Inter-American Court of Human Rights OC-24/17 of 24 November 2017 – Gender identity, equality and non-discrimination of same-sex couples
The Inter-American Court of Human Rights (Court), in its advisory function, in response to a consultation made by Costa Rica, recognised the obligation of all member States to ensure same-sex marriages are protected by law and treated equally to heterosexual marriages. The Court also called for member States to put in place an administrative procedure to allow a person to easily change their registered personal information to correspond with their own self-perceived gender identity.
On 18 May 2016, Costa Rica – pursuant to articles 64.1 and 64.2 of the American Convention on Human Rights (Convention) – applied for guidance on the interpretation and application of articles 1, 11.2, 18 and 24 of the Convention. The Court was asked to consider five questions:
- Considering that gender identity is protected by articles 1 and 24 of the Convention, in addition to the operation of articles 11.2 and 18 of the Convention, should States recognise and facilitate the name change of persons in accordance with their self-affirmed gender identity?
- If so, is it against the Convention for there not to be an administrative process in place to accommodate the change of name?
- Should article 54 of the Civil Code of Costa Rica (Law No 68 of 28 September 1887) (Costa Rican Code) be interpreted, in accordance with the Convention, to be optional to persons wishing to change their name in accordance with their self-affirmed gender identity, and should there be a free, accessible and efficient administrative process for those persons?
- Considering that non-discrimination based on sexual orientation is a protected category under articles 1, 11.2 and 24 of the Convention, are States obliged to recognise all legal rights deriving from a same-sex union?
- If so, should there be a legal institution to regulate same-sex unions in order for States to recognise all legal rights deriving from their relationship?
Costa Rica noted that members of the Organisation of American States have treated this issue in starkly different ways. While some States have recognised and accepted LGBTI rights, others continue to prohibit behaviour contrary to heteronormativity.
The Court received submissions from Argentina, Bolivia, Brazil, Colombia, Guatemala, Honduras, Mexico, Panama and Uruguay, along with submissions from the Inter-American Commission on Human Rights, the United Nations Human Rights Committee, universities, unions and individuals. In total, the Court received 101 written submissions and 40 oral submissions.
The Court advised that:
- States are obliged to recognise, regulate and establish adequate procedures to allow for the change of name and, in general, public registries and identification documents to reflect the gender identity in accordance with the person’s identity and self-affirmation, which is a right protected by articles 1.1, 3, 7.1, 11.2, 18 and 24 of the Convention.
- States must guarantee that persons interested in the rectification of the gender, sex, name and picture in the relevant registries and/or identification documents, in accordance with the persons’ perceived gender, have access to a procedure which:
- is focused on recognising a person’s gender identity based on self-affirmation;
- is based solely in the informed consent of the applicant without requiring medical and/or psychological certificates or any other requirements which may be unreasonable;
- is confidential;
- is efficient and, to the extent it is possible, free; and
- does not require proof of surgical or hormonal procedures.
- the Costa Rican Code’s procedure is inadequate, since it is not administrative, it is costly, requires good character references and police clearances, third parties can oppose it (and the Public Minister can make submissions) and the request is advertised to the public.
- the right to protection of one’s private and family life (article 11.2 of the Convention) and right to protection of the family (article 17 of the Convention), extends to same-sex marriages. States must recognise and guarantee the protection of these rights.
- in accordance with articles 1.1, 2, 11.2, 17 and 24 of the Convention, States must guarantee access to all existing legal institutions, including the right to marriage, to ensure the equal protection of all rights of same-sex families.
LGBTI human rights: the need for reform
The Court began its advisory opinion by outlining the historical evidence of structural discrimination, stigma, violence and human right violations against LGBTI persons. Quoting findings from the United Nations Human Rights Committee, the Court noted that in all regions of the world, “there are people who suffer violence and discrimination due to their sexual orientation or gender identity” and that “the mere perception of homosexuality or transgender identity places those persons in risk”. Furthermore, the violence LGBTI persons are subject to was found to be “especially brutal” and driven by “a desire to punish those who defy gender norms”.
The right to be able to amend identification documents
According to the Court’s advisory opinion, the right for a person’s sexual orientation and gender identity to be recorded in the relevant registries and identification documents in accordance with their own identity is a right protected under the Convention by the right to the free development of personality (articles 7 and 11.2), right to privacy (article 11.2), the right to freedom (article 7.1), the right to be recognised as a legal person (article 3) and the right to a name (article 18).
The Court found that to not correctly reflect the sexual orientation and gender identity of a person in accordance with their self-affirmed identity implies a restriction of their personal autonomy – the right to live how they want – which can result in rejection and discrimination from others – the right to live without humiliation – and diminish access to working opportunities and necessities for a worthy existence.
Procedures for amending registries and identification documents
The Court called for States to embrace a simplified and nationally standardised administrative process to ensure that those persons seeking to change their information to correspond with their self-affirmed gender identity are not required to produce an unnecessary amount of documentation (such as medical/psychological/psychiatric certificates). The only requirement should be the informed consent of the applicant.
The Court also noted the importance of recognising that gender identity is not a concept exclusively associated with physical transformations. Therefore, there should not be a requirement for an applicant to have gone through any cosmetic or hormonal procedure, as trans persons develop their identity independently of a medical treatment and this is protected under the Convention by the right to personal integrity (articles 5.1 and 5.2), the right to a private life (article 11.2) and the right to choose what gives their own lives meaning (article 7).
Legal rights for same sex couples
The Court noted that the definition of ‘marriage’ has evolved along with society. Since the definition of ‘marriage’ and ‘family’ have not been defined in the Convention or any other relevant international treaty, it is a general rule for the Court to assume that States understood that the word would change over time and that its meaning would evolve.
According to the Court’s interpretation of the Convention, States must adopt the necessary legislative, administrative or other available measures in order to guarantee same-sex couples the access, in equal terms and without discriminating based on sexual orientation or gender identity, to social security and other means of social protection, including employment benefits, maternal/paternal leave, unemployment benefits, insurance, health insurance, family benefits and pension.
Notably, the Court found that the ability to procreate is not a characteristic of a conjugal relationship and that, in most cases, the opposition to same-sex marriage is based on religious or philosophical beliefs. Although those beliefs play an important role in the relevant person’s life and dignity, the Court stressed that they cannot be used as a parameter of conventionality. The Court called for a mutually peaceful coexistence between secular and religious beliefs, as the role of the States and the Court is to recognise the ambit of each one, and cannot force one onto the other.
The importance of this decision lies not only in the strong stance taken by the Court in favour of recognising and protecting LGBTI human rights, but also because of the significance of the member States which are currently subject to the Court’s jurisdiction (35 countries including the United States, Canada, Mexico, Brazil, Argentina and Colombia).
Although doubts will be raised on the enforceability and weight of the Court’s advisory opinion, it cannot be denied that this signifies a significant milestone for LGBTI human rights. As noted by the Court, merely because an issue is controversial does not mean that LGBTI persons should be denied their human rights or that States should allow the “historical and structural discrimination to continue until a consensus can be reached by their people.”
The debate regarding LGBTI human rights and same-sex marriage is currently a live and controversial issue for many countries. The Court’s findings are not radical or unrealistic. Argentina has had an accessible administrative procedure in place for changing information in accordance with a person’s perceived gender identity since 2002. Same-sex marriage has been legal in Colombia since 2016, Mexico, Chile and Ecuador since 2015, Uruguay since 2013, Brazil since 2011 and Argentina since 2010.
The Court’s advisory opinion also came at an important time for Costa Rica, as a point of focus and debate in its recent presidential election was the candidates’ position on the Court’s findings. On 2 April 2018, Costa Rica ultimately elected Carlos Alvarado Quesada, the youngest president in Costa Rican history, who had openly supported the Court’s findings. Quesada’s victory over Fabricio Alvarado Muñoz, an evangelist who had expressed that Costa Rica would withdraw from the Court’s jurisdiction if elected, may be another sign that other countries in Central and South America are ready and willing to move forward towards the recognition and protection of LGBTI human rights.
The full text of the decision (in Spanish) can be found here.
Mauricio Da Rocha is a Solicitor at King & Wood Mallesons.