This presentation explores the intersections of law, politics and society in relation to human rights and sexual orientation in Chile, and further afield within Latin America. Firstly, I explore the lack of opportunities within the legislative arena that have historically impeded the expansion and protection of sexual and gender rights in Chile. Whilst more progressive governments across the continent begin to approve same sex-marriage and adoption, and gender recognition for transgender people, the Chilean state’s reluctance to even pass anti-discrimination legislation to protect (lesbian, gay, bisexual, transgender and intersex) LGBTI people is clear. The sluggish uptake by the Chilean political classes is also mirrored by a slow expansion of the human rights discourse from associations with dictatorship-perpetrated abuses to encompass diversity-related issues. Given the historical political inaction vis-à-vis LGBTI rights, the work presented here turns to the courts as a potential avenue for such rights to be upheld and advanced. Drawing on ethnographic research conducted in the late 2000s, it examines incipient legal mobilisation strategies targeting the Chilean judicial system in the quest for legal and social change pertaining to LGBTI issues. I then examine the implications of this research to respond to the aforementioned IACtHR ruling and its recommendations for the Chilean judiciary. The Court ordered the Chilean state to implement training on human rights, sexual orientation and non-discrimination, with particular emphasis placed on training all members of the judiciary.

The Atala Case: a landmark case for a transformative approach to Anti-Discrimination Law in Latin America

 

The Atala case represents one more step in the development of the substantive dimension of an anti-discrimination program by the Inter-American System of Human Rights. Both the Commission and the Court have embraced a strong notion of equality that implies scrutinizing the structures and institutions that determines the particular instances of discrimination. Within its mandate, the Commission has been exploring a history of disadvantage and exclusion, social context, stigma, stereotyping, institutional or structural discrimination in a certain country or region, or regarding a particular issue, like prison conditions or the status of undocumented workers. For another part, the Court has been developing a social and substantive reading of the right to equality and non-discrimination that has currently the status of jus cogens, at least in regional human rights law. The concepts of vulnerability, disadvantage, social exclusion, deprivation and subordination have been prominent in the recent cases. From this general scenario, we are witnessing a passage from issues related with the most egregious violations of human rights to the structural inequality present in the region, which is triggering struggles of economic, political and cultural dimensions.  

 

This emergent anti-discrimination program has still a long road to travel before having a real impact. A boom of anti-discrimination reforms is currently taking place in the region. However, it is still not clear what will be the main approach of this program of reforms. Anti-discrimination law does not exist as a distinctive field of law in Latin America, and although its groundings are quite well developed, there is no clarity on its boundaries or institutional implications. A first possibility is to place this program under the framework of Neo-Structuralism, which has been supporting a strong protection for modern civil liberties and, specifically, the right to equality and non-discrimination. A second approach, defended here, presents the emergent anti-discrimination law in the region under a transformative ethos. This approach advances six criteria for a transformative approach to be implemented: the principle of intervention, the ontological lens, the socioeconomic lens, the challenging stance, the political axis and legal mobilization. 

 

This work will assess the Atala case from the transformative approach defended here. In particular, it will show what is the specific contribution of the Inter-American Court of Human Rights to the development of a transformative approach to anti-discrimination law.

Transnational approach to address LGTBI rights litigation

 

The inter-American human rights system historically utilized a traditional “universalist” top-down approach to address human rights cases. Through this approach, the IAHRS established international human rights standards and then determined what it meant to comply with them, prescribing state parties’ conduct. This universalist approach is now transforming into a transnational bottom-up approach, whereby domestic constitutional courts, legislatures and social movements act as powerful influences over the IAHRS. Today, the system is not simply a structural mechanism superior to state parties that fail to protect their citizens; it is also pushed by litigants and stakeholders to adopt a more open stance toward legal developments.  The handing down of the Atala decision, in 2012, is a fine example of this approach change. In Atala, the Inter-American Court effectively gave ground to a new bottom-up understanding within the area of LGBTI rights. The Inter-American Court of Human Rights issues its decisions through which it seeks to influence the domestic sphere. But the Court is also influenced by domestic interpretations of law and fundamental rights. The transnational approach to address LGTBI rights litigation that my paper identifies fosters active engagement by, and a more fluid interaction among, national and transnational actors.  It also helps define the cases coming to the IAHRS and shapes the ways in which the IAHRS offers recommendations and makes decisions regarding such cases.  Faced with a new political landscape —where authoritarian regimes have given way to democratic states—, the IAHRS can no longer rely on the universalist approach it has used; it must now actively engage in a legal dialogue with the actors over which its Commission and Court preside.  Atala is a fine example of such approach.  

Although the idea that the transnational approach may encourage state party compliance is beyond the scope of my paper, examining the ways in which the domestic systems influence the IAHRS and how the IAHRS’ decisions in turn affect the development of constitutional law in participating countries allows us to more fully understand the dynamics involved in creating international human rights law and what the future of international human rights advocacy might hold.