On Tuesday, the Inter-American Court of Human Rights condemned the Government of Chile for its 2003 Supreme Court ruling which stripped Karen Atala, a lesbian mother and judge, of custody of her three daughters on the basis of her sexual orientation. The 2003 ruling determined that if her daughters remained in her custody, they would be in a “situation of risk” due to their “unique family.” This is the first time the Inter-American Court of Human Rights has ever heard a case specifically regarding sexual orientation or gender identity.
The Court’s landmark ruling found that Chile not only violated Atala’s right to equality and non-discrimination but affirms for the first time in its history that sexual orientation and gender identity are protected categories and that such discrimination violates international law. It represents a historic victory for lesbian, gay, bisexual and transgender (LGBT) rights in Chile and around the world.
MADRE, the International Gay and Lesbian Human Rights Commission (IGLHRC) and the City University of New York (CUNY) School of Law co-authored a brief for the Court, arguing that sexual orientation and gender identity should be found to be a protected class under the American Convention on Human Rights as held under international law. Attorneys from Morrison and Foerster focused on the custody issue at hand, arguing that sexual orientation and gender identity not be a factor in custody determinations. The brief was joined by 13 other organizations. This week’s ruling upholds both arguments.
Lisa Davis, Human Rights Advocacy Director at MADRE and Clinical Professor for Law for the International Women’s Human Rights Clinic at CUNY Law School said, “The Court’s ruling is a milestone victory for human rights advocates the world over. It sets a precedent in international law that discrimination on the basis of sexual orientation is a human rights violation—one that we hope will help defend the rights of LGBT persons wherever these rights are under attack.”
“Though Karen Atala and her daughters can never regain the time they have lost together because of the destructive impact of homophobia, the Inter-American Court has vindicated the legitimacy of their family,” said Jessica Stern, Director of Programs at IGLHRC. “The Court has set a transformative precedent to which every signatory to the Inter-American Convention – 24 countries throughout the Americas – is bound. Based on both American regional standards and international jurisprudence, the Court has ruled that LGBT people must live free from discrimination, whether as parents or in any other aspect of their lives.”
Source: Common Dreams