The Coalition of LGBTTTI Organizations of
Latin America and the Caribbean that work within the framework of the OAS,[1]
composed of the undersigned organizations, commend the Inter-American Court of
Human Rights for the recognition of the human rights of transgender persons and
same-sex couples, as affirmed in its Advisory Opinion 24/17 dated November 24,
2017 and published on January 9, 2018.
With this historic Opinion, the
Inter-American Court recognizes that the human rights obligations of States vis-à-vis
the principles of equality and non-discrimination on the basis of sexual
orientation, gender identity and gender expression, include the obligation to
recognize families composed of same-sex couples and the right to gender
identity. This Opinion reinforces the urgent need of States in the region to
adopt measures to ensure both formal and substantial equality of persons with non-normative
or diverse sexual orientations, gender identities and expressions in the Americas.
The Advisory Opinion of the Court reaffirms
what the social organizations of the LGBT movement have been promoting for
decades in the countries of the region: that we are rights’ bearers, and that
the States owe us the full recognition, guarantee and respect of our rights
without discrimination.
We congratulate the Inter-American Court
for categorically stating that States must guarantee the right to rectify gender
or sex markers, name, and image in official records and/or identity documents,
in accordance with individuals’ self-perceived gender identity. In its Opinion,
the Court specified the requirements for this process, including that it must be
based solely on the free and informed consent of the person requesting the
change.
We congratulate the Inter-American Court
for categorically stating that it is necessary for States to guarantee same-sex
couples the same rights of different sex couples, including the right to
marriage, to ensure the protection of all the rights of families composed of same-sex
couples, without discrimination.
We urge
all OAS Member States to take measures to promote the legislative,
administrative and judicial reforms necessary to bring their legal systems,
interpretations and practices in line with the standards established in Advisory
Opinion No. 24, issued by the Inter-American Court.
The Coalition of LGBTTTI
organizations from Latin America and the Caribbean working within the framework
of the OAS has decided to publish along with this press release, a summary of the Advisory Opinion, with
the aim of highlighting some of the main standards that have been developed by
the Inter-American Court. The Advisory Opinion includes standards that have
been advocated by non-governmental organizations that are part of this
Coalition for decades in the countries of the region, with varying degrees of
success.
SUMMARY of Advisory Opinion 24/17
issued by the I/A Court of Human Rights, dated November 24, 2017 - Gender
Identity, and Equality and Non-Discrimination of Same-Sex Couples[2]
BACKGROUND
The State
of Costa Rica requested an Advisory Opinion to the Inter-American Court so the highest
regional court could interpret the American Convention on Human Rights, in
light of the rights of LGBT people.
In
January 2017, sixteen organizations belonging to this Coalition of LGBTTTI
Organizations of Latin America and the Caribbean working within the framework
of the OAS (“LGBTTTI Coalition”) presented a brief of amicus curiae to the
Inter-American Court (“Court”). Several human rights defenders from the
organizations belonging to this Coalition also presented oral arguments during
the hearings before the Court that were held in Costa Rica in May 2017.
In
the proceedings before the Court, several OAS Member States presented
observations: Argentina, Bolivia, Brazil, Colombia, Guatemala, Honduras,
Mexico, Panama and Uruguay. A large number of stakeholders also submitted
observations, such as the Inter-American Commission on Human Rights, the Office
of the United Nations High Commissioner for Human Rights, several state
entities, international associations, academic institutions and
non-governmental organizations.
Below
we highlight some excerpts from Advisory Opinion 24/17 (not the official
translation),[3]
containing the main standards developed by the Court.
GENERAL OBSERVATIONS
On the lack of consensus in some
countries on guaranteeing the human rights of LGBT people, the Court affirms that the lack of a consensus in some countries on
the need to respect the rights of certain groups or persons because of their
sexual orientation, gender identity or gender expression, whether real or
imputed, cannot be considered a valid argument to deny or restrict their human
rights or to perpetuate and reproduce the historical and structural
discrimination that these groups or individuals have suffered (para. 83).
On the prohibition of discrimination
against LGBT people, the Court stated that
ü a right that is recognized to someone
cannot be denied or restricted to anyone, and under no circumstances, can this
denial or restriction be based on their sexual orientation, gender identity or
gender expression. Otherwise, this would violate Article 1.1. of the American
Convention. The Inter-American instrument prohibits discrimination, in general,
including on the basis of categories such as sexual orientation and gender
identity. These categories cannot be used to deny or restrict any of the rights
established in the Convention (para. 84).
ü Any discriminatory norm, act
or practice based on a person's sexual orientation, gender identity or gender
expression is prohibited under the Convention. Consequently, no norm, decision
or practice at the domestic level, coming either from state authorities or from
individuals, can diminish or restrict, in any way, the rights of a person based
on their sexual orientation, gender identity and/or gender expression (para.
78).
Regarding discriminatory discourses and
attitudes against LGBT people, the Court affirmed: discriminatory discourses and the resulting
attitudes that stem from these, based on the stereotypes of heteronormativity
and cisnormativity, with different degrees of radicalization, end up generating
homophobia, lesbophobia and transphobia that drive hate crimes (para. 47).
Regarding "gender expression",
the Court stated that: perception-based
discrimination has the effect or purpose of preventing or nullifying the
recognition, enjoyment or exercise of the human rights and fundamental freedoms
of the person subject to such discrimination, regardless of whether that person
identifies with a certain category. In this regard, it must be understood that gender expression is a protected
category under Article 1.1 of the American Convention (para. 79).
Furthermore,
the Court affirms that States as guarantors of all rights, must respect and
guarantee the coexistence of individuals with different gender identities and
expressions, and sexual orientations. As such, States should ensure that all individuals
can live and develop with dignity and are granted the same respect to which all
people are entitled to (para. 100).
***
I.
THE RIGHT TO RECTIFY DOCUMENTS ACCORDING TO
SOMEONE’S GENDER IDENTITY
The
Inter-American Court recognizes the right to gender identity based on the human
rights enshrined in the American Convention, including: dignity, private and
family life, personal autonomy, the principle of the free development of
personality, personal liberty, identity, freedom of expression, legal
personality, name, and equality and non-discrimination.
Thus,
the Court affirms that States must guarantee people’s gender identity, as this
is key to the full enjoyment of other human rights (para. 113). In the trend,
the Court establishes that, in accordance with the principle of equality and
non-discrimination, it is not reasonable to establish different treatment
between cisgender and transgender people who intend to carry out corrections in
the official registries and their identity documents (para. 131).
Obligation of States regarding requirements to ensure
recognition of peoples’ gender identity
In
its decision, the Inter-American Court affirms that:
1. The rectification of the
registries and/or identity documents in accordance with someone’s self-perceived
gender identity (rectification of the gender or sex marker, modification of the
name and adaptation of the image) constitutes a human right protected by the
American Convention.
2. States, in accordance with
Article 2 of the American Convention, are
obliged to recognize, regulate and establish the appropriate procedures to ensure that people interested in
rectifying their gender or sex marker, changing their name and adapting their
image in official records and/or in the identity documents, can do so in
accordance with their self-perceived gender identity. As such, States must
ensure that they have access -without interference by the public authorities or
by third parties- to a procedure that complies with the following requirements:
(a) a procedure focused on the full adaptation of the self-perceived gender
identity; (b) based solely on the free and informed consent of the person
without requirements such as medical and/or psychological certifications,
surgical and/or hormonal interventions or others that may be unreasonable or
pathologizing; (c) must be confidential; (d) changes, corrections or
adjustments made in accordance with the gender identity, should not be
reflected in the records, and/or identity documents; (e) it must be expeditious
and, in as much as possible, free; (f) the procedure that best complies with
these requirements is the administrative or notarial procedure. States can also
provide an administrative proceeding, in parallel, so interested persons have a
choice.
Likewise,
the Court indicates that States should make efforts so that persons interested
in
having their self-perceived gender identity recognized in the registries and in
their identity documents are not subject to “unreasonable burdens.” People
requesting this change do not have to undertake several proceedings before a variety
of authorities so that their gender identity is reflected in all relevant
registries and official documents (para. 124).
Regarding
the requirement of good behavior
certificates or police records, the Court is of the view that while this
requirement may have a legitimate purpose so the procedure is not used to evade
justice, it can also be considered a disproportionate restriction on the
interested party, to the extent that a State’s obligation -the harmonization of
State records which register identity data- is transferred unreasonably to the
applicant of the procedure. The protection of third parties and public order
must be guaranteed through different legal mechanisms that do not imply, allow
or result in the impairment, violation or sacrifice of people’s fundamental
rights. Otherwise, the essential core of the rights to the free development of
the personality, the right to privacy, the right to personal and sexual
identity, the right to health, and, consequently, the right to health, would be
completely affected, and as a result, this would also hinder people’s dignity
and their right to equality and non-discrimination (para. 132).
Sex and gender are part of the construction of someone’s
identity
The
Inter-American Court has affirmed that sex, as well as gender, are part of the
construction of someone’s identity resulting from each person’s free and
autonomous decision, regardless of their genitalia (para. 94). In more detail,
the Court affirmed that sex, as well as the socially constructed identities and
attributes assigned to biological differences around the sex assigned at birth,
far from constituting objective and immutable components that individualize someone,
... end up being traits that depend on each person’s subjectivity and are
linked to each person’s construction of their self-perceived gender identity,
which is related to the free development of personality, sexual self-determination
and the right to privacy. Therefore, transgender people are bearers of legally
protected interests, which under no circumstances can be subject to
restrictions for the simple fact that the social conglomerate does not agree
with certain lifestyles, as a result of fears, stereotypes, and social and
moral prejudices lacking reasonable grounds (para. 95)
Link between the recognition of gender identity and the
human rights of trans people
The Court affirms that the lack of recognition of the right
to gender identity of transgender people contributes to reinforcing and
perpetuating discriminatory behaviors against them (para. 134). Thus, the Court points out
that since gender identity is a key element of people’s identity, its
recognition by the State is of vital importance to guarantee the full enjoyment
of the human rights of transgender people, including protection against
violence, torture, ill-treatment, right to health, education, employment,
housing, access to social security, as well as the right to freedom of
expression, and association. Therefore, the lack of recognition of someone’s
identity may imply that the person does not have legal proof of their
existence, hindering the full exercise of their rights (para. 98).
Right to recognition of the gender identity of children
Concerning Article 54 of the Civil Code of Costa Rica
Regarding
the interpretation of Article 54 of the Civil Code of Costa Rica, the Court
indicated that, by virtue of the “control of conventionality” (control de convencionalidad), this
provision must be interpreted in accordance with the standards indicated in the
Advisory Opinion. Further, the Court notes that Costa Rica may issue
regulations to incorporate the standards indicated in the Advisory Opinion into
domestic law.
II. THE INTERNATIONAL PROTECTION OF SAME SEX COUPLES
A restrictive interpretation of the concept of
"family" that excludes same-sex couples would frustrate the aim and
purpose of the American Convention
The
Court reiterated on this occasion that the American Convention does not establish
a specific concept of family, and does not protect a particular model of family
(para. 174). Further, that the definition of family should not be restricted to
the traditional notion of a couple and their children (para. 178). It also affirmed
that a family may also consist of persons with different gender identities
and/or sexual orientations (para. 179), and that the protection of family ties
is not limited to relationships based on marriage (para. 181). The Court points
out that as long as there is a will to be related permanently and to form a
family, there is a bond that deserves equal rights and equal protection
regardless of the sexual orientation of its members (Articles 11.2 and 17 of
the American Convention) (para. 225).
While
it is true, the Court points out, that Article 17.2 literally recognizes "the
right of men and women of marriageable age to marry and to raise a family,"
such wording is not a restrictive definition of how the marriage is to be
understood or how to form a family (para. 182). Moreover, the Court
categorically affirms that a restrictive interpretation of the concept of
family that excludes the affective bond between same-sex couples from the
protection afforded by the inter-American System would frustrate the aim and
purpose of the Convention. The Court recalls that the aim and purpose of the
American Convention is the protection of the fundamental rights of human beings
without distinction (para. 189).
Establishing a different treatment between heterosexual
couples and same-sex couples is discriminatory
The
Court affirms that establishing a different treatment between different-sex
couples and same-sex couples regarding the way in which they form a family -whether
through a union or a civil marriage- fails to pass a “strict equality test,”
since, in the view of the Court, there is no aim that is acceptable under the
Convention for this distinction to be considered necessary or proportional (para.
220).
States must protect the rights derived from same-sex
couples
The
Court states that the American Convention protects -by virtue of the right to
privacy and family life (Article 11.2), as well as the right to the protection
of the family (Article 17)- the family bond that can arise from a same-sex
relationship. The Court is also of the opinion that all the economic rights that
derive from the family bond established by same-sex couples should be
protected, without any discrimination, to the same extent as different-sex
couples, in accordance with the rights to equality and non-discrimination (Articles
1.1 and 24) (para. 199).
The creation of
"new legal figures" for same-sex couples
The Court affirms that creating a legal
figure to regulate same-sex couples, with the same effects and rights as
marriage, but with a different name, does not make any sense, except to send a
social message that highlights the difference in treatment, with the effect of stigmatizing,
or at the very least, demonstrating contempt towards same-sex couples.
According to this, couples, which according to the stereotype of
heteronormativity, were considered "normal," would be legally
protected under “marriage.” Meanwhile, those considered “abnormal,” according
to the aforementioned stereotype, would be protected under a different
institution with identical effects but with a different name. Based on this,
for the Court, the existence of two types of solemn unions is not admissible to
legally consolidate same-sex and different-sex union, since a distinction based
on sexual orientation would be discriminatory, and therefore incompatible with
the American Convention (para. 224).
Further,
the Court indicates that to guarantee the rights of same-sex couples,
establishing new legal figures is not necessary, and therefore, it chooses to extend
the existing institutions to same sex couples - including marriage. The Court is
of the view that this would be the simplest and most effective way to secure
the rights derived from the relationship between same-sex couples (para. 218).
Obligations of States regarding same-sex couples
In this regard, the Court noted that there are various administrative, judicial
and legislative measures that can be adopted by States to guarantee the rights
of same-sex couples (para. 217).
In
relation to countries that still do not recognize same-sex couples their right
of access to marriage, they are equally obliged not to violate the norms prohibiting
discrimination in this regard, and therefore must guarantee them the same
rights derived from marriage, in the understanding that it is always a
transitory situation (para. 227).
The
Inter-American Court indicates that States must guarantee access to all
existing legal systems in order to ensure the protection of all the rights of
families composed of same-sex couples, without discrimination with respect to
those that are constituted by different-sex couples. For this, it may be
necessary for States to modify existing legal figures, through legislative,
judicial or administrative measures, to extend them to same-sex couples. States
that have institutional difficulties to adapt the existing figures,
temporarily, and in good faith promote these reforms, also have the duty to
guarantee to same-sex couples, equal enjoyment of rights with respect to different-sex
couples, without any discrimination (para. 228).
In
relation to the obstacles that States may face in making the modifications at
the domestic level in a manner that conforms to the standards established in
the Advisory Opinion, the Court recognizes that it is possible that some States
must overcome institutional difficulties to adapt their domestic legislation
and extend the right of access to the institution of marriage to same-sex
couples, and in this regard, urges States to effectively, and in good faith,
promote the legislative, administrative and judicial reforms necessary to adapt
their domestic law, interpretations and practices (para. 226).
In sum,
the Court unanimously affirmed that the State must recognize and guarantee all
the rights derived from a family relationship between persons of the same sex.
By six votes in favor and one against, the Court indicated that according to
Articles 1.1, 2, 11.2, 17 and 24 of the Convention, it is necessary for States
to guarantee access to all the existing legal figures in the legal systems, including
the right to marriage, to ensure the protection of all the rights of families
formed by same-sex couples, without discrimination with respect to those that
are constituted by different-sex couples.
What does this Advisory Opinion mean for OAS Member States?
As
the Court points out, the objective of Advisory Opinions is to contribute to
the States’ compliance with their international human rights obligations, and
for them to define and develop human rights public policies (para. 22).
The
Inter-American Court affirms that its advisory function constitutes a service
that the Court is able to provide to all members of the inter-American system,
with the purpose of contributing to the fulfillment of its international commitments
on human rights. In this sense, it is of the view that based on the
interpretation of the relevant norms, its response to the question posed will
be of great importance for the countries of the region insofar as it will make
it possible to specify the state obligations in relation to the rights of the
LGBTI persons within the framework of their obligations to respect and
guarantee human rights to every person under their jurisdiction. This will lead
to the determination of the concrete principles and obligations that States
must comply with in the area of the right to equality and non-discrimination.
The
Inter-American Court is clear in affirming that when a State ratifies an
international treaty, such as the American Convention, it obligates all its agencies
and branches of government, including the judiciary and the legislative. Thus,
violation by a State’s branch of government generates international
responsibility for the State as a whole. That is why the Court is of the view that
the various state organs must perform "conventionality control",
which is applicable to its contentious jurisdiction and also to its advisory
jurisdiction (para. 26), regarding the objective of the inter-American human
rights system, which is, the protection of fundamental rights of human beings.
The Advisory Opinion of the Court has legal relevance for
all OAS Member States, not only for Member States to the American Convention
In
relation to OAS Member States that are not parties to the American Convention,
the Court affirms that all organs of OAS Member States -including those that
are not signatories to the American Convention but which have committed to
respecting human rights under the OAS Charter (Article 3(l)) and the Inter-American
Democratic Charter (Articles 3, 7, 8 and 9)- are bound by these instruments,
which also contribute, and especially preventively, to achieve effective protection
and guarantee of human rights and, in particular, they are a guide to be used
to solve issues related to the respect and guarantee of human rights within the
framework of protection of LGBTI people and thus, to prevent possible
violations of human rights (para. 28).
Regarding
laws that criminalize same-sex intimacy between consenting adults in private
The
Court indicates that there are still several States in the region that
criminalize consensual sexual relations between adults of the same sex in
private. These laws have been considered by the Court (Case of Flor Freire v.
Ecuador, para. 123) and by various international human rights bodies as
contrary to international human rights law for violating the rights to equality
and non-discrimination as well as the right to privacy. Coupled with this,
these types of norms have a negative impact on the quality of health services,
discourage people from resorting to these services, and can lead to denial of
care or to the absence of services that respond to specific health needs of
LGBTI people. In addition, in jurisdictions where sexual behavior is criminalized,
preventive measures that should be specifically tailored to these communities
are much more likely to be suppressed. Further, the fear of being judged and
punished may deter those who engage in same-sex from accessing health services.
These problems are exacerbated in the case of people living with HIV/AIDS. In
addition, the Office of the High Commissioner for Human Rights (OHCHR) has
found that, because of this type of laws, victims are often reluctant to report
acts of violence perpetrated by a family member for fear of the criminal
consequences of revealing their sexual orientation.
***
Organizations of
the LGBTTTI Coalition of Latin America and the Caribbean working within the
framework of the OAS:
1.
Argentina - AKAHATÁ Equipo de Trabajo en Sexualidades y Género
2. Argentina - ATTTA (RedLACTrans)
3. The Bahamas - The D Marco
Organization(RedLACTrans)
4. Belize - TIA Belize (RedLACTrans)
5. Belize - United Belize Advocacy Movement
(UNIBAM)
6.
Bolivia - Red Nacional de Mujeres Trans en Bolivia (REDTREBOL)
(RedLACTrans)
7.
Bolivia - Fundación Diversencia
8.
Brazil - Articulação Política das Juventudes Negras
9.
Brazil - Grupo Ativista de Travestis, Transexuais e Amig@s (GATTA)
10. Brazil - Grupo
Esperança
11. Brazil - Liga
Brasileira de Lesbicas (LBL)
12. Brazil - Rede Nacional
de Negr@s e Afros LGBTTT (Rede-afros-lgbts)
13. Chile - Asociación OTD
Organizando Trans Diversidades
14. Chile - Sindicato
Amanda Jofré (RedLACTrans)
15. Colombia - Asociación
Lideres en Acción
16. Colombia - Colombia
Diversa
17. Colombia - Fundación
Santamaría
18. Colombia - Red
Comunitaria Trans (RedLACTrans)
19. Costa Rica - Mulabi - Espacio
Latinoamericano de Sexualidades y Derechos
20. Costa Rica - TRANSVIDA (RedLACTrans)
21. Dominica - Dominica Chapter of the Caribbean
HIV and AIDS partnership (ChapDominica)
22. Ecuador - Asociación
Alfil (RedLACTrans)
23. Ecuador - Taller de
Comunicación Mujer
24. El Salvador -
Asociación Aspidh Arcoiris (RedLACTrans)
25. Grenada - Grenada Chapter of the Caribbean HIV
and AIDS Partnership (GrenCHAP)
26. Guatemala -
Organización Trans Reinas de la Noche (OTRANS) (RedLACTrans)
27. Guyana -
Society Against Sexual Orientation Discrimination (SASOD)
28. Honduras – Asociación
para una Vida Mejor (APUVIMEH)
29. Honduras - Colectivo
Unidad Color Rosa (RedLACTrans)
30. Jamaica - J-FLAG
31. México - Letra S SIDA,
Cultura y Vida Cotidiana
32. México - Red Mexicana de
Mujeres Trans (RedLACTrans)
33. Nicaragua - Red
Nicaragüense de Activistas Trans (REDTRANS)
34. Nicaragua - ODETRANS
(RedLACTrans)
35. Panamá - Asociación
Panameña de Personas Trans (RedLACTrans)
36. Paraguay - Aireana
Grupo por los Derechos de las Lesbianas
37. Paraguay - Asociación
Panambi (RedLACTrans)
38. Paraguay - Asociación
Escalando
39. Perú - Centro de
Promoción y Defensa de los Derechos Sexuales y Reproductivos (PROMSEX)
40. Perú - Instituto Runa
de Desarrollo y Estudios sobre Género
41. Perú - Red Trans Perú (RedLACTrans)
42. Regional - Caribbean Forum for Liberation and
Acceptance of Genders and Sexualities (CARIFLAGS)
43. Regional - Red
Latinoamericana y del Caribe de Personas Trans (REDLACTRANS)
44. Regional - Synergía – Initiatives for Human
Rights
45. Dominican Republic -
Colectiva Mujer y Salud
46. Dominican Republic - Comunidad de Trans
Travesti y Trabajadoras Sexuales Dominicana COTRAVETD (RedLACTrans)
47. St Lucia - United & Strong
48. Suriname - Women's Way
49. Trinidad and Tobago - Allies for Justice &
Diversity (AJD)
50. Uruguay - Asociación
Trans del Uruguay (ATRU)
51. Uruguay - Colectivo
Ovejas Negras
52. Venezuela - Venezuela
Diversa Asociación Civil
53. Venezuela - Diversidad
e Igualdad a Través de la Ley (DIVERLEX)
[1] The Coalition
of LGBTTTI organizations from Latin America and the Caribbean working within
the framework of the OAS is a regional network of organizations that promotes
visibility and mobilizes around the OAS and its regional system for the
protection of human rights, in order to ensure their full and systematic
commitment in the protection and promotion of the human rights of LGBTI people
in the Americas. It was conceived and promoted in 2006 by local activists,
within the framework of the Regional Conference of the Americas - Progress and
Challenges of the Plan of Action against Racism, Racial Discrimination,
Xenophobia and Related Intolerance, which took place in July in Brazil. The
first meeting of the Coalition was held in Panama, in May 2007, on the occasion
of the 37th OAS General Assembly. The Coalition is currently composed of 53
organizations from 27 countries in the Latin American and Caribbean region.
[2] I/A Court HR,
Advisory Opinion OC-24/17 - Gender Identity, and Equality and
Non-Discrimination of Same-Sex Couples, State Obligations in relation to the
change of name, gender identity, and rights derived from a same sex
relationship (interpretation and scope of Articles 1.1, 3, 7, 11.2, 13, 17, 18
and 24, in relation to Article 1 of the American Convention on Human Rights),
requested by the Republic of Costa Rica, dated November 24, 2017, published on
January 9, 2018, available (only in Spanish, at the moment) at:
[3] As of January
30, 2018, the Inter-American Court has yet to release its official English
translation of the Advisory Opinion. In this regard, in this Summary of the
Advisory Opinion, the LGBTTTI Coalition has translated the excerpts from the
Court’s official version in Spanish. As these excerpts are not official quotes,
quotation marks have not been included.
