Paula L. Ettelbrick
Former IGLHRC Executive Director
Thank you, Karen Atala. For years to come, lesbian and gay parents throughout the Americas will have you to thank for the seven-year fight you have waged to have your daughters returned to you.
You refused to back down when your country's highest court said you, simply because you are a lesbian, were not fit to raise your own children. You refused to accept the tired old myths. The myth that girls need a father in the home to be raised "correctly" – regardless of what kind of father he is. The myth that our gender or sexual orientation, standing alone, defines us as a good or bad parent – that is, all straight parents are good and all LGBT parents are bad. The myth, that lesbian moms who chose love and life with a partner are placing selfish desire over their children's needs. The myth that your relationship with your partner presents an immoral model that would cause irreparable harm to your daughters – despite living in a world in which male violence in the home and against family members is never discussed as an issue of morality.
Photo of Karen Atala by Andrés Duque.
You fought these central foundations of homophobia. You used human-rights law to extinguish the use of these myths to stifle the dignity of LGBT parents. As a result, you have opened the door not only for those of us who are parents but, I believe, for all LGBT people in much of the region – from Tijuana, Mexico to Punta Arenas, Chile. Many of us are celebrating your recent victory as a significant development in the LGBT community's human rights advocacy in the Americas. On April 7, 2010, the Inter-American Human Rights Commission (the IAHRC, or Commission) stated that discrimination against a parent in a child custody dispute because of her or his sexual orientation violates the American Convention on Human Rights.
The Commission's finding repudiates a closely divided 2004 ruling by the Supreme Court of Chile ordering that Karen's three daughters be permanently removed from her custody. The Commission's determination, which is not publicly available, is now in the hands of the Chilean government to respond and take legislative or other policy action to ensure that similar future violations do not occur.
Following is a bit of Ms. Atala's odyssey and what I think it means strategically for LGBT human rights defenders in our region.
The facts of Atala's case are a replication of thousands that have gone before it. After following the cultural mandate of marriage and children, a woman realizes that she is perhaps a lesbian. She leaves the marriage and comes out (or vice versa). Often, as in Atala's life, she finds love with another woman and they decide to live together. It is at this point that most fathers/former husbands – formerly content with the social if not legal custom of children remaining with their mothers – allow either vengeance or male pride to take over. They resort to the legal system to take the children from their mother knowing that an overwhelmingly male judiciary is likely to side with them.
Karen Atala had been married for nine years when she and her husband decided to separate. They both agreed that it was best that their three young daughters remain with her. That is, until she met her now partner, fell in love, and invited her to share her life with her children. On January 30, 2003, within weeks after her partner moved in, the girls' father filed a legal action claiming that the children will suffer harm if they live in a home with their lesbian mother and her partner. Thus began a seven-year legal odyssey.
Karen lost the critical first round and, as far as I know, has not lived with her children since May 2, 2003, when the Regular Judge of the Juvenile Court of Villarica issued a provisional order removing custody of the girls from the home of their mother and placing them with their father. There can be little doubt that this was a purely homophobic move, given that no hearing had been held and no evidence collected. But, it would determine the living situation for the children for the rest of their childhood.
After the Juvenile Court's provisional order, the case then was transferred to another judge, the Acting Judge of the Court of the First Instance in Villarica, who held a full hearing, taking evidence from experts and people close to Karen and her family. On October 29, 2003, that judge issued an opinion rejecting the father's custody claim, stating that:
"The sexual orientation of the mother does not constitute an impediment to develop a responsible motherhood…The respondent suffers from no psychiatric pathology that would make her unfit to perform a mother's role …no concrete evidence has been shown that the presence of the mother's partner in the home is harmful to the well-being of the girls ... having analyzed the evidence presented, there is no reason to presume the existence of bad or dangerous examples for the morality of the girls…the court concludes that the girls have not suffered any discrimination to date and what the witnesses for and relatives of the plaintiff express is a fear of possible discrimination in the future. With respect to this point it should be mentioned that this court must base its decision on definite and proven facts in the case and not on mere assumptions or fears."
Karen won. The Court of the First Instance in Villarica ordered the father to return the girls to their mother on December 18, 2003. Why the judge did not require the move immediately is not currently known but before the girls could be returned to their mother, the father appealed to the Court of Appeal in Temuco.
Karen won again. The Court of Appeal agreed that there was no proof that the children would suffer harm from living with their mother and her partner. On March 30, 2004, the Court of Appeal upheld the lower court's judgment.
Karen should have been able to take her children home. But, the father's frustration mounted. Clearly unhappy with the direction the case was going, he not only appealed to the Supreme Court of Chile, but did so in the form of a disciplinary action against the judges of the Court of Appeal claiming judicial abuse. The Supreme Court issued an order preventing the girls from being moved to their mother until it could fully review the case and issue a final decision.
On May 31, 2004, three of the five justices on the Supreme Court overturned the decisions of both the trial court and the court of appeals. They characterized the daughters as being in a "situation of risk" that placed them in a "vulnerable position in their social environment, since clearly their unique family environment differs significantly from that of their school companions and acquaintances in the neighborhood where they live, exposing them to ostracism and discrimination, which would also affect their personal development."
Rejecting the evidence as fully examined by the trial court and the court of appeal, the majority instead decided to venture into the land of speculation:
"Apart from the effects that that cohabitation could have on the well being and psychological and emotional development of the daughters, given their ages, the potential confusion over sexual roles that could be caused in them by the absence from the home of a male father and his replacement by another person of the female gender poses a risk to the integral development of the children from which they must be protected."
The two dissenting judges of the Supreme Court determined, by contrast, that "the opinions contained in the record, both from psychologists and from social workers, infer that the mother's homosexuality does not harm the rights of the girls."
Karen had lost. She had lost by one vote on the Supreme Court – despite the fact that most of the judges who reviewed her case from the beginning had decided in her favor.
Of course, such a decision from a country's high court caught the attention of those of us at IGLHRC at the time. As a lawyer who had spent years dedicated to changing family law for LGBT parents in the U.S., I was personally determined to lend whatever help Karen and her lawyers needed to file a petition with the Inter-American Human Rights Commission, seeking its review of the Court's decision in light of human rights law set forth in the American Convention of Human Rights. As a lawyer and judge herself, it was not surprising that she had excellent legal counsel. After a few conference calls with IGLHRC staff and colleagues, she filed her petition with the Commission. At that point, IGLHRC and a number of other groups joined in supporting her with amicus curiae (friend of the court) briefs, in which we outlined the copious social-science literature that has never found a connection between a parent's sexual orientation and her/his fitness as a parent. Years ago when I was Legal Director at the U.S. LGBT group, Lambda Legal, we filed what we called our "Homo 101" briefs – briefs that both challenged the myths around LGBT parenting and sought to educate the court about homosexuality in general.
Personally, I was very excited about Karen's decision to petition the Commission, both for what I hoped it might mean for Karen and her children, and also for the chance to further develop a regional commitment to the human rights of LGBT people. Only two known LGBT cases have been filed with the Commission, both with the support of IGLHRC. One involved the decision by Colombian officials to deny a request by a lesbian in prison for conjugal visitation with her partner. The second involved the repeated refusal of the Honduran government to extend official recognition to an LGBT group. The Commission accepted the Colombian case as admissible – meaning that the petitioner had alleged facts that would indicate that a human rights provision had been violated. Whether a full change of policy resulted from that case is uncertain. The Honduran case was settled shortly after the petition was filed, and the group was granted recognition.
But, neither of those cases presented facts or issues that would allow the Commission to examine the deeply entrenched homophobia that always comes to the forefront in LGBT parenting cases. The core question in a custody battle is whether it is better for children to live with their straight parent or their LGBT parent. The fact that this is the central decision for courts to weigh generally means that the straight parent is making normative arguments that place heterosexual parents in the better position. LGBT parents, on the other hand, are forced to fight against the hard-core mythology around homosexuality (we are pedophiles, we are out solely to recruit children to homosexuality, our kids are more likely to be gay, etc.), gender- and hetero-normative social values. We are forced to respond to unproven and unprovable fears that allowing lesbian or gay parents to raise their own children would be harmful to their development as presumptively straight people and to society's heteronormative foundation. Karen's case allowed for a much broader examination of homophobia, heterosexual norms, and human rights.
Atala's case is the first lesbian custody case accepted for review by the IACHR, and the only one outside of the European human rights system to analyze the rights of LGBT parents to continued custody and visitation with their children pursuant to the mandates of an international treaty.
What I, at least, had not anticipated, was how long it would take for the Commission to review Karen's case. From beginning to end, the legal process through three levels of the Chilean court system was a speedy sixteen months. The Commission process stands in stark contrast to this. Karen submitted her petition asking the Commission to review the Supreme Court's decision on November 24, 2004. She would wait three years and seven months for the Commission to review her petition and rule that it was admissible, as it did on July 23, 2008. This ruling meant that she had provided enough information about the case to make a credible claim that the state had violated her human rights under the American Convention. And, now, nearly two years later, the Commission has repudiated the Chilean Supreme Court's decision.
While a wonderful vindication of Karen's rights, as well as all LGBT parents, it is a bittersweet victory. The ruling has no immediate legal effect. It is now up to the Chilean government to accept the ruling, which it has publicly said it would do, and to take action to change the law. It cannot directly overturn the Supreme Court's decision. At most, I believe, it could change the legal standards in custody cases going forward to ensure that a parent's sexual orientation is not considered as relevant to a court's decision on custody. Even if the Chilean government took immediate action to change the law, the most it would allow Karen is the chance to file a new lawsuit for custody of her children. She has publicly stated that she cannot in good conscience put her children through more legal process. Clearly, this is her decision as a mother – not as the lawyer and judge that she is.
At this point, the Commission's role is to help mediate a solution between the parties. Though the government has said it would accept the Commission's statement of regional human rights law, this alone does nothing to ensure quick action. The new government is headed by Sebastian Pinera, the billionaire conservative who assumed power, succeeding President Michelle Bachelet, among the rumblings of earthquake aftershocks that sent heads of state from around the world ducking for cover. Though the current Supreme Court is made up of virtually a new set of judges from that which ruled against Karen Atala in 2004, the President of the Supreme Court has stated that the Court would not join the committee arranged by President Pinera to discuss resolution of Karen's case, stating that the Court had nothing new to add. Politically, I am told, it would be difficult to proceed without some engagement from the Supreme Court.
So, whether Karen's long-fought personal battle ends here is uncertain. Let's hope that it does not. Let's hope that the government is moved to fully respect the decision of the Commission and address this issue through legislation or by some other means - both for the rights of lesbian and gay parents in Chile, but also for the efficacy of the Inter-American system in pushing governments to stand by their treaty obligations in order to ensure that human rights are fully protected. Let's hope that the Commission's ruling encourages other LGBT individuals or groups to petition the Commission for its review of high court decisions that violate rather than promote our rights. Let's hope that Karen's personal battle and victory becomes a rallying cry for change throughout the region.
Thank you Karen.
A note on the Inter-American Commission on Human Rights:
Its process and rulings
The Inter-American Commission on Human Rights is an autonomous body within the Organization of American States (OAS) that was created to promote observance of human rights in the Americas. It consists of seven Commissioners, elected by the General Assembly of the OAS, and is headquartered in Washington, DC in the United States. The Commissioners serve in their personal capacity for a set term. They are not representatives of their government, but rather are independent human rights experts whose role is primarily to investigate and monitor human rights violations, promote public education about human rights, and resolve violations in a collaborative way as between the individual and the state. It is not a judicial body, but does have the ability to refer cases to the Inter-American Court of Human Rights.
The Commission receives thousands of petitions each year requesting investigations into human rights violations perpetrated by governments in the region. The Commission has the authority to refuse to "admit" or take on a case. Among the many requirements for seeking admissibility is that all domestic remedies to the problem presented must have been exhausted. As in Karen Atala's case, a final decision on the merits by the government's highest court fulfills this requirement as there is no other recourse once the highest court has issued its ruling. In addition, the Commission looks for whether the petition for admissibility sets forth facts that indicate that a legitimate human rights violation has occurred.
 Sadly, neither of the North American states, the United States and Canada, has ratified the American Convention on Human Rights, though they are members of the Organization of American States. As a result, they have not subjected themselves to the jurisdiction of the Inter-American Commission on Human Rights or the Inter-American Court of Human Rights. However, as signatories to the American Declaration of the Rights and Duties of Man it is likely that the Commission's decision will be considered a source of binding obligation in those countries as well.
 In this article, the events of the case are taken from the record recounted by the Inter-American Human Rights Commission in its July 23, 2008 report granting admissibility for full consideration of Karen Atala's petition. This report may be found at: http://www.cidh.org/annualrep/2008eng/chile1271.04eng.htm. The Commission's April 7, 2010 report repudiating the Chilean Supreme Court's ruling is not a public document and is provided solely to Ms. Atala and the government of Chile.
Published on April 20, 2010 | OutRight Action International an LGBT human rights organization