Karen Atala (left) and her partner Emma de Ramon
The Inter-American Court of Human Rights has ruled that the Chilean Supreme Court discriminated against a women when in 2003 it denied her custody of her three daughters because she is lesbian.
The new judgement, made public last week, said that Chilean court violated the American Convention on Human Rights by separating Karen Atala from her children.
Chile’s Supreme Court had ruled that having the children live with Atala and her female partner was not in the children’s best interests. This after Atala’s ex-husband sued for custody, admitting that he did so out of revenge against her.
The Inter-American Court, however, determined that the Supreme Court’s conclusion was not based on any clear evidence, but rather on abstract, stereotyped, and discriminatory arguments.
It also said that by discriminating against their mother on grounds of sexual orientation, the Supreme Court decision had also harmed the children and violated their right to protection without discrimination.
“This is a landmark ruling for the region because the Inter-American Court clarified for the first time that sexual orientation and gender identity are categories protected against discrimination by the American Convention under the term ‘other social condition,’” said Boris Dittrich, advocacy director in the Lesbian, Gay, Bisexual and Transgender Rights Program at Human Rights Watch.
“This judgment promises to have far reaching impact on the jurisprudence of all members of the Organisation of American States and hopefully on respect for the rights of all LGBT persons in the region.”
The Inter-American Court ordered the Chilean government to pay Atala damages as reparation for the harm done to her, to ensure she and her children have free access to necessary health services for any harm done, and to continue to educate all public officials, including the judiciary, on the obligations of the American Convention.
The Inter-American Court of Human Rights is the judicial entity of the Organisation of American States, established in 1979 to enforce and interpret the provisions of the American Convention on Human Rights.