A gay woman who lost custody of her three children because of
her sexuality has won a landmark legal battle, it has been
confirmed.
Karen Atala, a 48 year-old judge in Chile, lost custody of her
children in 2004 when she came out following the break-down of her
marriage.
At the time, the Chilean Supreme Court ruled her children would
be in "a situation of risk" if they continbued to live with
her.
Now, after eight years of legal wrangling, she re-won custody in a
judgement that was issued on February 24 but only made public this
month.
The court concluded that the Chilean Supreme Court had acted
discriminatorily and violated the American Convention on Human
Rights when it denied Karen Atala custody rights over her three
daughters because she is a lesbian living with a same-sex
partner.
"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 Organization of American States
and hopefully on respect for the rights of all LGBT persons in the
region."
Chile's Supreme Court had ruled against Atala, contending that
having the children live with her and her same-sex partner would
not be in the children's best interests.
The Inter-American Court determined that such a conclusion was not
based on any clear evidence, but rather on abstract, stereotyped,
and discriminatory arguments in violation of the right to equality
before the law and the prohibition on discrimination, guaranteed in
articles 24 and 1.1 of the American Convention respectively.
The Inter-American Court also held 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.
The Inter-American Court required 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.
Human Rights Watch called on the Chilean government to ensure that
the harm resulting from the Supreme Court's decision is addressed
by ensuring that the decision is set aside. The Chilean government
should also ensure that any custody disputes are reconsidered in a
non-discriminatory manner on the basis of the best interest of the
children and with full respect for the rights of all parties
involved.
The Inter-American Court of Human Rights is the judicial entity of
the Organization of American States, established in 1979 to enforce
and interpret the provisions of the American Convention on Human
Rights. Judgments of the court are binding on the parties to the
case. Human Rights Watch was party to an Amicus brief submitted in
this case.
"This ruling is a celebration for non-discrimination and equality
and will boost lesbians, gays, bisexuals, and transgender people -
whose human rights are violated on a daily basis - to stand up
against injustice," Dittrich said.
