IACHR Releases Advisory Opinion on Gender Identity and Same-Sex Non-Discrimination

On November 24, 2017, the Inter-American Court of Human Rights adopted an Advisory Opinion on gender identity, equality, and non-discrimination for same-sex couples. In its Opinion, this regional human rights tribunal not only reaffirmed that gender identity and non-discrimination based on sexual orientation are protected by the American Convention on Human Rights, but expanded on key concepts and requirements for the States of the region to harmonize their domestic jurisdiction with the inter-American standards.

The request for an Advisory Opinion from the Court had been presented by the State of Costa Rica. The Government specifically asked the Court if the protections for gender identity and same-sex couples contemplate that a State must recognize and facilitate the change of name of a person according to his/her gender identity, and if it recognizes all the economic rights deriving from a union between persons of the same sex.

The Opinion makes clear that sexual orientation, gender identity, and gender expression are categories protected under the American Convention on Human Rights. Any norm, act or discriminatory practice based on sexual orientation, gender identity or gender expression of the person is prohibited by the Convention. Consequently, no rule, decision or practice of domestic law, either by state authorities or by individuals, can diminish or restrict the rights of a person based on their sexual orientation, gender identity and / or gender expression.

And with respect to the right to an individual’s identity, the Court went further by stating the States’ failure to recognize someone’s chosen gender or sexual identity sends a message deviating from “traditional” standards, meaning individuals will not have their rights respected equally before the law, leading to indirect self-censorship. The right of individuals to define their own gender and sexual identity autonomously is effective only if such definitions agree with their names and the gender or sex recorded in the State’s registries as well as in their identity documents. States have to establish a mechanism to change people’s chosen identity and such mechanism must be based on the individual’s free consent. The mechanism should be simple, expeditious and cost-free.

The other groundbreaking aspect of the Opinion are the findings about the rights of same-sex couples. The Court clearly states same-sex couples are protected under the American Convention’s right to family because “a restrictive interpretation of the concept of ‘family’ that excludes from Inter-American protection the affective bond between same-sex couples, would frustrate the object and purpose of the Convention.”

In line with this, the Court also recognizes an expansion of rights, benefits and responsibilities for same-sex couples, holding that the protection against non-discrimination transcends issues related to economic rights, including civil,political, and social rights.. These aspects include child custody, health insurance, and authority to make medical decisions. The Court also emphasized the protection of same-sex couples extends to those rights and obligations established by the national laws of each State arising from the family ties of heterosexual couples.

This Opinion sets the ground for a better protection of the rights of LGBTI people across the region and marks a clear roadmap for legal and policy reforms respectful of gender identity and values equally the bonds between people of the same sex in The Americas. It also is a good indicator of how the Court will approach cases related to LGBTI rights and victims in the future.

Together with Red Lésbica Cattrachas, Robert F. Kennedy Human Rights is litigating before the the Inter-American Commission for Human Rights the case of Vicky Hernandez, a young transgender woman killed during the 2009 coup d’état in Honduras. As with most cases of violence against LGBTI people, the Government of Honduras failed to prevent, investigate, and prosecute the transfemicide of Vicky Hernández. We argue that Vicky’s right to freedom of expression was violated because she could not safely express her gender identity and was victim of a hate crime for expressing it. The explicit recognition by the Court in its Advisory Opinion of gender identity as a right protected under the American Convention is a very important step to protect people that just like Vicky, suffer from discrimination and violence.