Advisory Opinion on Gender Identity, Equality, and Non-Discrimination of Same-Sex Couples, (2017), OC-24 / 17
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.
Costa Rica requested the advisory opinion, seeking clarity on ACHR obligations relating to gender identity and same-sex partnerships and their application to its domestic legal order.
On 24 November 2017, the Court issued the advisory opinion wherein it acknowledged that sexual orientation, gender identity and gender expression are categories protected by the Convention’s equality and non-discrimination guarantees. According to the Court, Article 1(1) of the ACHR prohibits denying or restricting rights “recognized to the individual” on the grounds of sexual orientation, gender identity or gender expression. Therefore any state measure that results in differential treatment to one of those categories must pass a three-part test: 1) the ends must be imperative; 2) the means must be adequate, truly enabling of the ends, and necessary (that is, not replaceable by less harmful means); and 3) the measure must be strictly proportional, meaning its benefits must clearly outweigh the restrictions imposed on human rights principles. The Court emphasized that controversy or a lack of consensus surrounding LGBTQ issues, cannot be used as justifications for impinging on human rights.
The Court recognized the right to holistic rectification of public records to accord with one’s self-perceived gender identity under Articles 18 (right to a name), 3 (right to recognition of juridical personality), 11(2) (right to privacy), and 7 coupled with 11(2) (right to free development of the personality) of the Convention. In deriving its conclusion, the Court observed that:
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... [S]ex, together with the socially constructed identities, attributes and roles that are ascribed to the biological differences regarding the sex assigned at birth, far from constituting objective and unchangeable characteristics of the civil status that individualizes a person – for these being a physical or biological fact – are merely characteristics that depend on the subjective appreciation of the person concerned, and are based on the construction of a self-perceived gender identity dependent on the free development of the personality, sexual self-determination, and the right to privacy. Consequently, those who decide to assume this self-perceived gender identity, are the holders of legally protected interests which cannot be subject to any restriction based merely on the fact that society as a whole does not share specific singular lifestyles, due to fears, stereotypes, and social and moral prejudices which have no reasonable basis.
States are thus obligated to recognize, regulate, and establish the appropriate corresponding public record rectification procedures pursuant to the State’s obligations to ensure rights with equality and non-discrimination (Articles 1(1) and 24 of the American Convention).In particular, the Court emphasized that such procedures must: a) be holistically adapted to reflect the requestor’s self-identified gender identity; b) be based solely on the free and informed consent of the requestor, without unreasonable or pathologizing requirements, such as medical or psychological certifications or police reports; c) be confidential; d) be fast and cheap; and e) not require evidence of surgical or hormonal treatments. The Court noted that such processes should be available to children as well as adults. While noting that States enjoy some latitude to decide the legal mechanisms to accomplish these ends, the Court observed that a simple free administrative procedure would be ideal.
Regarding same-sex partnerships, the Court recognized these as protected by Articles 11(2) (protection of private and family life), 17 (protection of the family), and 1(1) with 24 (equality and non-discrimination) of the Convention. The State, therefore, must recognize and ensure all rights attach to same-sex relationships in the same way as they do to heterosexual couples, which may include dimensions relating to taxes; inheritance; property rights; rules of succession; authority to make medical decisions; rights and benefits of survivors; birth and death certificates; professional ethics standards; financial restrictions on election contributions; workers’ compensation benefits; health insurance; and custody of the children. The State must also ensure same-sex couples’ full access to all the mechanisms that exist in their domestic laws, such as the right to marriage.
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.
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.