Advisory Opinion on Gender Identity, Equality, and Non-Discrimination of Same-Sex Couples, (2017), OC-24 / 17

Nature of the Case

The Inter-American Court affirmed that the American Convention on Human Rights (ACHR) obliges States to guarantee the right to alteration of public records—including name, image, and sex/gender marker—to reflect an individual’s self-perceived gender identity. Such rectifications of public records must be complete; confidential; cheap; and based solely on the free and informed consent of the requestor, not requiring medical interventions, such as surgical or hormonal treatments. The Court also held that States must recognize same-sex partnerships as they do heterosexual partnerships, without discrimination of any kind and with the same rights attached.

Enforcement of the Decision and Outcomes

Costa Rica’s Vice-President Ana Helena Chacón welcomed the Court’s ruling, saying it would be adopted “in its totality.” Beyond Costa Rica, the opinion has the potential to impact numerous States in the region whose laws are yet to conform to its requirements. As of this writing, countries like Chile, which only recognize same-sex civil unions and not marriage, are not in compliance with the Court’s ruling because they have not made available, without discrimination, the full range of rights and benefits to same-sex couples as are available to heterosexual ones. Several ACHR-ratifying states, such as Bolivia, Cuba, the Dominican Republic, Honduras, Paraguay and Peru, do not even recognize civil unions and would need to change their laws to implement the decision.

Significance of the Case

This opinion represents a landmark advancement of LGBT rights. Victor Madrigal-Borloz, the UN Independent Expert on Protection against Violence and Discrimination Based on Sexual Orientation and Gender Identity, said that “the protections described by the Court in this Advisory Opinion will have an extremely positive impact in addressing stigma, promoting socio-cultural inclusion and furthering legal recognition of gender identity.”In May 2018, the European Committee of Social Rights in Transgender Europe and IGLA-Europe v. the Czech Republic cited the Court’s advisory opinion, among others, in holding that requiring “a transgender person … to undergo medical sterilization” in order to “have their gender identity recognized [legally,]… vitiates free consent, and therefore … violates physical integrity, operates contrary to the notion of human dignity and consequently cannot be considered as compatible with the right to protection of health as guaranteed by Article 11§1 of the [European Social] Charter.”

For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.

Last updated on 26 November 2018.