “regardless of what your biological sex is, genetic, anatomical, morphologic, allocation hormonal or other.”[16] He also added that the international obligations contracted by Chile “encompass the prohibition of discrimination based on gender identity…Consequently, the State must facilitate the change of name and registered sex, without conditioning to surgical intervention or hormonal treatment.”[17]
The Constitutional Court of Colombia has also issued several rulings on the matter.[18], the most recent providence being the T-063 of 2015. In this sentence, the Court protected the rights to human dignity, to the free development of personality, to the sexual identity and legal personality of a trans woman who was denied the change of name and sex in her civil registry for not having attended a voluntary jurisdiction process. So, ordered that it be allowed through public deed (an expedited notarial process) the change of the name and sex of the plaintiff so that it coincides with the name and sex with which she identifies. The Court explained that “[l]Correction through notarial means reduces the obstacles and exclusions suffered by transgender people due to the greater costs and waiting times involved in resorting to a judicial process., and that in their particular conditions of marginalization and exclusion become a particularly difficult burden to face.; in addition, eliminates the difference in treatment established between cisgender and transgender people, allowing the latter to make use of the sex correction procedure in the registry that is currently accepted for the former and contributes to eliminating the tendency towards the pathologization of gender identity. It is about, therefore, of a less harmful means in terms of affecting fundamental rights.”[19]
In addition, The Ecuadorian Constitutional Court ruled on this matter in Providencia No. 133-17-SEP-CC. In May 2017, The Court protected the rights to identity and equality of a trans man, and ordered that the sex change be made in his birth registration. As there is no specific legal procedure to carry out these changes, The Court also ordered that the Ecuadorian National Assembly must adopt legal provisions to regulate the procedure, observing the constitutional rights to the free development of personality and personal identity..
Finally, there are the cases of the Supreme Court of Justice of the Nation of Mexico, a Court in the region that has guaranteed several times the rights of trans people to change their sex and name on their identity documents[20]. So, in the Amparo in Revision 1317/2017, This Court reiterated that “the change of name and in general the adaptation of public records and identity documents so that they conform to self-perceived gender identity constitutes a right protected by the American Convention…” Over there, reiterated the five requirements established by the Inter-American Court in the Advisory Opinion 24/17 (mentioned above), and determined that if the articles of the Civil Code of the State of Veracruz, subject of review, did not meet these requirements, could lead to discrimination.[21]
Finally, It is important to keep in mind what is established in the Yogyakarta Principles on changes in the documents of trans people. In this regard, the Principle 3 of the Yogyakarta Principles, establishes that:
“[t]every human being has the right, everywhere, to the recognition of its legal personality. People in all their diversity of sexual orientations or gender identities will enjoy legal capacity in all aspects of life. The sexual orientation or gender identity that each person defines for themselves, It is essential for your personality and constitutes one of the fundamental aspects of your self-determination, your dignity and your freedom. No person will be forced to undergo medical procedures, including sex reassignment surgery, sterilization or hormone therapy, as a requirement for legal recognition of your gender identity. No condition, such as marriage or motherhood or paternity, may be invoked as such in order to prevent the legal recognition of a person's gender identity.. No person will be subjected to pressure to conceal, suppress or deny their sexual orientation or gender identity.”
Equally, the beginning 31, of the Yogyakarta Principles +10 establishes that “[t]All people have the right to legal recognition without reference to, or demand that they affirm or affirm their sex, gender, sexual orientation, gender identity, gender expression or sexual characteristics. All people have the right to obtain identity documents, including birth certificates, regardless of sexual orientation, gender identity, gender expression or sexual characteristics. Everyone has the right to change their gender information on such documents., as long as information about their gender is included in them.”
Free access to gender identity affirmation treatments, such as sex assignment or change surgeries, are a key issue when it comes to guaranteeing the rights of trans people. This issue is closely related to the right to physical and mental health., Therefore, a brief reference will be made to the standards applicable in the matter..
Article 12.1 of the International Covenant on Civil and Political Rights establishes that the States Parties to the Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
In a similar sense, the IACHR has stated that:
“[e]the right to health, understood as the enjoyment of the highest possible level of physical well-being, mental y social, It is also recognized in various instruments of the Inter-American System, like the American Declaration (article XI) and the San Salvador Protocol (article 10). In accordance with articles II of the Declaration and 3 of the San Salvador Protocol, besides, The right to health must be guaranteed without any distinction, even for reasons of sexual orientation, gender identity or expression, and body diversity. In that same sense, The Inter-American Court has ruled that the dimensions of the right to health include not only “the absence of conditions or diseases, but also to a complete state of physical well-being, mental y social, derived from a lifestyle that allows people to achieve a comprehensive balance.”[22]
The Colombian Constitutional Court has ruled multiple times on the issue of medical treatments to affirm gender identity[23]. In the Judgment T-552 of 2013, protected the rights to health, sexual and gender identity and the free development of the personality of two plaintiffs to whom the health system had denied sex reassignment surgery. About one of the plaintiffs, The Court considered that his rights were specifically violated by “not guaranteeing adequate professional support in her decision to undergo surgery.”, and not providing information about the sex reassignment medical procedure.” So, The Court determined that access to information for decision-making in cases of this type is absolutely fundamental. About the second plaintiff, The Court stipulated that the Health Promotion Entity violated their rights by not “offer you the necessary assistance and support in your sex reassignment process.”, and based on the best available diagnosis, authorize the medical services ordered by your treating physician.” In this sense, The Court determined that once all the information and medical support that the case warrants has been provided, People have the right to have necessary surgical interventions authorized.
On the other hand, The Judgment is relevant “R V. E. “S/ Judicial Authorization Action for Sex Change Reassignment” issued by the Family Court of the city of Bariloche, Argentina in the year 2012. In such ruling, article 26.d of the Law was declared unconstitutional. 3338, which prohibited medical professionals from “performing interventions that modify the sex of people.”, without proper judicial authorization.". In your reasoning, The judge stated that “seems archaic at this point in human evolution, insist on a binary conception of the sexes, when it is known that between the classic extremes, There is a wide range of varieties and inclinations…” He added that “[n]or there are compelling reasons to justify judicial intervention in a decision of a personal nature that does not harm third parties and does not offend public order and morality, therefore it is exempt from the authority of the magistrates.” And so, determined that surgeries of this nature should be performed without any other requirement than the informed consent of the patient.
Added to this, The standards applicable to this matter can be seen in the Principle 17 of the Yogyakarta Principles, which states that “[t]Everyone has the right to the enjoyment of the highest attainable standard of physical and mental health, without discrimination based on sexual orientation or gender identity. “Sexual and reproductive health is a fundamental aspect of this right.” In addition to this, the numeral 17.J forces to “protect all people from discrimination, violence and other harm based on your sexual orientation, gender identity, gender expression, and sexual characteristics, in the health sector”; and the numeral 17.K requires “ensuring access to the highest possible level of medical care related to gender identity-affirming treatments.”, based on prior consent, free and informed people.”
IN SUMMARY:● Any act of discrimination based on gender identity is absolutely prohibited.. Trans people have the right to enjoy all human rights. ● All people have the right to legal recognition of their gender identity. No person should be forced to undergo medical procedures as a requirement for legal recognition of their gender identity.. ● Everyone has the right to have their legal documents match their self-perceived gender identity, and easily make the necessary changes to make it so. ● Everyone has the right to the enjoyment of the highest attainable standard of physical and mental health, regardless of sexual orientation or gender identity. States must guarantee free access to treatments that affirm gender identity, based on prior consent, free and informed people.
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[1] In this regard, also see the definition of gender identity proposed by the Inter-American Commission on Human Rights in paragraph 20 of the Report of 2015 “Violence against Lesbian People, Gay, Bisexuals, Trans and Intersex in America”.
[2] Inter-American Court of Human Rights, Advisory Opinion OC-24/17 of 24 November 2017 requested by the Republic of Costa Rica, Gender identity, and equality and non-discrimination against same-sex couples, (2017), para. 94
[3] Office of the United Nations High Commissioner for Human Rights, Born Free and Equal, 2nd Edition (2012), p. 67 (Own Translation)
[4]Office of the United Nations High Commissioner for Human Rights, Born Free and Equal, 2nd Edition (2012), p. 68 (Own Translation)
[5] Constitutional Court of Colombia, Judgment T-363 of 2016, para 50
[6] Supreme Court of Justice of Chile, Sentence of the 5 November 2019, p. 4
[7]Supreme Court of Justice of the Nation of Argentina, Case of the Association of the Fight for Transvestite-Transsexual Identity v. General Inspection of Justice, 21 November 2016.
[8] Constitutional Court of Colombia, Sentence T-099 of 2015, para 98
[9] Inter-American Court of Human Rights. Advisory Opinion OC-24/17 of 24 November 2017 requested by the Republic of Costa Rica. Gender identity, and equality and non-discrimination against same-sex couples, (2017), para. 115.
[10] In this regard, see also the most recent report of the IACHR, Progress and challenges towards the recognition of the rights of LGBTI people in the Americas, This referred to the obligations that States have in relation to changes to the identity documents of people with diverse gender identities.. So, determined that States must: “i. Ensure that official identification documents only include relevant information, reasonable and necessary, as required by law for a legitimate purpose and, therefore, eliminate the registration of the sex and gender of the person in identification documents, such as birth certificates, ID cards, passports and driver's licenses, and as part of its legal personality; ii. Ensure access to simple procedures, transparent and accessible in order to change your name, including names that are gender neutral, based on the self-determination of the person. iii. As long as the sex or gender of the person continues to be recorded: a. Ensure a simple mechanism, transparent and accessible that legally recognizes and affirms the gender identity of each person according to their decision; b. Provide a multiplicity of gender-related options; c. Ensure that no eligibility requirements, such as medical or psychological interventions, a psycho-medical diagnosis, minimum or maximum age, socioeconomic status, health, marital or parental status, or other third party opinion is a prerequisite for the name change, sex or gender; d. Ensure that the person's criminal records, your migrant or other status is not used to restrict your name change, sex and gender.”( para. 107)
[11] Inter-American Court of Human Rights. Advisory Opinion OC-24/17 of 24 November 2017 requested by the Republic of Costa Rica. Gender identity, and equality and non-discrimination against same-sex couples. (2017)
[12] United Nations, Economic Rights Committee, Social and Cultural. General Observation No.. 22, (2016), para. 58.
[13] In this regard, see for example, Superior Electoral Court of Brazil, Response to query No. 060405458; Supreme Federal Court of Brazil, Direct Action of Unconstitutionality 4275; Superior Court of Justice of Brazil, Sentence of the 9 May 2017
[14] Supreme Electoral Tribunal of Costa Rica Minutes 49-2018
[15] Although this document does not include administrative decisions, It is worth highlighting that in Argentina the change of name/sex has already been granted several times by administrative means.. This has also happened in the case of children and adolescents who have been able to make the changes without having to carry out a judicial process., In this regard, see for example https://www.infobae.com/2013/10/09/1514825-lulu-la-nina-trans-6-anos-ya-tiene-su-nuevo-dni/; y https://www.infobae.com/sociedad/2019/05/16/princesa-no-caballero-un-nene-de-5-anos-legalizo-su-cambio-de-genero/
[16] Supreme Court of Chile, Judgment 29 of May 2018, p. 9
[17] Supreme Court of Chile, Judgment 29 of May 2018, p. 8
[18] In this regard see, Constitutional Court of Colombia Sentence T-594 of 1993; Judgment T-504 of 1994; Judgment T-1033 of 2008; Judgment T-977 of 2012; Sentence T-086 of 2014 and Sentence T-063 of 2015
[19] Constitutional Court of Colombia, Sentence T-063 of 2015, para 7.2.7
[20] About, see the Supreme Court of Justice of the Nation of Mexico Direct Civil Amparo 6/2008 and Supreme Court of Justice of the Nation of Mexico Amparo in Review 1317/2017
[21]Supreme Court of Justice of the Nation of Mexico Amparo in Review 1317/2017, p. 43
[22] Inter-American Commission on Human Rights. Progress and challenges towards the recognition of the rights of LGBTI people in the Americas, (2018), para 157
[23]Constitutional Court of Colombia, Judgment T-692 of 1999; T-918 2012; T-876 2012 T-552 2013 and T-771 2013.
To begin this section, the general standards on diverse families will be addressed., that is, those families made up of LGBT people. Then, considering that the family issue is broad and contains several relevant sub-topics, In this section the following questions will also be addressed: (i) standards regarding same-sex couples, delving into de facto union issues, marriage and the rights that derive from those unions and (ii) standards regarding relationships between mothers, parents, sons and daughters in diverse families, sub-section in which adoption issues will be delved into, affiliation and custody.
Both in the Universal Human Rights System, as in the Inter-American Human Rights System, the possibility of establishing a family and the protection of the family, It is a right in itself. Such right is enshrined in the article 16 of the Universal Declaration of Human Rights, he article 23 of the International Covenant on Civil and Political Rights, he article 10 of the International Covenant on Economic Rights, Social and Cultural and the article 17 of the American Convention on Human Rights.
What's more, Arbitrary interference in the family environment is prohibited by the right to privacy, which is also contemplated in multiple instruments of international law, As the article 12 of the Universal Declaration of Human Rights, he article 17 of the International Covenant on Civil and Political Rights, and in the article 11 of the American Convention on Human Rights.
A relevant legal issue is that the Universal Human Rights System and the Inter-American Human Rights System, They protect a broad concept of family, including those made up of LGBT people.
Several Committees of the Universal Human Rights System have referred to this matter.[1] For example, the Committee on the Rights of the Child in its General Observation No. 7 I affirm that “…In practice, family models are variable and changing in many regions, as well as the availability of informal support networks for parents, and there is a global trend towards greater diversity in family size, parental functions and structures for raising children.”[2]
A nivel regional, It is worth quoting what was written by the Costa Rican lawyer Ana Elena Badilla, which, referring to the concept of family underlying the regulations of the Inter-American System, I affirm that “[a]applying the legal principle that one cannot distinguish where the law does not distinguish, It must be understood that the Convention establishes general protection for all families, regardless of its composition.”[3]
Equally, This was explicitly established by the Inter-American Court of Human Rights in the case Section Riffo and Girls Vs. Chile, which stated that “in the American Convention, a closed concept of family is not determined.”, far from it, only a “traditional” model is protected.”[4]In this case, The Court determined that the language that was used by the Supreme Court of Chile to justify the decision to remove the daughters of Mrs. Karen Atala from its custody, “related to the supposed need of girls to grow up in a “normally structured family appreciated in their social environment”, and not in an “exceptional family”, reflects a limited and stereotyped perception of the concept of family that has no basis in the Convention as there is no specific family model (the “traditional family”).[5]
In Latin America this standard has been accepted by several high courts in the region. Examples from Mexico will be presented below., Ecuador, Costa Rica and Colombia.
In the Amparo under Review 581 of 2012, the Supreme Court of Justice of the Nation of Mexico, When referring to the scope of the right to the family in international treaties and in the Mexican legal system, he stated that: “This protection must cover all its forms and manifestations existing in society.”: nuclear families composed of parents and children (biological or adoptive) that are established through marriage or de facto unions…; and of course also homoparental families made up of same-sex parents with children (biological or adoptive) or without them.”[6]
In addition, the Constitutional Court of Ecuador, in the case of equal marriage 11-18-CN of 2019, stated that the Ecuadorian constitution protects “to the family” in its various types”, with various purposes and that can be constituted “due to legal and factual ties”, based on the equal rights and opportunities of its members. In the diverse, besides, We must consider that Ecuador is a plurinational State and that in each nationality there may be different conceptions of family. This means that the Constitution does not recognize a single and exclusive concept of family., and?, being the fundamental nucleus of society, “Every family is important.”[7]
The Constitutional Chamber of the Supreme Court of Costa Rica also expressed itself in this sense in the aforementioned Resolution No 12783 – 2018. Over there, accepting what is established in the Advisory Opinion 24/17 of the Inter-American Court of Human Rights, The Court reiterated that the American Convention, binding instrument for Costa Rica, “it does not protect a particular model of family.”[8]
Added to this, The Constitutional Court of Colombia referred to the concept of diverse families in the Sentence C-577 of 2011. In such ruling the Court held that although previously the family subject to special constitutional protection was heterosexual and monogamous, Such interpretation no longer has a basis in the Colombian legal system.. Day by day, According to the Court, couples who freely express their consent or unite with the intention of permanence form a family regardless of the sexual orientation of its members.. In this regard, he explained that: “[l]The presence in stable homosexual unions of the element that gives identity to the family [These are the emotional ties] beyond its diversity and the variations that its reality has, its concept and its consequent legal understanding, configures them as a family and supports the replacement of the interpretation that has predominated in the Court, It should be clarified that, in accordance with the article 42 superior, The links that give rise to the constitution of the family are natural or legal and that the change now proposed no longer supports the understanding according to which the legal bond is exclusively marriage between heterosexuals.”[9]
Of course, this broad and diverse concept of family is also referred to in the Yogyakarta Principles. The beginning 24 clearly reflects the scope of this right for LGBT people by stating that: “[t]Everyone has the right to start a family, regardless of your sexual orientation or gender identity. There are various family configurations. “No family can be subjected to discrimination based on the sexual orientation or gender identity of any of its members.”[10]
What's more, the beginning 6 of the Yogyakarta Principles states that "Everybody, regardless of your sexual orientation or gender identity, They have the right to enjoy their privacy, without arbitrary or illegal interference, Even regarding his family…”
Regarding unions between same-sex couples, Both de facto unions and marriage find protection in the Inter-American Human Rights System.. The Inter-American Commission on Human Rights spoke about this in its report of the 2019, Recognition of LGBT Rights. On that occasion the Commission stated that “States have the obligation to legally recognize unions or marriages of people of the same sex.”, granting the same rights conferred to couples of different sexes, including economic rights, and all others that arise from that relationship, without distinction based on sexual orientation or gender identity, under penalty of constituting violations of the rights of equality and non-discrimination of same-sex couples, among other rights.”[11]
This standard of equality and non-discrimination for de facto unions formed by same-sex couples can be seen at the national level in several countries in the region., including Argentina[12], Brazil[13], Colombia[14] and Costa Rica[15].
For example, the Constitutional Chamber of the Supreme Court of Justice of Costa Rica, in the Resolution No. 2014-012703 resolved a case in which the Costa Rican Bar Association rejected the request of one of its members for extensions to his same-sex partner, the benefits granted to the romantic partners of the members. The above, since the College considered that same-sex couples did not constitute romantic partners. About, The Costa Rican Court declared the amparo appropriate and affirmed that such interpretation of the term “sentimental companions” era “discriminatory, contrary to human dignity and the pro homine principle.” He also added that “the differentiation of treatment of the appellant and his partner with respect to the heterosexual partners of the members, was based, only, in the diverse sexual orientation of the person, protected category based on the provisions of the article 1.1 in relation to the 24 of the American Convention on Human Rights…”
On the other hand, Constitutional Court of Colombia ruled on this issue in the statement C-075 of 2007, in which it determined that according to the Colombian Constitution, all forms of discrimination based on sexual orientation are prohibited.. He added that this “prohibition of discrimination on the basis of sexual orientation, It emerges from international norms that are part of the constitutionality block…” and specifically cited the article 24 of the American Convention on Human Rights and the article 26 of the International Covenant on Civil and Political Rights. The Court also argued that, Although there are differences between heterosexual couples and same-sex couples, which makes differential treatment possible in some cases, This treatment will only be constitutionally admissible “if it obeys a principle of sufficient reason.”
For your part, Equal marriage is also explicitly protected at the national level in multiple countries in the region.. In the case of Argentina[16] and Uruguay[17], for instance, This protection is enshrined in law, while in the cases of Mexico[18], Costa Rica[19], Ecuador[20], Brazil[21] and Colombia[22], has materialized through jurisprudence.
In particular, It is necessary to reiterate what was established by the Supreme Court of Justice of the Nation of Mexico in the Amparo in Review 581/2012, in which he stated that “excluding same-sex couples from marriage is discriminatory.”. This is because there is no valid reason to exclude them from said protection.. For all relevant purposes, Homosexual couples are in an equivalent situation to heterosexual couples, in such a way that his exclusion from marriage is totally unjustified.”[23]
What's more, this same Mexican Court, in the Tesis Jurisprudencial 1a./J. 43/2015 (10a.), declared that:
“[c]Considering that the purpose of marriage is procreation constitutes an unsuitable measure to fulfill the only constitutional purpose to which the measure can obey: the protection of the family as a social reality. Trying to link the requirements of marriage to the sexual preferences of those who can access the institution of marriage with procreation is discriminatory., since it unjustifiably excludes homosexual couples who are in similar conditions to heterosexual couples from access to marriage.. The distinction is discriminatory because sexual preferences do not constitute a relevant aspect to make the distinction in relation to the constitutionally imperative purpose.”
Likewise, the Supreme Court of Justice of Costa Rica, in the Resolution No. 12782 – 2018, declared the section unconstitutional 6 of the article 14 of the Family Code of Costa Rica, which established marriage between people of the same sex as impossible. The above, considering that this violated the right to equality contemplated in the article 33 of the Political Constitution of Costa Rica and the article 24 of the American Convention on Human Rights. On that occasion, the Costa Rican Court took up what was said by the Inter-American Court of Human Rights in the Advisory Opinion. 24/17, specifically that “[l]States must guarantee access to all figures already existing in domestic legal systems, to ensure the protection of (sic) all the rights of families made up of same-sex couples, without discrimination with respect to those made up of heterosexual couples.”[24]
Besides, It is worth returning to the Sentence 10-18-CN/19 of the Ecuadorian Constitutional Court, to which reference was made in the section about the principle of equality and non-discrimination. In this providence, The Ecuadorian Court ruled that the Constitution of that country not only allowed marriage between people of the same sex, but it forced the legislator to recognize this institution. So, the Court stated that “Our Constitution recognizes the right of same-sex couples to have the legislator institute (this is, make possible and regulate) for them marriage, granting them –with said institutionalization - the legal power to marry. Consequently, The legislator is obliged to do so.”[25] What's more, The Court immediately added that “[c]include the opposite, not only that it would be patently unfair, but it would cause the international responsibility of the Republic of Ecuador before the Inter-American Human Rights System…”
Another example of regional jurisprudence on the matter that is important to consider is the Colombian case.. The issue of equal marriage was resolved in this country through two rulings. The Sentence C-577 of 2011 and the SU-214 of 2016. In the first, as seen above in the regional standards section on diverse families, The Constitutional Court declared that same-sex couples constitute a constitutionally protected family. In the second, The Court expanded that declaration and noted that although:
“[e]l Article 42 of the Constitution establishes, expressly, that marriage arises from the bond between a man and a woman. From this normative description through which a right is enshrined in favor of heterosexual people, It does not follow that there is a prohibition for others who do not exercise it under equal conditions.. Establish that men and women can marry each other, It does not imply that the Constitution excludes the possibility of this bond being celebrated between women or between men as well..
This is because in constitutional hermeneutics, The express enunciation of one category does not exclude the existence of others, incorporating per se the rule of interpretation "the inclusion of one is the exclusion of another", because the Political Charter is not a general rule written in prohibitive language. On the contrary, the higher standard, being written in the deontic language of fundamental principles and rights, Its essential content is determined based on the Kelsenian logical legal principle according to which “what is not legally prohibited, It is allowed.”[26]
To more closely appreciate the protection granted to unions between same-sex couples in the Universal Human Rights System and the Inter-American Human Rights System, It is essential to review cases on the recognition of the rights that derive from the bond sustained between these couples., as is the case of inheritances or social security benefits.
The Human Rights Committee, referred to the issue of rights that should be recognized for same-sex couples that constitute a de facto union, in the case Young Vs. Australia. In this decision, The Committee found that Australia had breached the article 26 of the International Covenant on Civil and Political Rights by denying, without reasonable and objective justification, a permanent partner of the same sex to receive benefits that were allowed in the case of permanent heterosexual partners. He stated that the plaintiff had the right to have his pension application re-evaluated. “without discrimination based on sex or sexual orientation.”[27] In it 2008, This precedent was reiterated again by the Committee in the case X Vs. Colombia.
This issue has also been directly addressed by the Inter-American Court of Human Rights in the case Duque Vs. Colombia. On such an occasion, The Court declared the international responsibility of the State for the violation of the right to equality and non-discrimination contained "in it article 24 of the Convention, in relation to the article 1.1 of the same instrument, to the detriment of Mr. Ángel Duque since he was not allowed to access on equal terms the survivor's pension established in Colombian internal regulations.”[28] In addition, The Court stated that “The notion of equality arises directly from the unity of nature of the human race and is inseparable from the essential dignity of the person.”, against which any situation that is incompatible is incompatible, for considering a certain group superior, lead to treating it with privilege; what, the other way around, for considering it inferior, treats him with hostility or in any way discriminates against him from the enjoyment of rights that are recognized to those who do not consider themselves to be in such a situation.”[29]
Also, The Inter-American Court of Human Rights expressed its opinion on this matter in the Advisory Opinion 24/17. Over there, This Court confirmed that "must be protected, without any discrimination regarding couples between heterosexual people, in accordance with the right to equality and non-discrimination (articles 1.1 y 24), all the property rights that derive from the protected family bond between people of the same sex.”[30]
In the Latin American region, This issue has been discussed by the Supreme Court of Justice of the Nation of Mexico in the Amparo in Review 485 of 2013. In this, The Court asked whether the Puebla Social Security Law was discriminatory by making “implicitly a distinction based on the sexual preference of people that is translated[Inc] in the arbitrary exclusion of homosexual couples from access to health and maternity insurance when one of them is the beneficiary and intends for his or her partner to become a beneficiary.” Stating that sexual orientation is a category suspected of discrimination, and therefore applying strict scrutiny to the legislative measure, The Court granted protection to the plaintiff and declared the measure unconstitutional..
On the other hand, the Supreme Court of Justice of Argentina in the Judgment P., A. c/ ANSeS s/ pensions, granted the survivors' pension to P. who had lived with his permanent companion for more than forty years before the latter died. In this ruling the Court argued that although men did not constitute a “public coexistence in apparent marriage” according to the terms of Argentine law 24.421, This did not prevent the granting of the pension benefit. The above, Given the “the “substitute” nature of certain social security benefits such as the one in dispute here…must exhibit the necessary breadth to encompass the links of solidarity and assistance that, in a concrete and continuous way, establish human persons among themselves to regularly satisfy the material needs of life, and whose extinction, due to the death of the beneficiary, causes the survivor an unfavorable economic impact to continue facing said needs, derived from the loss of income from the deceased.”[31]
This right has also been widely guaranteed by the Colombian Constitutional Court., which, for example in the case C-238 of 2012, granted permanent partners of the same sex the right to collect the inheritance of the person with whom they formed a family. Jointly, other property rights derived from the protected family bond between people of the same sex, as is the case of social security, have been considered extensively by the Colombian Constitutional Court, which has guaranteed survivors' pensions for same-sex couples.[32]
To finish this sub-section it is worth adding that two literals of the Principle 24 of the Yogyakarta Principles, refer explicitly to this issue. On the one hand, 24.E determines that the States: “[a]will adopt all legislative measures, administrative and other measures that are necessary to ensure that in those States that recognize marriages or registered unions between persons of the same sex, any right, privilege, obligation or benefit granted to people of different sex who are married or have registered their union is available, in equal conditions, for same-sex couples who are married or have registered their union;” What's more, the literal 24.F establishes that States also “[a]will adopt all legislative measures, administrative and other measures as may be necessary to ensure that any obligation, right, privilege or benefit granted to unmarried couples of different sexes is available, in equal conditions, for same-sex couples who are not married;”
The legal discussions that arise around the rights of diverse families in relation to their sons and daughters, are necessarily related to the standard, aforementioned, equality and non-discrimination. So things, any right granted to families in the Universal System or in the Inter-American Human Rights System, It is equally applicable to all members of diverse families.
Added to this, according to the article 3.1 of the Convention on the Rights of the Child, “in all measures concerning children taken by public or private social welfare institutions, the courts, administrative authorities or legislative bodies, “A primary consideration that will be addressed will be the best interests of the child.” Definitely, legal discussions surrounding adoption, filiation and custody concern boys and girls, which is why before delving into the legal standards on each of these matters, It is relevant to consider the position of the Inter-American Court of Human Rights, regarding the application of the principle of equality and non-discrimination in relation to the principle of the best interests of the child.
So, in the case Atala Riffo and Girls Vs. Chile, The Court considered that “…A determination based on unfounded and stereotyped presumptions about the parental capacity and suitability to be able to guarantee and promote the well-being and development of the child is not adequate to guarantee the legitimate objective of protecting the best interests of the child...The Court considers that the stereotype-based considerations for sexual orientation, that is to say, pre-conceptions of attributes, “behaviors or characteristics possessed by homosexual people or the impact that these allegedly may have on girls and boys.”[33]
The Inter-American Court has also referred to other arguments that seek to undermine the right to equality and non-discrimination of LGBT people to supposedly protect the best interests of the minor.. For example, against the argument of the possible stigmatization or social discrimination that minors could face due to the sexual orientation or gender identity of their parents, The Court has stated that:
“[s]While it is true that certain societies can be intolerant to conditions such as race, sex, a person's nationality or sexual orientation, States cannot use this as a justification to perpetuate discriminatory treatment. States are internationally obliged to adopt the measures that are necessary “to make effective” the rights established in the Convention., as stipulated in the article 2 of said inter-American instrument, so they must aim to, precisely, for confronting intolerant and discriminatory demonstrations, in order to avoid the exclusion or denial of a certain condition.”[34]
What's more, The Court has evaluated the argument according to which the parental behavior of fathers or mothers of the same sex would generate a negative impact on the well-being of the minor involved., supposedly affecting the principle of best interests of the minor. About, has stated that “[t]regarding the prohibition of discrimination based on sexual orientation, The possible restriction of a right requires a rigorous and very weighty justification.…”[35] He also stated in the case Atala Riffo and Girls Vs. Chile what, “[e]n effect, It is the State that has the burden of proof to show that the judicial decision under debate has been based on the existence of specific harm, specific and real in the development of girls. To achieve this, it is necessary that judicial decisions on these issues define specifically and concretely the elements of connection and causality between the behavior of the mother or father and the supposed impact on the child's development. Otherwise, there is a risk of basing the decision on a stereotype linked exclusively to pre-conception, not supported, that children raised by homosexual couples would necessarily have difficulty defining gender or sexual roles.”[36]
Finally, the argument according to which minors have the right to a “traditional family model” Nor has it been accepted by the Inter-American Court of Human Rights, Well, as was seen in the section on general standards on diverse families, The Court considers that the concept of traditional family has no place in the Convention and, on the contrary, “reflects a limited and stereotyped perception of the concept of family.”[37]
Taking into account the above, It is appropriate to review the standards in the region for the particular sub-topics of adoption, affiliation and custody.
In Latin America, adoption by same-sex couples or regardless of the sexual orientation of the adopters, It is legal in Uruguay[38], Argentina[39], Brazil[40], Mexico and Colombia. In the case of the first two countries, this guarantee was achieved through legal means., while in the last three countries this progress was achieved through jurisprudence. The jurisprudence of Mexico and Colombia will be cited in this sub-section.. In particular, reference will be made to three types of adoption: individual, joint and consented.
A matter of this nature was resolved by the Constitutional Court of Colombia in the ruling T-276 of 2012. In this ruling, the Court protected the rights of a diverse family by ordering definitive custody of their children to an adoptive father., after the Colombian Institute of Family Welfare (ICBF) separated them arguing that their sexual orientation threatened the well-being of the children. In this regard, the Court held that the state entity violated the rights of the children and their father to due process., the family unit and in particular the children to be heard and for their opinions to be taken into account, whereas their wishes were completely ignored when the decision was made to separate them from their adoptive father and place them back in a foster home.
The standard of equality and non-discrimination for access to joint adoption by same-sex couples was accepted by the Supreme Court of Justice of Mexico in the Unconstitutionality Action 8 of 2014, occasion in which the Court declared unconstitutional a rule that absolutely prohibited adoptions and the sharing of parental authority for same-sex couples. The previous declaration arose after the application of strict scrutiny that was not passed since the norm analyzed did not pursue a constitutionally valid purpose., "but on the contrary it had the purpose of discriminating from a category prohibited by article 1 of the constitution, related to sexual orientation.”[41]
In addition to this, the Supreme Court of Justice of the Nation of Mexico, resuming the Unconstitutionality Action 8/2014, stated in the Constitutional Thesis P./J. 8/2016 (10a.), what “[l]The sexual orientation of the person or persons is not a relevant element to take into consideration to form or complete a family, nor as an element to be considered in the adopter, nor to share parental authority in cases where it is exclusive to one of the cohabitants.. So, The prohibition for same-sex couples to adopt violates the constitutional principle of equality and non-discrimination, "The interpretation that the homosexuality of the adopters implies an impact on the best interests of the adopted minors is unsustainable."[42]
This issue was also discussed by the Colombian Constitutional Court in the Sentence C-683 of 2015. Over there, The Court determined that it was incompatible with the Colombian Political Constitution “generically restrict adoption to same-sex couples.”, while said prohibition does not have a constitutionally valid justification.” The Court stated that “What definitely cannot be accepted is that a person's sexual orientation is confused with their lack of suitability to adopt.” And regarding the argument according to which the best interests of the child must prevail during the adoption process, The Court clarified that compliance with this requirement must be evaluated independently of the sex and sexual orientation of the members of the potential adoptive family..
On the issue of consensual adoption, scenario in which the adoption request falls on the child of the permanent partner, The Colombian Constitutional Court ruled in the Sentence SU-617 of 2014. In this ruling the Court stated that “[c]When a person adopts his partner's biological child(a) permanente, “The homosexual status of the adopting couple cannot be a basis for negatively resolving the respective administrative procedure.”
What's more, in the Sentence C-071 of 2015, The Colombian Constitutional Court declared the conditional constitutionality of the Colombian norm that regulates consensual adoption, under the understanding that “Same-sex couples are also included within its scope of application when the adoption request falls on the biological child of their permanent partner.”
To conclude the matter of adoption, It is important to keep in mind the Principle 24 of the Yogyakarta Principles, which establishes that the States: “A. They will adopt all legislative measures, administrative and other measures that are necessary in order to ensure the right to form a family, even through access to adoption or assisted reproduction (including donor insemination), without discrimination based on sexual orientation or gender identity;”[43]
The Ecuadorian Constitutional Court ruled on the question of filiation, in the Sentence No. 184/2018. Herein, reviewed a case in which registration of the filial bond was denied to a couple of women who underwent assisted fertilization to conceive their daughter. About, The Court stated that “on the basis of formal equality of rights and obligations, "The de facto union of ladies...has the same right to register filiation with respect to the double motherhood of its nucleus towards its daughter as heterosexual nuclei have with respect to their children."[44] He added that “The right to equality and non-discrimination is a constitutive element of the recognition of families in their various types.”, principle that allows us to understand that both homoparental and nuclear-traditional nuclei have the same capacity and power to form homes with children…”[45]
The Constitutional Court of Colombia has ruled similarly in several cases.[46]. For example, in the Sentence SU-696 of 2015, The Court protected the rights to a dignified life, legal personality, nationality and protection of the best interests of the minor, of two minors who were repeatedly denied registration in the civil birth registry with the surnames of their two parents, despite the fact that there was an equivalent foreign document that recognized the filial relationship of the minors with their parents. The Court ordered the immediate registration of the minors with both surnames, and also, ordered the National Registry to implement “a new Civil Birth Registry format in which it is clearly indicated that in the boxes intended to identify the “padre” y “madre” of the minor it is admissible to incorporate the name of two men or two women, in the order voluntarily indicated by the couple for the purposes of their child's legal surnames, “if they meet the general requirements of the law to be recognized as the fathers or mothers of the child.”
Faced with the issue of custody of LGBT parents, there are favorable and robust standards at the regional level, given that this was the main issue discussed by the Inter-American Court in the case, already widely cited, Atala Riffo and Girls Vs. Chile. In this case, the Inter-American Court declared the State of Chile responsible for having violated the rights to equality and non-discrimination., best interests of the child, private life, and judicial protection and judicial guarantees, by discriminating and unjustifiably interfering in the private and family life of Karen Atala and her daughters M.V.. y R., through the judicial process that, considering the sexual orientation of the mother, culminated in the removal of custody of his daughters.
In this flagship failure, The Inter-American Court established that “…The best interests of the child cannot be used to protect discrimination against the mother or father due to the sexual orientation of either of them.. Thus, “The judge cannot take this social condition into consideration as an element to decide on guardianship or custody.”[47]
The standards regarding the application of the principle of equality and non-discrimination in relation to the principle of the best interests of the child, mentioned above, were those that the Court applied to the specific case. So, I affirm that “determining the best interests of the child, In cases of care and custody of minors, it must be done based on the evaluation of specific parental behaviors and their negative impact on the well-being and development of the child, depending on the case., real and proven damages or risks, and not speculative or imaginary. Therefore, speculation cannot be admissible, presumptions, stereotypes or generalized considerations about personal characteristics of the parents or cultural preferences regarding certain traditional concepts of the family.”[48]
The Court also added that intervening in the relationship of fathers or mothers with their daughters or sons, Using the sexual orientation of the former as a basis, it consists of “…under certain conditions, a violation of the aforementioned right [to privacy], since even legal separations of the child from his family can only proceed if they are duly justified.”[49] for this “must be provided for in the law, pursue a legitimate purpose and meet suitability requirements, necessity and proportionality, that is to say, They must be necessary in a democratic society.”[50]
IN SUMMARY:● All people have the right, without any restriction based on sexual orientation or gender identity, to form a family that enjoys the right to privacy, This is to live without arbitrary interference in the family environment.. ● International human rights law does not protect a traditional concept of family, but rather a broad concept of diverse families, which includes those made up of LGBT people. ● All people have the right, without any discrimination based on sexual orientation or gender identity, to formalize your relationship through the legal figures of de facto union or marriage. ● Same-sex couples, They have the right to access all the rights that derive from de facto unions or marriages, on equal terms with couples of different sexes. ● All rights granted to families in international human rights law are fully applicable to members of diverse families. ● The principle of the best interests of the child can under no circumstances be used to undermine the right to equality and non-discrimination of LGBT people.. ● Discrimination based on sexual orientation or gender identity is prohibited when making adoption decisions., whether individual, joint or consented. State authorities cannot consider the sexual orientation and gender identity of the petitioners in adoption processes. ● Discrimination based on sexual orientation or gender identity is prohibited in the context of carrying out affiliation procedures.. State authorities have the obligation to guarantee the recognition of filial relationships in diverse families. ● Discrimination based on sexual orientation or gender identity is prohibited in making decisions about custody of minors.. So, It is not possible for the Judge on duty to consider the sexual orientation or gender identity of the father or mother of the minor to decide in a custody case.. |
[1] See for example, United Nations, Committee for the Elimination of Discrimination against Women, General Recommendation No. 21, para 13; United Nations, Human Rights Committee, General Comment No. 19, para 2; United Nations, Human Rights Committee, General Comment No. 16, para 5
[2] United Nations, Children's Rights Committee, General Observation No. 7, (2005), para. 19
[3] Ana Elena Badilla, The right to the constitution and protection of the family in the regulations and jurisprudence of the Inter-American Human Rights System, (2009), p. 3
[4]Inter-American Court of Human Rights. Atala Riffo and girls Vs Case. Chile. Sentence of 24 February 2012, Bottom, Repairs and Costs, (2012), para. 142
[5] Inter-American Court of Human Rights. Atala Riffo and girls Vs Case. Chile. Sentence of 24 February 2012, Bottom, Repairs and Costs, (2012), para. 142
[6] Supreme Court of Justice of the Nation of Mexico, Amparo in Review 581 of 2012, p.37
[7] Constitutional Court of Ecuador, Case No. 11-18-CN-19, para 51
[8] Supreme Court of Justice of Costa Rica, Constitutional Chamber, Resolution No 12783 – 2018, p. 13
[9] Constitutional Court of Colombia, Judgment 577 of 2011
[10] Yogyakarta Principles (2007), Principle 24
[11]Inter-American Commission on Human Rights. Progress and challenges towards the recognition of the rights of LGBTI people in the Americas, (2018) para 235
[12] Supreme Court of Justice of the Nation of Argentina, P case, A. c/ ANSeS s/ pensions (2011)
[13] Supreme Court of Brazil, ADI 4277/DF (2011) and ADPF 132/RJ (2011).
[14] Colombian Constitutional Court, Sentences C-507 of 1999, C-075 of 2007, T-1241 the 2008, C-798 2008, T-717 the 2011, T-319 the 2017
[15] Supreme Court of Justice of Costa Rica, Resolution No. 12783 – 2018
[16] In this regard, see the law Law 26.618 of Civil Marriage (2010)
[17] In this regard, see Law No. 19.075 of 2013
[18] Supreme Court of Justice of the Nation of Mexico, Unconstitutionality Action 2/2010, Amparo in Review 581/2012, Amparo in Review 152/2013, Amparo in Review 567/2012, Amparo in Review 457/2012, Amparo in Review 615 of 2013, Amparo in Review 263/2014, Amparo in Review 122/2014, Tesis Jurisprudencial 1a./J. 43/2015 (10a), Tesis Jurisprudencial 1a./J. 46/2015 (10a), Amparo in Review 28/2015 and Amparo in Review 704 of 2014
[19] Supreme Court of Justice of Costa Rica, Resolution No 12782 – 2018
[20] Constitutional Court of Ecuador, Sentences 10-18-CN/19 and 11-18-CN/19
[21] National Council of Justice of Brazil, Resolution No. 175 of 2013
[22] Constitutional Court of Colombia, Sentences C-577 of 2011 and SU-214 2016.
[23] Supreme Court of Justice of the Nation of Mexico, Amparo in Review 581 of 2012, p. 39
[24] Inter-American Court of Human Rights. Advisory Opinion OC-24/17 of 24 November 2017 requested by the Republic of Costa Rica. Gender identity, and equality and non-discrimination against same-sex couples, para 228.
[25] Constitutional Court of Ecuador, Sentence 10-18-CN-19, Para 91
[26] Constitutional Court of Colombia, Sentence SU-214 of 2016
[27] United Nations, Human Rights Committee, Caso Young Vs. Australia, Communication No. 941/2000, para. 12
[28] Inter-American Court of Human Rights. Duque Vs Case. Colombia. Sentence of 26 February 2016, Preliminary Exceptions, Bottom, Repairs and Costs, (2016), para 138
[29] Inter-American Court of Human Rights. Duque Vs Case. Colombia. Sentence of 26 February 2016, Preliminary Exceptions, Bottom, Repairs and Costs, (2016), para 91
[30] Inter-American Court of Human Rights. Advisory Opinion OC-24/17 of 24 November 2017 requested by the Republic of Costa Rica. Gender identity, and equality and non-discrimination against same-sex couples, para. 199
[31] Supreme Court of Justice of the Nation of Argentina, P., A. c/ ANSeS s/ pensions (2011), p. 4.
[32]Constitutional Court of Colombia, Sentences T-618 of 2000, T-999 the 2000, T-1426 the 2000, SU-623 2001, C-098 of 2006, C-1043 of 2006, T-856 the 2007, C-811 2007, C-336 2008, T-911 the 2009, T-051 of 2010, T-357 the 2013, T-716 the 2011, T-151 the 2014, T-935 the 2014, T-327 the 2014 and T-823 2014
[33] Inter-American Court of Human Rights. Atala Riffo and girls Vs Case. Chile. Sentence of 24 February 2012, Bottom, Repairs and Costs, para. 111.
[34] Inter-American Court of Human Rights. Atala Riffo and girls Vs Case. Chile. Sentence of 24 February 2012, Bottom, Repairs and Costs, para. 119
[35] Inter-American Court of Human Rights. Atala Riffo and girls Vs Case. Chile. Sentence of 24 February 2012, Bottom, Repairs and Costs, para 124 y 125
[36] Inter-American Court of Human Rights. Atala Riffo and girls Vs Case. Chile. Sentence of 24 February 2012, Bottom, Repairs and Costs, para. 125
[37] Inter-American Court of Human Rights. Atala Riffo and girls Vs Case. Chile. Sentence of 24 February 2012, Bottom, Repairs and Costs, para 145
[38] In this regard, see Law No. 18.590
[39] This right arose for same-sex couples in Argentina, with the Law 26.618 of Civil Marriage (2010), according to which the rights (like adoption) and obligations that arise from the marital union apply to all unions, regardless of your sexual orientation or composition.
[40] With the legalization of equal marriage in Brazil, in the year 2013, Same-sex couples can access the same rights as heterosexual couples, including the right to adopt.
[41] Supreme Court of Justice of the Nation of Mexico, Unconstitutionality Action 8/2014, para 94
[42] Supreme Court of Justice of the Nation of Mexico, Constitutional Isolated Thesis P. XII/2016 (10a.)
[43] Yogyakarta Principles (2007), Principle 24, p.29
[44] Constitutional Court of Ecuador, Judgment 184 of 2018, p. 73
[45] Constitutional Court of Ecuador, Judgment 184 of 2018, p. 90
[46] In this regard, see also Constitutional Court of Colombia, Judgment T-196 of 2016.
[47] Inter-American Court of Human Rights. Atala Riffo and girls Vs Case. Chile. Sentence of 24 February 2012, Bottom, Repairs and Costs, para. 110.
[48] Inter-American Court of Human Rights. Atala Riffo and girls Vs Case. Chile. Sentence of 24 February 2012, Bottom, Repairs and Costs, para 109
[49] Inter-American Court of Human Rights. Atala Riffo and girls Vs Case. Chile. Sentence of 24 February 2012, Bottom, Repairs and Costs, para 169
[50] Inter-American Court of Human Rights. Atala Riffo and girls Vs Case. Chile. Sentence of 24 February 2012, Bottom, Repairs and Costs, para 164
This section will begin with a summary of the human rights standards that are generally applicable to the issue of children., LGBTI girls and adolescents. Then it will delve into three specific sub-topics., namely: (i) bullying and discrimination in school environments; (ii) discrimination based on gender identity; y (iii) children, intersex girls and adolescents. At the outset it is worth mentioning that for the comparative law section in these last three sub-topics, It was only possible to identify rulings on the matter issued by the Colombian Constitutional Court..
Although in the previous section reference was made to the importance of considering the best interests of the child in relation to the principle of equality and non-discrimination to resolve issues regarding diverse families, This section will return to the topic of the best interests of the child, in relation to girls, LGBT children and adolescents.
In the Universal Human Rights System, the right to special protection of children, girls and adolescents is enshrined in the article 24 of the International Covenant on Civil and Political Rights. Jointly, he article 10.3 of the International Covenant on Economic Rights, Social and Cultural establishes that “[s]Special measures of protection and assistance must be adopted in favor of all children and adolescents, without any discrimination due to affiliation or any other condition.”
In addition to this, the girls, Children and adolescents are especially protected by the Convention on the Rights of the Child. He article 2 of this Convention, enshrines the right to equality and non-discrimination applicable to children, girls and adolescents[1].
The Committee on the Rights of the Child, serving as interpreter of this Convention, in the General Observation No. 14, “on the right of the child to have his or her best interests a primary consideration”, determined that to evaluate the best interests of the child, One of the elements that must be taken into account is “the identity of the child.”. In this regard, he established that “[l]Children are not a homogeneous group, so diversity must be taken into account when evaluating your best interests. The child's identity encompasses characteristics such as sex, sexual orientation, national origin, religion and beliefs, cultural identity and personality. Although children and young people share basic universal needs, The expression of those needs depends on a wide range of personal aspects, physical, social and cultural, including the evolution of their faculties. The right of the child to preserve his or her identity is guaranteed by the Convention (art. 8) and must be respected and taken into account when evaluating the best interests of the child.”[2]
Added to this, in the General Observation No. 15, The same Committee determined that “[e]in the article 2 of the Convention there are various reasons with respect to which discrimination is prohibited, in particular the race, the color, sex, the language, the religion, political or other opinion, national origin, ethnic or social, the economic position, physical impairments, the birth or any other condition of the child, of their parents or their legal representatives. In this regard, sexual orientation should also be mentioned., gender identity and health status, particularly HIV/AIDS and mental health.”
In the document, Eliminating Discrimination Against Children and Parents Based on Sexual Orientation and/or Gender Identity, the United Nations Children's Fund (“UNICEF” for its acronym in English), I affirm that “all the boys and girls, regardless of your actual or perceived sexual orientation and gender identity, have the right to a safe and healthy childhood that is free from discrimination. “The same principle applies to all boys and girls regardless of the sexual orientation or gender identity of their parents.”[3]
A nivel regional, This special protection is enshrined in the article 19 of the American Convention on Human Rights, which states that “[t]Every child has the right to the protection measures that his or her status as a minor requires from his or her family., of society and the State.”
The Inter-American Court of Human Rights has affirmed in multiple cases that violations of the human rights of children, girls and adolescents are markedly serious.[4] For example, in the case of Las Girls Yean and Bosico Vs. Dominican Republic, The Court noted that “Cases in which the victims of human rights violations are children are especially serious.”. The prevalence of the best interests of the child must be understood as the need to satisfy all the rights of minors., “which binds the State and has effects on the interpretation of all other rights of the Convention when the case refers to minors.”[5]
In addition, in the case Ramírez Escobar and Others Vs. Guatemala, The Inter-American Court specified that “[e]n every situation that involves girls and boys, they must be applied and respected., transversally, four guiding principles, namely: i) non-discrimination; ii) the best interests of the child; iii) the right to be heard and participate[6], y iv) the right to life, survival and development.”[7]
In the report Violence Against LGBTI People, The Inter-American Commission on Human Rights referred specifically to the protection of children, LGBTI girls and adolescents and stated that “[l]The States have the obligation to respect and guarantee the right established in article 19 regarding boys and girls, without discrimination on the basis of sexual orientation and gender identity, in accordance with article 1.1 of said treaty.”[8]
What's more, The Commission added that:
“to determine the obligations of States with respect to children [LGBTI], The American Convention must be interpreted in light of the provisions of the United Nations Convention on the Rights of the Child and other UN declarations on the subject., as well as the decisions of the Committee on the Rights of the Child. The latter has indicated that any interpretation of the principle of the “best interests of the child” must be compatible with the Convention on the Rights of the Child, including the obligation to protect boys and girls from all forms of violence. The principle of the best interest of the child implies that the development of boys and girls and the full exercise of their rights must be considered as guiding criteria for the development of standards and their application in all areas related to the lives of boys and girls. ”[9]
For your part, los Yogyakarta Principles they mention children multiple times, girls and adolescents,[10] some references which will be referred to in the sub-topics that will be discussed below. For example, he literal C of the Principle 24 about the right to start a family, determines that the States “[a]will adopt all legislative measures, administrative and other measures that are necessary in order to guarantee that in all measures or decisions concerning girls and boys that are taken by public or private social welfare institutions, the courts, administrative authorities or legislative bodies, “A primary consideration is the best interests of the child and that the sexual orientation or gender identity of the child or that of any family member or other person is not considered incompatible with that best interest.”
What's more, himself Principle 24 states that “[e]n all measures or decisions concerning girls and boys [the states] They will ensure that a boy or girl who is in a position to form his or her own judgment can exercise the right to express his or her opinions freely and that these are duly taken into account depending on the age and maturity of the boy or girl.;”
It is widely known that girls, LGBT children and adolescents frequently face alarming situations of bullying at school. In a Joint Declaration issued by the Inter-American Commission on Human Rights, the Committee on the Rights of the Child and the United Nations, The seriousness of this problem was recognized by stating that “[n]LGBT boys and girls suffer from bullying at the hands of their classmates, and teachers, which leads to school dropouts. Some are even denied entry to school., or are expelled from their schools because of their real or perceived sexual orientation or gender identity.”[11]
Recognizing the special situation of vulnerability they face, It is essential to review the rights standards that have been adopted in the region regarding this issue..
The UNESCO, in the document Responses of the Educational Sector Towards Homophobic Bullying stated that school bullying of LGBTI people “It is a threat to universal right to education…[y] weakens the three dimensions of a human rights-based approach to education, that is to say, education with access, quality and respect in the learning environment.”[12]
Referring to the special protection that children deserve in this situation of vulnerability to bullying, The Inter-American Commission on Human Rights asserted that:
“School harassment or bullying (bullying) is a specific type of violence that takes place in educational settings. An analysis carried out by UNESCO in the year 2012 indicated that bullying is characterized by a set of specific characteristics, namely, the perpetrator's intention to cause harm or fear; the systematic nature of violence; its repetition in time; the power imbalance between the victim and the bully; and the resulting damage. The United Nations Human Rights Committee has expressed concern regarding discrimination against LGBT people in the education system, and in the year 2011 the Secretary General of the HIM stated that bullying based on sexual orientation or gender identity constitutes a serious violation of human rights.”[13]
In particular, The Commission stated that “bullying can severely hinder numerous rights, like the right to education, the right to freedom of expression, and the rights to equality and non-discrimination.”[14]
The IACHR also recommended to the States, among other things to “[a]take measures to prevent, investigate and effectively punish bullying and harassment and violence in the educational context, including when motivated by sexual orientation, gender identity, and body diversity, whether committed by other students, teachers, directors and other personnel of the institution.”[15]
Faced with the scope of State obligations in relation to the protection of children, girls and adolescents from all types of violence, the Inter-American Court of Human Rights in the Advisory Opinion 17/02 I affirm that “The States Parties to the American Convention have the duty, under the articles 19 (Children's Rights) y 17 (Family Protection), in combination with the article 1.1 of the same, to take all positive measures to ensure protection of children against ill-treatment, whether in their relations with public authorities, whether in inter-individual relations or with non-state entities.”[16]
As mentioned, at the national level, This matter has been addressed by the Constitutional Court of Colombia.
In the Judgment T-478 of 2015, This Court protected the fundamental rights of "privacy, good name, equality and non-discrimination, free personality development, right to education and prevalence of the rights of minors” to a plaintiff and her deceased son, who committed suicide due to the bullying and discrimination he was subjected to at his school.
In this sentence, The Court established a precedent according to which:
“[u]not one of the most important areas for the protection of the right to equality, dignity and free development of personality is absolute respect for the expression of gender identity or sexual orientation. In the school environment, This protection must be even stricter since minors have the right to be educated in democratic and plural spaces.. So, the prohibition of dissemination based on gender or sexual orientation is absolute and no third party, whether other students or school authorities, They can persecute or intimidate students who decide to voluntarily assume a diverse sexual option. Any attitude in that sense…“It constitutes harassing treatment that must be reproached and prevented at all costs.”
The Constitutional Court of Colombia has also resolved multiple cases of discrimination in school environments, in which students have been sanctioned for manifestations related to their sexual orientation and/or gender identity.[17] So, for instance, in the Judgment T-562 of 2013, The Court heard the case of a transsexual girl who was punished by the school to which she belonged, for wearing the female uniform of the institution. On such an occasion, The Court protected the rights to free development of the personality and education of the student and affirmed that “educational establishments are not authorized, in no case, to impose aesthetic or behavioral patterns. This is because tolerance and respect for difference govern the teaching and learning process in a model of the Social State of Law that opted for the defense of plurality and multiculturalism.”
It should be added that literal C of Principle 16 from Yogyakarta, establishes that the States “[g]ensure that education is aimed at instilling respect for human rights and fundamental freedoms, as well as for the mother, the father and relatives of each girl and boy, for their own cultural identity, their language and their values, in a spirit of understanding, paz, tolerance and equality between the sexes, taking into account and respecting diverse sexual orientations and gender identities;”
As has been reiterated throughout this document, Discrimination based on gender identity is prohibited by the Universal System and the Inter-American Human Rights System. So, the standards in this regard that have been mentioned so far, They are absolutely applicable to the case of girls, trans children and adolescents. However, it is essential to review what else has been said about this prohibition of discrimination when it comes to this specially protected population..
The Committee on the Rights of the Child, arranged in his General Observation No. 13 what “States parties must combat discrimination against vulnerable or marginalized groups of children, including those who are (…) transgender.”
What's more, the same Committee in the General Observation No. 12 I affirm that “ [n]or there is an age limit so that minors 18 years to express their free opinion in all matters that affect them, even more, “The Committee advises against States setting an age to restrict their right to be heard.” This right of children, girls and adolescents to be heard is especially important when it comes to cases related to their own gender identity.[18]
Now, taking into account that in recent years, The Colombian Constitutional Court has resolved several cases on this issue, It is relevant to consider the standards established by this Court.
For example, The Colombian Court has ruled on the rights of girls, trans children and adolescents who have requested changes in the civil birth registry.[19]So, in it case T-675 of 2017, This Court heard a case in which a mother, on behalf of his daughter, requested to modify the sex component of the civil birth registry this. The Court protected the rights to free development of personality, to a dignified life, to the legal personality and gender identity of the minor in question. And he ordered that the correction process be allowed to be carried out in the requested civil registry.. In developing its reasoning, the Court emphasized that “that trans minors must have the same protection in their fundamental rights as other children and adolescents.”, in order to truly guarantee them the opportunity to build their identity based on the correction of the “sex” component in their legal documents, since it is understood that these minors may have the same personal skills and abilities to construct an identity autonomously.…”
Violations of girls' rights, intersex children and adolescents are closely related to violations of the right to health, given that there are frequently cases in which girls and boys are subjected to medical interventions and treatments without their consent.[20]
The International Covenant on Economic, Social and Cultural Rights, set in your article 12 what “[l]The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”
In addition, the Additional Protocol to the Inter-American Convention on Human Rights on DESC matters (San Salvador Protocol) contemplates the right to health in its article 10.[21]
In it 2015, the Committee on the Rights of the Child of the HIM, the Inter-American Commission on Human Rights, and other international experts issued a joint statement in which they affirmed that States must prohibit interventions[22] and the treatments to which children are subjected, intersex girls and young people,[23] without your free and informed consent.[24] They stated that “These interventions can cause serious long-term physical and psychological suffering.”, thus affecting their rights to physical integrity, health, private life and autonomy, and could constitute a form of torture or mistreatment.”[25]
In your report, Violence Against LGBT People, The IACHR recommended that “medical classifications that pathologize all intersex persons or all variations of sexual characteristics be reviewed and modified respectively in order to ensure that intersex persons effectively enjoy the right to the highest possible level of health and other human rights.”[26]
In the same report, This Commission made several recommendations on the situation of intersex boys and girls in the region.. So, stated that States Parties must:
“a. Prohibit all unnecessary medical interventions in intersex children that are carried out without their free consent, advance and informed. Surgeries that are not medically necessary on intersex children should be postponed until the intersex person can provide full consent., freely, anticipated and informed. The decision not to undergo medical procedures must be respected. The lack of intervention should not hinder or delay the registration of the birth by the relevant state authorities.”[27] y “b. Incorporate specific safeguards for intersex children in legal instruments and medical protocols aimed at protecting and guaranteeing the right to informed consent, particularly in the context of unnecessary surgeries and medical interventions.”[28]
The issue of surgical interventions on children, Intersex girls and adolescents have been extensively addressed by the jurisprudence of the Constitutional Court of Colombia..[29] For example, in the Judgment T-912 of the 2008, The Court considered a guardianship filed by the father of an intersex minor, who intended to replace the consent of his five-year-old son to have surgery performed on him. “sexual assignment and genital modeling”. The Court found that since it was a minor who had “exceeded the five-year threshold” The substitute consent of the parents was not legitimate and it was necessary to wait for the minor to acquire sufficient maturity to make the decision himself.[30].
In the Judgment T-622 of 2014, The Colombian Court considered the case of an intersex minor who was denied sex reassignment surgery that he himself requested. On such an occasion, The Court protected the fundamental rights to sexual identity, decent life and health of the minor, and ordered that appropriate medical attention be provided, including adequate advice for making the decision about surgery, and if the minor decides so after receiving the accompaniment, ordered the performance of the surgical procedure. In this sentence, The Court highlighted the importance that it is intersex boys and girls who must decide through their free and informed consent, whether or not they wish to undergo surgery.
The Colombian Court ruled in a similar sense again in the Judgment T-447 of 2019, case in which a minor made the decision to identify himself as a man and requested to change his name and sex on his official documents. Although this case is complex since it refers to the protection of the right to gender identity of minors, in the factual context of an intersex child, The case is important as it protected the fundamental rights to life in dignified conditions, to legal personality, the definition of the identity and the free development of the personality of the minor, recognizing that gender identity is “a matter that responds only to the experience and self-determination of people. Therefore, Respect for the identity of minors prohibits the requirement of physical evidence, medical or psychological that demonstrate the identity appropriated by the subjects.”[31]
Finally, It is worth noting the Principio 18.B of the Yogyakarta Principles, establishes that the States “[a]will adopt all legislative measures, administrative and other measures necessary to ensure that no child's body is irreversibly altered through medical procedures that seek to impose a gender identity on him or her without his or her full consent., free and informed, according to their age and maturity and guided by the principle that in all actions concerning girls and boys, their best interest will be taken as the main consideration.;”
IN SUMMARY:● Children, LGBTI girls and adolescents are subjects of special protection in international human rights law. The principle of equality and non-discrimination is fully applicable to them. ● The principle of the best interests of the minor, must be a primary consideration in all decisions concerning minors and must never be considered incompatible with the sexual orientation or gender identity of the child, girl or teenager, or any member of your family. ● The bullying and discrimination that children face, LGBT girls and adolescents in school environments, It is a type of violence that threatens multiple rights of this population, Therefore, States must make efforts to guarantee an environment of tolerance and respect for diversity in these environments.. ● Any act of discrimination towards children is absolutely prohibited., girls and adolescents, due to gender identity identity. Trans minors have the right to enjoy all human rights. ● Any act of discrimination against intersex minors is prohibited.. Intersex minors have the right to enjoy the highest level of physical and mental health possible. So, medical interventions and treatments carried out without your consent are prohibited. |
[1] Article 2.1 “States Parties shall respect the rights set forth in this Convention and shall ensure their application to every child subject to their jurisdiction.”, without any distinction, regardless of race, the color, sex, the language, the religion, political or other opinion, national origin, ethnic or social, the economic position, physical impairments, the birth or any other condition of the child, of their parents or their legal representatives.”
Article 2.2 “States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on account of his or her condition.”, the activities, the expressed opinions or beliefs of their parents, or their guardians or their relatives.”
[2] United Nations, Committee on the Rights of the Child, General Observation No. 14, (2013), para 55
[3] United Nations Children’s Fund, UNICEF, Eliminating Discrimination Against Children and Parents Based on Gender Identity, Position Paper, (2014) p.1 (Own translation)
[4] See for example, Inter-American Court of Human Rights. Case of the “Street Children” (Villagrán Morales and others) Vs. Guatemala. Sentence of the 19 November 1999. para. 146; Inter-American Court of Human Rights. Case of the Gómez Paquiyauri Brothers Vs.. Peru. Sentence of 8 July 2004. para. 162; and Inter-American Court of Human Rights. Bulacio Vs Case. Argentina. Sentence of the 18 September 2003, para. 133.
[5] Inter-American Court of Human Rights. Case of the Yean and Bosico Girls Vs.. Dominican Republic. Sentence of the 8 September 2005. para. 134. and Inter-American Court of Human Rights. Case of González and Others vs.. Mexico. Sentence of the 16 November 2009. para. 408
[6] In the case of Ramírez Vs.. Escobar the Inter-American Court of Human Rights established that: “[n]o correct application of the best interests of the child is possible without respecting his or her right to be heard, which encompasses the right of every child to express his or her views freely in all matters affecting him or her and the subsequent right to have those views given due regard., depending on the age and maturity of the child. Inter-American Court of Human Rights. Case of Ramírez Escobar and Others Vs.. Guatemala. Sentence of the 9 March 2018, para 171.
[7] Inter-American Court of Human Rights. Case of Ramírez Escobar and Others Vs.. Guatemala. Sentence of the 9 March 2018, para 152.
[8] Inter-American Commission on Human Rights. Violence against Lesbian People, Gay, Bisexuals, Trans and Intersex in Americaa, (2015), para.302
[9] Inter-American Commission on Human Rights. Violence against Lesbian People, Gay, Bisexuals, Trans and Intersex in America, (2015), para 304
[10] See Yogyakarta Principles (2007), Principio 13.B (Right to social security); Principle 15.D (Right to adequate housing); At the beginning of the 16th century (Right to education), Principle 18.B and 18.C (Protection Against Medical Abuse) and Principle 24.B and 24C (Right to family).
[11] Press Release No. 049/15, Joint statement commemorating the International Day against Homophobia, Transphobia and Biphobia 2015, between the IACHR and other international and regional organizations, “In the face of discrimination and violation of their rights, LGBT and intersex youth need recognition and protection,” 17 May 2015.
[12] United Nations Educational Organization, Science and Culture (“UNESCO”), Responses of the Educational Sector Towards Homophobic Bullying, (2013), p. 26
[13] Inter-American Commission on Human Rights, Violence against Lesbian People, Gay, Bisexuals, Trans and Intersex in America, (2015), para 316
[14] Inter-American Commission on Human Rights. Violence against Lesbian People, Gay, Bisexuals, Trans and Intersex in America, (2015), para 324
[15]Inter-American Commission on Human Rights. Violence against Lesbian People, Gay, Bisexuals, Trans and Intersex in America, (2015), p. 301
[16] Inter-American Court of Human Rights, Advisory Opinion OC-17/02 of 28 August 2002. Legal Status and Human Rights of the Child, para 87
[17] See for example, Constitutional Court of Colombia, Judgment T-101 of 1998; Judgment T-435 of 2002, and Sentence T-565 of 2013
[18] In the case of Ramirez Escobar and Others Vs.. Guatemala, The Inter-American Court ruled on the right of girls and boys to be heard, particularly in the framework of a judicial or administrative process.. Over there, The Court stated that “girls and boys exercise their rights progressively as they develop a higher level of personal autonomy.”. Consequently, the enforcer of the law, whether in the administrative or judicial sphere, must take into consideration the specific conditions of the minor and his or her best interest to agree to his or her participation., as appropriate, in determining your rights. In this weighting, greater access for minors will be sought., as far as possible, to the examination of his own case. The right to be heard also presupposes that the child is adequately informed about his or her rights., the reasons and consequences of the process that is being carried out, as well as that this information is communicated according to their age and maturity.” Inter-American Court of Human Rights, Case of Ramírez Escobar and Others Vs.. Guatemala. Sentence of the 9 March 2018, para 172
[19] In this regard, see also Constitutional Court of Colombia Sentence T-498 of 2017
[20] The Inter-American Commission on Human Rights, has referred to this issue in his report Violence Against LGBT People, occasion in which he maintained that “the specific human rights violations that intersex people commonly suffer include: irreversible sex assignment and genital “normalization” surgeries; involuntary sterilization; excessive subjection to medical examinations, photographs and exposure of genitals; lack of access to medical information and clinical histories; delays in birth registration; denial of health services or insurance, among others.” Inter-American Commission on Human Rights. Violence against Lesbian People, Gay, Bisexuals, Trans and Intersex in America, (2015), para. 182
[21] "Article 10. Right to Health 1. Every person has the right to health, understood as the enjoyment of the highest level of physical well-being, mental y social. 2. In order to make the right to health effective, the States Parties undertake to recognize health as a public good and particularly to adopt the following measures to guarantee this right: a. primary health care, understanding as such essential health care made available to all individuals and families in the community; b. the extension of the benefits of health services to all individuals subject to the jurisdiction of the State; c. full immunization against major infectious diseases; d. prevention and treatment of endemic diseases, professional and other; e. educating the population about the prevention and treatment of health problems, y f. the satisfaction of the health needs of the highest risk groups and who, due to their conditions of poverty, are more vulnerable.”
[22]“The Inter-American Commission on Human Rights has been informed that children, intersex girls and adolescents, They are frequently victims of “normalization” surgeries of the genitals, which in addition to being often carried out without the consent of minors or their parents, generate enormous traumas, chronic pain, genital insensitivity, “sterilization and reduced ability or loss of ability to feel sexual pleasure.” Inter-American Commission on Human Rights. Hearing on the human rights situation of intersex people in America, 147th regular session, 15 March 2013
[23]According to the Inter-American Juridical Committee, In the doctrine, intersexuality has been defined as “all those situations in which the sexual body of an individual varies with respect to the culturally current standard of female or male corporality.”. Inter-American Legal Committee. Sexual Orientation, Gender Identity and Gender Expression: Some relevant terms and standards, (2012)
[24] Specifically referring to forced sterilization, The Commission emphasized that “the forced and involuntary sterilization of intersex people represents a serious violation of human rights.”. Involuntary sterilization can have serious implications for physical and psychological integrity., the right to reproductive autonomy and the right to self-determination of intersex people.” Inter-American Commission on Human Rights. Violence against Lesbian People, Gay, Bisexuals, Trans and Intersex in America, (2015), para 192
[25]Joint Statement on the International Day against Homophobia, Biphobia and Transphobia issued by the IACHR, the UN Committee on the Rights of the Child, a group of experts from the United Nations, the Special Rapporteur on the Rights of Defenders of the African Commission on Human and Peoples' Rights and the Commissioner for Human Rights of the Council of Europe. “In the face of discrimination and violation of their rights, “LGBT and intersex youth need recognition and protection”. 17 May 2015.
[26]Inter-American Commission on Human Rights. Violence against Lesbian People, Gay, Bisexuals, Trans and Intersex in America, (2015), para 192
[27] Inter-American Commission on Human Rights, Violence against Lesbian People, Gay, Bisexuals, Trans and Intersex in America, (2015), p. 300
[28] Inter-American Commission on Human Rights, Violence against Lesbian People, Gay, Bisexuals, Trans and Intersex in America, (2015), p. 300
[29] See for example, Constitutional Court of Colombia Sentence T-447 of 1995; Judgment T-551 of 1999, Sentence SU-337 of 1999; Judgment T-1390 of 2000; Judgment T-1025 of 2002, Judgment T-1021 of 2003, Judgment T-912 of 2008, Ruling T-450A-13 and Ruling T-622 of 2014.
[30] According to Ruling T-1021 of 2003 of the Colombian Constitutional Court, There are three criteria that “are appropriate to carry out the task of weighing between the principle of autonomy and that of beneficence with respect to the substitute consent of the parents.. These are: “(i) the urgency and importance of the treatment for the interests of the minor, (ii) the risks and intensity of the impact of the treatment on the child's current and future autonomy and (iii) the age of the patient.
[31] Constitutional Court of Colombia, Judgment T-447 of 2019, para 106
To adequately cover the broad issue of violence against LGBT people, This section will be divided into four. First, reference will be made to the general prohibition of violence against LGBT people. Then the standards on the issue of violence against LGBT people in state detention centers will be specifically delved into., the issue of sexual violence against LGBT people, and finally the standards related to the prohibition of torture of LGBT people will be delved into. Throughout this section, the standards applicable to cases of violence perpetrated by individuals and cases perpetrated by state agents will be considered..
The first thing is to reiterate again that in accordance with the principle of equality and non-discrimination, widely cited in this document, LGBT people enjoy all human rights.
So, he article 3 of the Universal Declaration of Human Rights that enshrines the right to life, to the security and freedom of all people, It is fully applicable to LGBT people.[1] What's more, this protection of the rights to life, freedom and personal security, It is also contemplated in the Yogyakarta Principles, four, five and nine respectively.[2]
When it comes to violence against LGBT people, Multiple obligations arise for States, which in this section will be divided into five, namely: (i) protect, (ii) prevent and (iii) investigate, punish and repair. What's more, (iv) States have the duty to consider the relationship between prejudice or discrimination and violence perpetrated against LGBT people and (v) how it will look, These obligations become even more relevant when the perpetrators are state agents..
The Human Rights Committee, in your General Observation No. 6 about the right to life, confirmed that “[l]The State's obligation to protect life requires it to act with due diligence to prevent, sanction and redress deprivation of life at the hands of private sector parties, even in circumstances where the victim has been chosen based on their sexual orientation and gender identity. International law obliges States to prevent extrajudicial executions, investigate these murders when they are committed and bring those responsible to justice.”[3]
The United Nations High Commissioner for Human Rights, has stated that among the basic legal obligations that States have regarding the protection of the human rights of LGBT people, this “[p]protect people against homophobic and transphobic violence.[4]
ACNUDH has made specific reference to the special risk that LGBT people have of being victims of selective violence at the hands of private agents.[5] In this regard he said that “These attacks constitute a form of gender-based violence motivated by the desire to punish those perceived to defy gender norms.”[6]
The Inter-American Human Rights System has paid special attention to the issue of violence against LGBT people.[7] Perhaps the most important effort on this issue has been that of the Inter-American Commission on Human Rights., who produced the thematic report of the 2015, Violence Against LGBT People,[8] opportunity in which he considered that “historical discrimination against LGBT people obliges States to be particularly vigilant in order to adopt measures that ensure the interruption of cycles of violence.”, exclusion and stigma. States must protect lesbian people, gay, bisexual and trans people of the violence that is exercised against them, in light of the principle of non-discrimination. States have the obligation to adopt measures to protect and respond to forms of violence directed against LGBT people., as a direct consequence of the principle of non-discrimination.”[9]
What's more, the duty of protection on the part of the States, is enshrined in the Yogyakarta Principles + 10. Specifically, he Principle 30 establishes that “[t]heard the world, regardless of sexual orientation, gender identity, gender expression or sexual characteristics has the right to be protected by the State from violence, discrimination or any other harm, whether by government officials or any other individual or group.”[10]
As highlighted at the beginning of this section, In addition, States are obliged to protect LGBT people from prejudiced violence perpetrated against them., They also have the obligation to prevent these types of acts..
The Inter-American Court of Human Rights referred to this state duty of prevention in the case González and Others (“cotton field”) Vs. Mexico, that although it does not specifically concern LGBT people, is fully applicable to the present discussion. Over there, I affirm that:
“States must adopt comprehensive measures to comply with due diligence in cases of violence against women.”. In particular, They must have an adequate legal framework for protection, with effective application of itself and with prevention policies and practices that allow acting effectively in response to complaints. The prevention strategy must be comprehensive, that is to say, must prevent risk factors and at the same time strengthen institutions so that they can provide an effective response to cases of violence against women. In addition, States must adopt preventive measures in specific cases in which it is evident that certain women and girls may be victims of violence…”[11]
Reinforcing the importance of this state duty of prevention, The Inter-American Commission has issued several precautionary measures in favor of LGBT people in the region. So, for instance, in August 2018, granted precautionary measures in favor of human rights defender Mônica Tereza Azeredo Benício, who would have been the romantic partner of the Brazilian human rights defender Marielle Franco, murdered in March 2018. In your reasoning, The Commission stated that Mrs. Azeredo Benício was at serious risk for having reported Franco's murder and therefore requested Brazil to adopt the necessary measures to protect her rights to life and personal integrity and to guarantee the possibility of its continuation. freely carrying out her duties as a defender.
In a similar sense, in November of 2018, The Commission granted precautionary measures to the federal representative before the National Congress of Brazil Jean Wyllys de Matos Santos, who was in a risk situation after receiving a series of death threats due to his sexual orientation and his work in favor of the LGBT community in the country. The Commission asked Brazil to adopt the necessary measures to protect the rights to life and personal integrity of Wyllys de Matos Santos.
ACNUDH has reiterated that “[e]he failure of state authorities to investigate and punish such violent acts – committed by both state and non-state actors – constitutes a failure to fulfill the obligations undertaken by the State to protect the right of all people to life., to freedom and security as guaranteed in the article 3 of the Universal Declaration of Human Rights and in the articles 6 y 9 of the International Covenant on Civil and Political Rights.”[12]
In the case just mentioned, González and Others (“cotton field”) Vs. Mexico, The Court stated that “[d]e the general obligation to guarantee the rights to life, personal integrity and personal freedom derives from the obligation to investigate cases of violations of those rights; that is to say, of the article 1.1 of the Convention in conjunction with the substantive right that must be protected, protected or guaranteed.”[13]
The Court stated that “[a] the light of that duty [to investigate], once the state authorities are aware of the fact, must begin ex officio and without delay, a serious investigation, impartial and effective by all available legal means and aimed at determining the truth and prosecuting, capture, prosecution and eventual punishment of all perpetrators of the events, especially when state agents are or may be involved.”[14]
Referring to the scope of the duty of investigation when there is gender violence involved, which, as has been reiterated, It is absolutely applicable to cases of violence against LGBT people, The Court added that “The research must include a gender perspective.”; undertake specific lines of research regarding sexual violence, For which lines of research on the respective patterns in the area must be involved.; be carried out in accordance with protocols and manuals that comply with the guidelines of this Judgment; regularly provide information to the victims' families about the progress in the investigation and give them full access to the files, and carried out by highly trained officials in similar cases and in attention to victims of discrimination and gender-based violence.;”[15]
Added to this, the same case the Court recalled that “[e]It is a principle of International Law that any violation of an international obligation that has caused damage entails the duty to adequately repair it.. This obligation is regulated by International Law. In his decisions in this regard, The Court has based itself on the article 63.1 of the American Convention.”[16]
In addition, the Inter-American Commission on Human Rights, in the report Violence Against LGBT People urged the States “to strengthen their national institutions with a view to effectively preventing and investigating acts of violence and human rights violations against LGBTI people.”, bring perpetrators to justice and provide adequate reparations and judicial protection to victims.”
The Inter-American Commission on Human Rights referred extensively to this issue in the Merits Report of the case of violence against a Peruvian trans woman., Blue Rojas Marín and another. Peru, in which he stated that: “[l]The Commission has emphasized the link between discrimination and violence against lesbian people, gay, bisexual and trans (LGBT) pointing out that the concept of prejudice due to sexual orientation, Gender identity or gender expression constitutes a tool for understanding violence against LGBT people, since it allows us to identify the social context in which said violence manifests itself.”[17]
Equally, The Commission has pointed out that when a lesbian person, gay, bisexual o trans, or a person who is perceived as such, is attacked or killed, “the State must carry out an investigation aimed at determining whether the crime was committed based on sexual orientation or gender identity.”, real or perceived, of the victim. Determining whether acts of violence against LGBT people are motivated by prejudice, requires a thorough investigation of the reasons that motivated the violence, carried out in compliance with the duty of due diligence.”[18]
In addition to this, in the same background report, The Commission pointed out some elements that could be indicative of a crime of prejudice, especially when they appear in combination: “i) statements by the victim or alleged perpetrator that the crime was motivated by prejudice; ii) the brutality of the crime and signs of cruelty; e iii) insults or comments made by the alleged responsible person(s), that refer to the sexual orientation and/or gender identity of the victim/s.”[19]
In the Latin American region, There are three national rulings that are worth rescuing because they embrace this obligation to consider elements of discrimination and prejudice to rule on cases of violence against LGBT people., an argentine case, a chilean case, and a Colombian case.
The first valuable example of jurisprudence is the Argentine criminal sentence that arose from the murder of trans activist Diana Sacayán. On such an occasion, the Oral Criminal and Correctional Court No. 4 of the Federal Capital, I affirm that “[l]The circumstances of the context and manner of commission of the act allowed us to assume, from the beginning, that the homicide had been motivated by her status as a trans woman and by her status as a member of the Sexual Diversity Program team at the INADI, promoter of the fight for the rights of trans people, leader of the International Lesbian Association, Gays and Bisexuals (LONG) and leader of the Anti-Discriminatory Liberation Movement (MAL).”[20] So, The Argentine judge sentenced the perpetrator of the crime for “crime of murder triple aggravated by having been executed through gender violence, out of hatred of gender identity and treachery.”
Another important example, is from the Oral Criminal Trial Court of San Bernardo, Chile. This Court recently convicted two people for the qualified homicide of Marcelo Lepe. The judge charged the crime of qualified homicide when he found that the events had been motivated by the sexual orientation and gender identity of the victim.. In this regard, the Court stated regarding the aggravating circumstance that:
“With it, the law does not intend to intrude into the internal affairs of people and sanction a way of thinking or racist thinking.”, sexist, homophobic etc., what is condemned is the externalization of such feelings, hateful ideas or thoughts that select the victim based on what they represent, denying the development of their personality and preventing their right to full participation in society, sending a message to community members who share the characteristic of the affected person that any of their members could be a target, sending a message to the entire society in the sense that such attacks are due to certain sources of inferiority of the direct victims, creating feelings of contempt in society.”[21]
The last relevant case on this topic is the Judgment Arnubio Triana Maecha and Others, of the Justice and Peace Chamber of the Superior Court of Bogotá, Colombia. In this decision, The Court ruled on a torture case, forced displacement and disappearance, that involved, among many, to LGBT people.[22] On this occasion, The Court differentiated between gender-based violence and violence based on diverse sexual orientation or gender identity, this for “to be able to understand the differentiated impacts that the armed conflict has left [Colombian] in women, the girls, the men, children and people with diverse orientations and gender identities.”[23]
After an extensive account of LGBT rights both internationally and nationally, The Superior Court Chamber urged the Attorney General's Office to:
“(i) design and implement a national registry of victims of the armed conflict due to violence based on diverse sexual orientation or gender identity; (ii) ask the Transitional Justice prosecutor's offices to incorporate the approach of violence based on diverse sexual orientation or gender identity in their work to clarify the facts under investigation; y (iii) design and ejecute con los funcionarios de los despachos Fiscales de Justicia y Paz un protocolo para la atención y asesoría a víctimas LGBTI. Para ello se debe: (i) orientar la atención a víctimas de la violencia por su orientación sexual y/o identidad de género, ya sea real o percibida; (ii) identificar los casos de violaciones de derechos humanos e infracciones al DIH a causa de la orientación sexual o la identidad de género de la víctima; y, (iii) promover el acceso y la participación a las víctimas LGBTI en el proceso judicial propio a la ley de Justicia y Paz.”[24]
Although everything that has been presented so far is absolutely applicable to cases in which the perpetrators are state agents, There are several statements on this matter that are worth highlighting..
On the one hand, the United Nations High Commissioner for Human Rights, has stated that “[e]The State incurs responsibility if its public officials, including prison officers and police officers, directly commit or encourage these acts, instigate or incite to commit them, or consent, are complicit or otherwise involved, as well as if officials do not prevent, they investigate, “They pursue and punish these acts committed by public or private actors.”[25]
The Inter-American Court of Human Rights, has referred to this matter in the case Velásquez Rodríguez Vs. Hondura, que si bien no se trató sobre violencia contra personas LGBT es definitivamente relevante. On such an occasion, The Court stated that “[t]oda violación de derechos reconocidos por la Convención Americana cometida por un acto del poder público o de personas que actúan prevalidas de los poderes que ostentan por su carácter oficial, es imputable al Estado.”[26]
Este precedente fue reiterado por la Comisión Interamericana en el Informe citado arriba Violence Against LGBT People. Allí recalcó que “[p]ara fines de este informe, se entiende por ejecuciones extrajudiciales las privaciones del derecho a la vida perpetradas ilegalmente por agentes del Estado. La jurisprudencia interamericana ya ha establecido que las ejecuciones extrajudiciales son, por definición, contrarias al article 4.1 de la Convención Americana y que toda privación de la vida por parte de autoridades del Estado constituye un acto de la mayor gravedad.”[27]
En consonancia con lo anterior, resulta trascendente notar que actualmente hay varios casos pendientes en el Sistema Interamericano relacionados con el tema de violencia por prejuicio contra personas LGBT, específicamente a manos de agentes estatales.[28]
A uno de estos casos se hizo referencia brevemente arriba, y es el caso de Azul Rojas Marín y otra Vs. Peru, para el cual la Comisión Interamericana profirió Informe de Fondo en el 2018. Over there, la Comisión remitiéndose puntualmente al asunto de violencia a manos de agentes estatales[29] I affirm that “el uso arbitrario de normas que facultan a la policía a privar de libertad a una persona con base en sospechas y por razones de seguridad ciudadana, está habitualmente asociado a prejuicios y estereotipos respecto de ciertos grupos que coinciden con aquellos históricamente discriminados, como lo son las personas LGBT.”[30]
Sobre la actuación policial en el caso concreto, la Comisión aseguró que “de acuerdo al relato consistente de Azul Rojas Marín -y no desvirtuado por el Estado mediante una investigación diligente- desde el momento en que fue interceptada por los funcionarios estatales, éstos no sólo ejercieron violencia física en su contra sino que además la agredieron verbalmente con reiteradas referencias a su orientación sexual mediante expresiones denigrantes. In that sense, además de arbitraria, la actuación policial en contra de Azul Rojas Marín, fue discriminatoria.”[31]
Los estándares de derechos humanos que se han articulado hasta ahora son decididamente aplicables a los casos de violencia contra personas LGBT en los centros de reclusión estatal. Se hace especial alusión a pronunciamientos que han abordado este tema específicamente, puesto que es un asunto que afecta mayormente a la población LGBT.
In the Universal Human Rights System, el Comité de Derechos Humanos falló el caso Ernazarov Vs. Kirguistán, en el cual un hombre fue detenido en Kirguistán por estar acusado de un delito sexual contra otro hombre. Tras meses de detención, el hombre fue encontrado muerto en su celda e investigaciones estatales cuestionables concluyeron que se había suicidado. El hermano del sujeto fallecido llevó el caso ante el Comité de Derechos Humanos que si bien no se refirió específicamente a la identidad diversa de la víctima, I affirm that “el Estado parte, al detener y privar de libertad a una persona, asume la responsabilidad de proteger su vida.”[32] He added that “[e]l Estado parte asume plena responsabilidad por la seguridad de las personas a las que priva de libertad y, cuando una persona resulta herida mientras se encuentra detenida, corresponde al Estado parte aportar las pruebas que refuten la afirmación de que los agentes del Estado parte son responsables de lo sucedido.”[33]
What's more, sobre las obligaciones de prevenir, investigate, punish and repair, el Comité determinó que de “conformidad con el article 2 (para. 3 a)) del Pacto, el Estado parte tiene la obligación de proporcionar al autor un recurso efectivo que comprenda una investigación imparcial, eficaz y exhaustiva sobre las circunstancias de la muerte del hermano del autor, el enjuiciamiento de los responsables y la plena reparación, incluida una indemnización adecuada. El Estado parte tiene también la obligación de evitar que se cometan violaciones semejantes en el futuro.”[34]
Este tema también ha sido considerado en el Sistema Interamericano de Derechos Humanos. So, in the report Violence Against LGBT People, la Comisión citó jurisprudencia de la Corte Interamericana de Derechos Humanos según la cual:
“[t]oda persona privada de la libertad debe ser tratada con dignidad en estricta conformidad con los instrumentos internacionales de derechos humanos, con absoluto respeto a su dignidad personal y con las garantías de sus derechos fundamentales. Los Estados son los garantes de los derechos de las personas privadas de libertad, dada la situación de dependencia de las personas detenidas con el Estado y las decisiones tomadas por el personal de custodia. Como tal, los Estados están llamados a garantizar la vida y la integridad física y psicológica de las personas bajo su custodia. Los Estados tienen el deber de asegurar que la manera y el método de privación de la libertad no excedan el nivel de sufrimiento inherente a la reclusión. Los Estados tienen el deber de tomar todas las medidas preventivas para proteger a las personas privadas de la libertad de ataques por parte de los agentes del Estado o por parte de terceras personas, incluyendo otras personas privadas de libertad.”[35]
La Comisión también se manifestó sobre este asunto en el Informe de Fondo del caso Azul Rojas Marín y otra. Perú́. In this, resaltó que “el incorrecto proceder de las fuerzas policiales constituye una de las principales amenazas para la vigencia de la libertad y la seguridad individual. Therefore, los Estados deben adoptar medidas destinadas a efectos de asegurar que los agentes policiales desempeñen sus funciones de una manera garante de los derechos humanos y, in particular, que las detenciones realizadas se efectúen conforme establece la legislación interna.”[36]
Nuevamente citando a la Corte Interamericana, in relation to the article 7.3 de la Convención Americana que consagra el derecho a la libertad personal y prohíbe la detención arbitraria, la Comisión resaltó que “nadie puede ser sometido a detención o encarcelamiento por causas y métodos que, aún calificados de legales, puedan reputarse como incompatibles con el respeto a los derechos fundamentales del individuo por ser, among other things, irrazonables, imprevisibles, o faltos de proporcionalidad”…Therefore, cualquier detención debe llevarse a cabo no solo de acuerdo con las disposiciones de derecho interno, sino que además es necesario que “la ley interna, el procedimiento aplicable y los principios generales expresos o tácitos correspondientes sean, en sí mismos, compatibles con la Convención”.[37]
En la región esta cuestión ha sido abordada a nivel nacional por la Corte Constitucional de Colombia en la Sentencia T-1096 of 2004. En dicha sentencia la Corte resolvió el caso de un hombre gay al que se le negó el traslado a otro establecimiento carcelario luego de que este hubiese sido violado, así como abusado y acosado permanentemente por otro internos de la cárcel. En tal ocasión la Corte tuteló los derechos fundamentales a la dignidad, la vida, la integridad física, la salud y la libertad sexual del peticionario, y ordenó el traslado del accionante a un establecimiento carcelario que le asegurara las condiciones de seguridad necesarias para que no se vulneraran sus derechos. De esta providencia cabe resaltar lo dicho por la Corte acerca de la dignidad de las personas privadas de la libertad:
“el inciso 2 of the article 5 de la Convención Americana establece que “[n]adie debe ser sometido a torturas ni a penas o tratos crueles, inhumanos o degradantes. Toda persona privada de libertad será tratada con el respeto debido a la dignidad inherente al ser humano” y el inciso 6 determina que “[l]as penas privativas de la libertad tendrán como finalidad esencial la reforma y la readaptación social de los condenados”. A su vez, he numeral 1 of the article 10 del Pacto Internacional de Derechos Civiles y Políticos prescribe que “[t]oda persona privada de libertad será tratada humanamente y con el respeto debido a la dignidad inherente al ser humano”, mientras que el numeral 3 consagra que “[e]l régimen penitenciario consistirá en un tratamiento cuya finalidad esencial será la reforma y la readaptación social de los penados (…)”…”[38]
Otro asunto que cobra gran relevancia en el problema de violencia contra personas LGBT es la violencia sexual.[39] So, resulta fundamental hacer un recuento sobre los estándares aplicables en la región.
La Corte Interamericana considera que “la violencia sexual se configura con acciones de naturaleza sexual que se cometen contra una persona sin su consentimiento, que además de comprender la invasión física del cuerpo humano, pueden incluir actos que no involucren penetración o incluso contacto físico alguno.”[40]
Jointly, la Comisión Interamericana, citando a la Corte Interamericana en el caso Azul Rojas Marín y Otra, puso de presente que “la Corte Interamericana siguiendo el criterio jurisprudencial y normativo que impera tanto en el ámbito del Derecho Penal Internacional como en el Derecho Penal comparado, ha indicado que “[…] por violación sexual también debe entenderse actos de penetración vaginal o anal, sin consentimiento de la víctima, mediante la utilización de otras partes del cuerpo del agresor u objetos, así como la penetración bucal mediante el miembro viril.”[41]
Agregó igualmente que “en tanto la violencia sexual, incluyendo la violación sexual, implican una afectación a varios derechos incluyendo el derecho de autonomía y dignidad; cuando el motivo que subyace a dichos graves actos es el prejuicio por orientación sexual, éstos constituyen igualmente una afrenta al derecho de toda persona de “auto-determinarse y escoger libremente las opciones y circunstancias que le dan sentido a su existencia, conforme a sus propias opciones y convicciones.”[42]
Nuevamente citando a la Corte, en el caso de Azul Rojas Marín, la Comisión afirmó que:
“la [Corte] ha establecido de forma consistente que la violación sexual constituye en todos los casos una grave violación de los derechos humanos protegidos en los articles 5 y 11 de la Convención Americana. Es una experiencia sumamente traumática que puede tener severas consecuencias y causa gran daño físico y psicológico que deja a la víctima “humillada física y emocionalmente”, situación difícilmente superable por el paso del tiempo. Cuando la violencia y violación sexual ocurre de manos de un agente estatal en contra de una persona detenida, es un acto especialmente grave y reprobable, tomando en cuenta la vulnerabilidad de la víctima y el abuso de poder que despliega el agente.”[43]
Siendo la prohibición de tortura un asunto central cuando se trata de violencia contra personas LGBT, resulta importante entrar a considerar lo que se ha dicho específicamente sobre el tema.
En términos generales, la tortura está proscrita en el Sistema Universal de Derechos Humanos[44] específicamente en el article 5 of the Universal Declaration of Human Rights, el artículo 7 del Pacto Internacional de Derechos Civiles y Políticos y el article 2 de la Convención contra la Tortura y Otros Tratos o Penas Crueles, Inhumanos o Degradantes. Está prohibición también en encuentra en el Sistema Interamericano de Derechos Humanos, puntualmente en la Convención Interamericana para Prevenir y Sancionar la Tortura.
De acuerdo con el Alto Comisionado para las Naciones Unidas los Estados están obligados a “[p]revenir la tortura así como los tratos crueles, inhumanos y degradantes de las personas LGBTI privadas de libertad, prohibiendo y sancionando tales actos y garantizando que las víctimas reciban una reparación.”[45]
De acuerdo con el Comité contra la Tortura, “[l]os Estados Partes deben velar por que, en el marco de las obligaciones que han contraído en virtud de la Convención, sus leyes se apliquen en la práctica a todas las personas, cualesquiera que sean su raza, color, grupo étnico, edad, creencia o adscripción religiosa, opinión política o de otra índole, origen nacional o social, gender, sexual orientation, identidad transexual, (…).”[46]
In the document Born Free and Equal ACNUDH concluyó que:
“todos los individuos, incluyendo las personas LGBTI, están protegidos de la tortura y el trato cruel inhumano y degradantes. Bajo el derecho internacional, los Estados deben prohibir, investigar y castigar los actos de tortura y maltrato, incluyendo los que suceden en escenarios médicos o de detención. Esto significa que el Estado debe definir la tortura y el maltrato como un delito en el derecho penal doméstico, y debe asegurarse de que todo estos actos sean investigados, rápidamente, independientemente y completamente, y que las personas responsables sean llevadas a la justicia sin importar la orientación sexual, identidad de género o expresión de género de las víctimas. Los Estados deben garantizar a las víctimas reparación, incluyendo compensación. También están bajo la obligación de tomar medidas preventivas, como el monitoreo de lugares de detención, la prohibición de procedimientos médicos abusivos a través de leyes y regulación, el entrenamiento de oficiales del estado y profesionales de salud, así como el rechazo de pre condiciones abusivas para el reconocimiento de género como la esterilización, los tratamientos forzados y las certificaciones médicas.”[47]
En el Sistema Interamericano, the IACHR has emphasized that “la Convención Americana prohíbe la imposición de la tortura o de un trato o castigo cruel, inhumano o degradante contra las personas en cualquier circunstancia. La Comisión ha indicado que “un aspecto esencial del derecho a la seguridad personal es la absoluta prohibición de la tortura, norma perentoria del derecho internacional que crea obligaciones erga omnes”. In addition, the IACHR y la Corte han calificado la prohibición de la tortura como una norma de jus cogens.”[48]
In addition, la Corte Interamericana ha puesto de presente que “a la luz de la obligación general de garantizar a toda persona bajo su jurisdicción los derechos humanos consagrados en la Convención, establecida en el article 1.1 of the same, en conjunto con el derecho a la integridad personal conforme al article 5 (Derecho a la Integridad Personal) de dicho tratado, existe la obligación estatal de iniciar de oficio e inmediatamente una investigación efectiva que permita identificar, juzgar y sancionar a los responsables, cuando existe denuncia o razón fundada para creer que se ha cometido un acto de tortura.”[49]
Finally, esta prohibición también se encuentra contemplada en el Principle 10 of the Yogyakarta Principles, which states that “[t]odas las personas tienen el derecho a no ser sometidas a torturas ni a penas o tratos crueles, inhumanos o degradantes, incluso por razones relacionadas con la orientación sexual o la identidad de género.”
IN SUMMARY:● Los Estados están obligados a proteger a las personas LGBT de todos los actos de violencia cometidos en su contra. ● Los Estados están obligados a prevenir los actos de violencia contra las personas LGBT. ● Los Estados están en la obligación de investigar, punish and repair acts of violence committed against LGBT people. ● El Estado incurre en responsabilidad cuando son agentes estatales quienes directamente cometen, encourage, instigate or incite violence against LGBT people. ● El Estado está obligado a considerar la relación entre el prejuicio y la discriminación, and all cases of violence perpetrated against LGBT people. ● Ante casos de violencia contra personas LGBT en centros de reclusión estatal, The State is responsible for the actions of its state agents, and also has the obligation to protect, prevent, investigate, punish and repair these acts of violence. ● Está absolutamente prohibida la violencia sexual contra las personas LGBT. In the face of these acts, the State is responsible for the actions of its state agents., and also has the obligation to protect, prevent, investigate, punish and repair these acts of violence. ● Está completamente prohibida la tortura contra personas, including for reasons related to sexual orientation or gender identity. States are obliged to prohibit, prevent, investigate and punish torture of LGBT people, as well as to guarantee victims reparation. |
[1] Estos derechos también se encuentran protegidos por el artículo 6 (derecho a la vida) of the International Covenant on Civil and Political Rights, y el artículo 9 del mismo Pacto (derecho a la libertad y a la seguridad personal).
[2] Yogyakarta Principles, (2007): “Principio 4. Toda persona tiene derecho a la vida. Ninguna persona será privada de la vida arbitrariamente por ningún motivo, incluyendo la referencia a consideraciones acerca de su orientación sexual o identidad de género. A nadie se le impondrá la pena de muerte por actividades sexuales realizadas de mutuo acuerdo entre personas que sean mayores de la edad a partir de la cual se considera válido el consentimiento, o por su orientación sexual o identidad de género.”
“Principio 5. Toda persona, regardless of your sexual orientation or gender identity, tiene derecho a la seguridad personal y a la protección del Estado frente a todo acto de violencia o daño corporal que sea cometido por funcionarios públicos o por cualquier individuo o grupo.”
“Principio 9. Toda persona privada de su libertad será tratada humanamente y con el respeto debido a la dignidad inherente al ser humano. La orientación sexual y la identidad de género son fundamentales para la dignidad de toda persona.”
[3] United Nations, Human Rights Committee. General Observation No. 6, (2004)
[4] Alto Comisionado de las Naciones Unidas para los Derechos Humanos, ACNUDH, Orientación Sexual e Identidad de Género el Derechos Internacional de los Derechos Humanos, (2013), p. 4
[5]“Se ha observado violencia homofóbica y transfóbica en todas las regiones. Ese tipo de violencia puede ser física (asesinato, golpizas, secuestros, violación y abuso sexual) o psicológica (amenazas, coerción y privación arbitraria de la libertad, among other)”. Alto Comisionado de las Naciones Unidas para los Derechos Humanos, ACNUDH. Born Free and Equal, (2012), p. 13
[6] Alto Comisionado de las Naciones Unidas para los Derechos Humanos, ACNUDH. Born Free and Equal, (2012), p.13
[7] En el reporte de 2018, Progress and challenges towards the recognition of the rights of LGBTI people in the Americas, la Comisión Interamericana señaló que “las personas LGBTI, o aquellas percibidas como tales, están sujetas a diversas formas de violencia y discriminación basadas en la percepción de su orientación sexual, su identidad o expresión de género, o porque sus cuerpos difieren de las presentaciones corporales femeninas o masculinas socialmente aceptadas”, lo cuales es una “clara violación a sus derechos humanos, tal y como lo reconocen los instrumentos interamericanos e internacionales de derechos humanos.” Comisión Interamericana de Derechos Humanos, Progress and challenges towards the recognition of the rights of LGBTI people in the Americas, (2018), para. 39
[8] Entre otros temas, este informe define la violencia contra personas LGBTI, revisa el impacto de las leyes que criminalizan a las personas LGBT en la violencia, estudia las formas y contextos de la violencia contra personas LGBTI, considera esta violencia y su intersección con otros grupos y evalúa la respuesta estatal frente a la violencia y el acceso a la justicia.
[9] Inter-American Commission on Human Rights, Violence against Lesbian People, Gay, Bisexuals, Trans and Intersex in America, (2015), para. 84
[10] Yogyakarta Principles + 10, (2017) (Own translation)
[11] Inter-American Court of Human Rights. Caso González y otras (“Campo Algodonero”) Vs. Mexico. Sentence of 16 November 2009, Excepción preliminar, Bottom, Repairs and Costs, para 258.
[12] Alto Comisionado de las Naciones Unidas para los Derechos Humanos, ACNUDH. Born Free and Equal, (2012), p. 24
[13] Inter-American Court of Human Rights. Caso González y otras (“Campo Algodonero”) Vs. Mexico. Sentence of 16 November 2009, Excepción preliminar, Bottom, Repairs and Costs, para. 287
[14] Inter-American Court of Human Rights. Caso González y otras (“Campo Algodonero”) Vs. Mexico. Sentence of 16 November 2009, Excepción preliminar, Bottom, Repairs and Costs, para 290
[15] Inter-American Court of Human Rights. Caso González y otras (“Campo Algodonero”) Vs. Mexico. Sentence of 16 November 2009, Excepción preliminar, Bottom, Repairs and Costs, para 455
[16]Inter-American Court of Human Rights. Caso González y otras (“Campo Algodonero”) Vs. Mexico. Sentence of 16 November 2009, Excepción preliminar, Bottom, Repairs and Costs, para 446
[17]Inter-American Commission on Human Rights. Caso Azul Rojas Marín y otra. Peru. Informe de Fondo de 24 February 2018, para 95
[18] Inter-American Commission on Human Rights. Caso Azul Rojas Marín y otra. Peru. Informe de Fondo de 24 February 2018, para 96
[19]Inter-American Commission on Human Rights. Caso Azul Rojas Marín y otra. Peru. Informe de Fondo de 24 February 2018, para 97
[20] Tribunal Oral en lo Criminal y Correccional Nº 4 de la Capital Federal de Argentina, “Caso Diana Sacayán” Sentencia del 18 June 2018, p. 3
[21] Tribunal de Juicio Oral en lo Penal de San Bernardo de Chile, Judgment 7 June 2018, p. 30
[22] Al respecto afirmó la Sala que “…se evidenciaron graves violaciones a los derechos humanos de personas pertenecientes a una población históricamente discriminada en Colombia: las personas con una orientación sexual o identidad de género diversas o, also, conocidas como personas LGBTI. En cuyo caso, la Sala exhortará a la Fiscalía General de la Nación a visibilizar y priorizar este tipo de hechos realizados en contra de personas por su orientación sexual e identidad de género diversas.” Tribunal Superior de Bogotá, Sala de Justicia y Paz, Caso Arnubio Triana Mahecha alias Botalón, Judgment 16 from December to 2014, para 953
[23] Tribunal Superior de Bogotá, Sala de Justicia y Paz, Caso Arnubio Triana Mahecha alias Botalón, Judgment 16 from December to 2014, para 954
[24] Tribunal Superior de Bogotá, Sala de Justicia y Paz, Caso Arnubio Triana Mahecha alias Botalón, Judgment 16 from December to 2014, para. 1042
[25]Alto Comisionado de las Naciones Unidas para los Derechos Humanos, ACNUDH. Discriminación y violencia contra las personas por motivos de orientación sexual e identidad de género, (2015) para 13
[26] Inter-American Court of Human Rights. Caso Velásquez Rodríguez Vs. Honduras, Sentence of 29 July 1988, Preliminary Exceptions, Bottom, Repairs and Costs, para. 170.
[27] Inter-American Commission on Human Rights. Violence against Lesbian People, Gay, Bisexuals, Trans and Intersex in America, (2015), párr.113
[28] Si bien actualmente no existe jurisprudencia de la Corte Interamericana de Derechos Humanos que se refiera específicamente al tema de violencia contra las personas LGBT cometida por agentes estatales, la Comisión Interamericana ha abordado el asunto en los últimos años. For example, in it 2016 profirió un informe de admisibilidad para el caso de Vicky Hernández una mujer trans que, según las peticionarias del caso, fue asesinada por el Estado de Honduras (Inter-American Commission on Human Rights, Caso Vicky Hernández y Familia v. Honduras, Informe de Admisibilidad No. 64/16) In it 2018, también profirió otro informe de admisibilidad para el caso de Octavio Romero, un hombre gay que fue asesinado y desaparecido en Argentina, según el peticionario del caso, a manos del Estado (Inter-American Commission on Human Rights, Caso Octavio Romero y Gabriel Gersbach. Informe No. 132/18.)
[29] La Comisión ha indicado que “las detenciones ilegales y arbitrarias en el contexto general de abuso policial contra las personas LGBT, es una de las formas más comunes y de mayor preocupación que la CIDH ha identificado en casos de discriminación y violencia contra dichas personas en la Región.” y “teniendo en cuenta que frente a la alta incidencia de abuso policial en casos de violencia contra dichas personas en la Región, la policía y otras fuerzas de seguridad -legalmente facultadas para mantener el orden público – comparten las mismas actitudes y prejuicios contra personas LGBT que prevalecen en la sociedad en general.” Comisión Interamericana de Derechos Humanos. Caso Azul Rojas Marín y otra. Peru. Informe de Fondo de 24 February 2018, para. 67 – 72
[30]Inter-American Commission on Human Rights. Caso Azul Rojas Marín y otra. Peru. Informe de Fondo de 24 February 2018, para. 86
[31]Inter-American Commission on Human Rights. Caso Azul Rojas Marín y otra. Peru. Informe de Fondo de 24 February 2018, para. 86
[32] United Nations, Human Rights Committee. Ernazarov Vs. Kirguistán, (2011), para 9.2
[33] United Nations, Human Rights Committee. Ernazarov Vs. Kirguistán, (2011), para 9.5
[34] United Nations, Human Rights Committee. Ernazarov Vs. Kirguistán, (2011), parr 11
[35] Inter-American Commission on Human Rights. Violence against Lesbian People, Gay, Bisexuals, Trans and Intersex in America, (2015), para. 146
[36]Inter-American Commission on Human Rights. Caso Azul Rojas Marín y otra. Peru. Informe de Fondo de 24 February 2018, para. 65
[37] Inter-American Commission on Human Rights. Caso Azul Rojas Marín y otra. Peru. Informe de Fondo de 24 February 2018, para. 67
[38] Constitutional Court of Colombia, Sentencia T-1096 de 2004, para 2.4
[39] For example, en varias oportunidades el Comité para la Eliminación de la Discriminación contra la Mujer, ha expresado su preocupación por los delitos sexuales que son cometidos contra mujeres por su orientación sexual, observando además con profunda preocupación la práctica de la “violación correctiva” de lesbianas. Ver al respecto: Observaciones finales del Comité para la Eliminación de la Discriminación contra la Mujer respecto de Sudáfrica párrs. 39 y 40.
[40] Inter-American Court of Human Rights, Caso Rosendo Cantú y otra vs. Mexico, Sentence of 31 August 2010, Excepción Preliminar, Bottom, Repairs and Costs, para. 109
[41] Inter-American Commission on Human Rights. Caso Azul Rojas Marín y otra. Peru. Informe de Fondo de 24 February 2018, para, 91
[42] Inter-American Commission on Human Rights. Caso Azul Rojas Marín y otra. Peru. Informe de Fondo de 24 February 2018, para. 110
[43] Inter-American Commission on Human Rights. Caso Azul Rojas Marín y otra. Peru. Informe de Fondo de 24 February 2018, para 89.
[44] Al respecto ver la Convención contra la Tortura y Otros Tratos o Penas Crueles, Inhumanos o Degradantes.
[45] Alto Comisionado de las Naciones Unidas para los Derechos Humanos, ACNUDH, Orientación Sexual e Identidad de Género el Derechos Internacional de los Derechos Humanos, (2013), p. 4
[46] United Nations, Comité Contra la Tortura, General Observation No. 2, (2008), para 21
[47]Office of the United Nations High Commissioner for Human Rights, Born Free and Equal, 2nd Edition (2012), p. 39 (Own translation)
[48] Inter-American Commission on Human Rights. Caso Azul Rojas Marín y otra. Peru. Informe de Fondo de 24 February 2018, para. 92
[49] Inter-American Court of Human Rights. Caso González y otras (“Campo Algodonero”) Vs. Mexico. Sentence of 16 November 2009, Excepción preliminar, Bottom, Repairs and Costs, para 246
Como se reiteró a lo largo de este documento, las personas LGBT deben gozar de todos los derechos garantizados a la humanidad. Si bien queda un largo camino por recorrer para alcanzar la verdadera garantía de derechos para estas personas, con el ejercicio de sistematización presentado en este documento se pretendió demostrar que los estándares de derechos humanos para esta población, sí existen, son robustos y ya están siendo aplicados por múltiples altas cortes de la región latinoamericana.
Idealmente, esta investigación servirá como una herramienta útil para las actividades de la Red de Litigantes sin la cual no podría ser posible siquiera pensar en un futuro cercano en el cual exista una garantía absoluta de derechos para las personas LGBT en la región de América Latina y el mundo.
Para terminar, vale poner de presente que en el marco de la realización de este trabajo, se produjeron otras herramientas complementarias que tal vez pueden ser útiles para las y los litigantes de la región. For example, se creó una base de datos que (i) enuncia las doscientas nueve sentencias sobre derechos LGBT a las que se hizo alusión al principio de este documento, incluyendo breves referencias a los temas sobre los que tratan, (ii) enumera todos los documentos consultados para realizar esta investigación, (iii) presenta una lista de ciento treinta y nueve sentencias divididas por los cuatro temas tratados en este documento, incluyendo enlaces de acceso directo a las mismas, y (iv) contiene una lista de los instrumentos internacionales consultados en esta investigación. What's more, se creo una carpeta virtual[1] que contiene las versiones en PDF de todo lo referenciado en la base de datos, con excepción de las sentencias sobre derechos LGBT que no trataban sobre los cuatro temas a los que se limitó este estudio. In addition, se produjo un documento con catorce resúmenes de jurisprudencia, incluyendo varios de sentencias claves que se abordaron en esta investigación. A este recurso también se puede acceder en la carpeta virtual.[2]
[1] Available in: https://drive.google.com/open?id=1amDirscllKpCGIxxtzYixy__1hhWsIMB
[2] Available in: https://drive.google.com/open?id=1xyNshAn1u-U2HHOCLclxjMC79sLVrMkK
