Atala Riffo and Daughters v. Chile: Perbedaan antara revisi
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Baris 57:
Komisi meminta Pengadilan untuk mendeklarasikan kasus ini sebagai pelanggaran terhadap Artikel 11 (Hak atas Privasi), Artikel 17(1) dan 17(4) (Hak - hak Keluarga), Artikel 19 (Hak - hak Anak), Artikel 24 (Hak atas Perlindungan yang Setara), dan Artikel 25 (Hak atas Perlindungan Yudisial) dari Konvensi Amerika tentang Hak Asasi Manusia.
Komisi juga meminta Pengadilan untuk memerintahkan Chili mengambil tindakan - tindakan ganti rugi terhadap kasus
CASE OF ATALA RIFFO AND DAUGHTERS v. CHILE
JUDGMENT OF FEBRUARY 24, 2012
(Merits, Reparations and Costs)
In the case of Atala Riffo and daughters,
The Inter-American Court of Human Rights (hereinafter, the “Inter-American Court” or the
“Court”) composed of the following judges1
<nowiki>:</nowiki>
Diego García-Sayán, President;
Manuel E. Ventura Robles, Vice-President;
Leonardo A. Franco, Judge;
Margarette May Macaulay, Judge;
Rhadys Abreu-Blondet, Judge;
Alberto Pérez Pérez, Judge;
Also present:
Pablo Saavedra Alessandri, Secretary and,
Emilia Segares Rodríguez, Deputy Secretary;
Pursuant to Articles 62(3) and 63(1) of the American Convention on Human Rights
(hereinafter, the “Convention” or the “American Convention”) and Articles 31, 32, 56, 57,
65 and 67 of the Court’s Rules of Procedure2 (hereinafter, the “Rules of Procedure”) delivers
this Judgment.
1 According to Article 19(1) of the Rules of Procedure of the Inter-American Court, applicable to this case
(infra note 2), which sets forth that “[i]n the cases referred to in Article 44 of the Convention, a Judge who is a
national of the respondent State shall not be able to participate in the hearing and deliberation of the case”, Judge
Vio Grossi, of Chilean nationality, did not participate in the processing of this case nor in the deliberation of this
Judgment.
2 The Rules of Procedure approved by the Court at its Eighty-fifth Regular Period of Sessions held on
November 16-28, 2009, apply in this case in accordance with the provisions of Article 79 of said Rules of
Procedure. Article 79(2) of the Rules of Procedure stipulates that“[i]n cases in which the Commission has adopted a
report under Article 50 of the Convention before these Rules of Procedure have come into force, the presentation of
the case before the Court will be governed by Articles 33 and 34 of the Rules of Procedure previously in force.
Statements shall be received with the aid of the Victim’s Legal Assistance Fund, and the dispositions of these Rules
of Procedure shall apply”. Therefore, as to the presentation of the case, Articles 33 and 34 of the Rules of
Procedure approved by the Court at its Forty-ninth Regular Session, shall apply..
2
I. INTRODUCTION OF THE CASE AND PURPOSE OF THE APPLICATION 4
II. PROCEEDING BEFORE THE COURT 5
III. COMPETENCE 8
IV. EVIDENCE 8
A. Documentary, Testimonial and Expert Evidence 9
B. Admission of Documentary Evidence 11
C. Admission of testimonial and expert evidence 12
V. RIGHT TO EQUALITY AND NON-DISCRIMINATION, RIGHT TO PRIVATE LIFE,
RIGHT TO FAMILY LIFE, RIGHTS OF THE CHILD, RIGHT TO A FAIR TRIAL AND TO
JUDICIAL PROTECTION IN RELATION TO THE OBLIGATION TO RESPECT AND
GUARANTEE RIGHTS REGARDING THE CUSTODY PROCEEDING 13
A. Proven facts in relation to the custody proceedings 13
1) Custody proceedings 14
2) Provisional custody granted to the father 17
3) Lower court decision granting custody of the girls to Ms. Atala 18
4) Appeal to the Court of Appeals of Temuco and injunction granted in
favor of the father 20
5) Filing of remedy of complaint (recurso de queja) with the Supreme
Court of Justice and granting of second injunction in favor of the father 21
6) Decision of the Supreme Court of Justice of Chile 21
B. Prior considerations 23
1. Prior consideration on the matter of the case before the Inter-
American Court 23
2. Prior consideration on the participation of the girls M., V. and R. 25
C. The right to equality and the prohibition of discrimination 26
1. Right to equality and non-discrimination 28
2. Sexual orientation as a category protected by Article 1(1) of the
American Convention 29
3. Difference in treatment based on sexual orientation 35
4. The principle of the child’s best interest and assumptions of risk 37
4.1. Alleged social discrimination 40
4.2. Alleged confusion of sexual roles 42
4.3. Alleged privilege of interests 46
4.4. Right to a “normal and traditional” family 49
4.5 Conclusion 50
5. Discriminatory treatment against the girls M., V. and R. 50
D. Right to private life and right to family life 52
E. Judicial guarantees and judicial protection 58
1. Judicial guarantees and judicial protection regarding Ms. Atala 583
2. Right of the girls M., V., and R. to be heard and to have their opinions
be taken into consideration 62
VI. RIGHT TO EQUALITY AND THE PROHIBITION OF NON-DISCRIMINATION,
RIGHT TO A PRIVATE LIFE AND RIGHT TO JUDICAL GUARANTEES
IN RELATION TO THE OBLIGATION TO RESPECT AND GUARANTEE RIGHTS IN
RELATION TO THE DISCIPLINARY INVESTIGATION 66
A. Facts proven regarding the disciplinary investigation against
Ms. Atala 67
B. The right to equality and the prohibition of non-discrimination 68
C. Right to private life 70
D. Judicial guarantees 71
VII. REPARATIONS 73
A. Injured Party 74
B. Obligation to investigate and enforce legal consequences for the
officials responsible 75
C. Other measures of full redress: satisfaction and guarantees of
non-repetition 76
1. Rehabilitation: Medical and psychological treatment for the victim 76
2. Satisfaction 76
a) Publication of the Judgment 76
b) Public act acknowledging international liability 77
3. Guarantees of non-repetition 78
a. Training for public officials 79
b. Adoption of domestic measures, reforms, and adaptation of
laws against discrimination 79
D) Compensation for pecuniary and non-pecuniary damages 82
1. Pecuniary damage 83
2. Non-pecuniary damages 85
E) Costs and expenses 86
F) Method of compliance with the payments ordered 87
VIII. OPERATIVE PARAGRAPHS 88
Judge Alberto Pérez Pérez informed the Court his Partially Dissenting Opinion
4
I.
INTRODUCTION OF THE CASE AND PURPOSE OF THE APPLICATION
1. On September 17, 2010, the Inter-American Commission on Human Rights
(hereinafter, the “Inter-American Commission” or “the Commission”) filed a claim against
the Republic of Chile (hereinafter, the “State” or “Chile") in relation to case 12.5023
. The
initial petition was lodged before the Inter-American Commission on November 24, 2004 by
Ms. Karen Atala Riffo, (hereinafter “Ms. Atala”) represented by attorneys of the Asociación
Gremial Libertades Públicas, Clinica de Acciones de Interés Público of Diego Portales
University and Fundación Ideas4
.
2. On July 23, 2008, the Commission approved Report on Admissibility No. 42/08 and
on December 18, 2009, it approved the Report on Merits No. 139/09, according to article 50
of the American Convention5
. On September 17, 2010, the Inter-American Commission
considered that the State had not complied with the recommendations made in the Merits
Report, for which reason it decided to submit the instant case to the jurisdiction of the
Inter-American Court. The Inter-American Commission appointed Commissioner Luz Patricia
Mejía, and Executive Secretary Santiago A. Canton as its delegates in this case. Assistant
Executive Secretary Elizabeth Abi-Mershed and attorneys Silvia Serrano Guzmán, Rosa
Celorio and María Claudia Pulido, Specialists of the Executive Secretariat of the Commission,
were designated to act as legal advisors.
3. According to the Commission, the present case concerns the alleged international
responsibility of the State for discriminatory treatment and arbitrary interference in the
private and family life suffered by Ms. Atala due to her sexual orientation, in the legal
process that resulted in the loss of care and custody of her daughters M., V and R. The case
also concerns the alleged failure to take into account the best interests of the girls, whose
custody and care were determined without having regard to their rights, and on the basis of
alleged discriminatory prejudices. The Commission requested the Court to declare the
violation of Articles 11 (Right to Privacy), 17(1) and 17(4) (Rights of the Family), 19 (Rights
of the Child), 24 (Right to Equal Protection) and 25 (Right to Judicial Protection) of the
Convention, in relation to article 1(1) thereof. Likewise, the Commission requested the
Court to order the State to adopt reparation measures.
3 At the request of the Inter-American Commission, the identity of the three daughters of Ms. Karen Atala
Riffo, shall not be disclosed. Such daughters shall be referred to as “M., V. and R.”. Moreover, at the request of the
representatives, in order to protect the right to private and family life of M., V. and R., the affidavits forwarded by
the parties and "related to the family situation" of Ms. Atala and her daughters shall not be disclosed. (Case file,
volume III, page 1162)
4 In the initial petition, Ms. Atala indicated that Fundación Ideas was represented by Francisco Estévez
Valencia and she appointed Verónica Undurraga Valdés, Claudio Moraga Klenner, Felipe González Morales and
Domingo Lovera Parmo as her representatives before the Inter-American Commission (File of appendices to the
petition, volume III, pages 1533 and 1572).
5 In Merits Report No. 139/09, the Commission concluded that the State of Chile “did violate the right of
Karen Atala to live free from discrimination as provided in Article 24 of the American Convention, in conjunction
with Article 1(1) thereof.” Moreover, “the State also violated Articles 11(2), 17(4), 19, 8(1), and 25(1) of the
American Convention, in conjunction with Article 1(1) thereof, with respect to the individuals identified in the
corresponding sections”. The Commission recommended that the State of Chile: i) "[p]rovide Karen Atala and M.,
V., and R. with comprehensive redress for the human rights violations that arose from the decision […] taking into
consideration their situation and needs” and ii) [a]dopt legislation, public policies, programs and initiatives to
prohibit and eradicate discrimination on the basis of sexual orientation from all spheres of public power, including
the administration of justice. These measures must be accompanied by adequate human and financial resources to
guarantee their implementation, and training/re-education programs for the public officials involved in upholding
those rights”. Merits Report No.139/09, Case 12.502, Karen Atala and daughters of December 18, 2009 (File of
appendices to the application, volume I, annex 2, pages 22 to 67).
5
4. The application was notified to the State and to the representatives on October 19,
2010.
5. On December 25, 2010, Macarena Sáez, Helena Olea and Jorge Contesse, indicating
that they were the representatives of Ms. Atala and her daughters M., V. and R6
(hereinafter, the “representatives”) filed a brief with the Court containing pleadings,
motions and evidence (hereinafter, “brief of pleadings and motions”) according to article 40
of the Court's Rules of Procedure7
. The representatives indicated that they agreed in full
with the facts presented in the application and asked the Court to declare the international
responsibility of the State for the violation of articles 11 (Right to Private and Family Life),
17 (Right to a Family), 19 (Rights of the Child), 24 (Right to Equality) and 25 (Judicial
Protection) of the Convention, in relation to article 1(1) thereof. In consequence, they
requested that the Court order several reparation measures.
6. On March 11, 2011, Chile filed with the Court a brief containing its response to the
application and the observations to the brief of pleadings and motions (hereinafter, “brief of
response”). In said brief, the State contested all the claims presented by the Commission
and the representatives and denied its international responsibility for the alleged violations
of the American Convention. In relation to the measures of reparation requested by the
Commission and the representatives, the State requested that the Court dismiss the claim
in its entirety. The State appointed Mr. Miguel Angel González and Ms. Paulina González
Vergara as Agents.
II
PROCEEDING BEFORE THE COURT
7. Through a Decision issued on July 7, 20118
, the President of the Court ordered the
receipt of various statements in this case. Likewise, he summoned the parties to a public
hearing, which was held on August 23 and 24, 2011, during the 92nd regular session of the
Court, in the city of Bogota, Colombia9
.
6 As mentioned subsequently (infra paras. 12, 13 and 67 to 71), regarding the representation of the girls
M., V. and R., in the Decision of November 29, 2011 the Court noted that the file contained no specific statements
by the girls M., V. and R. as to whether they agreed to be represented by either one of their parents and whether
they wished to be considered as alleged victims in this case. Accordingly, a judicial proceeding was held to directly
hear the daughters M. and R (infra para. 13).
7 Ms. Karen Atala Riffo appointed Macarena Sáez from the organization “Libertades Públicas A.G”, Helena
Olea from “Corporación Humanas, Centro Regional de Derechos Humanos y Justicia de Género” and Jorge Contesse
from “Centro de Derechos Humanos de la Universidad Diego Portales”, as her representatives.
8 See Case of Atala Riffo and daughters V. Chile. Order of the President of the Inter-American Court of
Human Rights of July 7, 2011. Available at: <nowiki>http://corteidh.or.cr/docs/asuntos/atala_21_08_11.pdf</nowiki>
The representatives requested a modification in the format of two statements, which was accepted by the full
Court. See Case of Atala Riffo and daughters V. Chile. Order of the Inter-American Court of Human Rights of
August 21, 2011.Available at: <nowiki>http://corteidh.or.cr/docs/asuntos/atala_21_08_11.pdf</nowiki>
9 The following persons attended this hearing: a) on behalf of the Inter-American Commission:
Commissioner Rodrigo Escobar Gil and legal advisors Silvia Serrano and Rosa Celorio; b) on behalf of the
representatives: Helena Olea Rodríguez, Macarena Sáez Torres, Jorge Contesse Singh, José Ignacio Escobar Opazo,
Francisco Cox Vial and Catalina Lagos Tschorne, and c) on behalf of the State: Agents Miguel Ángel González
Morales and Paulina González Vergara; Gustavo Ayares Ossandón, Ambassador of Chile to Colombia; Ricardo
Hernández Menéndez, Adviser of the Chilean Embassy in Colombia;; Milenko Bertrand-Galindo Arriagada, Felipe
Bravo Allende and Alberto Vergara Arteaga.
6
8. On August 18, September 6 and October 18, 2011, Mr. Reinaldo Bustamante Alarcón
forwarded several communications on behalf of Jaime López Allendes, father of the girls M.,
V. and R., in relation to this case. In said briefs, the following requests were made: i)
participation of the minors and legal representation by their father in the proceeding before
the Inter-American Court; ii) request to include an intervener in the proceeding; iii) request
to annul the proceedings before the Commission and the Court and iv) request to
collaborate with the State’s brief.
9. On November 30, 2011, the Secretariat sent a note to Mr. Bustamante, following the
instructions of the full Court, in reply to the briefs submitted (supra para. 8). The note
indicated that: i) in a Decision issued on November 29, 2011 the Court ordered, as evidence
to facilitate adjudication of the case, that the three girls must be informed of their right to
be personally heard by the Court (infra paras. 12 and 13); ii) the Court is not competent to
address requests made by individuals or organizations other than the alleged victims
participating in the proceedings of a case before the Court; iii) the Court does not find
irregularities in the manner in which notice of this case was served and iv) given that Mr.
López is not a party to this case and that his participation as a third intervener has not been
accepted, he does not have legal standing to present arguments as to the merits or
evidence10.
10. Furthermore, the Court received the amici curiae briefs from: 1) the National
Association of Judges of Chile [Asociación Nacional de Magistrados del Poder Judicial de
Chile]11; 2) the Ombudsgay organization12; 3) Mr. José Pedro Silva Prado, a professor of
Procedural Law and President of the Chilean Institute of Procedural Law; 4) Mr. José Ignacio
Martínez Estay, a professor of the Jean Monnet Program, an initiative of the European
Union, of the University of Los Andes, Chile; 5) the Human Rights Group [Nucleo Derechos
Humanos] of the Law Department of the Pontificia Universidad Católica of Río de Janeiro13;
6) Mr. Diego Freedman, a professor at the School of Law of the University of Buenos Aires;
7) Ms. María Inés Franck, President of Asociación Civil Nueva Política and Mr. Jorge Nicolás
Lafferriere, Director of Centro de Bioética, Persona and Familia; 8) the Research Seminary
on Family and Individual Law, of the Law School of the Pontificia Universidad Católica of
Argentina14; 9) Mr. Luis A. González Placencia, President of the Human Rights Commission
of the Federal District and Mr. José Luis Caballero Ochoa, Coordinator of the Human Rights
Master’s Program of the Ibero-American University; 10) Ms. Úrsula C. Basset, a professor
10 Notwithstanding the foregoing, the Court confirmed that the evidence furnished by Mr. Bustamante,
concerning psychological expert opinions on the three girls and statements rendered by several people, were
forwarded by the parties as appendices to their main briefs, which included a copy of the main documents of the
custody proceeding.
11 The brief was presented by Mr. Leopoldo Llanos Sagristá, Minister of the Appeals Court of Temuco, Chile
and President of the National Association of Judges of Chile [Asociación Nacional de Magistrados del Poder Judicial
de Chile].
12 The brief was presented by Ms. Geraldina González de la Vega, Legal Adviser and Mr. Alejandro Juarez
Zepeda, General Coordinator.
13 The brief was filed by Ms. Marcia Nina Bernardes, Professor at the Law Department and Coordinator of
Nucleo de Derechos Humanos of Pontificia Universidad Católica of Rio of Janeiro; Andrea Schettini, Luiza Athayde,
Maria Fernanda Marques, Isabella Benevides, Isabella Maioli, Julia Rosa, Juliana Streva, Karen Oliveira and Maria
Eduarda Vianna; and Mr. Felipe Saldanha.
14 The brief was filed by Mr. Jorge Nicolás Laferriere and Ms. Úrsula C. Basset, Co-Directors of the Seminary.
7
and researcher at the University of Buenos Aires15; 11) Ms. Judith Butler, professor of the
Maxine Elliot Program at the University of California, at Berkeley; 12) Mr. Alejandro Romero
Seguel and Ms. Maite Aguirrezabal Grünstein, Doctors of Law at Navarra University and
Procedural Law professors; 13) Mr. Carlos Álvarez Cozzi, Professor of Private Law at the
Economic Sciences and Administration School and Associate Professor of Private
International Law at the Law School of the University of the Republic of Uruguay; 14) Mr.
James J. Silk, Director of Allard K. Lowenstein, Legal Clinic on Human Rights, of Yale
University Law School; 15) Ms. María Sara Rodríguez Pinto, Doctor of Law at the
Universidad Autónoma de Madrid and Professor of Civil Law; 16) Ms. Natalia Gherardi,
Executive Director of the Equipo Latinoamericano de Justicia and Género, and Ms. Josefina
Durán, Director of that organization’s Law Department; 17) Ms. Laura Clérico, Ms. Liliana
Ronconi, Mr. Gustavo Beade and Mr. Martín Aldao, professors and researchers at the
University of Buenos Aires Law School; 18) Messrs. Carlo Casini, Antonio Gioacchino
Spagnolo and Joseph Meaney16; 19) from the Chancellor and some members of the
Universidad Católica Santo Toribio de Mogrovejo17; 20) Ms. María del Pilar Vásquez Calva,
Coordinator of Enlace Gubernamental de Vida and Familia A.C.; 21) Ms. Suzanne B.
Goldberg and Mr. Michael Kavey, lawyers at Sexuality & Gender Law Clinic of Columbia
University and Ms. Adriana T. Luciano, an attorney at Paul, Weiss, Rifkind, Wharton &
Garrisson LLP; 22) Ms. Elba Nuñez Ibáñez, Gabriela Filoni, Jeannette Llaja and Mr. Gastón
Chillier18; Mr. 23) Mr. Brent McBurney and Mr. Bruce Abramson, attorneys at Advocates
International; 24) Ms. Gail English, President of Lawyers Christian Fellowship, and Ms.
Shirley Richards; 25) Colombia Diversa and Centro de Derechos Humanos y Litigio
Internacional19; 26) Messrs. Piero A. Tozzi and Brian W. Raum of Alliance Defense Fund; 27)
Mr. Jorge Rafael Scala, Professor of the postgraduate program on Human Development at
the Universidad Libre Internacional de las Américas and Honorary Professor at Universidad
Ricardo Palma; 28) the Center for Global Justice, Human Rights and the Rule of Law [Centro
para la Justicia Global, los Derechos Humanos y el Estado de Derecho] of the Law School at
15 Ms. Ursula C. Basset is a member of the Board of Directors of the International Academy for the Study of
Jurisprudence on Family [Academia International para la Jurisprudencia sobre la Family] and the Board of Directors
of the International Society of Family Law.
16 Mr. Carlo Casini is a member of the European Parliament, President of the Constitutional Affairs
Commission of the European Parliament and President of the Italian Pro-Life Movement. Mr. Antonio Gioacchino
Spagnolo is a professor of Bioethics and Director of the Bioethics Institute of the Catholic University of the Sacred
Heart in Rome. Mr. Joseph Meaney is the director of international coordination at Human Life International.
17 The brief was signed by Mr. Hugo Calienes Bedoya, Chancellor and Director of the Institute of Bioethics at
USAT, and by Mr. Carlos Tejeda Lombardi, Director of the USAT Law School, Mr. Rafael Santa Maria D’Angelo,
Coordinator of the Department of History and Philosophy of Law, Mr. Javier Colina Seminario, legal adviser at
USAT, Ms. Rosa Sánchez Barragán, Coordinator of the Department of Civil Law, Ms. Erika Valdivieso López, Dean of
the Faculty of Law of USAT, Ms. Angelica Burga Coronel, Professor of Legal Protection of Rights, Ms. Ana María
Olguín Britto, Director of the Science Institute for Marriage and the Family of USAT and Ms. Tania Díaz Delgado, all
professors of the Law School and the Science Institute for Marriage and the Family of the Catholic University of
Santo Toribio of Mongrovejo.
18 Ms. Elba Nuñez Ibañez is the Regional Coordinator of the Latin American and Caribbean Committee for the
Defense of Women’s Rights (CLADEM). Ms. Gabriela Filoni is responsible for the Litigation Support Program of the
Latin American and Caribbean Committee for the Defense of Women’s Rights (CLADEM). Ms. Jeannette Llaja is a
member of the Latin American and Caribbean Committee for the Defense of Women’s Rights of Peru. Mr. Gaston
Chillier is the Executive Director of the Center of Legal and Social Studies.
19 The brief was filed by Ms. Marcela Sánchez Buitrago, Executive Director of Colombia Diversa, and Mr.
Mauricio Noguera Rojas and Mr. Santiago Medina Villareal, on behalf of Colombia Diversa; and Ms. Viviana
Bohórquez Monsalve, on behalf of Human Rights and International Litigation Center [Centro de Derechos Humanos
y Litigio Internacional].
8
Regent University20; 29) Mr. Álvaro Francisco Amaya Villareal, Ms. Bárbara Mora Martínez
and Ms. Carolina Restrepo Herrera; 30) Ms. Lisa Davis, Ms. Jessica Stern, Ms. Dorothy L.
Fernández, Ms. Megan C. Kieffer, Ms. Rachel M. Wertheimer, Ms. Erin I. Herlihy, and Mr.
Justin D. Hoogs21; 31) Ms. Andrea Minichiello Williams, Ms. Ruth Ross and Mr. Mark Mudri22;
and 32) the Department of Sexual and Reproductive Rights of the Program on Health
Rights, Division of Legal Studies of the Center for Economic Research and Education [Área
de Derechos Sexuales and Reproductivos del Programa de Right to Salud, División de
Estudios Jurídicos del Centro de Investigación and Docencia Económicas23.
11. On September 24, 2011, the representatives and the State forwarded their final
arguments and the Inter-American Commission presented its final written observations on
this case. Moreover, on that occasion, the parties answered the questions prepared by the
judges as well as the requests by the Court for evidence to facilitate adjudication of the
case. These briefs were forwarded to the parties, to whom the Court gave an opportunity to
present any observations deemed pertinent.
12. On November 29, 2011, the Court issued a Decision in which it ordered, as evidence
to facilitate adjudication of the case, that the three girls M., V. and R., be informed of their
right to be heard by the Court and of the consequences arising from the exercise of that
right, so that they could express their wishes in that regard24.
13. On February 8, 2012, the Secretariat of the Inter-American Court held a hearing in
Santiago de Chile in which the girls M. and R. participated. For reasons of force majeure the
girl V. was not present at the hearing. During said hearing the girls made several
observations in relation to the case, which are of a confidential nature (infra paras. 67 to
71).
14. On February 16, 2012, the record of the above mentioned proceedings was
communicated to the parties. 25
20 The brief was filed by Ms. Lynne Marie Kohm, on behalf of the Center for Global Justice, Human Rights and
the Rule of Law of the Law School at Regent University.
21 The brief was filed by Ms. Lisa Davis, Clinical Professor of Law, of the International Women’s Human Rights
Clinic at the City University of New York Law School; Ms. Jessica Stern, of the International Gay and Lesbian
Human Rights Commission; and Dorothy L. Fernández, Justin D. Hoogs, Megan C. Kieffer, Rachel M. Wertheimer
and Erin I. Herlihy, of Morrison & Foerster LLP. Other participant in the brief include Amnesty International; ARC
International; Center for Constitutional Rights; the Council for Global Equality; Human Rights Watch; Lawyers for
Children Inc; Legal Aid Society of New York; Legal Momentum; MADRE; Centro Nacional de Derechos Lésbicos;
Iniciativa Nacional de Derechos Económicos y Sociales; the New York City Bar Association; Women’s Link
Worldwide and the Consultoría para los Derechos Humanos y el Desplazamiento (CODHES).
22 Ms. Andrea Minichiello Williams is the Director General of the Christian Legal Center/Christian Legal
Fellowship. Ms. Ruth Ross is the Executive Director of the Christian Legal Fellowship. Mr. Mark Mudri is the Regional
Facilitator of Advocates Oceania.
23 The brief was filed by Ms. Estefania Vela Barba and Mr. Alejandro Madrazo Lajous, of the Sexual and
Reproductive Rights Area of the Program on Health Rights of the Legal Studies Division of the Center for Economic
Research and Teaching.
24 Case of Atala Riffo and daughters V. Chile. Order of the Inter-American Court of Human Rights of
November 29, 2011. Available at: <nowiki>http://www.corteidh.or.cr/docs/asuntos/atala_29_11_111.pdf</nowiki>
25 In a brief filed on February 23, 2012, the State submitted its observations regarding the confidentiality of
the aforementioned record of proceedings.
9
III
COMPETENCE
15. The Inter- American Court has jurisdiction over this case in accordance with Article
62(3) of the American Convention, given the fact that Chile has been a State Party to the
American Convention since August 21, 1990 and accepted the binding jurisdiction of the
Court on that same date.
IV
EVIDENCE
16. Based on the provisions of Articles 46, 49 and 50 of the Rules of Procedure, as well
as on the Court’s case law regarding evidence and assessment thereof26, the Court shall
now examine and assess the documentary evidence forwarded by the parties at the
different procedural stages, the statements of the alleged victim, the testimonies and expert
opinions rendered by affidavit and at the public hearing before the Court, as well as
evidence to facilitate adjudication of the case. In doing so, the Court shall adhere to the
principles of sound judgment, within the applicable legal framework27.
A. Documentary, Testimonial and Expert Evidence
17. The Court received the affidavits rendered by the following seven expert witnesses
and six witnesses :
a) Stefano Fabeni, an expert witness proposed by the Commission, Director of
the program on the LGTBI community (Lesbian, gay, bisexual, transgender and
intersexual people) of the Global Rights Organization, who rendered an expert
opinion regarding: i) the legislative and other types of measures that a State must
adopt to prevent discrimination based on sexual orientation in the exercise of public
power, and in particular, in the judiciary and ii) the different elements that must be
taken into account when formulating and applying public policies to eradicate and
prevent discriminatory prejudices based on sexual orientation in that sphere;
b) Leonor Etcheberry, an expert witness proposed by the representatives, a
lawyer and professor of Family Law at Diego Portales University in Chile, who
rendered an expert opinion on: “the manner in which custody proceedings are
reviewed and decided under Chilean law and its connection with the way in which the
proceeding [...] by the Judge in the Atala Riffo case was carried out";
c) Fabiola Lathrop, an expert witness proposed by the representatives, a lawyer
and Professor of Family Law at the University of Chile, who rendered an expert
opinion on: concepts related to custody in Chile and in comparative law, with an
emphasis on discrimination based on sexual orientation;
26 See Case of the “White Van” (Paniagua Morales et al) v. Guatemala. Reparations and Legal Costs.
Judgment of May 25, 2001. Series C No. 76, para. 50 and Case of Chocrón Chocrón v. Venezuela. Preliminary
Objections, Merits, Reparations and Legal Costs. Judgment of July 1, 2011. Series C Nº. 227, para. 26.
27 See Case of the “White Van" (Paniagua Morales et al) v. Guatemala, Merits. Judgment of March 8, 1998.
Series C, Nº 37, para. 76; and Case of Chocrón Chocrón, supra note 13, para. 26.
10
d) Miguel Cillero, an expert witness proposed by the representatives, a professor
of Law at Diego Portales University in Chile, who rendered an expert opinion on: the
treatment of the principle of the best interests of the child under International Law;
e) Monica Pinto, an expert witness proposed by the representatives, a law
professor and dean at the Law School of the University of Buenos Aires, who
rendered an expert opinion on: the development of international human rights law in
relation to non-discrimination and the treatment of sexual orientation as a suspect
category;
f) Maria Alicia Espinoza Abarzúa, an expert witness proposed by the
representatives, a child and adolescent psychiatrist, who rendered an expert opinion
on: the alleged mental damage caused and the alleged need for therapy of the
daughters of Ms. Atala Riffo;
g) Claudia Figueroa Morales, an expert witness proposed by the representatives,
an adult psychiatrist, who rendered an expert opinion on: i) the mental health and
alleged impact on the life plan of Ms. Atala Riffo as a result of the custody
proceedings and ii) Ms. Atala Riffo’s alleged need for psychiatric support in the
future;
h) Juan Pablo Olmedo, a witness proposed by the representatives, who made a
statement regarding: the alleged interference with the private life of Ms. Atala during
the custody proceedings in which he acted as her lawyer;
i) Sergio Vera Atala, a witness proposed by the representatives, who made a
statement regarding: the alleged impact on his family life, on his mother’s life, on
Ms. Atala Riffo and on the lives of his sisters as a result of the legal proceedings in
Chile;
j) María del Carmen Riffo Véjar, a witness proposed by the representatives, who
made a statement regarding: the alleged impact that the decision of the Supreme
Court of Chile had on her family life, on her daughter's life, on Ms. Atala Riffo and on
her granddaughters;
k) Judith Riffo Véjar, a witness proposed by the representatives, who made a
statement regarding: the alleged impact that the decision of the Supreme Court of
Chile had on her family life, on her niece’s life, on Ms. Atala Riffo and on her grand
nieces;
l) Elías Atala Riffo, a witness proposed by the representatives, who made a
statement regarding: the alleged impact that the decision of the Supreme Court of
Chile has had on his family life, on his sister's life, on Ms. Atala Riffo and on his
nieces; and
m) Emma De Ramón, a witness proposed by the representatives, who made a
statement regarding: the process experienced by the family of Ms. Atala during the
custody proceedings and after the judgment issued by the Supreme Court of Chile.
18. As to the evidence produced at the public hearing, the Court heard the statements of
the alleged victim and five expert witnesses:
11
a) Karen Atala Riffo, the alleged victim proposed by the representatives, who
made a statement regarding: i) the alleged violation of her rights from the beginning
of the custody proceeding of her daughters and ii) the alleged impact of the decision
issued by the Supreme Court of Chile on her personal and family life;
b) Juan Carlos Marín, an expert witness proposed by the representatives, a
Chilean lawyer and professor of Civil Law at the Instituto Tecnológico Autónomo of
Mexico, who rendered an expert opinion regarding: the use of the recurso de queja
(remedy of complaint) and its exceptional use;
c) Robert Warren Wintemute, an expert witness proposed by the
representatives, Professor of Human Rights at King’s College London, who rendered
an expert opinion regarding: the status of International Law regarding discrimination
based on sexual orientation, with emphasis on the European Human Rights System;
d) Rodrigo Uprimny, an expert witness proposed by the Commission, an expert
on the right to equality and non-discrimination, who rendered an expert opinion
regarding: i) international human rights standards related to sexual orientation and
their links with the rights to equality, non-discrimination and private life and ii) the
treatment of sexual orientation under international law as a prohibited criterion for
discrimination, and as an aspect of a person’s private life and the relevant case law
in the universal human rights system, in other regional systems and in comparative
law;
e) Allison Jernow, an expert witness proposed by the Commission, a lawyer with
the International Commission of Jurists and coordinator of the project on sexual
orientation and gender identity, who rendered an expert opinion regarding: i) the
use of sexual orientation as a factor in judicial decisions regarding custody, in light of
international human rights standards in the matter of equality, non-discrimination
and private and family life; and ii) the relationship between the standards of
international human rights law and custody issues in the present case, and
f) Emilio García Mendez, an expert witness proposed by the Commission, an
international adviser on the rights of the child, who rendered an expert opinion on: i)
international standards on the human rights of children applicable to cases related to
care and custody; ii) the way in which the best interests of children and their right to
participate and be heard in procedures concerning them, must be reflected in the
practice of the judicial authorities who decide such cases and iii) the harm caused to
the child’s best interests when discriminatory prejudices are applied in such
decisions.
B. Admission of Documentary Evidence
19. In the case at hand, as in many other cases28, the Court admits the evidentiary
value of such documents timely forwarded by the parties, which have not been disputed or
challenged, or their authenticity questioned, only insofar as these are pertinent and useful
to determine the facts and their possible legal consequences.
28 Cf. Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para.
140; and Case of Fontevecchia and D`Amico v. Argentina. Merits, Reparations and Legal Costs. Judgment of
November 29, 2011. Series C Nº. 238, para. 13.
12
20. As to the newspaper articles submitted, this Court has considered that these may be
assessed when they refer to well-known public facts or statements by State officials, or
when they corroborate aspects related to the case. 29 Therefore, the Court decides to admit
those newspaper articles that are complete, or at least those whose source and publication
date can be verified, and shall assess them according to the body of evidence, the
observations of the parties and the rules of sound judgment.
21. As to some of the documents referred to by the parties by means of their electronic
links, the Court has established that if a party provides at least the direct electronic link to
the document cited as evidence, and it is possible to access this document, the legal
certainty and the procedural balance will not be affected, because its location is immediately
available to the Court and to the other parties30. In this case, no opposition or observations
were expressed by the other parties regarding the content and authenticity of the
documents.
22. Furthermore, together with the final written arguments, the representatives and the
State forwarded various documents as evidence, which were requested by the Court based
on the terms stipulated in Article 58(b) of the Court’s Rules of Procedure, and the parties
had the opportunity to present any observations deemed pertinent. The Court admits said
documents as evidence. These will be assessed taking into consideration the body of
evidence, the observations of the parties and the rules of sound judgment.
23. Following the public hearing, written versions of the expert opinions rendered by
Juan Carlos Marín, Robert Warren Wintemute and Allison Jernow at the public hearing in
this case were forwarded. These statements were also conveyed to the other parties. The
Court admits these documents insofar as they refer to the purpose duly specified by the
President of the Court for such expert opinions (supra para. 18), considering these are
useful for the present case and that there were no objections, nor was their authenticity or
veracity challenged.
C. Admission of testimonial and expert evidence
24. As to the statements rendered before a notary public and those made at the public
hearing, the Court admits these, considering they are relevant inasmuch as they relate to
the purpose defined by the President of the Court in the Order requiring them (supra paras.
17 and 18). These statements shall be assessed in the appropriate chapter, together with
the entire body of evidence, taking into account the observations made by the parties31.
25. According to the case-law of this Court, the statements made by the alleged victims
cannot be assessed separately but as part of the entire body of evidence in the proceedings,
since they are useful insofar as they may provide more information on the alleged violations
and their consequences32. Based on the foregoing, the Court admits the statement made by
29 Cf. Case of Velásquez Rodríguez, supra note 28, para. 146 and Case of Fontevecchia and D`Amico, supra
note 28, para. 14.
30 Cf. Case of Escué Zapata v. Colombia. Merits, Reparations and Costs. Judgment of July 4, 2007. Series C
Nº. 165, para. 26; Case of Radilla Pacheco v. Mexico, supra note 12, para. 86; and Case of Chitay Nech et al. v.
Guatemala. Preliminary Objections, Merits, Reparations and Legal Costs. Judgment of May 25, 2010. Series C No.
212, para. 54. 31 Cf. Case Loayza Tamayo v. Peru. Merits. Judgment of September 17, 1997. Series C No. 33, para. 43 and
Case of Barrios Family v. Venezuela. Merits, Reparations and Costs. Judgment of November 24, 2011. Series C No.
238, para. 25.
13
the alleged victim, Karen Atala, which shall be assessed according to the aforementioned
criterion.
26. Furthermore, regarding the expert witnesses, the State made several observations
based on, in general: a) its disagreement with the content of some of the expert opinions,
contradicting or giving its opinion regarding such reports; b) the scope of the statements of
the expert witnesses in relation to the purpose of the expert opinion, which, on occasion,
the State considers to be biased or merely personal observations; c) some elements used to
render such an opinion and d) the methodology used to render some of the opinions.
27. The Court considers it pertinent to point out that, unlike witnesses, who should avoid
giving personal opinions, expert witnesses may offer technical or personal opinions as long
as these are related to their special knowledge or experience. In addition, experts may refer
both to specific matters of the case or any other relevant point of the litigation, provided
that these concern the purpose for which they were convened and the conclusions are well
founded33. As to observations concerning the content of the expert opinions, the Court finds
that such observations do not challenge their admissibility, but seek to question their
evidentiary value, for which reason these shall be considered, if pertinent, in the relevant
chapters of this Judgment.
28. In particular, regarding the observations made by the State about the alleged “lack
of objectivity and the personal considerations” made by expert witness Espinoza, which fall
outside the purpose for which she was summoned, the Court shall consider the State’s
observation and repeats that it shall admit only those statements that serve the purpose
duly stipulated (supra para. 17). Regarding the methodology of the expert report of Ms.
Espinoza, notwithstanding the objection made by the State, the Court notes that, in said
report, there is an explanation of the procedure followed. Expert witness Espinoza pointed
out that she based her report on the meetings held with the López Atala girls and their
mother, as well as on various precedents. The Court considers that the objections to the
method used by the expert witness, which stem from the report itself, do not affect its
admissibility.
V
RIGHT TO EQUALITY AND NON-DISCRIMINATION, RIGHT TO PRIVATE LIFE,
RIGHT TO FAMILY LIFE, RIGHTS OF THE CHILD, RIGHT TO A FAIR TRIAL
AND TO JUDICIAL PROTECTION IN RELATION TO THE OBLIGATION TO
RESPECT AND GUARANTEE RIGHTS REGARDING THE CUSTODY PROCEEDING
29. Firstly, the Court considers it necessary to emphasize that the purpose of the present
case is not to determine whether the mother or the father offered the three girls a better
home (infra paras. 64 to 66). In this case, the dispute between the parties concerns two
aspects: i) the custody suit filed by the father of the girls and ii) the disciplinary proceeding
conducted against Ms. Atala. This chapter focuses on the debates surrounding the custody
trial. In a subsequent chapter, the disciplinary proceeding will be analyzed.
A. Proven facts in relation to the custody proceedings
32 Cf. Case of Loayza Tamayo, supra note 31, para 43 and Case of Chocrón Chocrón, supra note 26, para 34.
33 Cf. Case of Reverón Trujillo v. Venezuela. Preliminary Objection, Merits, Reparations and Legal Costs.
Judgment of June 30, 2009. Series C N° 197, para. 42; and Case of Barrios Family, supra note 31, para 28.
14
30. On March 29, 1993, Ms. Atala married Ricardo Jaime López Allendes34. Her
daughters, M., V., and R. were born in 1994, 1998, and 1999, respectively35. Ms. Atala has
an older son, Sergio Vera Atala, who was born of a previous marriage. In March 2002, Ms.
Atala and Mr. López Allendes decided to end their marriage through a de facto separation.
As part of the dissolution of their marriage, they established by mutual consent that Ms.
Atala would maintain the care and custody of the three girls in the city of Villarica, with
weekly visits to the home of their father in Temuco36. In November 2002, Ms. Emma de
Ramón, the partner of Ms. Atala, began living in the same house with Ms. Atala, her three
daughters and her eldest son37.
1) Custody proceedings38
31. On January 14, 2003, the father of the three girls filed a custody suit with the
Juvenile Court of Villarrica, considering that “the physical and emotional development [of
the girls] was seriously at risk” should they continue to live in the care of their mother. In
the suit, Mr. López argued that Ms. Atala “[was] not capable of watching over and caring for
[the three girls, given that] her new sexual lifestyle choice, together with her cohabiting in a
lesbian relationship with another woman, [were] producing […] harmful consequences for
the development of these minors …” since the mother [had] not shown any concern for
caring and protecting [...] the development of the girl[s]." In addition, Mr. López argued
that “[to] treat as normal, within the legal order, partners of the same sex [leads] to distort
the meaning of a human couple, man and woman, and therefore, alters the natural meaning
of the family, [...] since it affects the fundamental values of the family, as the core unit of
society”; therefore, the “sexual choice made by the mother w[ould] disrupt the healthy, fair
and normal coexistence to which [M., V. and R.] have a right.” Finally, Mr. López argued
that “[i]t would be necessary to take into account all the consequences of a biological
nature that would be implied for minors living with a lesbian couple [;] in fact, solely in
terms of diseases, given the sexual practices of a lesbian couple, the girls are [would be]
34 Cf. Marriage certificate of September 22, 2011 (case record, volume XII, page 5926).
35 Cf. Psychological Reports on M., V., and R., of November 15, 2002 (File of appendices to the application,
volume V, appendix 23, pages 2680, 2683 and 2686).
36 Cf. Decision of the Juvenile Court of Villarrica of October 29, 2003 (File of appendices to the application,
volume V, appendix 12, page 2581).
37 In this regard, the Juvenile Court of Villarrica established that “in June 2002 [Ms. Atala] began a
relationship with [Ms.] Emma of Ramón [,] who since November 2002 work [ed] as the coordinator of the regional
archive of Araucanía in the town of Temuco [and therefore, move[d] into the common home and join [ed] the
nuclear family.” Judgment of the Juvenile Court of Villarrica on October 29, 2003 (File of appendices to the
application, volume V, appendix 12, page 2582).
38 The system for the custody of minors in Chile is governed by Article 225 of the Civil Code, which provides
that: “If the parents live separately, the mother shall see to the personal care of the children. Nonetheless, through
a public document, or document issued before any official of the Civil Registry, with an entry on the margin of the
child’s birth record within thirty days of the granting thereof, both parties may, by mutual agreement, determine
that the personal care of one or more children falls to the father. This agreement may be revoked, following the
same formalities. Be that as it may, when necessary to protect the interests of the child, whether because of
mistreatment, neglect, or another just cause, the judge may transfer the care of the child to the other parent But it
would not entrust the personal care of the child to a parent who had not contributed, while she or he could, to the
upkeep of the child while the child was in the custody of the other parent. As long as an amendment related to the
personal care is not annulled by a subsequent one, any agreement or resolution is unenforceable to third parties.”
Judgment of the Supreme Court of Justice of Chile of May 31, 2004 (File of appendices to the application, volume
V, page 2671)
15
under constant risk of contracting sexually transmitted diseases such as herpes and AIDS”
39.
32. On January 28, 2003, Ms. Atala responded to the custody suit filed by Mr.
López, expressing “the sadness it has caused me to read the libelous allegations and the
manner in which what our family life was and, what is today my private life, were described
and judged.” Ms. Atala alleged that its text and tone “affected her due to its aggressiveness,
prejudice, discrimination, ignorance of the right to homosexual identity, the distortion of the
facts it expresses and, finally, its disdain for the best interest of [her] daughters.” She also
asserted that “the allegations made regarding [her] sexual identity have nothing to do with
[her] function and role as a mother, and consequently, should remain outside the suit, in
that issues of connubial relations and sexual choice do not extend to parental relationships,
which are the subject of the proceeding.” Finally, Ms. Atala argued that neither the Chilean
Civil Code nor the law on minors consider a “different sexual choice” as being grounds for
“disqualification as a parent” 40.
33. On January 28, 2003, the Juvenile Court of Villarrica ordered “discovery” for
which it decided to establish the following items as “substantial, pertinent and disputed
facts”: i) “grounds for qualification and disqualification of parents to have custody of the
minors” and ii) the “environment offered by the parents to the minors”. Also, the court
decided to set a date for a hearing and request, inter alia, the following items of evidence: i)
“psychological report on both parties and on the minors"; ii) “psychiatric report on both
parties”; iii) to hear “the minors in question at a private hearing”; iv) “complete socio-
economic report of the respondent and the minors” and v) to request the "Psychology
Department of the University of Chile [to confirm] whether any psychological studies exist
at the national and international level to show if there are differences between children
raised by heterosexual and homosexual couples and the consequences that such
circumstances may have in relation to minors”41.
34. A number of media organizations covered the custody suit, including
newspapers with national circulation such as Las Últimas Noticias and La Cuarta42. Based on
these news reports, and other reasons related to the alleged misuse of remedies at the
criminal court of Villarrica where Ms. Atala served as a judge (infra para. 211), on March 19,
2003, the full Court of Appeals of Temuco appointed Judge Lenin Lillo43 to conduct a special
visit at the criminal court.
35. On March 11, 2003, Ms. Atala’s representative furnished documentary
evidence, requested that six testimonies be admitted and asked the court to carry out other
evidentiary proceedings, which was accepted by the trial court44. In addition, the
39 Custody suit filed before the Juvenile Court of Villarrica on January 14, 2003 (File of appendices to the
petition, volume V, annex 1, pages 2499, 2500, 2503 and 2504).
40 Response to the custody suit of January 28, 2003 (File of appendices to the application, volume V,
appendix 2, pages 2507, 2513, 2516, 2521 and 2522).
41 Court Order of the Juvenile Court of Villarrica of January 28, 2003 (File of appendices to the application,
volume I, page 113 and 114). 42 Press release, “Lawyer Demands Custody of his Daughters because Spouse/Judge is a Lesbian”,
Newspaper La Cuarta, February 28, 2003; and “Lawyer Demands Custody of his Daughters because his Former
Wife is a Lesbian”, Newspaper Las Últimas Noticias, March 1, 2003 (File of appendices to the application, volume V,
appendices 3 and 4, pages 2529 to 2532).
43 Report prepared by Minister Lenin Lillo Hunzinker, Court of Appeals of Temuco, April 2, 2003 (case file,
volume XII, page 5927).
44 Specifically, the representative furnished the following documentary evidence: i) psychological report of V.
and R. of December 2002; ii) psychological report of M. of December 2002; iii) psychological report of the minors
and their mother; iv) certification provided by the nurse at the health center attended by the minors, certifying
that “there [was] no evidence or physical signs of mistreatment” in the girls; v) copy of the academic reports of M.
16
representative requested the trial court to carry out different proceedings45. Moreover, Mr.
López’ attorney requested the trial court to produce twenty-two testimonies, a request that
was also accepted by the court46. On April 3, 2003, the Juvenile Court of Villarrica received
the testimonies of six relatives of the complainant and three relatives of the respondent47.
36. On April 8, 2003, the Juvenile Court of Villarrica held a private hearing with the
girls M., V. and R. and “a record of the private hearing was kept in a closed envelope at the
safe of the Court". The court also heard the elder son of Ms. Atala at the private hearing48.
37. On April 10, 2003, a hearing was held to present documentary evidence49. On
April 14, 2003, the Juvenile Court of Villarrica received four testimonies from individuals
proposed by the petitioner, in particular from a psychologist and a social worker50. In this
regard, the social worker when asked whether “children raised in homosexual families suffer
adverse consequences”, indicated that “there are social consequences, such as confusing
paternal and maternal roles which affect the development of sexual identity." The social
worker added that “another of the consequences is that in Chile, according to a study [...]
on tolerance and discrimination [carried out] in 1997, the conclusion was reached that
Chileans show an outright rejection of homosexual minorities[,] expressed by 60.2 per cent
of the population. [Based] on the foregoing and taking into account this high level of
discrimination[,] the minors would be exposed to situations of social discrimination that they
would not have wished for”51.
38. In addition to the relatives and close friends who made statements during the
hearing (supra para. 35) three domestic employees who worked at the home of the López
Atala family also made statements, indicating, among other things, that the father showed
far more concern for his daughters than Ms. Atala52. One of the workers also described the
behavior of the girls53.
and V.; vi) Christmas card made by M.; vii) copy of the decisions "in which the minors [were] recognized as
dependant relatives of the respondent"; viii) certificate of “Isapré Más Vida”; ix) copy of the grades obtained by Ms.
Atala in her profession; x) copy of the alimony arrangements made between Ms. Atala and the father of her elder
son; xi) copy of a health certificate of Ms. Atala “certifying the absence of genital herpes”; xii) copy of a health
certificate of Ms. Emma of Ramón “certifying the absence of genital herpes” xiii) copy of the negative AIDS test of
Ms. Atala; xiv) copy of the negative AIDS test of Ms. of Ramón; and xv) notary’s copy of the appointment of Ms. of
Ramón as coordinator of the regional archive of Araucanía. Brief of Ms. Atala of March 11, 2003 (File of appendices
to the application, volume I, pages 192 to 193). 45 The attorney requested: i) a report of the psychiatrist in charge of marriage counseling for Ms. Atala and
the petitioner; ii) to issue an official letter to the human rights department of the claimant’s workplace; iii) to
request the Pan American Health Organization to inform on “the date on which homosexuality was eliminated from
the catalogue of pathological conducts”; iv) to request the National Women’s Service to inform regarding the
“concept of family included in the Report of the National Commission on Family"; v) to request the General Ministry
of Government to forward the plan to overcome discrimination in Chile; and vi) to request the Director of the
Human Rights Department of the Ministry of Foreign Affairs to inform "on the international obligations assumed by
the [...] State of Chile in the field of non-discrimination for sexual orientation or identity". Brief of Ms. Atala of
March 11, 2003 (File of appendices to the application, volume I, pages 193 to 195). 46 Cf. Brief of Mr. López of March 11, 2003 (File of appendices to the application, volume I, pages 197 to
199).
47 Cf. Record of the Juvenile Court of Villarrica of April 3, 2003 (File of appendices to the application, volume
I, pages 327 to 334).
48 Cf. Record of the Juvenile Court of Villarrica of April 8, 2003 (File of appendices to the application, volume
I, pages 350 and 351).
49 Cf. Record of the Juvenile Court of Villarrica of April 10, 2003 (File of appendices to the application,
volume I, pages 352 to 373).
50 Cf. Record of the Juvenile Court of Villarrica of April 14, 2003 (File of appendices to the application,
volume I, pages 374 to 393).
51 Testimony of Edith Paola Retarnal Arevalo of April 14, 2003 (File of appendices to the application, volume
I, page 390).
52 Cf. Testimonial evidence rendered in an affidavit on April 14, 2003 before the Juvenile Court of Villarrica
by Erecilda Teresa Solis Ruíz (File of appendices to the application, volume I, page 370), Ana Delia Pacheco
17
2) Provisional custody granted to the father
39. In the context of the custody suit, the girls’ father filed a suit for provisional custody
on March 10, 2003, with a view to obtaining custody of his daughters prior to the conclusion
of the proceeding. In this regard, Mr. López representative argued the alleged
“incompetence that the sexual choice made by the mother and respondent, [Ms.] Atala
Riffo, and that was reflected in her express acknowledgement that she is a lesbian,
produces and will produce for the overall psychological and social-environmental
development of these three young girls, not to mention the hardly maternal and violent
behavior she has shown over the years, not only with her family but also with her social
environment.” In addition, she argued that “the respondent’s need to be happy and fulfill
herself as a person in all areas of her life […] is not compatible with being a parent, which
includes maternal capabilities [...], which, it seems, the respondent has selfishly
disregarded.” The representative of girls’ father also argued that the girls have the right to
live in a family made up of a father and mother of different sexes54.
40. On March 13, 2003, Ms. Atala answered the provisional custody motion filed by her
former spouse, asking that it be rejected in its entirety. In particular, Ms. Atala’s
representative argued that:
The legal representative of the petitioner [sought] to render without effect the status quo
achieved to date, a situation to which she has contributed with her assistance, participation, and
personal contribution as a professional in the appearances made, having achieved a temporary
system that better reflects the best interests of the minors […]. The fact that [Ms. Atala] is a
lesbian and acknowledges her condition as such, does not affect her maternal abilities and her
ability to create an environment with love, affection, respect, and tolerance for the purposes of
the education and development of the girls as human beings and future citizens of our country.
55
41. On May 2, 2003, the Juvenile Court of Villarica granted provisional custody of the
girls to the father, and regulated the mother’s visits, even though it expressly acknowledged
that there was no evidence to presume the legal incompetence of the mother. The Juvenile
Court based its decision, inter alia, on the following arguments: i) “Whereas […] the
respondent, having expressly acknowledged her sexual choice, cohabits with her partner in
the home she shares with her daughters, […] thereby altering the normal family routine,
giving preference to her personal interests and well-being over the emotional well-being and
social development of her daughters” and ii) “Whereas, the fact that the respondent has
given preference to her own well-being and personal interest over carrying out her role as a
mother, under conditions that could affect the subsequent development of the minors in the
case, […]there is no conclusion other than that the petitioner presents more favorable
arguments on behalf of the best interest of the girls, arguments which, in the context of a
heterosexual and traditional society, take on great importance” 56.
Guzmán (File of appendices to the application, volume I, page 375), and Graciela del Carmen Curín Jara (File of
appendices to the application, volume I, page 377).
53 Cf. Testimonial evidence obtained through an oral statement rendered on April 14, 2003 before the
Juvenile Court of Villarrica by Ana Delia Pacheco Guzmán (File of appendices to the application, volume I, page
376).
54 Suit for Provisional Custody of Mr. López Allendes of March 10, 2003 (File of appendices to the application,
volume V, pages 2546 to 2552).
55 Response to Motion for Provisional Custody of March 13, 2003(File of appendices to the application,
volume V, pages 2554 to 2557).
56 Decision in the provisional custody proceeding by the Juvenile Court of Villarrica, May 2, 2003 (File of
appendices to the application, volume V, appendix 10, pages 2559 to 2567). In the context of the provisional
18
42. On May 8, 2003, in compliance with the decision of the Juvenile Court of Villarrica,
Ms. Atala delivered her three daughters to their father57. In response to that decision, on
May 13, 2003, Ms. Atala sought to prevent the Regular Judge of the Juvenile Court of
Villarica from continuing to hear the custody proceeding based on his having incurred in
grounds for incompatibility [implicancia] as set forth in the Organic Code of the Courts58.
Ms. Atala’s representative maintained that in the decision of May 2, 2003, the judge gave
“form and content, with the force of a judicial decision, to a specific model of society, a view
that is no doubt at the bottom of the issue presented and is discriminatory because it is
based on stereotypes and patriarchal assumptions that do not accept and value diversity
and pluralism within society”59.
43. On May 14, 2003, the Regular Judge of the Juvenile Court of Villarica declared the
“sufficient grounds” for incompatibility (implicancia) without expressing an opinion on the
merits, and refrained from intervening in the custody proceeding until it was resolved in
accordance with Article 120 of the Code of Civil Procedure60.
3) Lower court decision granting custody of the girls to Ms. Atala
44. Given the disqualification of the Regular Judge, the Acting Judge of the Juvenile
Court of Villarica was responsible for issuing a decision on the merits on October 29, 200361.
In that ruling, the Judge rejected the petition for custody based on the view that the
existing evidence had established that the respondent’s sexual orientation was not an
impediment to carrying out responsible motherhood, that there was no psychiatric
pathology that would prevent her from exercising her “role as a mother,” and that there
were no indications that would allow for the presumption of any grounds for incapacity on
the part of the mother to take on the personal care of the minors. The Judge also concluded
that “no concrete evidence has shown that the presence of the mother’s partner in the
custody proceeding, the Juvenile Court gathered as testimonial evidence the following statements from: i) a
godfather of one of the girls; ii) a psychologist; iii) a friend of the family; iv) a domestic employee, and v) a nanny
(Merits file, volume XII, pages 5919 to 5921). Furthermore, the Juvenile Court considered as documentary
evidence various newspaper publications, a socio-economic report, a set of photographs, a report issued by Ms.
Atala’s psychiatrist, a report by the psychologist in charge of the girls’ therapy and the report of a student nurse
(Merits file, volume XII, pages 5918 to 5921). Likewise, the Court considered that “sufficient grounds exist[ed] to
affect the duty to personal care, legally established, [for which reason] the petitioner’s request was accept[ed].”
57 Cf. Record of May 15, 2003 (File of appendices to the application, volume I, page 572). 58 In this respect, the Organic Code of Courts [Código Orgánico de Cortes] provides:
Art. 194. Judges may not be competent to hear certain cases based on incompatibility or recusal, if necessary, by
virtue of legal reasons.
Art. 195. Incompatibility grounds: […] 8. The judge having given his opinion regarding the issue at hand with full
knowledge of the precedents necessary to issue a judgment.
Available at <nowiki>http://www.oas.org/juridico/spanish/chi_res9.pdf</nowiki> (last visit February 22, 2012)
59 Petition to bar Judge Luis Humberto Toledo Obando, May 13, 2003 (File of appendices to the application,
volume V, page 2573).
60 Court Order of the Juvenile Court of Villarrica of May 14, 2003 (File of appendices to the application,
volume II, page 569). Article 120 of the Chilean Code of Civil Procedure in effect at the time of the events provides
that: Once grounds for disqualification are accepted as sufficient or declared in accordance with subparagraph 2 of
the preceding article, said declaration shall be made known to the official whose incompatibility or recusal has been
sought, ordering him to abstain from participating in the matter in question as long as the motion is not resolved”.
Available at: <nowiki>http://www.leychile.cl/Navegar?idNorma=172986</nowiki> (last access February 20, 2012), electronic address
furnished by the State in its brief of final arguments (Merits file, volume XII, page 5914).
61 Decision of the Juvenile Court of Villarrica of October 29, 2003 (File of appendices to the application,
volume V, page 2607).
19
home is harmful to the well-being of the girls.” The Judge pointed out that it had been
established that homosexuality was not considered pathological conduct and that the
respondent showed no “contraindication from a psychological perspective that would make
her unfit to carry out her maternal role.”
45. In evaluating Ms. Atala’s alleged incapacity to be a mother, because of her
acknowledged status as a lesbian and because she was living with a partner of the same
sex, the court considered a series of reports from organizations such as the Pan American
Health Organization, the Psychology Department of the University of Chile, and the School
of Education of the Pontifical Catholic University of Chile, indicating that: i) “homosexuality
is a normal behavior and is not a manifestation of a pathological conduct” and ii) “the ability
to love children, care for them, protect them, respect their rights, and promote their life
choices […], is unrelated to the sexual identity or choices of the parents” 62. The court also
considered psychological reports on the minors and psychological reports on the respondent
and the petitioner, concluding that “the presence of the mother’s partner in the home
[where] the girls live[d] with their mother [was] not an impediment for the mother to
assume the personal care of the minors [and that] no concrete evidence ha[d] shown that
the presence of the mother’s partner in the home is harmful to the well-being of the girls.”
46. Regarding the quality of care that Ms. Atala provided for her daughters, the court
considered a report issued by a nurse at Villarrica Hospital and educational reports, and
indicated that this evidence “demonstrates the mother’s constant concern for the health and
education of her daughters and, consequently, it is established that the respondent has
provided for the upbringing, personal care and education of her daughters." The court also
indicated that although the complaint stated that the girls had been subject to mistreatment
by Ms. Atala, “it never describes concrete acts, and whether such acts amounted to physical
or mental mistreatment.” In addition, it declared that the court believed that there was no
evidence that would “lend credence to any type of mistreatment of the girls” by their
mother.
47. On the petitioner’s argument regarding the girls’ risk of contracting sexually
transmitted diseases, the judge considered medical certificates of Ms. Atala and her partner
confirming that there is no evidence of such diseases. On the moral danger the minors
allegedly faced, the trial court considered a social report on the respondent demonstrating a
harmonious family environment, “with clear rules and limits and a family routine that
operates appropriately with the supervision of the mother, who in the context of a
satisfactory partnership relationship, is seen as being in harmony with her environment and
concerned with and close to her daughters.” In addition, the court referred to the conclusion
of the report from the Psychology Department of the University of Chile asserting that “the
sexual orientation of the mother does not constitute a danger to the morality of the minors
because, as already indicated, as it is a normal condition or form of human sexuality it is
not subject to an ethical or moral judgment but rather may only be considered a person’s
physical condition, and not in itself subject to a value judgment.”
48. Regarding the potential discrimination that the girls might be subjected to and that
was mentioned by relatives and witnesses for the petitioner, the Acting Judge also
concluded that “the minors have not been subjected to any discrimination to date and what
the witnesses and relatives of the petitioner indicate is a fear of possible future
discrimination.” On this point, the court considered that it should “base [its] decision on
definite and proven facts in the case and not on mere suppositions or fears.”
62 Decision of the Juvenile Court of Villarrica, October 29 2003 (File of appendices to the petition, volume V,
pages 2591, 2594 and 2595).
20
49. Finally, in its decision, the Juvenile Court considered that the girls had been heard by
the court and that, in the last hearing, dated October 8, 2003, “R. and V. expressed their
desire to return to live with their mother, and in the case of M. only a slight preference for
the mother was detected.” In this respect, the court observed that the statements made by
the girls during the hearing had been given consideration, but did not influence the court’s
decision due to their young age and the possibility that their opinions might be affected
“artificially by outside factors that influence them, distort them, or make them unsuited to
the proposed purpose.” 63
4) Appeal to the Court of Appeals of Temuco and injunction granted in favor of
the father
50. Pursuant to the decision issued on October 29, 2003, the Juvenile Court of Villarrica
ordered that the girls be handed over to their mother on December 18, 200364. However, on
November 11, 2003, the girls’ father filed an appeal against the court’s Decision and
subsequently a petition for temporary injunction [solicitud provisional de no innovar],
arguing that complying with the decision would mean a radical and violent change in the
girls’ current status quo65.
51. On November 24, 2003, the Court of Appeals of Temuco granted the injunction,
maintaining custody with the father66. With respect to this injunction, Ms. Atala filed a
disciplinary complaint against two members of the Court, based on the grounds of recusal
and disqualification.
67 Chile’s Supreme Court of Justice ruled on her complaint on July 2,
2004, declaring by a majority vote that there was no fault or abuse on the part of the
Judges. Notwithstanding this decision, some members of the Court "almost issued a severe
warning to the judges being challenged due to the omission for which the complaint was
filed.”68
52. On March 30, 2004, the Court of Appeals of Temuco, without the two Judges who
had withdrawn from the proceeding (supra para.51), unanimously upheld the decision
appealed by the girls’ father, sharing the considerations of the lower court judge, and
rendered without effect the injunction granted on November 24, 200369. The Court of
Appeals did not put forward new grounds and fully upheld the lower court’s decision.
63 Decision of the Juvenile Court of Villarrica of October 29, 2003 (File of appendices to the application,
volume V, pages 2591, 2594, 2595).
64 Court Order of the Juvenile Court of Villarrica of November 5, 2003 (File of appendices to the application,
volume II, page 933).
65 Appeal filed by Mr. López Allendes, on November 11, 2003 (File of appendices to the application, volume
V, pages 2614 to 2632) and Petition for Temporary Injunction filed by Mr. López Allendes on November 22, 2003
(File of appendices to the application, volume V, pages 2634 to 2636). 66 Granting of injunction by the Court of Appeals of Temuco, November 24, 2003 (File of appendices to the
application, volume V, page 2638).
67 On January 7, 2003, the Rapporteur of the Court of Appeals of Temuco certified that "Judge Archibaldo
Loyola had disqualified himself from hearing the case and that Judge Lenin Lillo Hunzinker had considered that the
grounds for recusal, stipulated in Article 196 of the Organic Code of Courts, applied to him, insofar as he had prior
knowledge of the case, given that he had participated in an investigation during the extraordinary visit to the
Juvenile Court of Villarrica". See File of appendices to the application, volume V, page 2640. 68 Ruling of the Supreme Court of Justice of Chile, July 2, 2004 (File of appendices to the application, volume
V, page 2645).
69 Judgment of the Temuco Court of Appeals, March 30, 2004 (File of appendices to the application, volume
V, page 2643).
21
5) Filing of remedy of complaint (recurso de queja) with the Supreme Court of
Justice and granting of second injunction in favor of the father
53. On April 5, 2004, the girls’ father filed a remedy of complaint (recurso de queja) with
the Supreme Court of Chile against the Judges of the Court of Appeals of Temuco and
requested that the girls remain in his care on a provisional basis. The girls’ father argued
that, in their decision, the judges being challenged had committed a “fault and serious and
flagrant abuse” because; i) they [had] given preference to the rights of the mother over the
rights of the daughters; ii) they [had] failed in their legal duty to protect the vulnerability of
the girls; and iii) they [had] violated the principles governing the conscientious assessment
of evidence in cases involving family matters.
70 More specifically, Mr. López Allendes argued
that the judges had ignored all the evidence in the case demonstrating that “open
expression of lesbian behavior produced directly and immediately in M., V., and R. confusion
regarding sexual roles that interfered with and will later interfere with the development of a
clear and defined sexual identity.”71 The Court granted the requested injunction on April 7,
2004.
72
6) Decision of the Supreme Court of Justice of Chile
54. On May 31, 2004, the Fourth Chamber of Chile’s Supreme Court of Justice, in a split
three-to-two decision, admitted the complaint appeal and granted permanent custody to the
father. 73
55. In the first place, the Supreme Court emphasized that “in all measures concerning
[children], the best interests of children must be given priority over other considerations
and rights related to their parents, in such a way that it might be necessary to separate
them from their parents." The Supreme Court also noted that the first paragraph of Article
225 of the Civil Code, which provides that when parents are living separately the personal
care of the children falls to the mother, is not an “absolute and final” rule. Therefore, the
Court declared that “the court may entrust the personal care of the children to the other
parent, terminating the custody of the parent who has it, if there is ‘justified cause’ that
makes it essential to make this decision, always taking the interest of the child into
account.”
56. In this context, the Court concluded that: i) “no regard was given to the testimony in
either the permanent custody proceeding or the provisional custody file with respect to the
deterioration of the social, family and educational environment of the girls since the mother
began to cohabit with her homosexual partner, or to the possibility that the girls could be
the target of social discrimination arising from this fact”; ii) “the testimony of persons close
to the girls, such as the house maids, refers to games and attitudes of the girls that reflect
confusion about the sexuality of the mother, which they could have perceived in the new
cohabitation scheme at their home”; iii) Ms. Atala “put her own interests before those of her
daughters when she chose to begin to live with a same sex partner, at the same home
where she raised and cared for her daughters, separately from the girls' father" and iv) “the
70 Appeal complaint and petition for injunction filed by the Mr. López Allendes, April 5, 2004 (File of
appendices to the application, volume V, pages 2652 to 2655). 71 Appeal complaint and petition for injunction filed by the Mr. López Allendes, April 5, 2004 (File of
appendices to the application, volume V, page 2654). 72 Cf. Granting of injunction by the Supreme Court of Chile, April 7, 2004 (File of appendices to the
application, volume V, page 2666).
73 Cf. Decision of the Fourth Chamber of the Supreme Court of Justice of Chile of May 31, 2004 (File of
appendices to the application, volume V, appendix 22, pages 2669 to 2677).
22
potential confusion over sexual roles that could be caused in them by the absence from the
home of a male father and his replacement by another person of the female gender poses a
risk to the integral development of the children from which they must be protected.”
57. The Court also deemed the girls to be in a “situation of risk” that placed them in a
“vulnerable position in their social environment, since clearly their unique family
environment differs significantly from that of their school companions and acquaintances in
the neighborhood where they live, exposing them to ostracism and discrimination, which
would also affect their personal development.” Therefore, the Court felt that the conditions
described constitute “just cause” in accordance with Article 225 of the Civil Code, justifying
awarding custody to the father, given that the current situation “brings with it the risk of
harm, which could become irreversible for the interests of the minors, whose protection
should have preference over any other consideration.” The Court concluded that the
challenged judges failed by “not having strictly evaluated the evidence in the proceeding”
and by “having passed over the preferred right of the minors to live and grow within the
bosom of a family that is structured normally and appreciated in the social environment,
according to the proper traditional model, and have incurred serious fault or abuse, which
must be corrected through admission of the instant complaint appeal.”74
58. The two judges of the Chamber of the Supreme Court who voted to reject the
remedy of complaint put forward some arguments regarding the nature of that remedy.
75 In
addition, the dissenting judges deemed that, in accordance with Article 225 and the
preference it gives to the mother for the care of children in case of separation, “the judge
cannot change the general rule of where to place the care of the children based on arbitrary
judgments or unjustified, frivolous or ambiguous grounds, but rather only when a restrictive
examination of the legal standard and the accompanying evidence shows an “essential”
interest of the child.”76
B. Prior considerations
1. Prior consideration on the matter of the case before the Inter-American Court
74 Ruling of the Supreme Court of Justice of Chile, May 31, 2004 (File of appendices to the application,
volume V, page 2670, 2671, 2672, 2673).
75 In particular, they indicated that “it is not a procedural remedy that empowers this Court to resolve all
factual and legal issues presented by the parties in the case. As is fully known and in accordance with Article 545 of
the Organic Code of the Courts, the complaint appeal is a disciplinary remedy, the exclusive purpose of which is to
correct faults or serious abuses committed in the issuance of a jurisdictional ruling, through a) invalidation of the
ruling and b) the imposition of disciplinary measures on the judges who committed the serious fault or abuse
contained in the ruling being voided. Then and discarding as a legal imperative the possibility that the complaint
appeal might mean, in this Supreme Court, the opening of a third instance – that our procedural system does not
accept – or that it was a suitable means for imposing debatable opinions or interpretations, it is appropriate to
examine whether the judges being challenged have committed some serious fault or abuse by granting their
mother, Jacqueline Karen Atala Riffo, the care of her three minor daughters, M., V., and R., aged 10, 8, and 4”.
Judgment of the Supreme Court of Justice of Chile, May 31, 2004, dissenting votes of Judges Jose Benquis C. and
Orlando Álvarez H. (File of appendices to the application, volume V, pages 2673 and 2674). 76 Judgment of the Supreme Court of Justice of Chile, May 31, 2004, dissenting votes of Judges Jose Benquis
C. and Orlando Álvarez H. (File of appendices to the application, volume V, page 2675). In said analysis, the
judges considered that: i) “the record did not provide any history on the basis of which it could be speculated that
the mother […] had mistreated or neglected her daughters” and ii) the “expert opinions that appear in the record
from both psychologists and social workers indicate that the mother’s sexuality does not infringe the rights of the
girls, nor does it deprive her of the exercise of her right as a mother, since from a psychological or psychiatric
perspective, in the judgment of those experts, this is an absolutely normal person”. Therefore, the judges conclude
that “by depriving the mother, based solely on her sexual choice, of the custody of her minor daughters, – as the
father ha[d] requested based on clearly subjective assessments – means imposing both on the daughters and on
their mother an unnamed sanction that is outside the margin of the law, in addition to being discriminatory”.
23
Arguments of the parties
59. The Commission argued that the present case “refers to discrimination and arbitrary
interference in the private life of [Ms.] Atala, which occurred in the context of a judicial
proceeding regarding the custody and care of her three daughters.” This, in consideration of
the fact that [Ms.] Atala’s sexual orientation, and particularly the expression of that
orientation in her lifestyle, were allegedly the main grounds for the decisions taken to
remove custody of her daughters.”
60. The representatives agreed with the Commission’s general arguments, adding
that “the proceedings brought before the Inter-American System […] have not sought, nor
do they seek, to reopen the custody proceedings and use the Inter-American System as a
fourth instance.” Furthermore, they argued that “the State presented to this […] Court
reasons that the Supreme Court did not express in its decision on the remedy of complaint,
basing itself on documents that the Supreme Court had knowledge of and rejected in its
ruling.”
61. For its part, the State argued that “it is not true that the reason why Chilean
courts decided to take custody from the mother to hand it over to the father in the case of
the López Atala girls was the sexual orientation” of Ms. Atala. Specifically, the State alleged
that “the purpose of the custody trial in the case of López with Atala was not to declare the
disqualification of the mother, but to determine if the father or mother offered better
conditions to ensure the well-being of the three girls.” Accordingly, the State argued that
“[i]t is not true that the grounds for the mentioned decisions were the mother’s sexual
orientation or its mere expression. On the contrary, from the tenor of these [decisions] it
can be concluded […] that these are based on the higher interest of the child, and, within
that context, the defendant’s sexual orientation was considered, among other
circumstances, in the measure that its expression had specific adverse effects on the girls’
well-being.” According to the State, “the judgment issued by the Supreme Court ruled that
the lower courts had incurred in serious misconduct or abuse in violating the rules on the
assessment of evidence, […] since […] said courts did not weigh the overall merits of all the
evidence presented.”
62. In general terms, the State argued that, in the custody proceeding “there [was]
abundant evidence […] that prove[d]… that the father offered better conditions for the well-
being” of the girls. Specifically, the State argued, that “there was compelling evidence that
showed that the defendant had an intensely self-centered attitude and personal
characteristics that made it difficult for her to adequately exercise a maternal role,
circumstances that led to the conclusion that the mother did not offer a suitable
environment for the development of her daughters.”
63. On the other hand, the State argued that “regarding the father there was
considerable evidence […] that prove[d]: i) his dedication and attention to the care of his
daughters; ii) his skills in their upbringing; iii) the favorable environment he offered for the
well-being of his daughters, and iv) the positive relationship that existed between the girls
and the claimant’s partner.” Furthermore, the State noted that upon examining the
evidence in the case file, it would be clear that the decision regarding provisional custody
“also took into account matters other than the aforesaid sexual orientation, such as
determining whether the father or the mother offered a greater degree of commitment and
care to the girls.”
Considerations of the Court
24
64. From the arguments presented by the State, and from the evidence contained
in the case file, the Court considers that at the custody trial the following aspects were
discussed, inter alia: i) the sexual orientation of Ms. Atala; ii) Ms. Atala’s personality; iii) the
alleged damage caused to the girls, and iv) the alleged precedence given by Ms. Atala to
her interests. In addition, with respect to the girls’ father, arguments were presented in
favor and against the question of whether he could offer them greater well-being. The State
considered that the Inter-American Court should analyze all the evidence examined during
the custody trial and not only the judgments issued by the domestic courts.
65. In this regard, the Court reiterates that international jurisdiction has a
subsidiary,77 reinforcing, and complementary78 role, and therefore does not perform the
duties of a “fourth instance” court. The Court is not an appeals body that must resolve
disagreements between parties regarding some aspects of the assessment of the evidence
or the application of domestic law in matters that do not directly concern compliance with
international human rights obligations. Thus, this Court has held that, in principle, “it is up
to the State courts to examine the facts and the evidence presented in individual cases.”79
66. Accordingly, it is not up to this Court to determine whether the mother or the
father offered the three girls a better home, or to assess the evidence to that end, since this
is outside the scope of the present case, whose purpose is to determine whether or not the
judicial authorities have fulfilled their obligations under the Convention. Similarly, and based
on the subsidiary nature of the Inter-American system, the Court is not competent to issue
a ruling on the custody of the three girls M., V. and R., since this is a matter exclusively for
Chile’s domestic courts. Therefore, the current custody of the minors is not the object of
this case.
2. Prior consideration on the participation of the girls M., V. and R.
67. In the Decision of November 29, 2011 (supra para 12) the Court noted that the
file contained no specific statements by the daughters M., V. and R. as to whether or not
they agreed with the representation exercised by either of their parents or whether they
wished to be considered as alleged victims in this case. The Court pointed out that although
there were two briefs in which both the mother and the father stated that they were acting
on behalf of the three girls before this Court, the position of the mother and the father did
not necessarily represent the girls’ best interests.
68. Furthermore, in its Decision, the Court stated that children exercise their rights
progressively, as they develop a greater degree of independence, and for this reason during
early childhood their relatives act on their behalf. Clearly, the level of physical and
intellectual development, experience and information varies widely among children.
Therefore, when the hearing was held in accordance with the aforementioned Decision
77 Cf. Case of Acevedo Jaramillo et al. v. Peru. Interpretation of the Judgment of Preliminary Objections,
Merits, Reparations and Costs. Judgment of November 24, 2006. Series C No. 157, para. 66 and Case of Cabrera
García and Montiel Flores v. Mexico. Preliminary Objections, Merits, Reparations and Costs. Judgment of November
26 2010. Series C No. 220, para. 16. 78 The Preamble to the American Convention states that international protection is “in the form of a
convention reinforcing or complementing the protection provided by the domestic law of the American states.” See
also, The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts. 74 and
75). Advisory Opinion OC-2/82 of September 24, 1982. Series A No. 2, para. 31; The Expression "Laws" in Article
30 of the American Convention on Human Rights. Advisory Opinion OC-6/86 of May 9, 1986. Series A No. 6, para.
26, and Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 61. 79 Cabrera, para. 16. Case Nogueira of Carvalho et al. v. Brazil. Preliminary Objections and Merits. Judgment
of November 28, 2006. Series C No. 161, para. 80 and Case Cabrera García and Montiel Flores, supra note 77,
para. 16.
25
(supra para. 13), it was taken into account that the three girls were then aged 12, 13 and
17 years of age and that there might be differences in their views and in the level of
personal independence for each of the girls to exercise her rights. In the instant case, the
Court heard two of the girls on February 8, 2012. (supra para. 13).
69. During the hearing, the Secretariat staff was accompanied by the psychiatrist María
Alicia Espinoza80. Prior to commencing the proceeding, the delegation of the Secretariat of
the Court held a prior meeting with the psychiatrist, consisting of an exchange of ideas, in
order to ensure that the information provided was accessible and appropriate for the girls.
Taking into account the international standards on a child’s right to be heard (infra paras.
196 to 200), the girls M. and R. were, in the first place, informed jointly by the staff of the
Secretariat of their right to be heard, the effects or consequences that their opinions might
have in the dispute in this case, the position and arguments of the parties in the present
case. They were also asked whether they wished to continue participating in the proceeding.
Subsequently, instead of conducting a unilateral examination, a conversation was held with
each girl separately, in order to provide the girls with an appropriate environment of trust.
During the proceeding neither of the parents and neither of the parties were present.
Furthermore, the proceeding conducted with the girls was private, due to the request, both
by the Commission and by the representatives in this case, that the identity of the girls
remain confidential (supra note 3), and to the need to protect the girls’ best interest and
their right to privacy. In addition, the girls expressly requested that everything said by them
during the meeting be kept in the strictest confidence.
70. During the proceeding of February 8, 2012, the girls M. and R. said they were
aware of and understood the matters related to the three alleged violations in which they
were presented as alleged victims in the present case (infra paras. 150, 176, 178 and 201).
From the statements made by the two girls and bearing in mind the progressive nature of
children’s rights, the Court noted that the two girls had expressed freely and independently
their own views and judgments regarding the facts of the case that concern them, as well as
some of their expectations and interests in the resolution of this case. Therefore, the Court
shall consider them as alleged victims in the case at hand (infra paras. 150, 176, 178 and
208).
71. As mentioned previously, the girl V. did not participate in the hearing for
reasons of force majeure (supra para. 13). Based on the preceding considerations, the
Court finds no grounds to consider that the girl V. is not in the same situation as her sisters
(infra paras. 150, 176, 178 and 208). However, for the purposes of reparations, the
competent national authority for children must privately confirm the girl V’s free opinion
regarding whether she wishes to be considered as an injured party.
C. The right to equality and the prohibition of discrimination
Arguments of the parties
72. Regarding the alleged violation of Articles 2481 and 1(1)82 of the American
Convention the Commission argued that “it is widely acknowledged in the American States
80 In its brief of February 3, 2012 the State presented its observations concerning the participation of the
psychiatrist Espinoza in the proceeding. On February 6, 2012, following the instructions of the President of the
Court, the parties were informed that psychiatrist Espinoza had been designated to accompany the delegation of
the Secretariat, if necessary. Likewise, the record sent to the parties indicated that although the support of
psychiatrist Espinoza had been contemplated in this case, this was not necessary. 81 Article 24 of the American Convention (Right to Equal Protection) stipulates that:
26
that discrimination based on sexual orientation is forbidden.” It noted that “sexual
orientation […] was the grounds for the Supreme Court’s decision,” which presumably
determined that Ms. Atala “should not have custody of her daughters [given that] she lived
with a person of the same sex. The Supreme Court added that “a distinction was made to
the detriment of [Ms.] Atala regarding the application of relevant legal instruments for the
determination of family matters, based on the expression of her sexual orientation and her
decision to form a couple and establish a life with her [partner].” It also noted that the
“provisional custody decision […] was also a distinction based on Ms. Atala’s sexual
orientation.” Furthermore, it stated that “in comparative constitutional law the definition of
“suspect category has been used” and, consequently, a strict scrutiny test has been applied
to cases related to sexual orientation.”
73. The representatives pointed out that the States “signed the American
Convention with an open clause of non-discrimination, and therefore they cannot now claim
that their level of social and political development prevents them from understanding that
sexual orientation is included as a category for which discrimination is prohibited.” They also
alleged that the “decision in the remedy of complaint is […] a judgment of scrutiny of [Mrs.]
Atala and her private life, without considering her parenting skills, which was the issue that
needed to be considered. They added that “the scrutiny judgment [was not applied] to the
life of [Mr.] López, about which nothing is known, questioned or investigated, nor of his
parental skills.” Therefore, they consider that “this mere fact constitutes a difference in
treatment, which is not contemplated by Chilean Law and is clearly prohibited by
international law.” Furthermore, they alleged that the “Supreme Court of Chile […] created a
category of persons who, by their very nature, regardless of their behavior, would not be
able to take care of their own children, by virtue of being associated with situations of
mistreatment and neglect.”
74. The State argued that “the [Inter-American] System [of Human Rights] needs the
credibility and trust of the Member States. A relationship based on mutual trust could be
affected if the Court assumes an excessively regulatory role, without considering the views
of the majority of the States.” The State argued that “upon signing [the American
Convention], the Member States agreed to abide by its provisions. Although the legal
interpretation may be flexible and the language of human rights acknowledges their
progressive development, the States gave their consent to a notion of human rights that
had certain types of violations in mind, and not others that did not exist at the time. If it
should be necessary to extend the scope of the agreement to include matters on which
there is not a minimum consensus, the [American Convention] itself establishes a procedure
for incorporating protocols that protect other rights.”
75. Likewise, the State pointed out that “sexual orientation was not a suspect category
on which there was consensus in 2004,” when the Supreme Court issued its judgment in the
All persons are equal before the law. Consequently, they are entitled, without discrimination, to
equal protection before the law.
82 Article 1(1)of the American Convention (Obligation to Respect Rights) states that:
The States Parties to this Convention undertake to respect the rights and freedoms recognized
herein and to ensure to all persons subject to their jurisdiction and free and full exercise of those
rights and freedoms, without any discrimination for reasons of race, color sex, language, religion,
political or other opinion, national or social origin, economic status, birth or any other social
condition.
27
present case. It argued that “it would not be appropriate to demand [that the Supreme
Court of Chile] pass a strict scrutiny test for a category on which the Inter-American
consensus is recent.” It added that “the establishment of a “suspect super-category”, as the
sexual orientation of one of the parents would be in this case, and other similar ones, may
end up shifting the focus of a family law trial into a matter that gives priority to
consideration of the parents’ rights, to the detriment of the child’s best interest in the
specific case.”
76. Finally, the State argued that “having declared the mother legally competent, the
decision to accept the custody petition filed by the father and based on the girls’ best
interest and well-being is not arbitrary.” It also indicated that “it is not true that the grounds
for these decisions were based on the mother’s sexual orientation or on its mere
expression” and that “the [mother’s] sexual orientation was considered, among other
factors, to the extent that its expression had specific adverse effects on the girls´ best
interest.
Considerations of the Court
77. To resolve these controversies, the Court will examine 1) the scope of the right to
equality and non-discrimination; 2) sexual orientation as a category protected by Article
1(1)of the American Convention; 3) whether in this case there was a difference in treatment
based on sexual orientation; 4) whether said difference in treatment constitutes
discrimination, for which purpose the Court will strictly assess the reasons given to justify
said difference in treatment, taking into consideration the children’s best interest and the
alleged risk and damage to the girls.
1. Right to equality and non-discrimination
78. The Court has established that Article 1(1) of the Convention is a regulation of a
general nature, whose content extends to all the provisions of the treaty and it establishes
the obligation of the States Parties to respect and guarantee the full and free exercise of the
rights and freedoms acknowledged therein “without any discrimination”. That is to say,
whatever the origin or form it assumes, any treatment that may be considered
discriminatory regarding the exercise of any of the rights guaranteed in the Convention is
per se incompatible with it83.
79. Regarding the principle of equality before the law and non-discrimination, the Court
has stated84 that “the notion of equality springs directly from the oneness of the human
family and is linked to the essential dignity of the individual. That principle cannot be
reconciled with the notion that a given group has the right to privileged treatment because
of its perceived superiority. It is equally irreconcilable with that notion to characterize a
group as inferior and treat it with hostility or otherwise subject it to discrimination in the
83 Cf. Proposed Amendment to the Political Constitution of Costa Rica related to Naturalization. Advisory
Opinion OC-4/84, January 19 1984. Series A No. 4, para. 53 and Case of Indigenous Community Xákmok Kásek. v.
Paraguay. Merits, Reparations and Costs. Judgment of August 24, 2010 Series C No. 214, para. 268.
84 Cf. Advisory Opinion OC-4/84, supra note 83, para. 55
28
enjoyment of rights which are accorded to others not so classified.” The Court’s case law
has also indicated that at the present stage of development of international law, the
fundamental principle of equality and non-discrimination has entered the realm of jus
cogens. The juridical framework of national and international public order rests on this
principle and permeates the entire legal system.85
80. Moreover, the Court has mentioned that “the States must abstain from carrying
out any action that, in any way, directly or indirectly, is aimed at creating situations of de
jure or de facto discrimination.”86 The States are obliged “to take affirmative measures to
reverse or change discriminatory situations that exist in their societies to the detriment of a
specific group of persons. This implies the special obligations to protect that the State must
exercise with regard to acts and practices of third parties who, with its tolerance or
acquiescence, create, maintain or promote discriminatory situations.”87
81. The American Convention, like the International Covenant on Civil and Political
Rights, does not include an explicit definition of the concept of “discrimination.” Based on
the definitions of discrimination in Article 1(1) of the International Convention on the
Elimination of all Forms of Racial Discrimination88 and Article 1(1) of the Convention on the
Elimination of all Forms of Discrimination against Women,89 the Human Rights Committee of
the United Nations has defined discrimination as:
…any distinction, exclusion, restriction, or preference based on certain motives, such as race, color,
gender, language, religion, a political or any other opinion, the national or social origin, property, birth or
any other social condition, that seeks to annul or diminish the acknowledgment, enjoyment, or exercise, in
conditions of equality, of the human rights and fundamental freedoms to which every person is entitled.90
82. The Court reiterates that while the general obligation of Article 1(1) refers to the
State’s duty to respect and guarantee “without discrimination” the rights included in the
American Convention, Article 24 protects the right to “equal protection before the law” 91.
That is, Article 24 of the American Convention prohibits discrimination, by law or de facto,
not only with regard to the rights enshrined in said treaty, but also in regard to all laws
85 Cf. Juridical Condition and Rights of the Undocumented Migrants. Advisory Opinion OC-18/03, of
September 17, 2003. Series A No. 18, para. 101 and Case Indigenous Community Xákmok Kásek, supra note 83,
para. 269. 86 Cf. Advisory Opinion OC-18/03, supra note 85, para. 103 and Case of Indigenous Community Xákmok
Kásek, supra note 83, para. 271 87 Cf. Advisory Opinion OC-18/03, supra note 85 para. 104; Case of Indigenous Community Xákmok Kásek,
supra note 83, para. 271; and UN, Human Rights Committee, General Comment No. 18, Non- discrimination,
November 10, 1989, CCPR/C/37, para. 6.
88 Article 1(1)of the International Convention on the Elimination of all Forms of Racial Discrimination states:
“In this Convention, the term "racial discrimination " shall men any distinction, exclusion, restriction or preference
based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing
the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the
political, economic, social, cultural or any other field of public life.”
89 Article 1(1)of the International Convention on the Elimination of all Forms of Discrimination against
Women states: “For the purposes of the present Convention, the term "discrimination against women " shall men
any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or
nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of
equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural,
civil or any other field”.
90 United Nations, Human Rights Committee, General Comment No. 18, Non-discrimination, November 10,
1989, CCPR/C/37, para. 6.
91 Cf. Advisory Opinion OC-4/84, supra note 83, paras. 53 and 54 and Case of Barbani Duarte et al. v.
Uruguay. Merits, Reparations and Costs. Judgment of October 13, 2011. Series C No. 234, para. 174.
29
approved by the State and their application. In other words, if a State discriminates in the
respect for or guarantee of a right contained in the Convention, it will be failing to comply
with its obligation under in Article 1(1) and the substantive right in question. If, on the
contrary, the discrimination refers to unequal protection by domestic laws, the fact must be
analyzed in light of Article 24 of the American Convention.
92
2. Sexual orientation as a category protected by Article 1(1) of the American
Convention
83. The Court has established, as has the European Human Rights Court, that
human rights treaties are living instruments, whose interpretation must go hand in hand
with evolving times and current living conditions93 This evolving interpretation is consistent
with the general rules of interpretation set forth in Article 29 of the American Convention, as
well as those established in the Vienna Convention on the Law of Treaties.94
84. In this regard, when interpreting the words “any other social condition” of
Article 1(1)of the Convention, it is always necessary to choose the alternative that is most
favorable to the protection of the rights enshrined in said treaty, based on the principle of
the rule most favorable to the human being95
85. According to Article 1(1) of the American Convention, the specific criteria by
virtue of which discrimination is prohibited do not constitute an exhaustive or limitative list,
but merely illustrative. Indeed, the wording of said article leaves open the criteria with the
inclusion of the term “another social condition,” allowing for the inclusion of other categories
that have not been explicitly indicated. Consequently, the Court should interpret the term
“any other social condition” of Article 1(1) of the Convention in the context of the most
favorable option for the human being and in light of the evolution of fundamental rights in
contemporary international law96.
86. In this regard, in the Inter-American system, the General Assembly of the
Organization of American States (hereinafter the OAS) has approved, since 2008, in its
annual meetings four successive resolutions referring to the protection of persons against
discriminatory treatment based on their sexual orientation, demanding the adoption of
specific measures for an effective protection against discriminatory acts.97
92 Case of Apitz Barbera et al. (“Corte Primera Contencioso Administrativo”) v. Venezuela. Preliminary
Objection, Merits, Reparations and Costs. Judgment of August 5, 2008. Series C No. 182, para. 209 and Case
Barbani Duarte et al., supra note 91, para. 174. 93 Cf. The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due
Process of Law. Advisory Opinion OC-16/99, October 1, 1999. Series A No. 16, para. 114 and Case of the Mapiripán
Massacre v. Colombia. Merits, Reparations and Costs. Judgment of September 15, 2005. Series C No. 134, para.
106. In the European Court see ECHR, Case of Tyrer v. United Kingdom, (No. 5856/72), Ruling of April 25, 1978,
para. 31.
94 Cf. Advisory Opinion OC-16/99, supra note 93, para. 114 and Case of the Mapiripán Massacre v. Colombia,
supra note 93, para. 106. 95 Cf. Compulsory Membership for Journalists (Arts. 13 and 29 American Convention on Human Rights).
Advisory Opinion OC-5/85 of November 13, 1985. Series A No. 5, para. 52, and Case of Mapiripán Massacre, supra
note 93, para. 106. 96 Cf. Advisory Opinion OC-16/99, supra note 93, para. 115.
97 Cf. AG/RES. 2653 (XLI-O/11), Human rights, sexual orientation and gender identity, approved at the
fourth plenary session, held on June 7, 2011 (“THE GENERAL ASSEMBLY […] RESOLVES: 1. To condemn
discrimination against persons by reason of their sexual orientation and gender identity, and to urge States, within
the parameters of the legal institutions of their domestic systems, to adopt the necessary measures to prevent,
sanction and eradicate such discrimination”); AG/RES. 2600 (XL-O/10), Human rights, sexual orientation and
gender identity, approved at the fourth plenary session, held on June 8, 2010 (“THE GENERAL ASSEMBLY […]
RESOLVES: 1. To condemn discrimination against persons by reason of their sexual orientation and gender
30
87. With regard to the inclusion of sexual orientation as a forbidden category of
discrimination, the European Court of Human Rights has stated that sexual orientation is
“another condition” mentioned in Article 1498 of the European Convention on Human Rights
that forbids discriminatory treatments.99 Specifically, in the Case of Salgueiro da Silva
Mouta v. Portugal, the European Court concluded that sexual orientation is “a concept
covered by Article 14 of the European Convention. It also reiterated that the list of
categories in said article has illustrative purposes and is not exhaustive.100 Recently, in the
Case of Clift v. United Kingdom, the European Court reiterated that sexual orientation, as
one of the categories that may be included under “another condition”, is another specific
example of those found on said list, which are considered as personal characteristics in the
sense that they are innate or inherent to the person.101
88. In the context of the universal system for the protection of human rights, the
Human Rights Committee and the Committee on Economic, Social, and Cultural Rights have
classified sexual orientation as one of the categories of forbidden discrimination considered
in Article 2(1)102 of the International Covenant on Civil and Political Rights and Article
identity, and to urge states, within the parameters of the legal institutions of their domestic systems, to adopt the
necessary measures to prevent, punish, and eradicate such discrimination. 2. To condemn acts of violence and
human rights violations committed against persons because of their sexual orientation and gender identity, and to
urge States to prevent and investigate these acts and violations and to ensure due judicial protection for victims on
an equal footing and that the perpetrators are brought to justice. 3. To encourage the member states to consider,
within the parameters of the legal institutions of their domestic systems, adopting public policies against
discrimination by reason of sexual orientation and gender identity.”); AG/RES. 2504 (XXXIX-O/09), Human Rights,
sexual orientation and gender identity, approved in the fourth plenary session, held on June 4, 2009 (“THE
GENERAL ASSEMBLY […] RESOLVES: 1.To condemn acts of violence and human rights violations committed against
individuals by reason sexual orientation and gender identity. 2. Urge States to prevent and investigate these acts
and violations and to ensure due judicial protection for victims on an equal footing and that the perpetrators are
brought to justice”); AG/RES. 2435 (XXXVIII-O/08), Human rights, sexual orientation and gender identity,
approved at the fourth plenary session, held on June 3, 2008 (“THE GENERAL ASSEMBLY […] RESOLVES: 1.To
express concern over acts of violence and human rights violations perpetrated against individuals by reason of their
sexual orientation and gender identity”).
98 Article 14 European Convention: The enjoyment of the rights and freedoms set forth in this Convention
shall be secured without discrimination on any ground, such as sex, race, color, language, religion, political or
other opinion, national or social origin, association with a national minority, property, birth or other status.
99 Cf. ECHR, Case Salgueiro da Silva Mouta v. Portugal, (No. 33290/96), Judgment of December 21, 1999.
Final, March 21, 2000, para. 28; Case L. and V. v. Austria (No. 39392/98 and 39829/98), Judgment of January 9,
2003. Final, April 9, 2003, para. 45; Case S.L. v. Austria, (No. 45330/99), Judgment of January 9, 2003. Final,
April 9, 2003, para. 37; Case E.B. V. France, (No. 43546/02), Judgment of January 22, 2008, para. 50.
100 Cf. ECHR, Caso Salgueiro da Silva Mouta, supra note Error! Bookmark not defined., para. 28 (“the
applicant’s sexual orientation […] [is] a concept that is undoubtedly covered by Article 14 of the Convention. The
Court reiterates in that connection that the list set out in that provision is illustrative and not exhaustive, as is
shown by the words “any ground such as”., See also ECHR, Case of Fretté v. France, (No. 36515/97), Judgment of
February 26, 2002. Final, May 26, 2002, para. 32; Cf. ECHR, Case Kozak v. Poland, (No. 13102/02), Judgment of
March 2, 2010. Final, June 2, 2010, para. 92; ECHR, Case J.M. v. United Kingdom, (No. 37060/06), Judgment of
September 28, 2010. Final, December 28, 2010, para. 55 and ECHR, Case Alekseyev v. Russia, (No. 4916/07,
25924/08 and 14599/09), Judgment of October 21, 2010. Final, April 11, 2011, para. 108. (“The Court reiterates
that sexual orientation is a concept covered by 14”). 101 Cf. ECHR, Case Clift v. United Kingdom, (No. 7205/07), Judgment of July 13, 2010. Final, November 22,
2010, para. 57 (“the Court has considered to constitute [`] other status [´] characteristics which, like some of the
specific examples listed in the article, can be said to be personal in the sense that they are innate or inherent.
“However, in finding violations of Article 14 in a number of other cases, the Court has accepted that “status”
existed where the distinction relied upon did not involve a characteristic which could be said to be innate or
inherent, and thus “personal” in the sense discussed above”). 102 Article 2(1): Each State Party to the present Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without
distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social
origin, economic status, birth or any other social condition.
31
2(2)103 of the International Covenant on Economic, Social, and Cultural Rights. In this
regard, in the case of Toonen v. Australia the Human Rights Committee indicated that the
reference to the category “gender” would include the sexual orientation of persons.104
Likewise, the United Nations Human Rights Committee has expressed its concern regarding
several discriminatory situations related to people’s sexual orientation, which it has
expressed repeatedly in its final observations to the reports presented by the States.105
89. For its part, the Committee on Economic, Social, and Cultural Rights has
determined that sexual orientation may be included in “another social condition”106.
Similarly, in the context of their general observations and recommendations, the Committee
on the Rights of the Child,107 the Committee against Torture,108 and the Committee on the
103 Article 2(2): The States Parties to the present Covenant undertake to guarantee that the rights enunciated
in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status.
104 United Nations, Human Rights Committee, Toonen v. Australia, Communication No. 488/1992,
CCPR/C/50/D/488/1992, April 4, 1992, para. 8.7 (“The State party has sought the Committee's guidance as to
whether sexual orientation may be considered as "other status" for the purposes of Article 26. The same issue
could arise under Article 2, paragraph 1, of the Covenant. The Committee confines itself to noting, however, that in
its view, the reference to "sex" in Articles 2, paragraph 1, and 26 is to be taken as including sexual orientation”).
Cf. X V. Colombia, Communication No. 1361/2005, CCPR/C/89/D/1361/2005, May 14, 2007, para. 7.2. (“The
Committee recalls its earlier jurisprudence that the prohibition against discrimination under Article 26 comprises
also discrimination based on sexual orientation”). In this regard, the Human Rights Committee, in Edward Young v.
Australia, Communication No. 941/2000, CCPR/C/78/D/941/2000, September 18, 2003, para. 10.4.; see also
United Nations, Human Rights Committee, Final comments, Poland, CCPR/C/79/Add.110, July 25, 1999, para. 23.
105 Cf., inter alia, United Nations, Human Rights Committee, Concluding observations, Chile,
CCPR/C/CHL/CO/5, April 17, 2007, para. 16 (“While it observes with satisfaction that the laws criminalizing
homosexual relations between consenting adults have been repealed, the Committee remains concerned about the
discrimination The State Party should guarantee equal rights to all individuals, as established in the Covenant,
regardless of their sexual orientation, including equality before the law and in access to health care. It should also
launch awareness-raising programs to combat social prejudice”); Concluding observations, Barbados,
CCPR/C/BRB/CO/3, May 14, 2007, para. 13 (“The Committee expresses its concern over discrimination against
homosexuals in the State Party and, in particular over the criminalizing of consensual sexual acts between adults of
the same sex (Art. 26)”); Concluding observations, United States of America, CCPR/C/USA/CO/3/Rev.1, December
18, 2006, para. 25 (“It also notes with concern the failure to outlaw employment discrimination on the basis of
sexual orientation in many states (Arts. 2 and 26). The State Party should acknowledge its legal obligation under
Articles 2 and 26 to ensure to everyone the rights recognized by the Covenant, as well as equal protection before
the law, without discrimination on the basis of sexual orientation.”); Concluding observations, El Salvador,
CCPR/CO/78/SLV, August 22, 2003, para. 16 (“The Committee expresses concern at the incidents of people being
attacked, or even killed, on account of their sexual orientation (Article 9), at the small number of investigations
mounted into such illegal acts, and at the current provisions (such as local “Contravention Orders”) used to
discriminate against people on account of their sexual orientation (Article 26).”
106 Cf. United Nations, Committee on Economic, Social and Cultural Rights, General Comment No. 20. Non-
discrimination and economic, social and cultural rights (Article 2, paragraph 2 of the International Covenant on
Economic, Social and Cultural Rights), E/C.12/GC/20, 2 of July of 2009, para. 32 (“any other social condition", as
stated in Article 2.2 of the Covenant, includes sexual orientation”). Cf. Committee on Economic, Social and Cultural
Rights, General Comment No. 18. The right to work, E/C.12/GC/18, February 6, 2006, para. 12 (“Under paragraph
2 of Article 2, as well as Article 3, the Covenant prohibits any discrimination in access to and maintenance of
employment for reasons of […] sexual orientation”); General Comment No. 15. The right to water (Articles 11 and
12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2002/11, of January 20, 2003,
para. 13 (“the Covenant prohibits any discrimination for reasons of […] sexual orientation”); General Comment No.
14. The right to enjoy the highest attainable level of health (Article 12 of the International Covenant on Economic,
Social and Cultural Rights), E/C.12/2000/4, August 11, 2000, para. 18 (“By virtue of the provisions in paragraph 2
of Article 2 and in Article 3, the Covenant proscribes all discrimination in access to health care and the underlying
determinants of health, and to the means for their procurement, on the grounds of […] sexual orientation”).
107 Cf. United Nations, Committee on the Rights of the Child, General Comment No. 3 (2003). HIV/AIDS and
the rights of the child, CRC/GC/2003/3, of March 17, 2003, para. 8 (“of concern also is discrimination based on
sexual orientation”); General Comment No. 4 (2003). The health and development of adolescents in the context of
the Convention on the Rights of the Child, CRC/GC/2003/4, July 21, 2003, para. 6 (“States Parties have the
32
Elimination of Discrimination against Women109 have made references to the inclusion of
sexual orientation as one of the prohibited categories for discrimination.
90. On December 22, 2008 the United Nations General Assembly adopted the
“Declaration on Human Rights, Sexual Orientation, and Gender Identity”, reaffirming the
“principle of non-discrimination, which requires that human rights apply equally to every
human being, regardless of sexual orientation or gender identity.”110 Likewise, on March 22,
2011 the “Joint statement on ending acts of violence and related human rights violations
based on sexual orientation and gender identity” was filed before the Human Rights Council
of the United Nations.111 On June 15, 2011 the Council approved a resolution on human
rights, sexual orientation, and gender identity in which it expressed its grave concern over
acts of violence and discrimination, in all the regions of the world, committed against
individuals because of their sexual orientation and gender identity.112 The prohibition of
discrimination based on sexual orientation has also been highlighted in numerous reports by
special rapporteurs of the United Nations.113
obligation to ensure that all human beings under 18 enjoy all the rights set forth in the Convention without
discrimination (Art. 2), regardless of "race, color, sex, language, religion, or political or other opinion, national,
ethnic or social origin, property, birth, disability or other status". These grounds also cover sexual orientation”).
108 Cf. United Nations, Committee Against Torture, General Comment No. 2, Application of Article 2 by States
Parties, CAT/C/GC/2, of January 24, 2008 para. 20, 21 (“The principle of non-discrimination is a basic and general
principle in the protection of human rights and fundamental to the interpretation and application of the Convention.
[…] States Parties must ensure that, insofar as the obligations arising under the Convention are concerned, their
laws re in practice applied to all persons, regardless of their […] and sexual orientation”).
109 Cf. United Nations, Committee on the Elimination of Discrimination Against Women, General
Recommendation No. 27 on women of age and the protection of their human rights, CEDAW/C/GC/27, December
16, 2010, para. 13 (“The discrimination experienced by older women is often multidimensional, with the age factor
compounding other forms of discrimination based on […] sexual orientation”); Draft of General Recommendation
Nº 28 in relation to Article 2 of the Convention on the elimination of all forms of discrimination against women,
CEDAW/C/GC/28, December 16, 2010, para. 18 (“The discrimination of based on sex and gender is inextricable
linked with other factors that affect women, such as race, ethnic origin, religion or belief, health, status, age, class,
caste, sexual orientation”).
110 Declaration on human rights, sexual orientation and gender identity, United Nations General Assembly,
A/63/635, December 22, 2008, para. 3.
111 Joint declaration on ending acts of violence and related human rights violations based on sexual
orientation and gender identity, presented by Colombia in the 16th session of the United Nations Human Rights
Council, March 22, 2011. Available at: <nowiki>http://www.iglhrc.org/binary-data/ATTACHMENT/file/000/000/494-1.pdf</nowiki>
112 United Nations Human Rights Council, Resolution regarding human rights, sexual orientation and gender
identity, A/HRC/17/L.9/Rev.1, June 15, 2011.
113 Cf., Among other reports, Report of the Special Rapporteur on the right of all persons to enjoy the highest
attainable standard of physical and mental health, E/CN.4/2004/49, February 16, 2004, paras. 32, 38
(“International human rights law proscribes all discrimination in access to health care and the underlying
determinants of health, and to the means for their procurement, on the grounds of …… sexual orientation [...]
discrimination on the grounds of sexual orientation is impermissible under international human rights law”). See
also the Report of the Special Rapporteur on freedom of religion or belief, A/HRC/6/5, July 20, 2007, para. 28;
Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related
intolerance, Mission to Brazil, E/CN.4/2006/16/Add.3, February 28, 2006, para. 40; Report of the Special
Rapporteur on violence against women, its causes and consequences, Integration of the human rights of women
and gender perspective: violence against women, Investigation into the links between violence against women and
HIV/AIDS, E/CN.4/2005/72, January 17, 2005, para. 27, 58; Report of the Special Rapporteur on extrajudicial,
summary or arbitrary executions, civil and political rights, in particular questions related to disappearances and
summary executions, E/CN.4/2003/3, January 13, 2003, paras.. 66, 67; Report provisional of la Special
Rapporteur of the Human rights Commission on extrajudicial, summary or arbitrary executions, A/57/138, July 2,
2002, para. 37; Report of the Special Representative of the Secretary General on human rights defenders,
E/CN.4/2001/94, January 26, 2001, para. 89 g); Special Rapporteur on the independence of judges and lawyers,
civil and political rights, in particular questions related to: the independence of the judicial branch, the
33
91. Bearing in mind the general obligations to respect and guarantee the rights
established in Article 1(1)of the American Convention, the interpretation criteria set forth in
Article 29 of that Convention, the provisions of the Vienna Convention on the Law of
Treaties, and the standards established by the European Court and the mechanisms of the
United Nations (supra paras. 83-90), the Inter-American Court establishes that the sexual
orientation and gender identity of persons is a category protected by the Convention.
Therefore, any regulation, act, or practice considered discriminatory based on a person’s
sexual orientation is prohibited. Consequently, no domestic regulation, decision, or practice,
whether by state authorities or individuals, may diminish or restrict, in any way whatsoever,
the rights of a person based on his or her sexual orientation.
92. With regard to the State’s argument that, on the date on which the Supreme Court
issued its ruling there was a lack of consensus regarding sexual orientation as a prohibited
category for discrimination, the Court points out that the alleged lack of consensus in some
countries regarding full respect for the rights of sexual minorities 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 minorities have suffered114. The fact that
administration of justice, impunity, Mission to Brazil, E/CN.4/2005/60/Add.3, February 22, 2005, para. 28; Report
of the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment, A/56/156,
July 3, 2001, paras.. 17-25; Report on civil and political rights, in particular questions related to torture and
detention E/CN.4/2002/76, December 27, 2001, page. 14; Report of the Special Rapporteur on torture and other
cruel, inhuman or degrading treatment, E/CN.4/2004/56, December 23, 2003, para. 64; Report of the Special
Rapporteur on the sale of children, child prostitution and the use of children in pornography E/CN.4/2004/9,
January 5, 2004, para. 118; Working Group on Arbitrary Detention, Opinion No. 7/2002 (Egypt),
E/CN.4/2003/8/Add.1, January 24, 2003, page. 72, para. 28. Within the framework of comparative law some
States explicitly prohibit discrimination based on sexual orientation in their Constitutions (for example Bolivia,
Ecuador, Kosovo, Portugal, South Africa, Sweden and Switzerland) or through laws, for example in matters of
family law, regarding granting homosexuals the same rights as heterosexuals. For example, in Argentina, Articles 2
and 4 of Law No. 26.618 of July 21, 2010 establish that: “Marriage shall have the same requirements and effects,
regardless of the fact that the spouses are of the same or of different sex” and "In marriages constituted by same-
sex couples, in the absence of an agreement, the judge shall decide [on custody] taking into consideration the best
interests of the child”; Uruguay approved Law No. 18.246 (Diario Oficial No. 27402, January 10, 2008), which
recognizes civil unions ("concubinary unions ") between same-sex couples. In 2009, Law No. 18.590, (Diario Oficial
No. 27837, 26 October 2009), authorized joint adoption by couples living in civil union.
114 According to different international and comparative law sources, this discrimination against the Lesbian, Gay,
Transsexual, Bisexual, and Intersexual (hereinafter “LGTBI”) is unacceptable because i) sexual orientation
constitutes an essential aspect of a person’s identity (infra para. 139). Likewise, ii) the LGTBI community has been
historically discriminated against and the use of stereotypes in treatment towards said community is common. Cf.
Report of the Special Rapporteur on the right of all persons to enjoy the highest level possible of physical and
mental health, E/CN.4/2004/49, February 16, 2004, para.33 (“discrimination and stigmatization continue to
represent a grave threat against the sexual and reproductive health of many groups, such as […] sexual
minorities,”.); Report of the Special Rapporteur on matters of torture and other cruel, inhuman, or degrading
treatments, E/CN.4/2004/56, December 23, 2003, para. 64 (“The attitudes and beliefs derived from myths and
fears related to HIV/AIDS and sexuality contribute to stigmatization and discrimination against sexual minorities.
Moreover, the perception that members of these minorities do not respect sexual barriers or question the
predominant concepts of the role attributed to each gender seems to contribute to their vulnerability to torture as a
form of “punishing” their unaccepted behavior”). On the other hand, iii) they constitute a minority that faces
greater difficulty in removing discrimination in areas such as the legislative sphere, as well as avoiding negative
repercussions in the interpretation of regulations by officials of the executive or legislative branches and in access
to justice. Cf. Special Rapporteur on the independence of senior judges and attorneys, Civil and political rights,
especially matters related to: independence of the judiciary, the administration of justice, impunity, Mission to
Brazil, E/CN.4/2005/60/Add.3, February 22, 2005, para. 28 (“Transvestites, transsexuals, and homosexuals are
also frequently the victims of episodes of violence and discrimination. When they turn to the judicial system, they
frequently face the same prejudice and stereotypes of society reproduced there”); Constitutional Court of
Colombia, Judgment C-481 of September 9, 1998, Juridical Grounds, para. 24 (considering that homosexuals
constitute one of the minority groups traditionally discriminated). Finally, iv) sexual orientation does not constitute
a rational criterion for the rational and equal distribution or sharing of properties, rights, or social burdens. Cf.
Constitutional Court of Colombia, Judgment C-481 of September 9, 1998, para. 25. In this judgment, regarding the
34
this is a controversial issue in some sectors and countries, and that it is not necessarily a
matter of consensus, cannot lead this Court to abstain from issuing a decision, since in
doing so it must refer solely and exclusively to the stipulations of the international
obligations arising from a sovereign decision by the States to adhere to the American
Convention.
93. A right granted to all persons cannot be denied or restricted under any
circumstances based on their sexual orientation. This would violate Article 1(1) of the
American Convention. This inter-American instrument proscribes discrimination, in general,
including categories such as sexual orientation, which cannot be used as grounds for
denying or restricting any of the rights established in the Convention.
3. Difference in treatment based on sexual orientation
94. The Court notes that in order to prove that a distinction in treatment has occurred in
a particular decision, it is not necessary that the decision in its entirety be based
“fundamentally and solely” on the person’s sexual orientation. It is sufficient to confirm that,
to a certain extent, the person’s sexual orientation was taken into account, either explicitly
or implicitly, in adopting a specific decision.115
95. In the case at hand, it is alleged that discriminatory treatment occurred with respect
to two different facts in the custody process: the Judgment issued in the remedy of
complaint and the ruling on temporary custody. To determine whether there is a causal or
decisive link between the decisions of the Supreme Court of Justice of Chile and the Juvenile
Court of Villarrica, and the sexual orientation of Ms. Atala, it is necessary to analyze the
arguments presented by the national judicial authorities, their actions, the language used,
and the context in which the judicial decisions were made, in order to determine whether
the difference in treatment was based on sexual orientation.
116 In this regard, in the Case of
Salgueiro da Silva Mouta v. Portugal, the European Court concluded that the domestic court,
in considering the father’s cohabitation with another man as such, made the petitioner’s
sexual orientation a decisive factor in the final judgment.
96. Regarding the context of the custody proceeding, the Court notes out that the
custody claim was filed under the supposition that Ms. Atala “[was] not capable of looking
after and taking care of [the three girls, given that] her new choice of sexual life together
with her lesbian relationship with another woman, [were] having […] harmful consequences
right of a public school to not be fired due to his homosexual condition, the Colombian Court stated that the
separation of the professor from his work was based “on a prejudice without any empirical support whatsoever,
which denotes the unfair stigmatization that has affected this population and that has been invoked to impose
burdens upon them or deprive them of rights, in detriment of their possibilities to participate in realms that are so
relevant for both social and economic life.” (para. 29) On its part, judgment C-507 of 1999 declared
unconstitutional a provision that declared homosexuality in the armed forces a disciplinary infraction. In judgment
C-373 of 2002 the Court declared unconstitutional a provision that established as a cause for disqualification to
exercise the position of notary having been punished at a disciplinary level for the infraction of homosexuality.
115 Cf. ECHR, Case of E.B. v. France, supra note Error! Bookmark not defined., paras. 88 and 89
“notwithstanding the precautions taken by the Nancy Administrative Court of Appeal, and subsequently by the
Conseil d'Etat, to justify taking account of the applicant's “lifestyle”, the inescapable conclusion is that her sexual
orientation was consistently at the center of deliberations in her regard and omnipresent at every stage of the
administrative and judicial proceedings. […] The Court considers that the reference to the applicant's
homosexuality was, if not explicit, at least implicit. The influence of the applicant's avowed homosexuality on the
assessment of her application has been established and, having regard to the foregoing, was a decisive factor
leading to the decision to refuse her authorization to adopt”)
116 Cf. ECHR, Case of Salgueiro da Silva Mouta v. Portugal, supra note Error! Bookmark not defined.,
paras. 28 and 31 and Case of E.B., supra note Error! Bookmark not defined., para. 85
35
on the development of these minors, since the mother ha[d] shown no interest whatsoever
in looking after and protecting […] the overall development of these girls.”117 Therefore, in
addition to other considerations, the custody process revolved around Ms. Atala’s sexual
orientation and the alleged effects that her living with her partner could have on the three
girls. Therefore, this consideration was central to the discussion between the parties and in
the main judicial decisions made during the proceeding (supra paras. 41 and 56).
97. Specifically, the Court finds that the Supreme Court of Justice of Chile invoked the
following reasons as grounds for the judgment: i) the “deterioration in the social, family,
and educational environment of the girls since the mother began to cohabit with her
homosexual partner” and the “effects that this cohabitation could have on the’ psychological
and emotional well-being of the daughters;” ii) the alleged “risk for the integral
development of the girls from which they must be protected” due to “the potential confusion
over sexual roles that could be caused in them by the absence from the home of a male
father and his replacement by another person of the female gender;” iii) the alleged
existence of “a situation of risk” that places them in a “vulnerable position in their social
environment,” due to the risk of social discrimination, iv) that Ms. Atala had allegedly put
“her own interests before those of her daughters when she chose to express her
homosexual status” 118. These arguments and the language used show a link between the
judgment and the fact that Ms. Atala lived with a partner of the same sex, which indicates
that the Supreme Court gave significant importance to Ms. Atala’s sexual orientation.
98. Regarding the provisional custody ruling, the Court finds verifies that the Juvenile
Court of Villarrica119 used the following arguments: i) that Ms. Atala allegedly put her own
interests before the well-being of her daughters (supra para. 41), and ii) that “in the
context of a heterosexual and traditional society” the father offered “more favorable
arguments on behalf of the girls’ best interests” (supra para. 41). In this regard, the Court
considers that, as with the judgment of the Supreme Court (supra para. 97), the provisional
custody decision was based mainly on Ms. Atala’s sexual orientation. Therefore, this Court
concludes that there was a difference in treatment based on this category.
99. To determine whether these differences in treatment constituted discrimination, the
following paragraphs analyze the justification given by the State for making such a
distinction in treatment, in other words, the supposed protection of the child’s best interest
and the alleged damage the girls had suffered as a consequence of their mother’s sexual
orientation.
4. The principle of the child’s best interest and assumptions of risk
Arguments of the parties
117 Custody claim filed before the Juvenile Court of Villarica of January, 14, 2003 (File of appendices to the
claim, volume V, appendix 1, page 2500).
118 Judgment of the Supreme Court of Justice of Chile, May 31, 2004 (File of appendices to the petition,
volume V, pages 2669 to 2677).
119 The Court indicated that “as stated in Article 225 of the Civil Code, if parents live separately, the mother
will see to the personal care of the children, and in any case, when the interest of the child makes it necessary,
either due to abuse, lack of care, or any other aggravated cause, the Judge may hand over the personal care of the
children to the other parent.” It added that “the Judge is given the hard judicial task of deciding which of the
parents is most suitable to make effective the Right to Custody of the minors, for which it must turn to objective
parameters – as is the merits of the proceedings – and to a judgment of probability, deciding in an interlocutory
manner due to the urgency the well-being of the girls calls for, with which of the two parents it is convenient that
they stay.” Ruling in the provisional custody claim by the Juvenile Court of Villarica, May 2, 2003 (File of
appendices to the claim, volume V, pages 2559 to 2567)..
36
100. The Commission considered that a child’s best interest is “not only a legitimate aim,
but also a pressing social need,” but that “the lack of suitability or causal relationship
between the goal sought and the distinction [made]” is evident in the speculative and
abstract reasoning of the decisions.”
101. The Commission stated that “both judicial authorities [(the Supreme Court and the
Juvenile Court of Villarrica)] based their decisions on assumptions of risk derived from
prejudices and erroneous stereotypes regarding the characteristics and behavior of a given
social group.” In this regard, it argued that “the decision was based on the judges’
stereotyped conceptions of the nature and effects of relationships between people of the
same sex.”
102. The representatives argued that the girls’ best interest “would in fact, in theory […]
be a legitimate goal.” However, they stated that “it is not enough […] to argue a legitimate
goal for it to be one; the State has the obligation to prove that said goal is real.” In this
regard, they argued that “the State simply says it is protecting the girls but it does not
objectively offer grounds for the damage that was allegedly caused to the girls and,
therefore, the decision lacks a legitimate goal.”
103. The representatives also stated that “it is appropriate to consider whether complete
separation from the mother fulfills the stated objective of protecting the girls.” In this
regard, they argued that “it may be considered that it does, even though it does so a way
that does not satisfy the principle of prohibition of arbitrariness, since the level of intensity
with which the rights are affected is clearly very high, and this leads to violations of their
rights.” Specifically, the representatives indicated that the court decisions “separate[d] the
girls from their mother figure, their referent, their place of residence, schools, friends, and
pets.” Furthermore, the representatives noted that the State “rewrites the judgment it
would have wished the Supreme Court to write, but it is not the one that began this
proceeding.”
104. Regarding the provisional custody decision, the representatives argued that “it was
neither objective nor reasonable.” In addition, they pointed out that the “judges assumed
that, in the case of lesbian women, living with a partner is a selfish interest that can only
provide well-being to the mother.”
105. For its part, the State argued that, in the context of a custody suit “a priority [is
established] in favor of the child’s best interest over any other protected interest in dispute,
[therefore] it is clear that in a custody proceeding it is necessary to understand the
aforementioned interest as strong grounds for justifying a change in [a child’s] regimen of
personal care.” Specifically, the State argued that “the judgment of the Supreme Court
found that the lower courts had incurred in serious fault or abuse by violating the rules for
the assessment of evidence, affecting the girls’ best interest.” Likewise, the State indicated
that in the provisional custody decision “the court declared […] that it is the task of the
sentencing body to safeguard a child’s best interest and ensure his or her greatest well-
being […] and therefore it decided to grant provisional custody to the father.” Furthermore,
the State argued that “the decision on provisional custody, after assessing all the evidence
to date in the case [...] conclude[ed] that: i) the girls showed disturbances of a
psychological nature and emotional deficiencies […], and ii) that the father offered certainty
of an appropriate environment.”
106. The State argued that “as regards to the requirement of “suitability” to ensure that
the measures applied by States are not discriminatory, in order to comply with the scrutiny
37
test […] it would have been sufficient to have proven the harmful situation suffered by the
girls in the case.” Specifically, the State argued that “there is abundant evidence on record
proving: i) the specific adverse effects that the respondent’s expression of her sexual
orientation had on the well-being of her daughters, and ii) that the father offered better
conditions for their wellbeing, a matter in no way related to the defendant’s sexual
orientation.” The State also argued that “there is convincing evidence that the defendant
displayed an intensely self-centered attitude as well as personal characteristics that made it
difficult for her to properly exercise her role as a mother, circumstances that led to the
conclusion that the mother did not offer a suitable environment for the development of her
daughters.” Likewise, it stated that “there was abundant evidence on record, not only on
the negative effects that the respondent’s expression of her sexual orientation had on the
well-being of her daughters, but also on totally external circumstances, such as the
determination of whether the father or mother offered a better environment for the girls’
development and a greater degree of commitment and care toward them.”
Considerations of the Court
107. The Inter-American Court finds that, among its considerations, the Supreme Court of
Justice of Chile stated that “in all measures concerning [children] it is essential to consider
the child’s best interest over any other consideration and rights regarding their parents,
which could make it necessary to separate them from their parents.”120 For its part, the
Juvenile Court of Villarrica, in the provisional custody ruling, stated that “it is the sentencing
body’s task to ensure […] the child’s best interest, which implies conducting a preventive …
analysis leading to the ultimate purpose of any judicial ruling affecting a minor, which is
none other than seeking their greatest well-being.”121
108. The general purpose of protecting the child’s best interest is, in itself, a legitimate
aim and is also an imperative. Accordingly, the Court reiterates that the regulating principle
regarding children’s rights is based on the very dignity of the human being, on the
characteristics of children themselves, and on the need to foster their development, making
full use of their potential122. Likewise, it should be noted that the preamble of the
Convention on the Rights of the Child establishes that children require “special care” and
Article 19 of the American Convention states that they must receive “special measures of
protection.” 123
109. Similarly, the Court finds that the determination of the child’s best interest in cases
involving the care and custody of minors must be based on an assessment of specific
parental behaviors and their negative impact on the well-being and development of the
child, or of any real and proven damage or risks to the child’s well-being and not those that
are speculative or imaginary. Therefore, speculations, assumptions, stereotypes, or
generalized considerations regarding the parents’ personal characteristics or cultural
preferences regarding the family’s traditional concepts are not admissible.124
120 Judgment of the Supreme Court of Justice of Chile of May 31, 2004 (File of appendices to the petition,
volume V, pages 2670).
121 Ruling on the provisional custody claim by the Juvenile Court of Villarrica, May 2, 2003 (File of appendices
to the petition, volume V, page 2566).
122 Cf. Juridical Status and Human Rights of the Child. Advisory Opinion OC-17/02 August 28, 2002. Series A
No. 17, para. 56. In similar vein, see: Preamble of the American Convention.
123 Advisory Opinion OC-17/02, supra note 122, para. 60.
124 Cf., inter alia, in Australia: In the Marriage of C. and J.A. Doyle, (1992) 15 Fam. L.R. 274, 274, 277 (The
parent's lifestyle is of no relevance without a consideration of its consequences on the child's well-being); in the
38
110. In conclusion, the Inter-American Court notes that, “the child’s best interest” being
considered as a legitimate goal, in abstract terms, the mere reference to this purpose,
without specific proof of the risks or damage to the girls that could result from the mother’s
sexual orientation, cannot serve as a suitable measure to restrict a protected right, such as
the right to exercise all human rights without discrimination based on the person’s sexual
orientation.125 The child’s best interest cannot be used to justify discrimination against the
parents based on their sexual orientation. Therefore, the judge cannot take this social
condition into consideration as an element in a custody ruling.
111. A determination based on unfounded and stereotyped assumptions about the
parent’s capacity and suitability to ensure and promote the child’s well-being and
development is not appropriate for the purpose of guaranteeing the legitimate goal of
protecting the child’s best interest.
126 The Court finds that considerations based on
stereotypes of sexual orientation, that is, preconceptions regarding the attributes, behaviors
or characteristics of homosexuals or the impact these may have on children is not
admissible.127
112. Furthermore, the Court emphasizes that although the State provided evidence
concerning the specific arguments that the father could allegedly offer better environment
for his daughters during the custody proceeding, for the purposes of analyzing the suitability
of the measure, the Court will only take into consideration the evidence and arguments that
Philippines: Supreme Court of the Philippines, Joycelyn Pablo-Gualberto v. Crisanto Rafaelito Gualberto, G.R. No.
156254 of June 28, 2005, stating that sexual preference of itself is not a sign of parental incompetence to exercise
the custody of minors (“sexual preference or moral laxity alone does not prove parental neglect or incompetence.
[...] To deprive the wife of custody, the husband must clearly establish that her moral lapses have had an adverse
effect on the welfare of the child or have distracted the offending spouse from exercising proper parental care”); in
South Africa: Constitutional Court of South Africa, Du Toit and Another v Minister of Welfare and Population
Development and Others (CCT40/01) [2002] ZACC 20; 2002 (10) BCLR 1006; 2003 (2) SA 198 (CC) (10
September 2002), permitting the adoption of minors by same-sex couples, considering that it will not affect the
child’s best interest, and Constitutional Court of South Africa, J and Another v Director General, Department of
Home Affairs and Others (CCT46/02) [2003] ZACC 3; 2003 (5) BCLR 463; 2003 (5) SA 621 (CC) (28 March 2003).
125 In similar vein, in a case on the withdrawal of the custody of a minor based on the mother’s religious
beliefs, the European Court of Human Rights criticized the lack of specific and direct evidence proving the impact
the religious beliefs had on the upbringing and the daily life of the children, for which reason it considered that the
domestic court had issued a judgment in abstract, and based on general considerations, without establishing a
relationship between the children’s lifestyle and the mother’s. The Court stated that “Although relevant, that
reasoning was not in the Court's view sufficient. 43. In those circumstances, the Court cannot conclude that there
was a reasonably proportionate relationship between the means employed and the legitimate aim pursued. ECHR,
Case of Palau-Martínez v. France, (No. 64927/01), Judgment of December 16, 2003. Final, March 16, 2004, paras.
42-43.
126 In this regard, the expert witness Jernow stated that “analysis of the child’s best interest […] cannot be
based on groundless assumptions or stereotypes about parental capacity” (Merits file, volume XI, page 5069).
Similarly, expert witness Wintemute stated that “discrimination based on the race, religion, sex or sexual
orientation of the child´s parent is never in the best interest of the child. What is in the best interest of the child is
a custody decision that considers the qualities of the two parents, without examining considerations that are
irrelevant, and that are often linked to social prejudices” […]A non-discriminatory custody decision should not refer
to the sexual orientation of either parent. It should focus solely on the parenting skills of each parent, what kind of
home they can provide, etc. There should be no need even to mention sexual orientation” (Merits file, volume XI,
pages 5355 and 5358). Similarly, at the public hearing, the expert witness García Méndez emphasized that “the
sexual conduct that courts have generally taken into account in cases of this nature, are sexual conducts that refer
to promiscuity, […] without any other type of consideration.”
127 On the concept of stereotypes, Cf. Case of González et al. (“Cotton Field”) v. Mexico. Preliminary
Objection, Merits, Reparations, and Costs. Judgment of November 16, 2009. Series C No. 205, para. 401.
39
have been explicitly used by the Supreme Court or by the Juvenile Court of Villarica as
grounds for their decisions on provisional custody (supra paras. 41 and 56).
113. The Court notes that the Supreme Court of Justice mentioned four arguments
directly related to Ms. Atala’s sexual orientation: i) the alleged social discrimination suffered
by the three girls due to Ms. Atala’s expression of her sexual orientation128; ii) the girls’
alleged confusion regarding sexual roles as a consequence of their mother cohabiting with a
partner of the same sex;129 iii) the alleged priority Ms. Atala gave to her personal life over
the interests of her three daughters130, and iv) the right of the girls to live in the bosom of a
family with a father and a mother131. The Supreme Court concluded t
that the appealed
judges failed by “not having strictly evaluated in conscience the evidence in the proceeding”
and by “having passed over the preferred right of the minors to live and grow within the
bosom of a family that is structured normally and appreciated in the social milieu, according
to the proper traditional model, and ha[d] incurred in serious fault or abuse, which must be
corrected through the admission of the recurso de queja (remedy of complaint)” 132. The
main grounds for the provisional custody decision were the mother’s alleged preferred
interests and the argument of the girls’ right to live in a traditional family (supra para. 41),
for which reason these points shall be examined jointly.
114. Accordingly, the Court proceeds to consider whether these arguments were
appropriate to fulfill the purpose stated in the Supreme Court’s judgment and in the decision
of the Juvenile Court of Villarica, namely, to protect the best interest of the three girls.
4.1. Alleged social discrimination
115. The Court notes that among the statements taken during in the proceedings, one of
the witnesses stated that “there has been discrimination against the little girls, not by other
children, but by the parents, who repress the children; I do not have proof of specific acts of
discrimination, but an example given was that if there was a slumber party at Karen’s house
they would not allow their daughters to go.”133 In addition, some of the witnesses indicated
that: “the girls are going to be discriminated against and affected in their social
relationships;”134 ii) “in the school environment and among their peers […] they are being
pointed out, I am concerned that because we live in such a small city this situation could be
difficult”135, and iii) “the parents of their schoolmates and friends adopt protective attitudes
128 Judgment of the Supreme Court of Justice of Chile, May 31 2004 (File of appendices to the petition,
volume V, page 2672).
129 Judgment of the Supreme Court of Justice of Chile, May 31 2004 (File of appendices to the petition,
volume V, page 2672).”
130 Judgment of the Supreme Court of Justice of Chile, May 31 2004 (File of appendices to the petition, volume V,
page 2672).
131 Judgment of the Supreme Court of Justice of Chile of May 31, 2004 (File of appendices to the petition,
volume V, page 2672).
132 The Supreme Court considered that the situation described constitutes an “aggravated cause” pursuant to
Article 225 of the Civil Code, to justify handing over custody to the father, given that the current situation
represented “a scenario that implies a risk of harm, which could become irreversible, for the interests of the
minors, whose protection must override all other considerations.” Judgment of the Supreme Court of Justice of
Chile of May 31, 2004 (File of appendices to the petition, volume V, pages 2672 and 2673).
133 Testimony of April 10 2003 (File of appendices to the petition, volume I, page 360).
134 Testimony of April 3, 2003 (File of appendices to the petition, volume I, page 327).
135 Testimony of April 3, 2003 (File of appendices to the petition, volume I, page 328).
40
towards their children regarding this situation, which they consider contradictory to the
education they give their children and this must necessarily generate negative situations
and isolation for the little girls which, according to what I have heard, is unfortunately
happening.”136
116. Likewise, the social worker who testified at the proceeding indicated that “in Chile
according to a study […] on tolerance and discrimination [conducted in] 1997, it was found
that Chileans express a high level of rejection toward homosexual minorities [,] with the
percentage of rejection being 60.2%. Based on this, and aware of the high [level of]
discrimination [,] these minors would be exposed to unwarranted situations of social
discrimination”137.
117. On the other hand, the Court notes that the custody case file contains eight affidavits
from parents of schoolmates and friends of the three girls in which they testify, inter alia,
that “they have never discriminated against [Ms. Atala’s] daughters in any way and that
their children got together, played and participated in activities with the López Atala girls138.
118. In this regard, the Court confirms that although the case file contained evidence
from individuals who stated that the girls could be suffering discrimination within their social
environment due to their mother cohabiting with a partner of the same sex, there is also
evidence to the contrary regarding to this point (supra paras. 115, 116 and 117). However,
the Court notes that the Supreme Court described the potential social discrimination that
the girls might suffer in a manner that was conditional and abstract, since it stated that: i)
“the girls could be subjected to social discrimination,” and ii) that “clearly their unique
family environment differs significantly from that of their school companions and
acquaintances in the neighborhood where they live, exposing them to ostracism and
discrimination, which would also affect their personal development.”139
119. The Court considers that to justify a distinction in treatment and the restriction of a
right, based on the alleged possibility of social discrimination, proven or not, that the minors
might face due to their parents’ situation cannot be used as legal grounds for a decision.
While it is true that certain societies can be intolerant toward a person because of their
race, gender, nationality, or sexual orientation, States cannot use this as justification to
perpetuate discriminatory treatments. States are internationally compelled to adopt the
measures necessary “to make effective” the rights established in the Convention, as
stipulated in Article 2 of said Inter-American instrument, and therefore must be inclined,
precisely, to confront intolerant and discriminatory expressions in order to prevent exclusion
or the denial of a specific status.
120. The Court notes that social, cultural, and institutional changes are taking place in the
framework of contemporary societies, which are aimed at being more inclusive of their
citizens´ different lifestyles. This is evident in the social acceptance of interracial couples,140
136 Testimony of April 3, 2003 (File of appendices to the petition, volume I, page 329).
137 Testimony of the social worker of April 14, 2003 (File of appendices to the petition, volume I, page 390). 138 Affidavits of May 2003 (File of appendices to the petition, volume I, pages 458 through 464).´
139 Judgment of the Supreme Court of Justice of Chile of May 31, 2004 (File of appendices to the petition,
volume V, pages 2672).
140 Cf. The Supreme Court of Justice of the United States of America, Palmore v. Sidoti, 466 US 429, 433
(April 25, 1984), annulling a court’s decision to grant custody of a minor to the father because it considered that
the mother’s new relationship with her new partner of another race would imply suffering for the child, due to the
41
single mothers or fathers and divorced couples, which at one time were not accepted by
society. In this regard, the law and the State must help to promote social progress;
otherwise there is a grave risk of legitimizing and consolidating different forms of
discrimination that violate human rights141.
121. On the other hand, with regard to the argument that the child’s best interest might
be affected by the risk of rejection by society, the Court considers that potential social
stigma due to the mother or father’s sexual orientation cannot be considered as a valid
“harm” for the purposes of determining the child’s best interest. If the judges who analyze
such cases confirm the existence of social discrimination, it is completely inadmissible to
legitimize that discrimination with the argument of protecting the child’s best interest. In
the instant case, the Court also emphasizes that Ms. Atala had no reason to suffer the
consequences of the girls allegedly being discriminated against in their community due to
her sexual orientation.
122. Therefore, the Court concludes that the argument of potential social discrimination
was not adequate to fulfill the declared purpose of protecting the best interest of Ms. Atala’s
daughters.
4.2. Alleged confusion of sexual roles
123. With regard to the possible confusion of roles that could affect the three girls due to
their living with their mother and her partner, the Supreme Court based its decision on: i)
“the testimony of persons close to the girls, such as the house maids, who refer to games
and attitudes of the girls that reflect confusion about the sexuality of the mother, which
they could have perceived in the new cohabitation arrangements at their home,” and ii)
“apart from the effects that this cohabitation could have on the well-being and psychological
and emotional development of the daughters, given their ages, the potential confusion over
sexual roles that could be caused by the absence from the home of a male father and his
replacement by another person of the female gender poses a risk to the integral
development of the children from which they must be protected” 142.
124. As regards the prohibition of discrimination based on sexual orientation, any
restriction of a right would need to be based on rigorous and weighty reasons. 143
Furthermore, the burden of proof is inverted, which means that it is up to the authority to
social stigma attached to the mother’s relationship, who through her decision had allegedly put her personal
interests before those of the child (“The question, however, is whether the reality of private biases and the possible
injury they might inflict are permissible considerations for removal of an infant child from the custody of its natural
mother. We have little difficulty in concluding that they are not. The Constitution cannot control such prejudices but
neither can it tolerate them. Private biases may be beyond the reach of the law, but the law cannot, directly or
indirectly, give them effect”).
141 In this regard, in a case on discrimination based on religious belief in the context of a judicial decision on
the custody of minors, the European Court of Human Rights rejected the argument of a national court, according to
which the best interest of two minors could be affected by the risk of social stigma due to the mother’s beliefs since
she belonged to the Jehovah Witnesses religious sect. Cf. ECHR, Case of Hoffmann v. Austria, (No. 12875/87),
Judgment of June 23, 1993, paras. 15, 33 to 36.
142 Judgment of the Supreme Court of Justice of Chile, May 31 2004 (File of appendices to the petition,
volume V, page 2672).
143 Cf. ECHR, Karner V. Austria, (No. 40016/98), Judgment of July 24, 2003. Final, October 24, 2003, para.
37 (“very weighty reasons would have to be put forward before the Court could regard a difference in treatment
based exclusively on the ground of sex as compatible with the Convention”), and ECHR, Case of Kozak, supra note
Error! Bookmark not defined., para. 92.
42
prove that its decision does not have a discriminatory purpose or effect. 144 This is especially
pertinent in a case such as this, bearing in mind that the determination of harm must be
supported by technical evidence and reports from experts and researchers in order to reach
conclusions that do not result in discriminatory decisions.
125. Indeed, the burden of proof here falls on the State, which must demonstrate that the
judicial decision under consideration has been based on the existence of clear, specific and
real harm to the children’s development. Thus, the judicial decisions on such matters would
need to define in a specific and concrete manner the connections and causality between the
behavior and the alleged impact on the child’s development. Otherwise, there is a risk of
basing the decision on stereotypes (supra paras. 109 and 111) exclusively associated with
the unfounded preconception that children raised by homosexual couples would necessarily
have difficulties in defining gender or sexual roles.
126. The case law of some countries, as well as many scientific reports, have clearly
referred to this matter. For example, the Supreme Court of Justice of Mexico, in a 2010
judgment on the right of homosexual couples to adopt minors, considered it relevant that
the petitioners did not empirically justify an alleged infringement of the child’s best interest
in cases of adoption by same-sex couples based on documents or scientific analysis. On the
contrary, the Supreme Court took into account existing studies on the impact of sexual
orientation on a child’s development, and considered that it was not possible to uphold the
general hypothesis that living with homosexual parents has a negative effect on children’s
development.145 Furthermore, the Supreme Court indicated that:
Heterosexuality does not guarantee that an adopted child will live in the best situation for his
development: this has nothing to do with heterosexuality-homosexuality. All types of families have
advantages and disadvantages and each family must be analyzed individually, not from a statistical point
of view146.
127. On the other hand, several judgments issued by international courts147 conclude that
in judicial decisions concerning the custody of minors, consideration of the parent’s behavior
144 Cf. ECHR, Case E.B, supra note 99, para. 74 (The Court observes, moreover, that the Government, on
whom the burden of proof lay […], were unable to produce statistical information on the frequency of reliance on
that ground according to the – declared or known – sexual orientation of the persons applying for adoption, which
alone could provide an accurate picture of administrative practice and establish the absence of discrimination when
relying on that ground); Case D.H. et al. V. Czech Republic, (No. 57325/00), Judgment of November 13, 2007,
para. 177 (As to the burden of proof in this sphere, the Court has established that once the applicant has shown a
difference in treatment, it is for the Government to show that it was justified); Case of Orsus et al. v. Croatia, (No.
15766/03), Judgment of March 16, 2010, para. 150 (discrimination potentially contrary to the Convention may
result from a of facto situation. Where an applicant produces prima facie evidence that the effect of a measure or
practice is discriminatory, the burden of proof will shift on to the respondent State, to whom it falls to show that
the difference in treatment is not discriminatory); Case of Andrejeva v. Latvia, (No. 55707/00), Judgment of
February 18, 2009, para. 84 (Lastly, as to the burden of proof in relation to Article 14 of the Convention, the Court
has held that once the applicant has shown a difference in treatment, it is for the Government to show that it was
justified); Case of Serife Yigit v. Turkey, (No. 3976/05), Judgment of November 2, 2010, para. 71 (As to the
burden of proof in this sphere, the Court has established that once the applicant has shown a difference in
treatment, it is for the Government to show that it was justified), and Case of Muñoz Díaz v. Spain, (No.
49151/07), Judgment of March 8, 2010, para. 50. 145 Cf. Supreme Court of Justice of Mexico, Action of Unconstitutionality A.I. 2/2010, August 16, 2010, para.
336.
146 Supreme Court of Justice of Mexico, Action of Unconstitutionality A.I. 2/2010, August 16, 2010, para. 338.
147 Cf. ECHR, Case of M. and C. v. Romania, (No. 29032/04). Judgment of September 27, 2011. Final,
December 27, 2011, para. 147, and Case of Palau-Martinez v. France (No. 64927/01), Judgment of December 16,
2003. Final, March 16, 2004, paras. 42, 43, where the European Court establishes that a judicial decision on the
handing over of the custody of minors to a state institution must not consider in abstracto the possible effects of a
specific condition of the parents, protected against discriminatory treatments, in the well-being of the child.
43
is only admissible when there is specific evidence showing that the parent’s behavior has a
direct, negative impact on the child’s well-being and development. This seeks to ensure that
greater scrutiny is applied when the judicial decision concerns the right to equality of
population groups that are traditionally discriminated against, such as homosexuals (supra
para. 92 and 124).
128. For their part, the experts Rodrigo Uprimny and Allison Jernow cited and provided a
number of scientific reports considered representative and authoritative in the field of social
sciences, to conclude that living with homosexual parents per se does not affect a child’s
emotional and psychological development. These studies agree that: i) the attitudes of
homosexual parents are equivalent to those of heterosexual parents; ii) the psychological
development and emotional well-being of girls or boys raised by gay fathers or lesbian
mothers are comparable to those of girls or boys raised by heterosexual parents; iii) sexual
orientation is irrelevant to the formation of affective bonds between children and their
parents; iv) the sexual orientation of the mother or father does not affect children’s
development in terms of gender and their sense of themselves as male or female, their
gender role, behavior and/ or sexual orientation, and v) the children of homosexual parents
are not more affected by social stigma than other children 148. Similarly, the expert Jernow
mentioned several judgments issued by national courts that used scientific investigations as
documentary evidence to affirm that the child’s best interest is not injured by the parent’s
homosexuality.
149
148 Cf. statement offered by expert Rodrigo Uprimny at the public hearing on August 23, 2011, referring to
the American Psychology Association, Council of Representatives, Policy Statement on Sexual Orientation, Parents,
& Children, adopted by the APA Council of Representatives July 28 / 30, 2004, which states that: “There is no
scientific evidence that a parent’s effectiveness is related to their sexual orientation: homosexual mothers and
fathers are as prone as heterosexual mothers and fathers to provide a healthy and favorable environment for their
children [and] […] science has proven that the adaptation, development, and psychological well-being of children is
not related to the sexual orientation of their parents, and that the children of homosexual parents have the same
probabilities of development as those of heterosexual parents.” Available at:
<nowiki>http://www.apa.org/about/governance/council/policy/parenting.aspx</nowiki> (last visit February 19 2012)
Also see written statement offered by the expert Allison Jernow on September 16, 2011, mentioning the following
studies: R. McNair, D. Dempsey, S. Wise, A. Perlesz, Lesbian Parenting: Issues Strengths and Challenges, in: 63
Family Matters 40 (2002); A. Brewaeys, I. Ponjaert, E.V. Van Hall, S. Golombok, Donor insemination: child
development and family functioning in lesbian mother families, in: Human Reproduction Vol. 12, 1997, Page 1349
and 1350; Fiona Tasker, Susan Golombok, Adults Raised as Children in Lesbian Families, American Journal
Orthopsychiatry Vol. 65, 1995, Page. 203; K. Vanfraussen, I. Ponjaert-Kristofferson, A. Breways, Family
Functioning in Lesbian Families Created by Donor Insemination, in: American Journal of Orthopsychiatry Vol. 73,
2003, Page. 78; Marina Rupp, The living conditions of children in same-sex civil partnerships, Federal Ministry of
Justice of Germany, 2009, page 27; Henry M.W. Bos, Frank van Balen, Dymphna C. van den Boom, Experience of
parenthood, couple relationship, social support, and child-rearing goals in planned lesbian mother families, in:
Journal of Child Psychology and Psychiatry Vol. 45, 2004, page 755; Rafael Portugal Fernández, Alberto Arauxo
Vilar, Aportaciones desde la salud mental a la teoría de la adoption en parejas homosexuales, in: Avances en salud
mental relacional Vol. 3, 2004. This last study indicates that “no significant differences are found between
homosexuals and heterosexuals in terms of the effectiveness with which they exercise their role as parents” and
that “the research carried out to date unanimously indicates that there are no significant differences between
children raised by homosexuals and children raised by heterosexuals in terms of sexual identity, sexual roles,
sexual orientation, sexual relationships with peers and adults, relationships of friendship, popularity”; Stéphane
Nadaud, «Quelques repères pour comprendre la question homoparentale», in: M. Gross, Homoparentalités, état
des lieux, Ed. érès «La vie of l’enfant», Toulouse, 2005, and Fiona Tasker, Susan Golombok, Adults Raised as
Children in Lesbian Families, in: American Journal Orthopsychiatry Vol. 65, 1995, Page. 203. Cf. Written statement
rendered by the expert Allison Jernow on September 16, 2011 (Merits file, volume XI, pages 5079 and 5080).
149 Cf. written statement rendered by the expert Allison Jernow on September 16, 2011, mentioning the cases
of Re K and B and Six Other Applications, Ontario Supreme Court, May 24, 1995, para. 89; Boots v. Sharrow,
Ontario Supreme Court of Justice, 2004 Can LII 5031, January 7, 2004; Bubis v. Jones, Ontario Supreme Court,
2000 Can LII 22571, April 10, 2000, Supreme Court of Justice (Brazil) Public Ministry of the State of Rio Grande do
Sul v. LMGB, April 27, 2010; District Court of Porto Alegre (Brazil), Adoption of VLN, No. 1605872, July 3, 2006
(Merits file, volume XI, page 5082 and 5083).
44
129. The Court notes that the American Psychological Association, referred to by the
expert, has stated that existing studies on this matter are “impressively consistent in their
failure to identify any deficits in the development of children raised in a lesbian or gay
household […] the abilities of gay and lesbian persons as parents and the positive outcome
for their children are not areas where credible scientific researchers disagree”150. Therefore,
the expert concluded that:
Where speculation about potential future harm to a child´s development is soundly refuted by all available
social science research, such speculation cannot possibly establish the evidentiary basis for a custody
determination151.
130. The Court observes that, in the instant case, the Supreme Court of Justice of Chile
did not issue a judgment based on an analysis in abstracto of the alleged impact of the
mother’s sexual orientation on the girls’ development152, but instead cited the alleged
existence of specific evidence. However, in its considerations it limited itself to the
application of a test of speculative damage, merely referring, as regards the alleged
damage, to “the possible confusion of sexual roles” and the “situation of risk for the girls’
development”.153 The Supreme Court of Justice referred to “the deterioration of the social,
family, and educational environment of the girls since the mother began to cohabit with her
homosexual partner,” without specifying the connection between said cohabitation and the
alleged deterioration. It did not present arguments to challenge the possibility that the
alleged deterioration might not have occurred as a result of the relationship with the new
partner, but rather as a consequence of the parents’ earlier separation and its possible
negative effects on the girls. Nor did the Supreme Court of Justice present specific
arguments to support the claim that the family situation with the father was more favorable.
The Supreme Court of Justice’s argument was based on the potential psychological damage
that might be caused to the three girls by their living with a homosexual couple, without
giving sufficiently weighty reasons that would serve to refute that the parents’ sexual
orientation does not have a negative effect on the child’s psychological and emotional
wellbeing, development, sexual orientation and social relationships.
131. The Inter-American Court concludes that the Supreme Court of Justice did not
comply with the requirement to apply a strict scrutiny test and substantiate the specific
harm allegedly suffered by the three girls as a result of their mother cohabiting with a
same-sex partner. Moreover, the Court considers that, in this specific case, the fact of the
girls living with their mother and her partner did not deprive them of a father, since the
150 Cf. written statement offered by the expert Allison Jernow on September 16, 2011 which cites: Amicus
Curiae brief presented by the American Psychological Association, Arkansas Psychological Association, National
Association of Social Workers and National Association of Social Workers, Arkansas Chapter, in Department of
Human Services v. Matthew Howard, Supreme Court of Arkansas (December 2005) at 10-11 (“The APA has
described the studies as 'impressively consistent in their failure to identity any deficits in the development of
children raised in a lesbian or gay household […] the abilities of gay and lesbian persons as parents and the
positive outcome for their children are not areas where credible scientific researchers disagree'”). Cf. written
statement rendered by the expert Allison Jernow on September 16, 2011 (Merits file, volume XI, page 5081). 151 Cf. written statement rendered by the expert Allison Jernow on September 16, 2011 “Where speculation
about potential future harm to a child’s development is soundly refuted by all available social science research,
such speculation cannot possibly establish the evidentiary basis for a custody determination.” (Merits file, volume
XI, page 5083).
152 The Supreme Court referred to the testimonies given by the house maids regarding the girls’ alleged
confusion over roles. Cf. Judgment of the Supreme Court of Justice of Chile of May 31, 2004 considering paragraph
15 (File of appendices to the petition, volume V, page 2672).
153 Judgment of the Supreme Court of Justice of Chile of May 31, 2004 (File of appendices to the petition,
volume V, page 2672).
45
purpose of the custody hearing did not imply that the father would have lost contact with
them.
4.3. Alleged privilege of interests
132. In its judgment, the Supreme Court indicated that “it cannot be ignored that the
mother of the minors, in making the decision to openly express her homosexuality, as may
be done freely by anyone in the context of very personal gender rights, without deserving
any juridical disapproval or reproach for this, put her own interests before those of her
daughters, especially when she began to live with her homosexual partner in the same
home where she undertook the upbringing and care of her daughters separately from their
father.” 154 Similarly, the Juvenile Court of Villarrica declared that “the respondent has given
preference to her own well-being and personal interest over carrying out her role as a
mother, under conditions that could affect the subsequent development of the minors” 155.
133. The Inter-American Court considers it necessary to emphasize that the scope of the
right to non-discrimination due to sexual orientation is not limited to the fact of being a
homosexual per se, but includes its expression and the ensuing consequences in a person’s
life project. In this regard, in the Case of Laskey, Jaggard, and Brown v. United Kingdom,
the European Court of Human Rights stated that both sexual orientation and its exercise are
a relevant aspect of private life156.
134. In this regard, the expert Wintemute stated that:
“as the case law of the European Court makes clear, sexual orientation also includes conduct. This means
that protection against discrimination based on sexual orientation is not only about less favourable
treatment for being lesbian or gay. It also covers discrimination because an individual acts on their sexual
orientation, by choosing to engage in consensual sexual activity in private, or to enter into a long-term
couple relationship with a partner of the same sex.”157
135. The scope of protection of the right to a private life has been interpreted in broad
terms by the international human rights courts, when stating that it goes far beyond the
right to privacy. According to the European Court of Human Rights, the right to a private life
encompasses physical and social identity, an individual’s personal development and
personal autonomy as well as their right to establish and develop relationships with other
people and their social environment, including the right to establish and maintain
154 Judgment of the Supreme Court of Justice of Chile, May 31 2004 (File of appendices to the petition,
volume V, page 2672).
155 Decision on provisional custody issued by the Juvenile Court of Villarrica, May 2 2003 (File of appendices
to the petition, volume V, page 2567).
156 Cf. ECHR, Case of Laskey, Jaggard, and Brown v. United Kingdom, (No. 21627/93; 21826/93; 21974/93),
Judgment of February 19, 1997, para. 36 (“There can be no doubt that sexual orientation and activity concern an
intimate aspect of private life”). See also Case of Dudgeon v. United Kingdom, (No. 7525/76), Judgment of
October 22, 1981, para. 52; Case of A.D.T. v. United Kingdom, (No. 35765/97), Judgment of July 31, 2000. Final,
October 31, 2000, para. 23 (“the Court recalls that the mere existence of legislation prohibiting male homosexual
conduct in private may continuously and directly affect a person's private life”).
157 Cf. expert testimony rendered by expert Robert Wintemute, September 16, 2011 (Merits file, volume XI,
pages 5360). He also stated that the Supreme Court of Canada in the Case of Egan v. Canada established that
“sexual orientation is more than simply a ´status` that an individual possesses: it is something that is
demonstrated in an individual’s conduct by the choice of a partner. Just as the [Canadian] Charter [of Rights and
Freedoms] protects religious beliefs and religious practice as aspects of religious freedom, so too should it be
recognized that sexual orientation encompasses aspects of ´status` and ´conduct` and that both should receive
protection”. Egan v. Canada, [1995] 2 SCR, 513, 518 (Merits file, volume XI, page 5360).
46
relationships with people of the same sex 158. Moreover, the right to maintain personal
relationships with other individuals, in the context of the right to a private life, extends to
the public and professional spheres159.
136. In this regard, a person’s sexual orientation is also linked to the notion of freedom
and a person’s right to self-determination and to freely choose the options and
circumstances that give meaning to his or her existence, in accordance with his or her own
choices and convictions. 160 Therefore, “[t]he emotional life with the spouse or permanent
partner, which obviously includes sexual relationships, is one of the main aspects of that
realm or circle of intimacy”161.
137. For its part, the Supreme Court of Justice of Mexico has stated that:
from human dignity […] arises, among others, the free development of the personality, that is, every
individual’s right to choose, freely and in an autonomous manner, how to live their life, which includes,
among other expressions, […] their free sexual choice. […] [a] person’s sexual orientation, as part of their
158 Cf. ECHR, Case of Pretty V. United Kingdom (No. 2346/02), Judgment of April 29, 2002. Final, July 29,
2002, para. 61 (“the concept of [‘] private life [’] is a broad term not susceptible to exhaustive definition. It covers
the physical and psychological integrity of a person […]. It can sometimes embrace aspects of an individual's
physical and social identity […]. Elements such as, for example, gender identification, name and sexual orientation
and sexual life fall within the personal sphere protected by Article 8 […]. Article 8 also protects a right to personal
development, and the right to establish and develop relationships with other human beings and the outside world
[…]. Although no previous case has established as such any right to self-determination as being contained in Article
8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying
the interpretation of its guarantees”); Case of Schalk and Kopf v. Austria, (No. 30141/04), Judgment of June 24,
2010, November 22, 2010, para. 90 (“It is undisputed […] that the relationship of a same-sex couple like the
applicants' falls within the notion of [‘] private life [’] within the meaning of Article 8”); Case Dudgeon, supra note
Error! Bookmark not defined., para. 41 (“the maintenance in force of the impugned legislation constitutes a
continuing interference with the applicant’s right to respect for his private life (which includes his sexual life) within
the meaning of Article 8 par. 1”); Case Burghartz v. Switzerland, (No. 16213/90), Judgment of February 22, 1994,
para. 24, and Case Laskey, Jaggard and Brown, supra note Error! Bookmark not defined., para. 36.
159 Cf. ECHR, Case Peck V. United Kingdom, (No. 44647/98), Judgment of January 28, 2003. Final, April 28,
2003, para. 57 (“Private life is a broad term not susceptible to exhaustive definition. The Court has already held
that elements such as gender identification, name, sexual orientation and sexual life are important elements of the
personal sphere protected by Article 8. That Article also protects a right to identity and personal development, and
the right to establish and develop relationships with other human beings and the outside world and it may include
activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others,
even in a public context, which may fall within the scope of [‘]private life[’]”), citing ECHR, Case P.G. and J.H. v.
United Kingdom (No. 44787/98), Judgment of September 25, 2001. Final, December 25, 2001, para. 56. Cf. ECHR,
Case Niemietz v. Germany, (No. 13710/88), Judgment of December 16, 1992, para. 29 (“The Court does not
consider it possible or necessary to attempt an exhaustive definition of the notion of [‘] private life [’]. However, it
would be too restrictive to limit the notion to an [‘] inner circle [’] in which the individual may live his own personal
life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect
for private life must also comprise to a certain degree the right to establish and develop relationships with other
human beings. There appears, furthermore, to be no reason of principle why this understanding of the notion of [‘]
private life [’] should be taken to exclude activities of a professional or business nature since it is, after all, in the
course of their working lives that the majority of people have a significant, if not the greatest, opportunity of
developing relationships with the outside world”).
160 Mutatis mutandi, Case of Chaparro Álvarez and Lapo Íñiguez. v. Ecuador. Preliminary Objections, Merits,
Reparations and Costs. Judgment of November 21, 2007. Series C No. 170, para. 52.
161 Constitutional Court of Colombia, Judgment T-499, 2003. The Constitutional Court has defined the right to
the free development of the personality, enshrined in Article 16 of the Political Constitution of Colombia, as the
right of persons to “choose their life plan and develop their personality according to their interests, wishes and
convictions, provided that it does not affect the rights of others, or violate the constitutional order” (Constitutional
Court, Judgment C-309 of 1997), and “a person’s capacity to independently make the life choices that will
determine the course of his existence” (Constitutional Court, Judgment SU-642 of 1998).
47
personal identity, [is] a relevant element in any life project they may have and that, as any other person,
includes the desire to share their life with another person of the same or different sex162.
138. In the instant case, the Court notes that both the Supreme Court of Justice and the
Juvenile Court of Villarica based their decisions to award custody to the father on the
assumption that Ms. Atala could openly declare herself a lesbian. However, they indicated
that by exercising her homosexuality when she decided to live with a same-sex partner, she
put her own interests before those of her daughters (supra paras. 41 and 56).
139. In this regard, the Court considers that the prohibition of discrimination due to
sexual orientation should include, as protected rights, the conduct associated with the
expression of homosexuality. Furthermore, if sexual orientation is an essential component of
a person’s identity163, it was not reasonable to require Ms. Atala to put her life and family
project on hold. Under no circumstance can it be considered “legally reprehensible” that Ms.
Atala made the decision to restart her life. Furthermore, it was not proven that the three
girls suffered any harm.
140. Therefore, the Court considers that to require the mother to limit her lifestyle options
implies using a “traditional” concept of women’s social role as mothers, according to which it
is socially expected that women bear the main responsibility for their children’s upbringing
and that in pursuit of this she should have given precedence to raising her children,
renouncing an essential aspect of her identity. Therefore, the Court considers that using the
argument of Ms. Atala’s alleged preference of her personal interests, does not fulfill the
purpose of protecting the best interest of the three girls.
4.4. Right to a “normal and traditional” family
141. In this regard, the Supreme Court of Justice stated that “the preferred right of the
minors to live and grow within the bosom of a family that is structured normally and is
appreciated in the social environment, according to the proper traditional model” was
disregarded164. For its part, the Juvenile Court of Villarica, in its provisional custody
decision, indicated that “the petitioner offers more favorable arguments on behalf of the
best interest of the girls, which in the context of a heterosexual and traditional society take
on great importance” 165.
142. The Court confirms that the American Convention does not define a limited concept
of family, nor does it only protect a “traditional” model of the family. In this regard, the
Court reiterates that the concept of family life is not limited only to marriage and must
162 Supreme Court of Justice of Mexico, Action of Unconstitutionality A.I. 2/2010, August 16, 2010, paras. 263
and 264.
163 Cf. ECHR, Case of Clift, supra note Error! Bookmark not defined., para. 57 (“the Court has considered
to constitute ‘other status’ characteristics which, like some of the specific examples listed in the article, can be said
to be personal in the sense that they are innate or inherent. Thus in Salgueiro da Silva Mouta, […] it found that
sexual orientation was [‘] undoubtedly covered [’] by Article 14”).
164 Judgment of the Supreme Court of Justice of Chile, May 31 2004 (File of appendices to the petition,
volume V, page 2673).
165 Decision in the provisional custody application by the Juvenile Court of Villarrica, of May 2 2003 (File of
appendices to the petition, volume V, page 2567).
48
encompass other de facto family ties in which the parties live together outside of
marriage166.
143. International case law is consistent on this point. In the case of Salgueiro da Silva
Mouta v. Portugal, the European Court considered that the decision of a national court to
remove an underage child from the custody of a homosexual parent, with the argument that
the child should live in a traditional Portuguese family, lacked a reasonable relationship of
proportionality between the measure taken (withdrawal of the custody) and the purpose
sought (protection of the best interest of the minor) 167.
144. Similarly, in the Case of Karner v. Austria, the European Court of Human Rights
stated that:
“The aim of protecting the family in the traditional sense is rather abstract and a broad variety of concrete
measures may be used to implement it. […] as is the position where there is a difference in treatment
based on sex or sexual orientation, the principle of proportionality does not merely require that the
measure chosen is in principle suited for realizing the aim sought. It must also be shown that it was
necessary, in order to achieve that aim, to exclude certain categories of people” 168.
145. In the instant case, this Court finds that the language used by the Supreme Court of
Chile regarding the girls’ alleged need to grow up in a “normally structured family that is
appreciated within its social environment,” and not in an “exceptional family”, reflects a
limited, stereotyped perception of the concept of family, which has no basis in the
Convention, since there is no specific model of family (the “traditional family”)169.
4.5. Conclusion
146. Bearing in mind all the foregoing considerations, this Court concludes that although
the Judgment of the Supreme Court and the provisional custody ruling sought to protect the
best interests of the girls M., V., and R., it was not demonstrated that the grounds stated in
the decisions were appropriate to achieve said purpose, since the Supreme Court of Justice
and the Juvenile Court of Villarrica did not prove in this specific case that Ms. Atala’s
cohabitation with her partner had a negative effect on the girls’ best interest (supra paras.
121, 131 and 139). On the contrary they used abstract, stereotyped, and/or discriminating
arguments to justify their decisions (supra paras. 118, 119, 125, 130, 140 and 145), for
which reason said decisions constitute discriminatory treatment against Ms. Atala.
Therefore, the Court concludes that the State violated the right to equality enshrined in
166 Advisory Opinion OC-17/02, supra note 122, paras. 69 and 70. Also see: ECHR, Case Keegan v. Ireland,
(No. 16969/90), Judgment of May 26, 1994, para. 44, and Case Kroon et al. v. Netherlands, (No. 18535/91),
Judgment of October 27, 1994, para. 30.
167 Cf. ECHR, Case Salgueiro da Silva Mouta, supra note Error! Bookmark not defined., paras. 34 to 36.
168 ECHR, Case Karner, supra note 143, para. 41 (“The aim of protecting the family in the traditional sense is
rather abstract and a broad variety of concrete measures may be used to implement it. […] as is the position
where there is a difference in treatment based on sex or sexual orientation, the principle of proportionality does not
merely require that the measure chosen is in principle suited for realizing the aim sought. It must also be shown
that it was necessary in order to achieve that aim to exclude certain categories of people”).
169 The Supreme Court of Justice of Mexico has stated that legal recognition of homoparental families, which
exist either through reproduction or adoption, does not disregard the child’s best interest. On the contrary, from
such recognition come a series of rights in favor of the child and duties for those who are his parents, since it is a
reality that such families exist and, therefore, must be protected by law: they are each as respectable as others Cf.
Supreme Court of Justice of Mexico, Action of Unconstitutionality A.I. 2/2010, August 16, 2010, para. 333.
49
Article 24, in conjunction with Article 1(1) of the American Convention, to the detriment of
Karen Atala Riffo.
5. Discriminatory treatment against the girls M., V. and R.
Arguments of the parties
147. In relation to Article 19 of the American Convention170, the Commission argued that
“the Supreme Court violated the girls’ best interest […] in the absence of determinations
based on evidence and specific facts.”
148. The representatives argued that the judgment of the Supreme Court of Justice had
injured the child’s best interest “when it ignored the right of the girls M., V., and R. not to
be separated from their family.” They added that children could not be discriminated against
based on their parents’ status.
149. The State indicated that the alleged violations in relation to the three girls “were
refuted from the moment it was demonstrated that said judgment was not the result of
discrimination based on sexual orientation, but rather of the analysis of specific facts proven
in the custody trial.”
Considerations of the Court
150. The Court has already concluded that both the Judgment of the Supreme Court and
the decision of the Juvenile Court of Villarrica, regarding provisional custody, constituted
discriminatory treatment against Ms. Atala (supra para. 146). Accordingly, it will proceed to
analyze whether said treatment, in turn, resulted in discrimination against the girls M., V.,
and R. In this regard, the Court considers that the prohibition of discrimination, in cases
related to minors, must be interpreted in light of Article 2 of the Convention on the Rights of
the Child, which states that:
1. States Parties shall respect and ensure the rights set forth in the present Convention to each child
within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's
or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social
origin, property, disability, birth or other status.
2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms
of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the
child's parents, legal guardians, or family members.
151. In this regard, the Court points out that children cannot be discriminated against
based on their own status and this prohibition extends also to the conditions of their parents
or family members, for example in this case the mother’s sexual orientation. The Committee
on the Rights of the Child has pointed out in its General Comment No. 7 that children may
suffer the consequences of discrimination against their parents, for example if they are born
out of wedlock or in other circumstances that deviate from traditional values 171.
152. On the other hand, regarding the relationship between the child’s best interest and
the prohibition of discrimination, the expert Cillero Bruñol stated that:
170 Article 19 of the American Convention establishes that “Every minor child has the right to the measures of
protection required by his condition as a minor on the part of his family, society and the State.”
171 Cf. United Nations, Committee on the Rights of the Child, General Comment No. 7. Implementing Child
Rights in Early Childhood, CRC/C/GC/7, September 30, 2005, para. 12.
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