Inter-American Court Of Human Rights & LGBT News In Latin America

Inter-American Court Of Human Rights & LGBT News In Latin America January 11, 2018

So some news outlets are talking about marriage equality in Latin America because of the Inter-American Court of Human Rights’ decision/announcement the other. I wanted to sit down and explain some of what international observers ought to know about the Inter-American Court of Human Rights, the various attitudes towards same-sex attraction and granting of civil rights to LGTBQIA+ in Latin America and about the background of the decision.

The OAS's logo, the group in which the Inter-American Court Of Human Rights exists.
The OAS’s logo, the group in which the Inter-American Court Of Human Rights exists.

The Inter-American Court Of Human Rights & The Organization Of American States:

Explaining this is going to take a good chunk of this post. The Inter-American Court of Human Rights is part of the human rights protection system of the Organization of American States, a continental organization whose membership is the various independent nations throughout the Americas. This organization came about in the wake of World War II when the various American (as in the landmass, not the United States, obviously) nations realized that external threats to any and all of them couldn’t be handled by just not interfering with each other and signed a pact assuring signers that other signers would come to their aid in cases of outside aggression, named the Rio Treaty in 1947 during the 8th International Conference of American States. There’s a lot of history that could be discussed to talk about what motivated the creation of the OAS, but for now, I want to focus on how we got to yesterday.

In late 1969 the OAS got its members to agree to adopt a document known as the American Convention On Human Rights. In doing so they began a long process of ratification that would culminate in 1978 and with the culmination of the process of ratification came the beginning of the creation of the Inter-American Court of Human Rights which joined the Inter-American Commission on Human Rights (which formed in the late 50s and very early 60s) to become the two main bodies which ensure that members of the Organization Of American States protect the human rights of the people who live in them.

Some Background Needed To Understand What Happened Here:

Here is the TL;DR version of this: the Court says that rights given to couples consisting of 1 man, and 1 woman must also be given to same-sex couples, and that name changes for the sake of having records and identification consistent with self-identification should be recognized by the government without excessive steps or anything that impedes the ability of those requesting them to get them done speedily.

In May of 2016, the Costa Rican government asked the CIDH for its opinions on recognizing and expanding the rights of LGBTQIA+ people. They did this because the Court doesn’t just issue rulings it can also be approached for consultations. In 2017 the result they got was a lengthy and well-researched document which said that the opinion of the court was among other things the following:

1: In the context of public record keeping and for the sake of having consistent forms of identification name-changes which reflect one’s actual gender instead of the gender one was assigned at birth fall under a protected right in the American convention on human rights.

2: Nations ought to guarantee that people interested in correcting their gender according to public records and in changing their names/updating their images can, in fact, do so legally. More than just this though is that the language of this section of the opinion states that this ought to be done with a focus on self-identity rather than any physicians opinion. This is smartly written and notes that the opinions of medical professionals can be pathologizing, and even says that these updated records shouldn’t require that those receiving them prove that they are on hormones or have received any kind of surgeries, as well as not signal that the records were updated and thus not consistent with one’s gender assigned at birth.

(Starting from here everything is Costa Rica specific)

3: Basically what 2 said but with Costa Rica specific language.

4: In the time till the nation amends its civil code conventionally it is recommended that measures be adapted to enact these changes in another way.

5: Same-sex couples & families are protected by the American convention.

6: Costa Rica ought to recognize all the rights given to heterosexual families and grant them to same-sex couples and families who’ve been denied them relative to articles 11.2, 17.1, and in paragraphs 200-218.

All of these statements were unanimous. The next statement wasn’t a unanimous decision with Eduardo Vio Grossi voting against it.

7: States are required by articles 1.1, 2, 11.2, 17, and 24 to grant access to all of the same rights, and processes that heterosexual couples have access too, including marriage and adoption (which should be mentioned too) because in Costa Rica same-sex couples can’t adopt but individuals who are attracted to the same-sex can.

A document that was released two days ago summarizes the longer opinions of the court’s judges. It was broken down into the following sections: The right for someone to identify their gender and the process by which one’s name can be changed, and international protections for same-sex couples. It states that Costa Rica came to the court seeking information on how the American convention sees the rights involved in recognizing name changes that are tied to gender identity, and Costa Rica came for information about the convention and recognizing patrimonial rights for same-sex couples.

What Happens Now?

The Court wants nations to comply indirectly with this decision through decrees until such a time as the various nations can enact conventional legislative changes such as new bills that legalize same-sex marriage or constitutional amendments which amend various constitutional articles necessary to create a pathway for legalization. What’s more likely to happen though is that this decree will be worked around if not ignored outright. I don’t want people getting excited about this announcement in the context of expecting it to result in regionwide policy shifts. It is exciting in the context of it being the first step by which a massive international organization begins to pressure unyielding nations that refuse to grant basic human rights to same-sex couples.

This should embolden LGBTQIA+ activists and should concern conservative and unrelenting Evangelical and Catholic leaders as well as religious policymakers who are unyielding in their opposition to recognizing the civil rights of bisexual, transexual, transgender, and homosexual individuals and families. This means that the Organization of American States could begin putting pressure on nations that refuse to recognize the human rights, including marriage and adoption, of LGBTQIA+ couples. I’ve no doubt that even now conservatives in Latin-America are wondering what the future holds and frankly as a human rights advocate and LGBTQIA+ person myself so am I.

Other Related News:

The highest court in the European Union, the European Court of Justice, has stated that all member states of the European Union must recognize the rights of same-sex couples, including nations that don’t have marriage or adoption equality.

This has been a long article, and if asked I’ll translate and explain more of the two documents, the longer article and the much shorter one, in-depth. If you want to know more and want to hear it from me, feel free to ask me any questions you have in the comments section down below!

It’s also undoubtedly just an introduction to not only this topic but also the topic of the Inter-American Commission on Human Rights & the Inter-American Court of Human Rights. I’ll write more about both of these groups in the future!

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