Paúl, Álvaro, Examining Atala-Riffo and Daughters v. Chile, the First Inter-American Case on Sexual Orientation, and Some of its Implications (March 19, 2014). Inter-American and European Human Rights Journal, Vol. 7, Nos. 1-2, 2014 (Protection of Human Rights in the Americas: Selected Essays for the Inter-American Court of Human Rights’ Anniversary), pp. 54-74

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This photograph is of the two women at the center of the court case, Atala-Riffo and Daughters v. Chile, which set a significant precedent in the Inter-American Court of Human Rights recently.  I found the image through a cursory Google image search, and I think it presents the couple in an affectionate and appealing light.

In his article, Examining Atala-Riffo and Daughters v. Chile, The First Inter-American Case on Sexual Orientation, and Some of its Implications, Álvaro Paúl

seeks to parse the broader implications of the Inter-American Court of Human Rights’ (IACtHR) first ruling concerning the rights of homosexuals – in a matter concerning whether child custody rights should be awarded to a mother and her female partner. Following the example of the European Court of Human Rights (ECtHR), whose “jurisprudence is only persuasive”, which is to say that their precedent is non-binding and merely exemplary, the IACtHR determined, in essence, that homosexuality would be interpreted as a “social condition”, and thus be protected from discrimination according to the Universal Declaration of Human Rights (UDHR). Dr. Paúl is primarily concerned with two specific areas of implication for the Inter-American Court’s ruling: whether the precedent could ultimately be brought to bear in cases concerning the rights of transgender and inter-sex individuals; and whether it would have any effect on the African Court of Human rights, whose political and cultural attitudes toward sodomy and homosexuality are more restrictive and condemnatory. In the first case, the answer is that yes, it could have an effect, given that the acronym LGBTI was invoked during the proceedings, thereby directly invoking the rights of transgender and inter-sex people. It is less likely that the ruling will have a significant impact on the African Court, Paúl argues, owing to a failure on the part of the IACtHR to “reconcile” differing views on issues of homosexuality, with the African Court offering protection against discrimination on the basis of homosexual attraction, but not “activity”.

Dr. Paúl, who holds a PhD., and both a master’s degree and a J.D. in law, presents a very clear and easy to understand account of the Atala-Riffo case, and situates it within the context of international human rights law for the lay-audience. He uses his qualifications as a lawyer to show us where the ruling sets a clear and usable precedent, and where vagaries in the language leave room for more restrictive interpretation. Paúl carefully identifies the limitations of international human rights law, as well as the limits of influence between the various courts.

While the bulk of human rights work is to be done in the trenches, so to speak, through norm-shifting, advocacy, and education, it is invaluable to have a sense of what is taking place in the courts. In its very concept, international human rights have to do with the rule of law putting an end to armed conflict and human atrocity. In my research, I intend to get a sense of the state of LGBTI rights in Latin America, and this article lends some perspective on how shifting norms are being reified at the level of the IACtHR.

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