In 2017 the Inter-American Court of Human Rights determined that marriage equality was a human right. The Court’s Consultative Opinion 24 (OC24 for short) requires governments to take action to ensure equal protection of LGBT families. But of the 22 countries in the Americas that haven’t legalized same sex marriage, only Costa Rica has made any effort to advance toward compliance in the last year.
On December 5, the Inter-American Commission on Human Rights (IACHR) held a hearing on marriage equality in the Americas at its headquarters in Washington, DC, during the 170th session of the IACHR.
As part of the Organization of American States (OAS) human rights system, the duty of the IACHR is hear cases regarding human rights violations against OAS member states and when those states don’t comply with its recommendations refer them to the Inter-American Court for Human Rights. Although 80 percent of the population in the Americas lives in places where same sex couples can be married, about 70 percent of the countries of the region do not recognize marriage equality. That was recognized a year ago by the Inter-American Court in OC24.
As co-founder of the Alliance for Marriage in the Americas (AMAmericas), a coalition of pro bono lawyers, we requested this regional hearing and presented leaders of LGBT organizations from Panama, Chile, Guatemala, Honduras, Costa Rica, and Mexico. In my opening statement, I called this a historic moment in the context of the long and well-known history of discrimination against LGBT people. We now have hope that, through action by the Commission, we can finally bring an end to that tragic history.
As lead counsel in the oldest case for marriage equality, brought before the IACHR in 2012, and another case brought against Mexico in 2014, I argued that state-sponsored stigmatization results in LGBT people being tortured in the streets, murdered in municipal parks, and excluded from jobs, housing, education, and health care. I reminded the IACHR that these are our brothers and sisters, our sons and daughters, our family and friends.
With OC24, the Inter-American Court has eliminated all doubt about the obligation to ensure marriage equality. The debate is over. Even in Costa Rica, the only country to positively respond to the Court’s decision, progress has been slow. After the country’s supreme court ordered the government to implement marriage equality, it delayed its order and perpetuated that discrimination for 18 months to allow the National Assembly to legislate. This year Costa Rica endured a harsh presidential campaign, defined in part by a debate over whether to reject the court’s ruling. (Eventually, Carlos Alvarado, the candidate who favored implementing the court’s ruling, won the election.)
Elsewhere, the backlash to the ruling has been even more pronounced. In Guatemala, populist President Jimmy Morales, called the OC24 an illegal order, invoking the Nuremberg Principles, on the same day he ordered troops to surround the offices of the UN-backed International Commission against Impunity in Guatemala (CICIG). Even one-time seeming progress has been under attack. The oldest marriage equality case in the Inter-American System, against Chile, had previously been settled by a “friendly settlement agreement” sponsored by the Commission, signed by myself and co-counsel on our clients’ behalf, and signed and accepted by then-President Michelle Bachelet. It required a series steps to remedy anti-LGBT discrimination, and led to the historic legislation approved in December by President Piñera of a law facilitating changes of identification papers by trans people. However, the Piñera government, despite its obligation under the settlement agreement to “promote” marriage equality legislation, has declared through its Ministers of Justice and Interior—and even the Sub-secretary of Justice for Human Rights—its intention to “impede” such legislation. In fact, on the very day the IACHR held its hearing last week, an interview with Piñera emerged in which he declared his opposition to marriage equality and said that marriage is by its nature only between a man and a woman.
In the wake of lack of regional action following OC24, at our hearing, we acknowledged that the IACHR has brought appropriate cases before the Court in the past for the protection of the vulnerable LGBT population, such as Duque v Colombia (about surviving partner’s pension benefits) and Atala v Chile (about child custody restored to a lesbian mom). Our first line of argument was that advocates and the inter-American system need to bring cases against governments that refuse to implement marriage equality to ensure the integrity of the inter-American human rights system. But we also made the case that full implementation is also necessary to strengthen families and to eliminate implicit approval of governments around the region of stigmatizing laws that make LGBT people second class citizens and leaves them vulnerable to other human rights violations.
Leaders of the LGBT groups at our hearing described their governments’ resistance and delay tactics and the effect on LGBT people and their communities. Members of the IACHR, led by Commission President Margarette May Macaulay from Jamaica and Commissioner and Rapporteur for LGBT rights Flavia Piovesan of Brazil, declared their complete support and indicated Commission action will be forthcoming.
During the hearing, President Macaulay said bluntly that “there is only one race, the human race… all human beings should have the same rights. It is a fundamental, simple thing to accept, but common sense isn’t always so common. It follows logically: same sex couples should have the right to marry…. LGBT people have the same rights as all other human beings. It is their dignity. We will make every possible effort [to ensure] that states advance toward marriage equality… We are going to need more than one lesson…. And we must persist in informing them…. It’s about time we grew up and dealt with this.”
For the integrity of the inter-American human rights system, states cannot be allowed to refuse to adopt marriage equality and other equal protection measures for LGBT citizens. The time has come for the IACHR to take action to end government sanctioned marginalization and victimization of the LGBT community. Sustaining the inter-American human rights system requires ensuring that its recommendations and decisions are implemented and enforced for all rights.
Note: For a video of the hearing, click here.
Hunter T. Carter is a partner at Arent Fox, LLP and a founding board member of Global Americans. He is the co-chair of AFInternational, Arent Fox’s international services group, focusing on Latin America.