JURIST - Paper Chase: IACHR: Chile wrong to revoke custody of children based on woman's sexual orientation

[JURIST] The Inter-American Court of Human Rights (IACHR) [official website] on Tuesday ruled [judgment, PDF, in Spanish] that the Supreme Court of Chile [official website] violated a Chilean woman's right to equality and non-discrimination when it took away her children on the basis of her sexual orientation. Karen Atala, a Chilean judge, was stripped of custody of her three daughters by the country's high court in 2004 after announcing that she was a lesbian. As the IACHR found [press release, PDF, in Spanish], however, the court's decision to revoke custody violated Article 24's "equality before the law" clause and Article 1.1's "obligation to respect and guarantee" clause of the American Convention on Human Rights [text, PDF], an international agreement to which Chile is a party. The court reasoned that these violations via the discriminatory treatment of Atala had a detrimental impact on her daughters, namely that they were not able to live with their mother for a period of eight years. Explaining that "the interest of the child is a guiding principle for the development of standards and their application in all areas relating to the child's life," the court ordered Chile to pay USD $60,000 to Atala and $12,000 for legal fees. The IACHR's decision marks its first time affirming that discrimination based on sexual orientation violates international law.

Prior to its ruling, the IACHR received an amici curiae brief [text, PDF] filed on behalf of Atala by a host of international advocacy organizations, including Amnesty International, the Center for Constitutional Rights and the International Gay and Lesbian Human Rights Commission [advocacy websites]. In her application [text, PDF] to the court, Atala argued that the allegations made during her children's custody hearing on January 15, 2003 regarding her sexual identity had nothing to do with her function and role as a mother. Ultimately, she asserted that "sexual choice [does] not extend to parental relationships," which was the subject of that proceeding. Before the IAHCR accepted her arguments, Atala's plea was rejected in May 2004 in a three-to-two decision by Chile's Supreme Court of Justice, which reasoned that Atala's decision to live with a same-sex partner was not in the best interest of her three daughters, as the girls could become confused regarding their sexual roles and could be subject to discrimination in the future.