Inter-American Court on Human Rights Hears First-Ever LGBT Case: Court to determine whether lesbian mother faced discrimination in custody dispute

Published: August 24, 2011

Lisa Davis, Adj. Professor of Law, International Women’s Human Rights (IWHR) Clinic, at the City University of New York, (CUNY) School of Law
T: (206) 905-1245; EM: davisl@mail.law.cuny.eduToday, 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 in 2003. The Court hearing was held in Bogotá, Colombia. Atala, who won in lower court decisions, lost custody of her children when the High Court ruled that she was an unfit mother on the basis of her sexual orientation. Atala sought justice through the Inter-American Human Rights System, which redresses human rights violations committed by states. The Inter-American Commission on Human Rights subsequently reviewed the case and in early 2011 issued a decision in Atala’s favor. The case was heard by the Inter-American Court of Human Rights, which will issue a legally binding decision 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.

Today

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, monitored the Inter-American Court session and will submit an amicus curae brief demonstrating the growing trend in customary international law that discrimination based on sexual orientation violates protected human rights.

“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,” said Jessica Stern, Director of Programs for IGLHRC.

“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,” said Lisa Davis, Adj. Professor of Law for the IWHR Clinic at CUNY Law School.

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