Observations and Meanings from the First-Ever LGBT-Specific Case Heard by the Inter-American Court of Human Rights: Karen Atala and Daughters Against the State of Chile

Habrá una actualización en Español más tarde este tarde. ACTUALIZACION: para leer este  blog en Español, mira: Observaciones y significados del primer caso específicamente LGBT que llega a la corte Interamericana de Derechos Humanos: Karen Atala e Hijas contra el estado de Chile  I am writing this from a flight to Bogotá, Colombia on the week many of my friends are on vacation, the week I was supposed to ride my bicycle 100 miles as part of a lesbian gang out of my hot hometown of Brooklyn, New York to the breezy beaches of eastern Long Island. And yet, I cancelled what would have been my perfect vacation because of a woman I’ve never even met: Karen Atala. I am en route to a hearing of the Inter-American Court of Human Rights on the case of Karen Atala and Daughters Against the State of Chile. If Ms. Atala’s name seems familiar, that’s probably because you’ve heard it before. Ms. Atala is a lesbian mother and Chilean judge who lost custody of her three daughters — then ages 5, 6, and 10 years old — in a widely publicized case in 2003. Subsequent to their divorce, Ms. Atala’s ex-husband sued for custody, and Ms. Atala lost. In reference to Ms. Atala’s sexuality, the Supreme Court of Chile issued a homophobic verdict, plain and simple; it deemed Ms. Atala’s daughters to be 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.” A lot has happened over these seven long years. No being woken up for school by mom. No figuring out how to get your finicky child to eat her vegetables. Without delving into another person’s pain, we can imagine the magnitude of this very formal decision on the very personal lives of Ms. Atala and her daughters. But before you give up on this article, thinking it is just another depressing story of homophobic tragedy, let me give you a clue: this is going somewhere good. Regional Redress Ms. Atala, who was not only a devoted mother but also a clever lawyer and judge with strategic colleagues and friends, determined in 2004 that she had exhausted domestic remedies and would seek justice from the regional human rights system. As party to the American Convention on Human Rights (“American Convention”), the Government of Chile is subject to its jurisdiction, like all other states’ parties of the Americas, from Guatemala to Argentina. This means that if an individual cannot obtain justice at the domestic level, under specific circumstances, the regional human rights system may have jurisdiction to intervene and require that the state take certain actions. For those of us who know what it means to be systematically discriminated against by states that are racist, sexist, Islamophobic, able-bodyist, transphobic, homophobic and/or discriminatory in some other way, it may be a relief to know that there are norms and standards beyond national borders that we can turn to when we need help holding our governments accountable when domestic mechanisms fail. Timeline To summarize, much has happened in Ms. Atala’s pursuit of justice through the Inter-American Human Rights System. The following is an overview of significant events.

  • From 2004 to 2007, at the behest of and with the assistance from the Inter-American Commission on Human Rights (IACHR or “Commission”), Ms. Atala and the Government of Chile attempted to reach what was termed a “friendly settlement.” During that time, various NGOs, including IGLHRC, submitted amicus briefs to the Commission in support of Ms. Atala (PDF).
  • In October 2007, Ms. Atala and her legal team informed the Commission that negotiations concluded (presumably, not so friendly after all) and requested that the Commission admit Ms. Atala’s case to the Commission’s own review. Over protests by Chile, the Commission admitted her case.
  • In December 2009, the Commission issued a report stating that Chile violated Ms. Atala’s right guaranteed by the American Convention to freedom from discrimination. Furthermore, the Commission required the Government of Chile to “provide Karen Atala and M., V., and R. [her daughters], with comprehensive redress for the human rights violations that arose from the decision to withdraw her custody on the basis of her sexual orientation” and also called upon the state to “adopt legislation, public policies, programs and initiatives to prohibit and eradicate discrimination on the basis of sexual orientation from all spheres of public power.” To quote the blog by former IGLHRC executive director Paula Ettelbrick analyzing this decision, the Commission made history by stating unequivocally “discrimination against a parent in a child custody dispute because of his or her sexual orientation violates the American Convention on Human Rights.”
  • From February to August 2010, the State of Chile met in an inter-governmental working group to address the Commission’s recommendations. The Commission ultimately concluded that “the State has failed to comply with the recommendation to provide reparations to the victims” and that “the measures outlined by the State of Chile, although relevant, are of a general character and are not directed in a specific way to avoid repetition of the violations that occurred in the present case.” As a result, in an application in September 2010, the Commission submitted the case to the jurisdiction of the Inter-American Court of Human Rights (IACtHR or the “Court”).
  • On July 7, 2011, the Inter-American Court of Human Rights announced that it would hear the case of Karen Atala and Daughters Against the State of Chile. The case was subsequently scheduled to be heard August 23 - 24, 2011.

The Implications The Court’s verdict will have far-reaching implications that courts; human rights defenders; NGOs; lawyers; and most importantly, lesbian, gay, bisexual and transgender (LGBT) people should monitor closely. The following are some of the reasons why.

  • First, the Court’s decision will be legally binding, and the Government of Chile has already agreed to abide by its terms. At the domestic level, if the verdict is favorable, it will have directly positive implications on Karen Atala’s family, though it is difficult to imagine what reparations could possibly look like in an 8-year old child custody case. Additionally, a favorable decision by the Court would potentially mean the creation and enforcement of stronger LGBT rights policy and programming within Chile itself. (How such a decision would play out domestically is an additionally complicated aspect of this case, but nonetheless a pleasant issue to grapple with.)
  • Second, the Court has relatively little history of work on discrimination, so its decision to hear a case about discrimination on the basis of sexual orientation means that the Inter-American Court of Human Rights could take the extraordinary step of establishing its test for discrimination at least in part based on its understanding of homophobia. This is remarkable. Compared with most jurisdictions – where sexual orientation is a late-day add-on, interpreted into existing norms, and even designated as a less egregious manifestation of discrimination than issues like religion or race -- this stands to put sexual orientation at the center of a court’s understanding of a fundamental right.
  • Third, a favorable verdict by the court would be the first decision by a regional human rights court outside of the European Court of Human Rights explicitly in favor of LGBT rights. The significance of this cannot be overstated.
  • Fourth, at a minimum, a favorable decision by the Court would contribute to a growing perception that homosexuality should not only have no place in an assessment of an individual’s ability to parent, but further that sexual orientation in fact constitutes a protected class that must be protected from discrimination. This helps those working on LGBT rights globally.
  • Fifth, in courtrooms from the village level to high courts, throughout the Americas, a positive decision in the case of Karen Atala means that no parent should ever again be discriminated against on the basis of their sexual orientation in the issue of child custody.

For the moment, let’s not even entertain the possibility of a negative verdict. In light of these and other significant implications, IGLHRC and allies, particularly Madre, Morrison & Foerster LLP, the International Women’s Human Rights Clinic at the City University of New York, will submit an amicus brief to the Court in an effort to provide it with compelling evidence to find in favor of Ms. Atala and her daughters. To echo Paula Ettelbrick’s blog’s opening statement as I close, thank you, Karen Atala. Whatever happens this week, in the face of the injustice done to you and your daughters, you have helped move the rest of us forward. For now, vacations can wait. Stay tuned for updates from the trial throughout the week…