Hivos Latin America

Latin America

The Court said ‘yes’!

Photo: Esteban Umaña

Read this Blog post in Spanish

  • Same-sex marriage, gender identity, and sexual orientation are rights that are recognised for everyone in Costa Rica, and very soon, in other countries.
  • The Inter-American Court of Human Rights (IACHR) has analysed, affirmed, and justified this statement legally.

Two of the most controversial issues in Latin America have resurfaced recently due to the decision by the Inter-American Court of Human Rights (IACHR) that recognises same-sex marriage and the right for Trans people to choose their gender identity as inherent rights. The Court has defined the LGBTI population’s legal standing, which is like a light at the end of the tunnel after years of being denied rights that were only granted to the cisgender heterosexual population. This is a decision that will have a great impact on LGBTI rights issues in the coming years.

The Court’s decision

On January 9, 2018, the Inter-American Court of Human Rights issued  their advisory opinion on a consultation requested by the State of Costa Rica regarding the American Convention on Human Rights, signed by 22 countries. Costa Rica wanted to know if same-sex marriage and gender identity are rights guaranteed under the Convention. The Court answered by stating that they recognise marriage and patrimonial rights derived from a bond between two people of the same sex, and they also recognise the name change for people according to their gender identity.

Is the Court’s decision binding?

For Costa Rica, YES. For the other 19 countries that accept the jurisdiction of the Inter-American Court of Human Rights, it will be soon. Each signatory country must now promote the application of this decision and create the necessary mechanisms and changes for its effective implementation.

Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname and Uruguay recognise this decision. Of these countries, Argentina, Brazil, Colombia, and Uruguay already  allow same-sex marriage, while it is also legal in many Mexican states. Only Dominican Republic, Grenada, and Jamaica do not accept the Court’s jurisdiction.

The decision serves as a warning to the States about the need to amend or modify their legislation and internal regulations to ensure that human rights of LGBTI populations are respected. If the States decide to ignore this decision, they risk being sued internationally and could face lengthy court cases or be condemned in other binding rulings.

How has the media reported this news?

In Central America, media outlets such as El Faro in El Salvador, La Prensa Libre in Guatemala, and La Tribuna in Honduras reported the news initially as progress, but then described the decision without any further analysis, warning that an internal debate would occur if sexual identity and orientation groups try to have the Court’s decision enforced in these countries. A few outlets have even stressed that the resolution is not applicable to their countries, which is not necessarily true.

The important thing is that the Court’s decision will continue to be relevant in the following months and years. But media outlets will have to do more to tell the real life stories of LGBTI citizens in their countries because implementing the Court’s opinion can only succeed with support from civil society, international cooperation organisations  and allies within the States. The Court’s decision on its own is not enough.

What is the Court’s Advisory Opinion?

(Read the opinion in Spanish.)

  1. Sexual orientation and gender identity are rights protected by the Convention, and any norm, act, or discriminatory practice against these rights are prohibited.
  2. Gender identity is “the internal and individual experience of gender as each person feels it, which, may or may not correspond to the sex assigned at birth.”
  3. The right to a name change, corrective imaging, and the rectification in regards to the mention of sex or gender on registrations and identification documents is recognised in order for it to be in accordance to the self-perceived gender identity. There will not be a need for medical or psychological certifications, surgical operations, and/or previous hormonal treatments to be presented. The process must be swift.
  4. Same-sex marriage: the American Convention on Human Rights recognises marriage between same-sex couples with the same rights as those that exist between heterosexual couples, and with the same effects that derive from this process, such as the payment of taxes, inheritance, property rights, intestate succession, medical decisions, and others. It also recognises the right to adoption.

 A happier and more equal world

As we enter a new phase in the progress of human rights in our region, an organised LGBTI community is essential for creating momentum behind and channels for public demands to implement the IAHCR’s decision, and if necessary, can present cases before the Court. In this regard, Hivos has been and will continue to be an important ally in making the dream of a happier and more equal world come true.