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

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.