Thursday, March 22, 2012

Inter-American Court of Human Rights ruling in favor of Karen Atala (now available in English translation) constitutes total validation of the rights of lesbian mothers and their children

Thanks to UCLA (and Williams Institute) Law Librarian Stephanie Plotin, the English translation of the Official Summary of the Inter-American Court of Human Rights ruling in Case of Atala Riffo and Children v. Chile is now available here.  The Court rejected every argument made by Chile as justification for switching custody of Atala's children to their father after she began living with a same-sex partner. The Chilean Supreme Court granted custody to Atala's ex-husband in 2004.  American University Washington College of Law professor Macarena Saez, who represented Atala in the Inter-American Commission on Human Rights as well as the Inter-American Court, wrote about the case here.  The Court found that it lacked the jurisdiction to determine the custody of Atala's three daughters, but it reiterated in no uncertain terms that a parent's sexual orientation cannot be a basis for a denial of custody.  Some members of the Court spoke to two of the three daughters outside the presence of the parents or parties.  Based on what the girls stated, the Court found them to be the alleged victims in the case.  The Court found that Chile had violated numerous provisions of the American Convention on Human Rights, causing injury to Atala and her children.

Atala's former husband requested custody in 2003 after Atala  began living with her partner.  The first court found in his favor, but a subsequent court ruled against him, and that ruling was affirmed on appeal in 2004.  The father further appealed to the Supreme Court of Justice, and on May 30, 2004, that court granted final custody to the father.  The reasoning of the Chilean Supreme Court echoed arguments that have been made in many US states over the last 40 years.  The court said that Atala placed her own interests above those of her children; that the children would be confused about sex roles and sexuality; and that they would be "objects of isolation and discrimination" because of their different family environment.

Before ruling specifically on Atala's case, the Court ruled categorically that discrimination on the basis of sexual orientation violates the right to equality and non-discrimination contained in the American Convention on Human Rights.  Article 1.1 of the Convention states that the parties to the Convention "undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition."  The Court found that both sexual orientation and gender identity are categories that fall within "other social condition."  This obviously has ramifications well beyond this case.

The Inter-American Court then stated the obvious about the importance of ruling in custody cases based on the best interests of the children.  Because  alleged risks and harms had to be "real and proven, not speculative and imaginary," the Court ruled that "speculations, presumptions, stereotypes, or generalizations...with respect to certain traditional concepts of the family are not admissible."  Referencing the "best interest" standard in the abstract, without proof of risk or harm, could not justify discrimination based on sexual orientation. "Pre-conceptions of the attributes, conduct or characteristics of homosexual persons, or the impact that these could presumably have on girls and boys" are not admissible under the guise of determining the child's best interest.

Furthermore, the Court ruled that social discrimination that the children might face, "proven or not," could not justify a change in custody.  Noting greater acceptance of other family forms, such as interracial couples and single parents, the Court said that "both laws and the States themselves should assist society in advancing; otherwise, we run the serious risk of legitimizing and consolidating different forms of discrimination which violate human rights."  Therefore, a court determining custody could not consider possible social stigma a valid injury affecting the child's best interest.

To ensure that a custody decision is not based on discrimination, the burden of proving a "concrete, specific, and real injury to the children" rests with the State.  In this case, the Chilean Supreme Cort of Justice claimed it was ruling based on concrete evidence of injury, but in fact no evidence existed that the girls were injured because their mother lived with a same-sex partner.  The Inter-American Court further made clear that the prohibition against discrimination based on sexual orientation includes the right to "conduct inherent in an exercise of homosexuality," including the right to live with a partner.  The Chilean court was wrong to fault Atala for making a new life for herself with her partner.  Demanding that a mother limit her life choices, the Inter-American Court said, would mean requiring her to conform to a 'traditional' idea of women's role as mother.

Finally, the Court ruled that the Convention does not contain "any specified, closed concept of family," and the Chilean court was wrong in its conclusion that the girls needed to grow up in a 'normally structured family.'  The Court stated that, "the concept of family life is not solely reduced to marriage, and should embrace other family ties where the parties have a shared life outside of marriage."

The Court concluded that Chile violated the Convention by discriminating against Atala and her children (the latter because Chile used factors it would not have utilized if the children had two heterosexual parents).  In considering  Atala's sexual orientation, Chile interfered in her private life, something also prohibited by the Convention.  Private life, according to the Court, includes "the right to establish and develop relationships with other human beings."  In this portion of the opinion, the Court explicitly stated that "sexual orientation is part of a person's intimate life and is not relevant when analyzing aspects related to good or bad parenting by mothers or fathers."  The Court also found that Chile arbitrarily interfered with the right to family life provided in the Convention by separating the family unit created by Atala, her partner, her three daughters, and her oldest son.  "A single family model does not exist," the Court said.  The final right that Chile violated was the right of the children to be heard, since the Supreme Court did not explain why it ruled contrary to the wishes of the children.

Since the Inter-American Court lacked the power to award custody, it fashioned other relief.  Chile must provide free mental health treatment to Atala and her children should they request it; must publish the official summary of the decision on an official web site and in a national newspaper of wide circulation; must publicly acknowledge responsibility; must implement educational programs for civil servants and judges; and must pay damages and costs.  An article on the website of the Santiago Times puts the damages amount at US$60,000, plus $12,000 in legal fees.  The article also suggests that some gay rights advocates will be disappointed that the Court did not require Chile to change its civil code to explicitly ban consideration of sexual orientation in custody cases.

If you are wondering about the impact of the Atala case on custody disputes in the United States, well, the US is not a party to the American Convention on Human Rights and does not accept the jurisdiction of the Inter-American Court.  You can find the full list of parties here on the website of the Organization of American States.

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