The Inter-American Court of Human Rights heard the case of Karen Atala Riffo, a judge and lesbian mother who was stripped of custody of her two daughters by the Supreme Court of Chile.
The Court, which heard the case in Bogotá, Colombia, is the ultimate adjudicator for human rights questions in the Americas, deciding cases in accordance with the American Convention on Human Rights.
Atala, who won in lower court decisions, lost custody of her children when the Supreme Court ruled in 2003 that she was an unfit mother on the basis of her sexual orientation.
That court had ruled that the girls were in a “position of risk” and could become “objects of social discrimination”.
Atala sought justice through the Inter-American Human Rights System, which redresses human rights violations committed by member states.
The Inter-American Commission on Human Rights reviewed the case and in early 2011 issued a decision in Atala’s favor, referring the case to the Court.
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A decision on Atala’s case will be issued, with which the government of Chile has agreed to abide.
This case is the first time the Inter-American Court of Human Rights has ever heard a case specifically regarding sexual orientation or gender identity.
A group monitoring the hearing, which includes The International Gay and Lesbian Human Rights Commission (IGLHRC), the International Women’s Human Rights Law Clinic at the City University of New York (CUNY), MADRE, the law firm Morrison & Foerster and others, will offer the court advisory information.
Their amicus curae brief will demonstrate the growing trend in international law to regard discrimination based on sexual orientation as a violation of human rights.
Jessica Stern, Director of Programs for IGLHRC, said: “What happened to Karen Atala represents discrimination of the crudest sort. For no reason other than her sexuality, a court separated a mother from her children.
“The Inter-American Court of Human Rights now has an opportunity to render a decision that discrimination on the basis of sexual orientation is wrong.
“Such a verdict will send a message to every state party to the American Convention on Human Rights – from the village court all the way to national supreme courts – that sexual orientation has no bearing on a parent’s ability to raise healthy children.”
Lisa Davis, Adj. Professor of Law for the IWHR Clinic at CUNY Law School, said: “Ignoring the growing international trend against discrimination based on sexual orientation, the highest court of Chile has institutionalized discrimination in this case, with the denial of Atala’s parental rights.
“Perversely, Atala is recognized as fit to uphold the highest principles of justice as a judge, and yet the Supreme Court found that she is not fit to carry out the duties of a mother. Indeed, Chile makes no attempt to deny that its action was on the basis of Ms. Atala’s sexual orientation.”