Inter-American Human Rights Moot Court Competition

Bench Memorandum

Dear Judges,

It is with great pleasure that we present to you the Bench Memo for the case of Serafina Conejo
Gallo and Adriana Timor v. Elizabetia.

We were very excited when the Washington College of Law and its Human Rights Moot Court
Competition asked us to imagine a case with a focus on the rights of lesbians, gays and trans,
bisexual and intersex persons. While the disastrous effects of discrimination against sexually
diverse populations are wide and reach across continents, cultures and legal traditions, they
have also been marked by invisibility, stigma and outright negation.

Lesbians, gays and trans, bisexual and intersex persons have historically been and continue to
be victims of persecution, discrimination and abuse, but great progress has been made globally
and locally in the recent years to bring their problematic to light.

Following the rightful demands of an articulated and determined civil society, and its allies, OAS
Member States have started to fulfill their debt through General Assembly Resolutions 2435,
2504, 2600, and 2653 and the actions that these prescribe. The Atala Case is a milestone at the
Inter-American Commission and Court, and the adoption of the Commissions Plan of Action
4.6.i (on the rights of lesbians, gays and trans, bisexual and intersex persons) and the creation
of the Unit on their rights have inscribed it firmly in its agenda.

However, much remains to be done to eradicate violence and discrimination and, to that end,
increased knowledge of the violence and discrimination perpetrated against these persons and
communities is a must. Our intent when creating this case has been twofold. We seek to
promote academic visibility of the disastrous situation of violence and exclusion faced by trans
women; we also want to bring to light the discussion concerning recognition or not- of same
sex couples as families or marriages, and all the derived legal effects. This is a highly relevant
discussion in the Americas of the 2010s, and one that will be a dominant feature in the human
rights agenda for years to come.

Serafina Conejo Gallo never existed. However, resemblance with the stories of a great number
of brave existing women must be seen as a stark reminder of the enormity of the work that
remains to be done so that stories such as Serafinas are relegated to the world of fiction.

Sincerely,


Victor Madrigal-Borloz Silvia Serrano





2
Introduction

This memorandum is divided in three parts that address the main legal issues in the case.
Initially, international and Inter-American precedent is referenced, and then mention is made of
the possible arguments of the parties.

Part A concerns the substantive issues of the case. Part B deals with procedural and preliminary
issues. Part C concerns the issues connected to the provisional measures. Finally, the authors
have included, as an Annex, the Study on Sexual Orientation, Gender Identity and Gender
Expression (some relevant terms and standards). This document was issued by the Unit for the
Rights of Lesbians, Gays and Trans, Bisexual and Intersex persons with the aim of providing a
baseline in terminology, and is therefore considered an interesting reference document for the
Judges.


A. Substantive issues

A.1 Sexual Orientation and Gender Identity in the light of the principle of equality and non-discrimination
and the right to private life and autonomy; A.2 Right to a family; A.3 The right to marry; A.4 Legal effects
of same-sex unions in comparison those of heterosexual unions; A.5 Possible arguments of the injured
party; and A.6 Possible arguments of the State.

A.1. Sexual Orientation and Gender Identity in the light of the principle of equality
and non-discrimination and the right to private life and autonomy

1. Pursuant to the American Declaration on the Rights and Duties of Man, [e]very
person has the right to the protection of the law against abusive attacks upon
[] his private and family life. The right to privacy has spatial and objective
components, as the home or correspondence, which are intimately connected
with Articles IX and X of the Declaration. It also has spiritual components, closely
connected with Article III of the same.

2. The right to privacy also has a component related to personal choices and the
human dignity that is inherent to making them
1
. This component, described
among others by the Supreme Court of the United States of America,
2
the
Constitutional Court of Colombia,
3
the South African Constitutional Court
4
, the

1
It is telling that the European Convention on Human Rights includes all aspects in Article 8.
2
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 851 (1992). The Court expressed: These matters,
involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity
and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right
to define ones own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about
these matters could not define the attributes of personhood were they formed under compulsion of the State.
3
Constitutional Court of Colombia, Sentencia C 098 del 96, available in Spanish at the link
http://www.corteconstitucional.gov.co/relatoria/1996/c-098-96.htm, prr. 4.2. The Court said: Apart from
compromising the most intimate and personal sphere of individuals, sexuality belongs to the realm of their





3
High Court of Delhi at New Delhi
5
and the High Court of Fiji
6
, is deeply connected
with intimacy, sexual autonomy and self-realization and has been also
recognized by the Human Rights Committee of the Organization of the United
Nations,
7
the European Court of Human Rights,
8
and the Inter-American
Commission. In particular, the Inter-American Commission has stated [t]here is
a clear nexus between the sexual orientation and the development of the
identity and life plan of an individual, including his or her personality, and
relations with other human beings.
9


3. Sexual autonomy is therefore an integral part of private life. It is generally a
manner in which human beings strive to achieve self-realization by way of
actions that do not interfere with the liberty of others.
10
Further, when it
occurs in private and among consenting adults, sexual activity is per definitionem
not capable of violating the rights of third parties.
11
Hence, any interfering State
action under these circumstances must be restrained and satisfy the strictest
tests of legitimacy and necessity
12
.

4. The legitimate nature of State actions is outlined straightforwardly in the
considerations of the American Declaration, according to which juridical and
political institutions, which regulate life in human society, have as their principal
aim the protection of the essential rights of man and the creation of
circumstances that will permit him to achieve spiritual and material progress and
attain happiness. Interference in privacy can only answer to the protection of
the rights of others when they may be at risk.


fundamental freedoms, in which neither the State nor the collective may intervene because there are no public
interests at stake, and no social damage can be perpetrated (translation of the IACHR).
4
Constitutional Court of South Africa. Judgement in Case CCT 11/98, available at
http://www.saflii.org/za/cases/ZACC/1998/15.pdf. The Court recognized that sexual expression ''is at the core'' of ''a
sphere of private intimacy and autonomy.
5
Naz Foundation v. Government of Delhi WP(C) No.7455/2001. The Court stated at the root of dignity is the
autonomy of the private will and a persons freedom of choice and of action.
6
McCoskar v The State [2005] FJHC 500; HAA0085 & 86.2005 (26 August 2005), available at
http://www.humandignitytrust.org/uploaded/Library/Case_Law/Nadan__McCoskar_v_State.pdf . The Court stated
[t]he criminalization of carnal acts against the order of nature between consenting adult males or females in private
is a severe restriction on a citizens right to build relationships with dignity and free of State intervention and cannot
be justified as necessary.
7
Toonen. Communication No. 488/1992 : Australia. 04/04/1994. CCPR/C/50/D/488/1992. (Jurisprudence);
CCPR/C/50/D/488/1992. Original: English. Vide also, CCPR/C/79/Add 50; CCPR/C/79/Add 104.

8
European Ct HR.; Dudgeon v. United Kingdom, application 7525/76; available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57473.

9
CIDH, Karen Atala and daughters, Caso 12.502 (Chile), Presentation of September 17, 2013, available under the
classification of 2010 at http://www.oas.org/en/iachr/decisions/cases.asp, prr. 111..

10
IACHR, Report No. 4/01, Mara Eugenia Morales de Sierra (Guatemala), January 19, 2001, paragraph 47; IACHR,
Report No. 38/96, X and Y (Argentina), October 15, 1996, paragraph 91.
11
Nowak, Manfred; CCPR Commentary (2nd revised edition) N.P. Engel, Publisher; pg. 297.
12
Vide also, European Ct HR.; Dudgeon v. United Kingdom, application 7525/76; disponible en ingls al vnculo
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57473, par. 43





4
5. Further, any measure interfering with privacy in a democratic society must
answer to an imperative social need
13
In this sense, it is not sufficient that such
a measure answer to preferences or the mores of some: it must be proven that it
answers to a need the satisfaction of which is an appropriate manner to protect
the rights of the majority and, at the same time, has been carefully weighed to
respect the rights of minorities.

6. Any State action denounced as an undue interference in privacy in relation to
the sexual conduct of consenting adults shall be scrutinized with basis on those
requirements.

7. Pursuant to the American Declaration, all persons are born free and equal, in
dignity and in rights and are equal before the law [] without distinction as to
race, sex, language, creed or any other factor. This definition expresses "the
right of everyone to equal protection of the law without discrimination."
14
This
right to equality before the law means that the application of the law should be
equal for all.
15
The provision was intended to ensure equality, not identity of
treatment, and would not preclude reasonable differentiations between
individuals or groups of individuals."
16


8. In its Annual Report for the year 2000, the Inter-American Commission referred
to the principle of non-discrimination as a lynchpin of the inter-American
system, and declared that the observance of that principle is also a primary
challenge for Member States, who must create or strengthen the legal and
institutional mechanisms to fight discrimination within the parameters
established in the system. On that occasion, the Commission remarked that,
once and for all, Member States had to seriously commit themselves to
providing special protection for certain persons or groups of persons. Three
years later, the Commission added that [n]on-discrimination, together with
equality before the law and equal protection of the law without any
discrimination, constitute a founding, basic, general and fundamental principle
relation to the international protection of human rights.
17



13
ECHR, Lustig-Prean and Beckett, vide http://www.wcl.american.edu/hrbrief/07/3european.cfm, parr. 80 and
14
Bjorn Stormorken and Leo Zwaak, Human Rights Terminology in International Law: A Thesaurus, (Dordrecht,
Netherlands: Martinus Nijhoff Publishers, 1988) and Dudgeon v. United Kingdom, application 7525/76; available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57473, par. 43.
15
Article 26 of the International Covenant on Civil and Political Rights provides: "All persons are equal before the law
and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit
any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground
such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or
other status." See Travaux preparatoires of the ICPR, Annotation on the Text of the Draft International Covenant on
Human Rights, 10. U.N. GOAR, Annexes (Agenda item 28, pt.II) 1, 61, U.N. Doc. A/2929 (1955).
16
Id. See also Case Relating to Aspects of Laws on the Use of Languages in Education in Belgium, 1EHRR 252.
17
IACHR; Annual Report 2003; OEA/Ser.L/V/II.118; Doc. 70 rev. 2; 29 December 2003; Original: Spanish; par. 5.





5
9. A difference in how the law treats persons that are in similar situations must be
considered discriminatory unless it aims at an objective that is legitimate, is
objective, and is reasonable. The American Declaration refers to different
classifications in relation to which distinction of treatment cannot be carried out.
They are race, sex, language, creed and any other factor. The Commission
finds reason to believe, as did the United Nations Human Rights Committee
18

and the European Commission on Human Rights
19
, that the expression sex
makes reference to sexual identity. In any event, sexual orientation would be
included in the expression "other status" of the non-discrimination clause of the
American Convention on Human Rights, a conclusion that is applicable to any
other factor for the purposes of article II of the Declaration.

10. Therefore, distinctions of legal treatment based solely on a persons sexual
identity cannot be legitimate. Lesbian, gay, trans, bisexual and intersex persons
have the right to equal protection of the law; and the said protection extends to
their sexual choices and behavior. Any measure affecting the enjoyment of their
rights will therefore be scrutinized as to whether it is objective and reasonable,
that is, whether it pursues a legitimate aim, is conducive to it, and its effects in
the enjoyment of rights are not disproportionate.

11. Furthermore, lesbian, gay, Trans, bisexual and intersex persons have historically
been the object of violence, discrimination and hatred. In 2012, the General
Assembly of OAS, furthering resolutions issued in 2008, 2009, 2010 and 2011 on
this subject, resolved, inter alia,

To condemn discrimination against persons by reason of their sexual orientation and
gender identity; to urge member states within the parameters of the legal institutions of
their domestic systems to eliminate, where they exist, barriers faced by lesbians, gays,
and bisexual, transsexual, and intersex (LGBTI) persons in access to political
participation and to other areas of public life; and to prevent interference in their
private life.

To encourage member states to consider, within the parameters of the legal institutions
of their domestic systems, adopting public policies against discrimination by reason of
sexual orientation and gender identity.

To condemn acts of violence and human rights violations committed against persons by
reason of their sexual orientation and gender identity, and to urge states to strengthen
their national institutions with a view to preventing and investigating these acts and
violations, and to ensuring due judicial protection for victims on an equal footing and
that the perpetrators are brought to justice.


18
Toonen. Communication No. 488/1992 : Australia. 04/04/1994. CCPR/C/50/D/488/1992. (Jurisprudence);
CCPR/C/50/D/488/1992. Original: English. Vide also, CCPR/C/79/Add 50; CCPR/C/79/Add 104, par. 8.7.
19
European Commission HR; Application No. 25186/94 (Sutherland v. the United Kingdom). Informe de la Comisin
adoptado el 1 de julio de 1997, par. 50.





6
To urge member states to ensure adequate protection for human rights defenders who
work on the issue of acts of violence, discrimination, and human rights violations
committed against individuals on the basis of their sexual orientation and gender
identity.
20


12. The historical discrimination against LGTBI persons compels States to be
particularly vigilant to adopt measures to ensure the interruption of cycles of
violence, exclusion and stigma and, in this relation, lesbian, gay, Trans, bisexuals
and intersex persons must be deemed to be protected both by their juridical
personality, and by their condition as belonging to a group historically subjected
to discrimination.

A.2. The right to a family

13. The vast majority of international human rights instruments establish the right to
a family.

14. The American Convention does so in Article 17, Rights of the Family, and
establishes in pertinent part: The family is the natural and fundamental group unit
of society and is entitled to protection by society and the state (). The Inter-
American Court has also indicated that the right to live free from interference in
family life, enshrined in Article 11 of the Convention, is a precise corollary to the
States obligation to protect the family under Article 17.
21
In the words of the Court:

[] unlike the provisions of the European Convention, which only protect the right to
family life under Article 8, the American Convention contains two provisions that
protect family life in a complementary manner. Indeed, the Court considers that the
imposition of a single concept of family should be analyzed not only as possible arbitrary
interference with private life, in accordance with Article 11.2 of the American
Convention, but also, because of the impact it may have on a family unit, in light of
Article 17 of said Convention.
22


15. For more than a decade now, in both the European sphere and globally, the
scope of the notion of family in international human rights instruments has
begun to be interpreted, and there is broad consensus regarding the importance
of the concept of diversity.

16. In this respect, General Comment 19 of the Human Rights Committee, regarding
the protection of the family established in Article 23 of the International
Covenant on Civil and Political Rights (ICCPR), bears noting. The Comment

20
OAS AG/RES. 2721 (XLII-O/12), available at http://www.oas.org/consejo/GENERAL%20ASSEMBLY/Resoluciones-
Declaraciones.asp, under Forty Second regular session, Cochabamba, Bolivia, June 2012
21
I/A Court H.R., Case of Atala Riffo and daughters v. Chile, available at: http://www.corteidh.or.cr/pais.cfm?id_Pais=4,
Para. 156 et seq.
22
I/A Court H.R., Case of Atala Riffo and daughters v. Chile, available at: http://www.corteidh.or.cr/pais.cfm?id_Pais=4,
Para. 175.





7
examines the obligations of States within the framework of a diverse concept of
family, stating as follows:

The Committee notes that the concept of the family may differ in some respects from
State to State, and even from region to region within a State, and that it is therefore not
possible to give the concept a standard definition. However, the Committee emphasizes
that, when a group of persons is regarded as a family under the legislation and practice
of a State, it must be given the protection referred to in article 23. Consequently, States
parties should report on how the concept and scope of the family is construed or
defined in their own society and legal system. Where diverse concepts of the family,
"nuclear" and "extended," exist within a State, this should be indicated with an
explanation of the degree of protection afforded to each. In view of the existence of
various forms of family, such as unmarried couples and their children or single parents
and their children, States parties should also indicate whether and to what extent such
types of family and their members are recognized and protected by domestic law and
practice.
23


17. In the same regard, in General Comment 28 regarding the Equality of rights
between men and women enshrined in the ICCPR, the Human Rights Committee
reiterated that the States, in giving effect to the recognition of the family, must
accept the concept that families take various forms. The Committee citedby
way of example, without meaning for it to be an exhaustive listunmarried
couples and their children, and single-parent families.
24


18. General Recommendation No. 21 of the Committee on the Elimination of all
Forms of Discrimination Against Women similarly states:

The form and concept of the family can vary from State to State, and even between
regions within a State. Whatever form it takes, and whatever the legal system, religion,
custom or tradition within the country, the treatment of women in the family both at
law and in private must accord with the principles of equality and justice for all people,
as article 2 of the Convention requires.
25


19. The decisions of the European Court on this issue can be split into two groups,
each of which provides arguments that can be used by both parties in the
competition.

20. The first group of decisions concerns the response of the European Court when
the States attempt to justify differences in treatment or restrictions to the
exercise of rights on the argument that they were necessary to protect the
traditional family model. The European Court has rejected arguments based on

23
General Comment No. 19, General Comments adopted by the Human Rights Committee, Article 23 The family, 39
th

Session, U.N. Doc. HRI/GEN/1/Rev.7 at 171 (1990), para. 2.
24
General Comment No. 28, General Comments adopted by the Human Rights Committee, Article 3 - Equality of rights
between men and women, 68
th
Session, U.N. Doc. HRI/GEN/1/Rev.7 at 207 (2000), para. 27.
25
CEDAW. General Recommendation No. 21, para. 13.





8
a concept of traditional family. Examples of this group of cases are Salgueiro
da Silva Mouta v. Portugal
26
and Karner v. Austria.
27


21. The second group of decisions handed down by the European Court address the
scope of the Courts understanding of the family or family life protected by
Article 8 of the European Convention. In previous cases involving heterosexual
couples, the European Court had done a case-by-case analysis, taking account of
the specific circumstances that led it to determine whether it was possible in
each case to speak of family or family life. An example of this trend is the
case of X, Y and Z v. the United Kingdom, in which the European Court indicated
that When deciding whether a relationship can be said to amount to family
life, a number of factors may be relevant, including whether the couple live
together, the length of their relationship and whether they have demonstrated
their commitment to each other by having children together or by any other
means.
28


22. In the Case of Schalk and Kopf v. Austria, the European Court expressly stated
that a cohabiting same-sex couple living in a stable domestic partnership falls
within the notion of family life, just as the relationship of a different-sex couple
in the same situation would.
29
The European Court added that it would be
artificial to maintain the view that, in contrast to a different-sex couple, a same-
sex couple cannot enjoy family life for the purposes of Article 8.
30


23. This trend, seen at the universal level and in the European system, has also been
accepted in the inter-American sphere. In the case of Atala Riffo and daughters
v. Chile, the Inter-American Court took note of the developments in other
systems, and held that:

The American Convention does not define a closed concept of family, and by no means
does it protect only a traditional model of family. The Court reiterates that the
concept of family life is not confined solely to marriage-based relationships and may

26
ECHR, Case of Salgueiro Mouta v. Portugal (No. 33290/96), Judgement of 21 December 1999, para. 34 to 36.
27
ECHR, Case of Karner v. Austria (No. 40016/98), Judgement of 24 October 2003, par. 41 (The aim of protecting the
family in the traditional sense is rather abstract and a broad variety of concrete measures may be used to implement
it. [] as is the position where there is a difference in treatment based on sex or sexual orientation, the principle of
proportionality does not merely require that the measure chosen is in principle suited for realizing the aim sought. It
must also be shown that it was necessary in order to achieve that aim to exclude certain categories of people).
28
ECHR, Case of X, Y and Z v. the United Kingdom, (No. 21830/93), Judgment of 22 April, 1997, para. 36. Citing ECHR,
Case of Marckx v. Belgium, (No. 6833/74), Judgment of 13 June, 1979, para. 31; Case of Keegan, para. 44, & Case of
Kroon and Others, para. 30.
29
ECHR, Case of Schalk and Kopf v. Austria (No. 30141/04), Judgment of 24 June 2010, par. 94; Case of P.B. & J.S. v.
Austria, (No. 18984/02), Judgment of 22 July, 2010. Final. October 22, 2010, para. 30.
30
ECHR, Case of Schalk and Kopf, para. 94.





9
encompass other de facto "family" ties where the parties are living together outside of
marriage.
31


24. The Court concluded that a concept of family that is limited or based on stereotypes
has no basis in the Convention, since there is no specific model of family.
32


A.3. The right to marry

25. Article 17.2 of the American Convention states that The right of men and women of
marriageable age to marry and to raise a family shall be recognized, if they meet the
conditions required by domestic laws, insofar as such conditions do not affect the
principle of nondiscrimination established in this Convention.

26. In the Inter-American System, neither the Commission nor the Court has
rendered any decisions on this provision. However, both the Human Rights
Committee and the European Court have ruled on the issue of same-sex
marriage, as described below.

27. The Human Rights Committee addressed the issue in the case of Joslin v. New
Zealand, which involved a lesbian couple who applied for a marriage license in
New Zealand. Their application was denied by the respective authorities based
on the fact that the domestic law established marriage solely for heterosexual
couples. The couple in this case had been in a stable relationship for more than
10 years, lived under the same roof, maintained a sexual relationship, shared
their finances, and had assumed joint responsibility for their children, who were
born during their prior, heterosexual marriages.
33
The Committee performed its
analysis on the basis of the verbatim text of Article 23 of the ICCPR,
34
which
establishes the right to marriage in terms of the States obligation to guarantee
the institution for men and women.

28. The Human Rights Committee observed that Article 23.2 of the ICCPR is the only

31
Advisory Opinion OC-17/02, paras. 69 & 70. See also: ECHR, Case of Keegan v. Ireland, (No. 16969/90), Judgment of
26 May, 1994, para. 44, & Case of Kroon and Others v. the Netherlands, (No. 18535/91), Judgment of 27 October,
1994, para. 30.
32
Similarly, the Supreme Court of Mexico has held that the legal recognition of families with same-sex parents, which
exist by virtue of reproduction or adoption, is not inconsistent with the best interests of the child. On the contrary,
such recognition gives rise to several rights benefitting the child, and creates obligations on the part of the parents.
The reality is that such families exist, and as such, they must be protected by the law; they are as respectable as any
others. Supreme Court of Mexico, Unconstitutionality Action A.I. 2/2010, August 16, 2010, para. 333.
33
Human Rights Committee. Case of Joslin v. New Zealand. Communication No. 902/1999. CCPR/C/75/D/902/1999
(2002), para. 2.1.
34
ICCPR. Article 23: 1. The family is the natural and fundamental group unit of society and is entitled to protection by
society and the State. 2. The right of men and women of marriageable age to marry and to found a family shall be
recognized. 3. No marriage shall be entered into without the free and full consent of the intending spouses. 4. States
Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of
spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for
the necessary protection of any children.





10
article that contains the term men and women, rather than every human
being, everyone, and all persons, which means that the States obligation
under the convention is to recognize as marriage only the union between a man
and a woman who wish to marry each other.
35
It therefore concluded that no
provision of the ICCPR had been violated.
36


29. In this case the Committee did not even conduct a secondary analysis in light of
the principle of equality and nondiscrimination (Article 26 of the ICCPR) or the
right to privacy and autonomy (Article 17 of the ICCPR). The Committee based its
opinion on the existence of a specific provision of the Covenant that regulates
the institution of marriage, but it abstained from examining the consistency of
this provision with other rights or principles of the same treaty and avoided any
possibility of an evolutionary interpretation.

30. The European Court has ruled on the institution of marriage, holding that the
prohibition for same-sex couples does not violate the European Convention. In
2010, the European Court handed down its most recent decision on the issue,
the case of Schalk and Kopf v. Austria, which dealt with a same-sex couple with a
stable history of cohabitation who applied before the proper authorities for
permission to marry. Their request was denied on the basis that marriage can
only be entered into by persons of opposite sexes. This argument was validated
by the judiciary.

31. As noted in the above section on the right to a family, in this case the European
Court modified its prior position and broadened the notion of family life to
include the bond between same-sex couples. Nevertheless, the European Court
held that the European Convention did not require States to allow marriage
between same-sex couples.
37
In the opinion of the European Court, the national
authorities are in the best position to address and respond to the needs of
society on this subject given that marriage has deep roots and social
connotations that vary significantly from one society to another.
38
On this point,
the European Court underscored the absence of a regional consensus on the

35
Human Rights Committee. Case of Joslin v. New Zealand. Communication No. 902/1999. CCPR/C/75/D/902/1999
(2002), para. 8.2.
36
Id., para. 8.3. Two members of the Committee presented their individual opinion stating that the decision not to find
a violation of the Covenant referred exclusively to the recognition of homosexual couples under the specific
institution of marriage. Nevertheless, in their opinion this decision does not mean that distinctions between married
couples and homosexual couples affecting the ability to exercise other rights cannot in certain cases amount to a
violation of the right to equal protection and of the principle of nondiscrimination under the ICCPR, when such
distinctions are not justified by reasonable and objective criteria. Finally, they stated that they took no issue with the
decision of the Committee because the State had expressed in its submissions that, although they are not married,
the authors are recognized as a family, and would be even in the event that they had not assumed responsibility for
their children. See Case of Joslin v. New Zealand. Communication No. 902/1999. CCPR/C/75/D/902/1999 (2002),,
Individual Opinion of Mr. Rajsoomer Lallah and Mr. Martin Scheinin.
37
ECHR, Case of Schalk and Kopf v. Austria (No. 30141/04), Judgment of 24 June 2010.
38
ECHR, Case of Schalk and Kopf v. Austria (No. 30141/04), Judgment of 24 June 2010.





11
issue.

32. Unlike the Human Rights Committee, the European Court approached the issue
first on the basis of Article 12 of the European Convention, which prescribes that
States must allow every man and woman to have access to marriage. It also
based its approach on Articles 8 and 14 of the Convention, corresponding to the
rights to privacy and family life and the principle of nondiscrimination. Within
the analytical framework of these last two provisions, the European Court
accepted that there is a difference in treatment and interference in private and
family lifebut it found that it is justified.

A.4. Legal effects of same-sex unions in comparison to heterosexual couples

33. Beyond the recognition of the union between Serafina Conejo Gallo and Adriana
Timor as a marriageand therefore a constitutionally protected familyone of
the debates behind both institutions (family and marriage) in many legal systems
is that different rights, special protections, and obligations are provided for
either married couples or those considered family. Couples often must be
married in order to constitute a family, with the exception of the special
recognition of domestic heterosexual partnershipswhich in many cases does
not include, in identical terms, domestic same-sex partnerships. It is also
important in the analysis of the case to bear in mind that there is ample
international case law addressing the different treatment of same-sex couples in
the exercise of rights, protections, or obligations derived from the relationship
between a couple.

34. Both the Human Rights Committee and the European Court have examined
these legal distinctions between homosexual and heterosexual couples,
indicating that in order for such a distinction not to be incompatible with the
respective international instruments, especially the principles of equality and
nondiscrimination; it must be justified on the basis of reasonable and objective
criteria.

35. For example, in the case of Young v. Australia, the Human Rights Committee

found that the regulation would effectively establish a legal differentiation
between homosexual and heterosexual couples in obtaining a survivors pension.
In view of the respective State partys failure to allege the reasonableness and
objectivity of the distinction, or to indicate the specific factors that would
justify it, the HRC concluded that the distinction violated the right to equality.
39

This case makes an important point regarding the burden of proof required to

39
Human Rights Committee. Case of Young v. Australia (Communication No. 941/2000), CCPR/C/78/D/941/2000,
Decision of 18 September 2000, para. 10.4.





12
demonstrate the reasonableness of a difference in treatment, which is
necessarily upon the State.

36. In this decision, the Committee appears to suggest an implied standard that is
extremely relevant to the hypothetical case. The Committee suggests that the
equality test would be applied more strictly to distinctions adversely affecting
homosexual couples than to distinctions adversely affecting unmarried
heterosexual couples, given that the latter have the legal option to marry, while
the former do not.
40


37. In considering these types of distinctions or legal exclusions, the European Court
has found that the nondiscrimination clause is applicable in conjunction with the
substantive provision, as sexual orientation has been the decisive element in
granting a legally recognized benefit to heterosexual individuals.
41
Specifically, in
the case of Karner v. Austria, the European Court ruled on a legal distinction
involving succession to the tenancy of the residence in which a same-sex couple
lived together as a couple. The European Court found this distinction to be in
violation of the right to privacy in relation to the nondiscrimination clause. Just
as the Committee had stated with respect to the burden of proof, the European
Court held that States must demonstrate that such difference not only is
appropriate for accomplishing the aim pursued but also that it is strictly
necessary.
42


38. Neither the analysis of the Human Rights Committee nor that of the European
Court distinguishes between provisions that have the purpose or the effect of
excluding same-sex couples from the right, protection, or obligation in question.
The relevance of this point is that it is unlikely for there to be provisions that
expressly exclude same-sex couples. Rather, there are provisions that are silent
with regard to couples that have an exclusionary effect beyond the intent of the
lawmakers. It is also not unusual to find decisions from national courts that, in
determining whether a provision is discriminatory because it excludes same-sex
couples, examine only the intent of the lawmakers and do not go on to examine
the effect of the provision.

A.5. Possible arguments of the injured party


40
Human Rights Committee. Case of Young v. Australia (Communication No. 941/2000), CCPR/C/78/D/941/2000,
Decision of 18 September 2000, para. 10.4. As for the reasonableness and objectivity of the distinction between
married and unmarried heterosexual couples, see: Human Rights Committee. Case of Broeks v. The Netherlands,
Communication No. 172 of 1984; Human Rights Committee. Case of Danning v. The Netherlands, Communication No.
182 of 1984; Human Rights Committee. Case of Zwaan de Vries v. The Netherlands, Communication No. 180 of 1984.
41
ECHR, Case Karner v. Austria (40016/98), Judgment of 24 October 2003; Prr. 33.
42
ECHR, Case Karner v. Austria (40016/98), Judgment of 24 October 2003; Prr. 33.





13
39. The representatives of the injured party can argue as a general matter that the
case concerns a difference in treatment and interference in private life based on
sexual orientation. This means that the Inter-American Courts analysis of
whether the interference is arbitrary, and whether the differences in treatment
are reasonable and objective, must be conducted in an especially strict manner
based on the existing international consensus.

40. The analysis of the requirements of legitimate aim, suitability, necessity, and
proportionality stricto sensu, which have been the Courts methodology of
interpretation with regard to both differences in treatment and interference in
private life, must have as its starting point that sexual orientation is a prohibited
category covered by the nondiscrimination clause set forth in Article 1.1 of the
Convention, and that with regard to private life, sexual orientation and its
expression are part of one of the most protected aspects of both private life and
personal autonomy.

41. It would be important for the representatives first to examine (i) whether, in
light of Article 17.2 of the Convention, same-sex couples have the right to marry;
and (ii) regardless of whether this specific article is interpreted in that way, how
the prohibition could be analyzed in light of other provisions of the Convention,
such as the principle of equality and nondiscrimination, the prohibition against
arbitrary interference in private life and personal autonomy, and the right to a
family.

Interpretation of Article 17.2 of the Convention

42. With regard to the interpretation of Article 17.2 of the Convention, the
representatives can invoke the pro persona principle of interpretation, as well as
the evolutionary interpretation of the literal meaning of the treaties.

43. It could be argued, precisely by virtue of the pro persona principle, that the
meaning of between a man and a woman as a restrictive provision must be
interpreted restrictively. As such, by not specifying between a man and a
woman [who marry] each other, it could be concluded that it does not
necessarily have to be between persons of the opposite sex.

44. This progressive argument could be bolstered by providing examples of similar
practices of other international bodies that have interpreted human rights
provisions broadly, including in a manner that departs from their literal meaning
in order to protect a minority not represented in that meaning.

45. They can argue that the fact that a provision of the Convention includes a
majority understanding in its literal meaning does not mean that such





14
understanding cannot be broadened through interpretative means to include
minorities, especially when the real possibility of being entitled to the right in
question depends upon this interpretation. Along these lines, it could be argued
that it is not a matter of including an accessory element to a right that is already
recognized; rather, it is about recognizing the entitlement to that right and
allowing for it to be exercised.

The principle of equality and nondiscrimination, the prohibition against
arbitrary interference in private life and personal autonomy, and the right to a
family

46. The representatives should point out that the case can be argued along two
lines: first, as indicated in the above section, based on a proposed interpretation
of Article 17.2 of the Convention; and second, from the perspective of the right
to equality, private life, personal autonomy, and family. On this point, it would
be important for the representatives to identify Article 396 of the Civil Code of
Elizabetia as a provision that, by excluding same-sex couples, constitutes a
difference in treatment, interference in private life, and the infringement of the
right to a family.

47. Regarding the infringement of the right to equality, the representatives could
make at least two arguments.

48. One argument is related to the ability to decide, on an equal footing with
heterosexual couples, the type of union they want to apply to their romantic and
emotional life. This argument is independent of whether the legal effects of one
type of union or another are the same or different. The point of this argument is
that, while heterosexual couples can choose to opt for either marriage or a
domestic partnership, same-sex couples have only one optionand this in itself
constitutes a difference in treatment and interference in private life and
personal autonomy.

49. Second, it is important that the representatives approach Article 396 of the Civil
Code in light of the other provisions of Elizabetian law cited in the hypothetical
case, in order for them to be able to identify the violations to the right to
equality not only with respect to the decision to marry and choose the type of
union but also with respect to the legal effects of one type of union or another in
the State of Elizabetia specifically.

50. It is important that the representatives identify at least three differences in this
regard.






15
51. First, it follows from the Constitution, read in conjunction with the Civil Code,
that in order for persons of the same sex to be constitutionally protected they
must meet the requirements of a domestic partnershipthat is, five years of
cohabitation and a judicial decreewhile heterosexual couples can either decide
to marry and be a family immediately, or wait to meet the aforementioned
requirements. Accordingly, there is a difference in treatment with respect to the
right to a family in the terms of Articles 17 and 24 of the Convention.

52. Second, it is evident that Elizabetia does not understand same-sex couples to be
on a completely equal footing with heterosexual couples. When it amended the
Civil Code after the provision regulating domestic partnerships only with respect
to heterosexual couples was ruled unconstitutional, it could not simply amend
the language in order for same-sex couples to be included; rather, it saw the
need to make a distinction between the legal effects, namely in terms of joint
adoption.
53. Third, there are several rights, obligations, and protections under the domestic
laws of States relating to the concepts of family or relatives that exclude
same-sex couples who have not met the requirements for establishing a
domestic partnership, while a married heterosexual couple would not have to
wait for that period of time in order to be entitled to the legal effects of the
notion of family. One example of such a situation in this case is the issue of the
provisional measures and the ability to grant consent for a major medical
procedure.

54. All of the above arguments enable the representatives to demonstrate that
there is a difference in treatment, interference in private life, and an
infringement of the right to a family.

55. Accordingly, in keeping with the consistent case law of the inter-American
system, it is appropriate for them to argue whether those infringements are
justified under the requirements of legitimate aim, suitability, necessity, and
proportionality stricto sensu. The way in which the representatives examine
these requirements will depend upon the legitimate aim cited by the respective
State in its brief, if it does so. If it does not, the representatives should be
prepared to argue according to the rules governing the burden of proof that the
State failed to justify the infringement of the rights in question according to the
standards of the inter-American system.

A.6. Possible arguments of the State

56. The possible arguments of the State of Elizabetia can be laid out according to the
same framework of possible arguments that was described with respect to the
injured party.





16

Interpretation of Article 17.2 of the Convention

57. This is the strongest point the State can argue. The literal text of Article 17.2 of
the American Convention refers to marriage between a man and a woman,
unlike the rest of the provisions of the Convention, which refer to every person
or every human being. Accordingly, the main argument the representatives of
the State could turn on the literal meaning of the treaty and on the fact that
when the State of Elizabetia signed and ratified the American Convention it did
so with respect to the rights and obligations established in its text.

58. The State can argue that although it is possible to determine the scope and
content of a right established in the American Convention through the relevant
case law, this possibility must be properly balanced with the intent expressed by
the States upon their ratification of the international instrument. Therefore, the
State can argue, it cannot go to the extreme of completely changing the text of a
treaty that is as clear in its drafting as Article 17.2 of the American Convention.

59. Elizabetia can argue that both the Human Rights Committee and the European
Court of Human Rights lend support to its position and that, to date, no
international body or court has recognized the right of same-sex couples to
marry. On this point, the State should cite in particular the Human Rights
Committee case of Joslin v. Australia, and the case of Schalk and Kopf v. Austria
of the European Court, which interpret Articles 23 and 12 of the respective
treaties.

60. The State can also argue that the rules of interpretation must be applied step-by-
step, and that only when the text of a provision fails to provide sufficient clarity
regarding the scope and content of the right is it valid to resort to additional
means of interpretationwhich is not the case with Article 17.2 of the
Convention.

The principle of equality and nondiscrimination, the prohibition against
arbitrary interference in private life and personal autonomy, and the right to a
family

61. The above argument of the State is a strong one, but because the IACHRs report
on the merits included Articles 11, 24, and 17, the teams playing the role of the
State must be prepared to respond to the arguments of the representatives
regarding those provisions.

62. As stated earlier, and as it follows from the approach of the Inter-American
Court, an initial step in the analysis of these cases is to determine whether the





17
provision or state act alleged to be a violation in fact infringes upon these rights;
second, it is necessary to determine whether the infringement is justified or
reasonable or objective when it affects the right to equality.

63. In the opinion of the authors, it is difficult for the State of Elizabetia to argue at
the first stage of the analysis that the legal prohibition against marriage, in the
context of the other provisions of Elizabetian law, does not constitute a violation
of the rights to equality, private life, personal autonomy, and the right to a
family. This is because same-sex couples do not have the same range of
opportunities as heterosexual couples to choose a type of union. In addition, as
previously stated, the ability to be recognized as a family and to be entitled to
the effects derived from that status is different for same-sex couples in
comparison to heterosexual couples.

64. In this respect, the State should be prepared to argue that while this
infringement does exist, it is justified in view of the criteria established in the
case law of the Inter-American Court, namely: legitimate aim, suitability,
necessity, and proportionality. It is expected that the States will know the
content of each one of these criteria, and present solid and creative arguments
on each one of them.

65. The State could argue that although the category of sexual orientation requires
strict scrutiny pursuant to the judgment of the Inter-American Court in the case
of Atala Riffo and daughters v. Chile, this type of scrutiny must be weighed
against other factorspresent in the case law of the European Court under the
doctrine of margin of appreciationto determine the intensity of the scrutiny.
As such, the State could argue that the scrutiny cannot be overly strict with
regard to matters on which there is still no regional consensus, as in the case of
same-sex marriage. On the contrary, the State could suggest that the Inter-
American Court use the doctrine of margin of appreciation and conclude that the
margin is broad in cases where consensus is absent.

66. The State can note again here that the international case law is in its favor,
especially that of the European Court. In the case of Schalk and Kopf v. Austria,
the European Court not only failed to find a violation of the right to marry but
also failed to find a violation of the right to private life or the prohibition against
discrimination, precisely because it applied a broad margin of appreciation and
made reference to regional consensus.

67. One point that the State should use in its favor when examining whether the
infringement is justified is related to the true impact of the difference in
treatment, interference in private life, and the ability to constitute a family.






18
68. The State could argue that it is one of the most advanced states in the region
with respect to the progressive recognition of the rights of same-sex couples. It
could note that there are few states that recognize that such couples can form a
constitutionally protected family, and that the requirement of five years of
cohabitation to obtain that recognition and all of the legal effects derived from it
is not disproportionate.

Arguments on judicial guarantees and judicial protection

69. There are at least three issues surrounding these provisions: (i) the response of
the domestic judicial authorities to the appeals filed, especially the motion to
vacate before the court of appeals for administrative matters; (ii) the
impossibility of filing a petition for a constitutional remedy to challenge a court
decision, in light of Article 25 of the Convention; and (iii) the single-instance
administrative appeal proceedings, in light of Article 8.2(h) of the Convention.

The response of the domestic judicial authorities to the appeals filed,
especially the motion to vacate before the court of appeals for administrative
matters

70. The following points regarding Article 25 of the Convention are gleaned from the
consistent case law of the bodies of the inter-American system. The Inter-
American Court has established that the protection of the individual from the
arbitrary exercise of government power is the fundamental purpose of
international human rights protection. The nonexistence of effective domestic
remedies denies due process to individuals.
43
Additionally, the Court has
repeatedly held that the guarantee contained in those provisions is not limited
to those rights that are enshrined in the American Convention; rather, they also
cover domestic judicial claims related to other rights to which individuals are
entitled under the Constitution and domestic law. The Court has affirmed this
scope in the following terms:

Article 25(1) of the Convention has established, in broad terms, the obligation of the
States to provide to all persons within their jurisdiction, an effective judicial remedy to
violations of their fundamental rights. It provides, moreover, for the application of the
guarantee recognized therein not only to the rights contained in the Convention, but
also to those recognized by the Constitution and laws.
44



43
I/A Court H.R., Case of Claude-Reyes et al. Judgment of September 19, 2006. Series C No. 151, para. 129; I/A Court
H.R., Case of Garca-Asto and Ramrez-Rojas. Judgment of November 25, 2005. Series C No. 137, para. 113; I/A Court
H.R., Case of Palamara-Iribarne. Judgment of November 22, 2005. Series C No. 135, para. 183.
44
I/A Court H.R., Case of the Dismissed Congressional Employees (Aguado - Alfaro et al.). Preliminary Objections, Merits,
Reparations and Costs. Judgment of November 24, 2006. Series C No. 158, para. 122; I/A Court H.R., Case of Claude-
Reyes et al. Judgment of September 19, 2006. Series C No. 151, para. 128; I/A Court H.R., Case of Yatama.
Judgment of June 23, 2005. Series C No. 127, para. 167.





19
71. The Court has also held that the domestic remedies must be available to the
interested party, must resolve the issue in question effectively and in a well-
reasoned manner, and potentially provide the appropriate reparation.
45


72. Serafina Conejo Gallo and Adriana Timor initiated administrative proceedings to
request a marriage license. When their case was denied at the administrative
level, they filed a motion to vacate before the court of appeals for administrative
matters in accordance with Elizabetian law. They subsequently filed a petition
for a constitutional remedy to challenge the decision of the court of appeals for
administrative matters, which is examined below.

73. The representatives could argue that the denial of the motion to vacate by Court
No. 7 for the Review of Administrative Decisions was a denial of justice and
evidenced the lack of effective remedies to challenge human rights violations.
The representatives could refer to the fact that the Court did not take account of
the nondiscrimination clause of the Constitution of the State of Elizabetia, and
argue that Article 396 of the Civil Code, on which basis the motion was denied, is
unconstitutional in light of that clause. The representatives could also argue that
according to the case law of the Inter-American Court from Almonacid Arellano
v. Chile to the present, all judicial authorities, regardless of their ranking, must
exercise conventionality control with regard to the domestic regulatory
framework; in other words, they could have explored the possibility of not
applying Article 396 of the Civil Code based on the rights to equality,
nondiscrimination, and private life established in the American Convention.

74. The State of Elizabetia could argue that the Inter-American Court has
consistently held that the mere fact that a party loses an appeal does not mean
that it is a violation of Article 25 of the Convention (See, e.g., case of Raxcac-
Reyes v. Guatemala). It can further argue that the concept of conventionality
control cannot be invoked in this case, as it would be irresponsible for the
judicial authorities to refrain from applying a domestic law provision related to
an issue that: (i) has been rejected by the international courts; and (ii) has not
been examined by the Inter-American Court.

The impossibility of filing a petition for a constitutional remedy to challenge a
court decision, in light of Article 25 of the Convention

75. The other issue that the case raises in light of Article 25 of the American
Convention is whether the stipulation under Elizabetian law that a petition for a
constitutional remedy challenging a court decision is proper only when such
decision is manifestly arbitrary violates the right to judicial protection.

45
I/A Court H.R., Case of the Dismissed Congressional Employees (Aguado - Alfaro et al.). Preliminary Objections, Merits,
Reparations and Costs. Judgment of November 24, 2006. Series C No. 158, para. 126.





20

76. The representatives could argue that, according to the case law of the Inter-
American Court ever since Velsquez Rodrguez v. Honduras, any state authority
can violate the rights established in the American Convention by action or
omission, and therefore, in light of Article 25 of the Convention, States have the
obligation to allow remedies relating to fundamental rights to proceed with
regard to human rights violations that may be committed by judicial authorities
in the performance of their duties.

77. The representatives could add that in this case the denial of due process to
Serafina Conejo Gallo and Adriana Timor was even more clear, since Court No. 7
for the Review of Administrative Decisions refused to examine the case in light of
the Constitution and the American Convention, and the authority hearing their
petition for a constitutional remedywhich would have been called upon to
perform that analysisrefused on the grounds that the case did not involve
manifest arbitrariness. As such, no judicial authority at the national level ruled
on the merits of the claim with regard to private life and discrimination.

78. For its part, the State could argue that the case did not involve an absolute
restriction of petitions for a constitutional remedy against a court decision;
rather, for such petitions to be admissible, it is necessary to allege manifest
arbitrariness, which was not sufficiently argued by the alleged victims. This lack
of argument under the parameters established by domestic law for the
admissibility of a petition is not attributable to the State. The State can assert
that the reason for this restriction is clearly that the acts of the judiciary demand
greater protection on account of the principles of legal certainty and judicial
independence.

The single-instance administrative appeal proceedings, in light of Article 8.2(h)
of the Convention Violation not found by the IACHR in its report on the
merits

79. The bodies of the inter-American system have consistently held that the purpose
of Article 8.2(h) of the Convention is to protect the right of defense by creating
a remedy to prevent a flawed ruling, containing errors unduly prejudicial to a
persons interests, from becoming final.
46
The decisions of the Court and the
Commission have discussed extensively the scope of review and other aspects not
relevant to the analysis of the hypothetical case.

80. It is important to recall that in the hypothetical case the Inter-American
Commission did not find a violation of this provision, because the proceedings

46
I/A Court H.R., Case of Herrera-Ulloa v. Costa Rica. Judgment of July 2, 2004. Series C No. 107, para. 158.






21
were not punitive in nature. In fact, the cases in which the inter-American system
has examined Article 8.2(h) of the Convention are related to criminal cases orat
the very leastdisciplinary or administrative sanctions proceedings. All of the
cases have involved the punitive power of the State.

81. Accordingly, the jurisprudence of the inter-American system favors the State of
Elizabetia on this issue.

82. Nevertheless, there are two points that the victims representatives could raise in
order to insist upon the application of Article 8.2(h) in the exercise of their
autonomy to assert before the Court rights other than those asserted by the
IACHR. One point is related to the general case law of the Court that indicates,
without further specificity or distinction, that Although Article 8 of the American
Convention is entitled Judicial Guarantees [Right to a Fair Trial in the English
text], its application is not strictly limited to judicial remedies; rather, it applies
to the requirements that must be observed at all stages of the proceedings in
order for a person to be able to defend himself adequately in the face of any
kind of act of the State that affects his rights.
47
The second point is related to
the interests at stake and the nature of the proceeding to be reviewed,
especially when the opportunity to file petitions for a constitutional remedy
against the judgment in single-instance court proceedings is so limited.

83. Specifically, in the case of Barbani Duarte et al. v. Uruguay, the Inter-American
Court examined its prior case law on the different guarantees that apply to
different types of proceedings, and proposed a sort of case-by-case analysis of
the guarantees that are necessary for the remedy or proceeding in question to
reach its intended outcome.
48
This general, case-by-case approach could be used
by the representatives to their advantage.

B. Preliminary issues

B.1. The requirement to exhaust domestic remedies; B.2. Analysis of admissibility in light of the
current situation at the time of the admissibility report; B.3. Inclusion in the report on the merits
of provisions of the Convention not included in the admissibility report.

B.1. The requirement to exhaust domestic remedies and the unconstitutionality
action

84. To summarize in general terms, the admissibility reports of the Inter-American
Commission include the following reference to the exhaustion of domestic

47
I/A Court H.R., Case of the Constitutional Court v. Peru. Judgment of January 31, 2001. Series C No. 71, para. 69, citing
I/A Court H.R., Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and (8) American Convention on Human
Rights). Advisory Opinion OC-9/87 of October 6, 1987. Series A No. 9, para. 27.
48
I/A Court H.R. Case of Barbani Duarte et al v. Uruguay; Judgement of October 13, 2011; Series C No. 234.





22
remedies:

Article 46.1.a of the American Convention provides that in order for petitions
alleging violation of the American Convention to be admissible, the available
remedies under domestic law must first be pursued and exhausted in
accordance with generally recognized principles of international law. This
requirement is recognized by the Commission as a procedural requirement in
order to allow domestic authorities to hear about the alleged violation of a right
protected under the provisions of the American Convention and, if appropriate,
to provide a solution before it is heard in an international venue.

The requirement of prior exhaustion is applicable when the national system
affords appropriate and effective remedies to redress the alleged human rights
violation. Here, Article 46.2 establishes that the requirement does not apply
when domestic legislation does not afford due process of law for the protection
of the right in question; if the alleged victim was denied access to the remedies
available under domestic law; or if there has been unwarranted delay in
rendering a judgment on those remedies.

85. For its part, in ruling on States objections alleging the failure to exhaust
domestic remedies, the Inter-American Court has held repeatedly that it is a
defense available to the State, but that the proper time for it to be raised is
during the admissibility phase before the IACHR.
49
Particularly relevant to this
case, the Court has specified the following content of that defense, which
includes the States burden not only to name the remedies that have not yet
been exhausted but also to provide the basis of their effectiveness with respect
to the alleged violation:

The Court reaffirms that, pursuant to its case law
50
and international case law,
51

it is not up to the Court or the Commission to identify sua sponte the domestic
remedies to be exhausted; rather, it is incumbent upon the State to timely
specify the domestic remedies that must be exhausted and their effectiveness.
In this case, the State should have indicated sufficiently clearly to the
Commission, during the admissibility phase, its arguments with respect to the

49
I/A Court H.R. Case of Chocrn v. Venezuela; Judgement of July 1, 2011; Series C No. 227, par. 21, citing Case of
Velsquez-Rodrguez v. Honduras. Preliminary Objections. Judgment of June 26, 1987. Series C No. 1, para. 88; Case of
Heliodoro-Portugal v. Panama. Preliminary Objections, Merits, Reparations, and Costs. Judgment of August 12, 2008.
Series C No. 186, para. 14, & Case of Bayarri v. Argentina. Preliminary Objection, Merits, Reparations and Costs.
Judgment of October 30, 2008. Series C No. 187, para. 16.
50
I/A Court H.R. Case of Chocrn v. Venezuela; Judgement of July 1, 2011; Series C No. 227, par. 23; Case of Velsquez-
Rodrguez v. Honduras. Preliminary Objections. supra nota 14, para. 88; Case of Ros et al. v. Venezuela. Preliminary
Objections, Merits, Reparations, and Costs. Judgment of January 28, 2009. Series C No. 194, para. 37 & Case of Perozo
et al. v. Venezuela, supra nota 13, para. 42.
51
I/A Court H.R. Case of Chocrn v. Venezuela; Judgement of July 1, 2011; Series C No. 227, par. 23; Case of Revern-
Trujillo v. Venezuela, supra nota 12, citing ECHR, Case of Deweer v. Belgium, Judgment of 27 February 1980, Series A
no. 35, para. 26; ECHR, Case of Foti and others v. Italy, Judgment of 10 December 1982, Series A no. 56, para. 48, &
ECHR, Case of De Jong, Baljet and van den Brink v. the Netherlands, Judgment of 22 May 1984, Series A no. 77, para.
36.





23
remedies that, in its opinion, had not yet been exhausted. On this point, the
Court reiterates that it is not for the international bodies to correct any want of
precision in the States arguments.
52


86. The hypothetical case raises three main legal issues pertaining to the exhaustion
of domestic remedies. The first issue relates to the suitability and effectiveness
of the abstract unconstitutionality action; the second one concerns the
accessibility and discretional nature of the unconstitutionality action in
Elizabetia, given that it depends upon the Office of the Human Rights Prosecutor;
and the third issue is related to the reasonableness of the requirement that the
remedy be exhausted under the circumstances of the specific case. We discuss
below the ways in which the parties might argue their positions on the
exhaustion of domestic remedies with these legal questions in mind.

Possible arguments of the representatives

87. In general terms, the representatives could assert that the unconstitutionality
action is a general and abstract mechanism that is not designed to resolve
specific human rights violations. They could further maintain that the remedy is
not suitable because the instant case is not limited to the validity of an allegedly
discriminatory provision; rather, it also concerns several administrative and
judicial acts that go beyond that issue of validity.

88. Nevertheless, the two strongest arguments the representatives of the alleged
victims could make are related to accessibility and the discretional nature of the
unconstitutionality action and the reasonableness of requiring that it be filed
under the circumstances of this specific case.

89. Regarding the issue of accessibility, the representatives can argue that the
requirement of obtaining the approval of the Office of the Human Rights
Prosecutor prior to filing the unconstitutionality action seriously limits its
accessibility.

90. In support of its position, the representatives can cite the Courts consistent
opinion that any remedies to be exhausted must in fact be available to the
alleged victims.
53
In terms of accessibility, the Inter-American Commission has
indicated that, If the domestic remedy is designed in such a way that its
exercise is in effect beyond the reach of the alleged victim then there is certainly

52
I/A Court H.R. Case of Chocrn v. Venezuela; Judgement of July 1, 2011; Series C No. 227, par. 23; Case of Revern-
Trujillo v. Venezuela, supra nota 12, citing ECHR, Case of Bozano v. France, Judgment of 18 December 1986, Series A
no. 111, para. 46.
53
I/A Court H.R., Exceptions to the Exhaustion of Domestic Remedies (Arts. 46(1), 46(2)(a) and 46(2)(b) American
Convention on Human Rights). Advisory Opinion OC-11/90 of August 10, 1990. Series A No. 11, para. 17.





24
no obligation to exhaust it in order resolve the legal situation.
54
More
specifically, with respect to constitutional challenges that require the gathering
of signatures or a favorable opinion from the Ombudsman of the People, the
Commission has maintained that such requirements are excessive.
55


91. With regard to the discretional nature of the remedy, the representatives could
argue that including the approval of a government authority as a requirement
for the filing of the remedy turns it into a remedy that depends upon the
particular opinion of the Office of the Human Rights Prosecutor.

92. There are several IACHR decisions that support this potential argument of the
petitioners mutatis mutandis. In cases in which the admissibility of remedies that
the State says should be exhausted is discretional in nature, the IACHR has
indicated that it is not necessary to exhaust them.
56


93. As for the reasonableness of the requirement of filing the unconstitutionality
action, the representatives can argue that even if this action is considered
suitable and the requirements are not excessive, it is still unreasonable to
require that it be exhausted after the petitioners have availed themselves of
administrative proceedings, court proceedings for the review of administrative
actions, and the petition for a constitutional remedy.

94. The IACHR has repeatedly maintained that the requirement of exhaustion of
domestic remedies does not mean that that alleged victims have to exhaust all
remedies available. () If the alleged victim raised the issue by any lawful and
appropriate alternative under the domestic [legal] system and the State had the
opportunity to remedy the matter within its jurisdiction, then the purpose of the
international rule has thus been served.
57


Possible arguments of the State

95. With regard to the procedural requirements for the objection to be proper, the
State can argue that it raised the objection of failure to exhaust domestic
remedies in a timely manner during the admissibility phase before the Inter-
American Commission.

96. In more substantive terms regarding the admissibility of the objection, the State

54
IACHR, Report No. 8/07. Petition 1425-04. Admissibility. Hugo Quintana Coello, et al. (Justices of the Supreme Court).
Ecuador. February 27, 2007, para. 28.
55
IACHR, Report No. 8/07. Petition 1425-04. Admissibility. Hugo Quintana Coello, et al. (Justices of the Supreme Court).
Ecuador. February 27, 2007, para. 29.
56
IACHR, Report No. 68/08. Petition 681-00. Admissibility. Guillermo Patricio Lynn. Argentina. October 16, 2008, para.
41.
57
See, e.g., IACHR, Report No. 57/03. Petition 12.337. Marcela Andrea Valds Daz (Chile). October 10, 2003, para. 40.





25
could argue that the remedies that must be exhausted are determined on a
case-by-case basis, according to the suitability of the remedy to potentially
resolve the alleged violation.
58


97. Based on this general approach, the State could argue that there are certain
circumstances under which the unconstitutionality action may be considered
suitablespecifically, those cases in which the alleged violation of the American
Convention stems from the operation of a provision that is alleged to be
incompatible with the Convention. The State could argue that the central issue in
this debate is the provision of the Civil Code that prevents the administrative and
judicial authorities from allowing marriage between same-sex couples. The State
could thus assert that the remedy to be exhausted in the instant case was the
unconstitutionality action challenging Article 396 of the Code.

98. The State could cite IACHR precedent that supports this position. For example, in
a case that challenged the validity of a provision that allowed criminal
prosecution for defamation offenses, the Commission maintained that:

The petitioners have argued that they exhausted the constitutional
challenge of the provisions at Articles 172 and 175 of the Criminal Code,
and the State indicates only that it was rejected by the Supreme Court.
In this case, the adequate remedy is the constitutional challenge, and,
accordingly, the petitioners have met the requirement of prior
exhaustion of domestic remedies.
59


99. Accordingly, the State could assert that there was improper exhaustion on the
part of the representatives. Even though they had the suitable means to
challenge the act that gave rise to the alleged violation (the operation of the
provision), they availed themselves of administrative and judicial proceedings
that were ineffective because the respective authorities were subject to the
rule of law.

100. The State could additionally argue that the requirement of obtaining the
approval of the Office of the Human Rights Prosecutor was not in itself excessive.
On one hand, the State could maintain that there is no practice of denial by the
Prosecutors Office and that the representatives have not proved otherwise; on
the other hand, in the above-cited case in which the IACHR considered that it
was an excessive requirement, there was also the requirement of gathering a
certain number of signaturessomething that is not required under Elizabetian
law.


58
IACHR, Report No. 23/07. Petition 435/06, Eduardo Landaeta Mejas (Venezuela). March 9, 2007, para. 43.
59
IACHR, Report No. 71/02, Petition 12.360. Admissibility. Santander Tristn Donoso. Panama. October 24, 2002, para.
22.





26
B.2. Admissibility analysis in light of the situation at the time of the admissibility
report

101. As stated in the facts of the case, the petition against the State of Elizabetia,
numbered 600-12 by the Commission, was submitted on February 1, 2012, while
the petition for a constitutional remedy against the August 5, 2011 decision of
Court No. 7 for the Review of Administrative Decisions was still pending. The
decision on the petition for a constitutional remedy was issued days later, on
February 18, 2011, within the three-month period provided under Elizabetian
law for especially complex cases. Admissibility Report 179-12 was issued on
September 22, 2012.

102. This procedural issue that has been included in the case raises a debate that has
come up recently before the Inter-American Court. It is related to the
admissibility decision of the Inter-American Commission in those cases in which
the procedural status of compliance with the admissibility requirements,
including the exhaustion of domestic remedies, changes between the date of the
initial submission of the petition and the date on which the Commission issues
its admissibility report. To address this situation, the Commission has historically
used the following formulation, which it has used repeatedly in many cases:

In situations where evolution of the facts initially presented at the domestic
level implies a change in the compliance or noncompliance with admissibility
requirements, the Commission has held that admissibility requirements of a
petition must be examined at the moment at which the Commission [rules] on
its admissibility.
60


Possible arguments of the representatives

103. The hypothetical case indicates that the representatives invoked the argument
presented by the Commission before the Inter-American Court and assumed it as
their own position. It is therefore important that the arguments made by the
representatives take account of this point and are tied to those that the
Commission could have made in institutional terms.

104. The representatives could underscore the autonomy and independence of the
Commission in its performance of the duties assigned to it by the Convention. As
such, they could argue that it is primarily incumbent upon the Commission to
rule on admissibility issues and that the manner in which the IACHR conducts its
proceedings should be reviewed only under exceptional circumstances related to

60
IACHR, Report No. 2/08. Petition 506-05. Jos Rodrguez Dan. Bolivia. March 6, 2008, para. 56, citing IACHR, Report
No. 20/05. Petition 714/00 (Rafael Correa Daz). February 25, 2005. Peru, para. 32; IACHR, Report No. 25/04, Case
12.361 (Ana Victoria Snchez Villalobos et al.), March 11, 2004. Costa Rica, para. 45; IACHR, Report No. 52/00. Cases
11.830 & 12.038. (Dismissed Congressional Employees), June 15, 2001, Peru, para. 21.





27
a serious infringement of the States right of defense. The representatives could
emphasize that the burden of arguing how a specific procedure or practice of the
Commission infringes upon the States right of defense necessarily falls to the
State.

105. The representatives could support this position by citing several cases in which
the Court has held that:

() the Inter-American Commission has autonomy and independence in the
exercise of its mandate as established by the American Convention and, in
particular, in the exercise of its functions in the proceedings relating to the
processing of individual petitions established in Articles 44 to 51 of the
Convention. Nevertheless, in matters that it is considering, the Court is
empowered to control the legality of the Commissions actions.
61
This does not
necessarily entail [reviewing] the proceedings carried out before the latter,
unless one of the parties argues, with justification, that there has been a grave
error that violates its right of defense.
62


106. Accordingly, the representatives could argue that the State of Elizabetia has not
properly specified the manner in which the Commissions practice and its
decision in Admissibility Report 179/12 adversely affected its right of defense,
especially when it follows from the Rules of Procedure of the IACHR that the
admissibility process and all of the information submitted by the petitioners can
be contested by the State.

107. The representatives could further indicate that the Commissions practice of
rendering a decision based on the current situation at the time of the
admissibility report and not at the time of the initial submission is completely
justified and consistent with the design of the petition and case system. On this
point, they can assert that one of the reasons for this practice of the IACHR is
that the Convention contains grounds for exemption from the exhaustion
requirement that include, in particular, undue delay. The IACHR receives a high
number of petitions in which a domestic case is pending and excessive delay is
alleged. In that scenario, it is entirely possible for decisions to be made at the
domestic level during the course of the proceedings before the Commission, and
for the petitioners to provide updated information on their cases.


61
I/A Court H.R., Control of Legality in the Practice of Authorities of the Inter-American Commission of Human Rights
(Arts. 41 & 44 to 51 of the American Convention on Human Rights). Advisory Opinion OC-19/05 of November 28, 2005.
Series A No. 19, paras. 1 & 3 of the Opinion; Case of Grande v. Argentina. Preliminary Objections and Merits. Judgment
of August 31, 2011. Series C No. 231, para. 45; Case of Gonzalez-Medina and relatives v. Dominican Republic, para. 28.
62
Case of Castaeda-Gutman v. Mexico. Preliminary Objections, Merits, Reparations, and Costs. Judgment of August 6,
2008. Series C No. 184, para. 42; Case of Gonzalez-Medina and relatives v. Dominican Republic, para. 28.





28
108. The petitioners could add that so long as the State has the ability to defend itself
with regard to those updates, there is no reason to restrict or interfere with the
autonomy of the IACHR to issue its admissibility decision.

Possible arguments of the State

109. In the hypothetical case, the State of Elizabetia has argued that this approach
reflects an erroneous analysis on the part of the Inter-American Commission,
and suggests that it should be corrected by Inter-American Court.

110. The State could base this argument on the fact that Article 46 of the American
Convention clearly establishes that all domestic remedies must have been
pursued and exhausted before a petition can be submitted. The State could
suggest an explanatory interpretation of this provision and indicate that
exhaustion is the prerequisite for submission of the petition and not for the
admissibility decision. One of the Courts judges has addressed this issue in a
separate opinion,
63
which could be cited in the argument not as case law, but as
legal scholarship.

111. The State could indicate that the American Convention gives the Commission a
mandate to decide whether domestic remedies have been exhausted, or
whether the exceptions to this requirement pursuant to Article 46.2 of the
Convention are applicable, based on the current situation at the time the
petition is submitted.

112. The State could cite the Inter-American Courts decisions in the cases of Grande
v. Argentina and Daz Pea v. Venezuela, in which it was more amenable to
performing a sort of review of the proceedings before the Inter-American
Commission.

113. Specifically, the State could highlight the following paragraph from Daz Pea:

The Commission considered that domestic remedies had been exhausted
bearing in mind that different appeals had been filed over the period from
March 24, 2006, to May 11, 2007 (supra para. 119(c)). Thus, it referred to
appeals filed over a period that began more than five months after the initial
petition was lodged before the Commission and culminated one year and seven
months after this. The Court finds that, in these circumstances, it cannot be
understood that the requirement of prior exhaustion of domestic remedies
established in Article 46(1)(a) of the American Convention has been satisfied.
Furthermore, the Court observes that, when the initial petition was forwarded
to the State on February 23, 2007, the decision of May 11, 2007, that

63
I/A Court H.R. Case of Daz Pea v. Venezuela; Judgement of June 26, 2012; Series C No. 244, par. 21 Separate Opinion
of Judge Eduardo Vio Grossi.





29
supposedly exhausted domestic remedies had not yet been issued.
64
(emphasis
added).

114. This decision has been criticized and is ambiguous as to whether the date to be
considered is the date of the initial petition or the date on which it is
forwarded to the State. However, it is certainly a judgment that the State of
Elizabetia could use in its defense.

115. Finally, the State could argue that, although it has opportunities to respond to
the information submitted by the petitioners, the States design their defense
regarding the admissibility requirements based on the content of the initial
petition; therefore, it is unacceptable for the States to have to modify their
defense strategy every time the petitioners change their approach during the
admissibility phase.

B.3. Inclusion in the report on the merits of provisions of the Convention that were
not included in the admissibility report

116. The hypothetical case states that in Admissibility Report 179/12, the Commission
found that the facts alleged could amount to possible violations of Articles 11,
17, 24 8, and 25, in conjunction with Article 1.1 of the Convention. In its report
on the merits, the Commission found a violation of Article 2 of the American
Convention, which establishes the duty to enact provisions of domestic law. The
State was of the opinion that this was a violation of its right of defense. This
argument of the State of Elizabetia raises a debate on the scope of the
Commissions analysis during the admissibility phase of what amounts to a
violation, its power to add other provisions in the report on the merits, and the
application of the principle of iura novit curia, versus the States right of defense.
This issue was examined recently in detail by the Inter-American Court in the
case of Furlan and Family v. Argentina, which, in principle, does not lend support
to this preliminary objection. Nevertheless, as indicated below, the State of
Elizabetia could have reasonable arguments in its favor. The main points of the
Courts judgment are as follows:

117. With regard to the States right of defense, the Court recalled the minimum
guarantees that must inform the individual petition system: (a) those related to
conditions for the admissibility of the petitions (Articles 44 to 46 of the
Convention);
65
and (b) those relating to the adversarial principles (Article 48 of
the Convention)
66
and procedural [fairness]. It is also necessary to mention here
the principle of legal certainty (Article 38 of the Commissions Rules of

64
I/A Court H.R. Case of Daz Pea v. Venezuela; Judgement of June 26, 2012; Series C No. 244, par. 123.
65
Case of Velsquez-Rodrguez v. Honduras. Preliminary Objections, para. 85; Case of Grande v. Argentina. Preliminary
Objections and Merits. Judgment of August 31, 2011. Series C No. 231, para. 56.
66
I/A Court H.R., Advisory Opinion Oc-19/05, Opinion of November 28, 2005.





30
Procedure).
67
Nevertheless, if a State alleges that there was a serious error that
adversely affected these assumptions, it must effectively demonstrate that
harm. In the words of the Court, a complaint or discrepancy [of opinion]
related to the Inter-American Commissions actions is not sufficient.
68


118. As for the specific issue in debate, that is, the inclusion of new rights in the
report on the merits that were not specified previously in the Commissions
admissibility report, the Court underscored that neither the American
Convention nor the Rules of Procedure of the Inter-American Commission
contain any provision indicating that all of the rights allegedly violated must be
included in the admissibility report. The Court specified that:

The rights specified in the Report on Admissibility are the result of a preliminary
assessment of the petition in progress, hence the possibility of including other
rights or articles allegedly violated at subsequent stages of the proceedings is
not limited, provided that the States right to defend itself is protected in the
factual background of the case under consideration.

119. The Court further emphasized that the principle of iura novit curia allows the
Court to examine a possible violation of the provisions of the Convention that
have not been alleged in the briefs submitted by the parties, provided that they
are given the opportunity to express their respective positions in relation to the
supporting facts.
69


120. The State of Elizabetia could use this last point to its advantage, by indicating
that the Commission was aware from the very beginning of this case of the
existence of the provisions that were allegedly incompatible with the
Convention. The State could argue that if the IACHR did not include Article 2 of
the American Convention, even though it was clear these provisions existed, it
sent a clear message to the State that that article of the Convention would not
be examined at the merits phase. The State can maintain that the Commissions
exclusion of the provision led it to design its defense strategy without knowing
that the IACHR would, in examining the merits of the case, perform an analysis
completely different from the one that was outlined at the admissibility phase
that is, an analysis of the compatibility of a provision with the Convention.

C. Issues connected to the provisional measures


67
I/A Court H.R., Advisory Opinion Oc-19/05, Opinion of November 28, 2005, par. 27.
68
Case of the Saramaka People. v. Suriname. Preliminary Objections, Merits, Reparations, and Costs. Judgment of
November 28, 2007 Series C No. 172, para. 32; Case of Gomes-Lund et al. (Guerrilha do Araguaia) v. Brazil.
Preliminary Objections, Merits, Reparations, and Costs. Judgment of November 24, 2010. Series C No. 219, para. 27.
69
I/A Court H.R. Case of Velsquez Rodrguez v. Honduras; Judgement of July 29, 1988; Series C No. 4, para. 163.





31
C.1. Definitions and framework. C.2. Arguments concerning the request for provisional measures.

C.1. Definitions and framework

121. The mechanism of provisional measures is enshrined in Article 63.2 of the
American Convention, and is designed to ensure a rapid response in cases of
extreme gravity and urgency, and when necessary to avoid irreparable damage
to persons.

122. The mechanism is further developed in Article 27 of the Rules of Court; the Court
has said that its decisions concerning provisional measures are binding upon
States by virtue of the basic principle of international law of State responsibility,
pursuant to which all States must comply their obligations in good faith (pacta
sunt servanda).
70


123. The Court has stated that in order to adopt provisional measures, the three
conditions of extreme gravity, urgency and irreparable harm must concur
in the situation under consideration
71
. According to the Tribunal these three
conditions must coexist and be present in any situation in which the Courts
intervention is requested.
72


124. Albeit not identical in all of its elements, the Inter-American Commission has a
similar faculty by virtue of Article 106 of the Charter and Article 25 of its Rules of
Procedure. Very recently, through an amendment of its Rules of Procedure, the
Commission referred to the definitions of the elements of gravity, urgency and
imminence in the following manner:

serious situation refers to a grave impact that an action or omission can have
on a protected right or on the eventual effect of a pending decision in a case or
petition before the organs of the inter-American system;

urgent situation refers to risk or threat that is imminent and can materialize,
thus requiring immediate preventive or protective action; and

irreparable harm refers to injury to rights that, due to their nature, would not
be susceptible to reparation, restoration or adequate compensation.

125. These definitions could be read in conjunction of the statement of the Court in
relation to the gravity which, in words of the Court, For the purposes of adopting

70
Millacura Llaipen Matter, Provisional Measures concerning Peru. Order of the President of the IACtHR of December
6, 2012, third consideration.
71
James et al Matter, Provisional Measures concerning Trinidad and Tobago. Order of the Corto f June 14, 1988, second
consideration.
72
Case of Carpio Nicolle et al. Provisional Measures concerning Guatemala. Order of the Inter-American Court of July 6,
2009, fourteenth consideration.





32
provisional measures, the Convention requires that this be extreme, in other
words, at its most intense or highest level.
73


126. The Court may consider the group of political, historic, cultural factors, or
circumstances of any other nature in which the situation is inscribed, in order to
determine whether these affect a possible beneficiary or create for her a
situation of vulnerability in a particular moment.
74


127. The Court has also stated that provisional measures may have one of two
objectives, one that is precautionary and one that is protective.

128. The precautionary objective of the measures aims at preserving the alleged
rights in controversy until such time as the organs of the System have had the
possibility to issue their findings and, if applicable, the respective order for
reparations.

129. The protective aim is to protect all human rights from irreparable harm.

130. The statement of the Court that it cannot consider the merits of any relevant
argument that is not exclusively related to the extreme seriousness, urgency and
risk of irreparable harm is particularly relevant. In matters in which the Court
concludes that it may not study prima facie conditions (fumus boni iuris) without
issuing a conclusion on the merits of the case, it will not adopt provisional
measures, as it would grant the applicant reason without the respective
process
75
.

C.2. Arguments surrounding the request for provisional measures

131. The situation presented in the request for provisional measures is deliberately
ambiguous from a moral perspective.

132. The State will possibly argue that, should Serafina be allowed to give informed
consent, this will constitute a conclusion on the merits of the case, because it
will rest on the acceptance that she is a spouse or relative in the terms of the
Elizabetan regulations. This argument is evidently supported by the fact that the
legislation grants certain attributions to persons within a marriage or family in as
forms of protection of their union; in the absence of such protection there are

73
Matter of Martinez Martinez et al. Provisional Measures regarding the United Mexican States. Order of the Inter-
American Court of Human Rights of March 1, 2012, sixth consideration.
74
Matter of Castro Rodriguez. Provisional Measures regarding the United Mexican States. Order of the Inter-American
Court of Human Rights of February 13, 2013, tenth consideration.
75
Matter of Castaeda Gutman. Request for Precautionary Measures concerning the United Mexican States. Order of
the Inter-American Court of Human Rights of November 25, 2005, fifth and seventh considerations.






33
no legal grounds for Serafina to provide informed consent ant the Court would
be barred from ordering Elizabetia to accept her statement in light of the
Castaneda Gutman precedent (vide par. 130, supra).

133. The State may also argue that the Court must assess the fact, on record, that
Serafina would intend to provide informed consent to a high-risk operation, that
only 15% of patients survive. The State could take the stance that the outcome
of death would necessarily render the damage irreparable under the terms of
Article 63.2 of the Convention.

134. Conversely, Serafinas argument may rest on the fact that she is the closest
person to Adriana and in actual possession of relevant information as to her will
in this situation. The legal ambivalence in the situation derives from the fact that
the acceptance of Serafinas consent would immediately entail the type of legal
protection that, under the Elizabetan regulations, is directed at spouses or family
members.

135. Further, Serafina may have a different argument in relation to the notion of risk
of irreparable damage, connected to the fact that survival with the almost
certainty of suffering anterograde amnesia would be an irreversible situation
and therefore not susceptible to reparation, restoration or adequate
compensation.

Washington DC
March 17, 2013

Annex 1
SEXUAL ORIENTATION, GENDER IDENTITY AND GENDER EXPRESSION:
SOME TERMINOLOGY AND RELEVANT STANDARDS


I. INTRODUCTION

1. In performing its mission, the Inter-American Commission on Human Rights (hereinafter
the IACHR, the Commission or the Inter-American Commission) has received ample information on
the situation of the rights of lesbian, gay, trans, bisexual and intersex persons (hereinafter LGTBI) in the
countries of the Americas, particularly regarding the serious discrimination they face
i
.

2. Given the situation, the Commissions Strategic Plan features a Plan of Action 4.6.i on
the rights of LGTBI persons. In November 2011,
ii
the Commission created a specialized unit within its
Executive Secretariat on this subject. Among its functions the Unit will provide technical support to States
in meeting their obligations in this area.

3. Through AG/RES. 2653 (XLI-O/11) on Human Rights, Sexual Orientation and Gender
Identity, the Organization of American States (hereinafter OAS) General Assembly asked the
Commission to prepare a study on the legal implications and conceptual and terminological
developments as regards sexual orientation, gender identity, and gender expression.
iii


II. SCOPE AND LIMITATIONS OF THE PRESENT STUDY

4. Concepts like sexual orientation, gender identity and gender expression or reference
to persons by the acronym LGTBI have, at the very least, social, legal and medical connotations. For
example, the letters B (for bisexual), G (for gay), I (for intersex), L (for lesbian), and T (for trans) have
been used to signify trends, movements or events organized to demand rights, to express solidarity, to
mobilize the community or to protest; they can also be used to signify communities, groups or identities
iv
.

5. In law, particularly within the United Nations system, these social debates generally come
under the rubric of sexual minorities,
v
a cover term for issues related to the rights of gay, lesbian, trans,
bisexual, and intersex persons.

6. From the more technically precise standpoint of the sociology of law, the expressions
sexual orientation, gender identity and gender expression have been used to make reference to the
recognition and enforceability of rights by, inter alia, the legislature and the judiciary. Labeling someone
as a lesbian, gay, trans, bisexual or intersex person ensures that his/her sexual orientation and/or gender
identity are recognized in law as legally protected (but traditionally invisibilized) aspects that go into
constructing his/her identity; it recognizes the discrimination to which persons who so identify themselves
have historically been subjected, and affords them protection.

7. From a perspective of sociology and psychology there has been great emphasis on the
fluidity of identity construction and self-definition: working from this perspective, sexual orientation, gender
identity and gender expression are not static qualities in a person; on the contrary, they are dynamic, and
depend on the construction that one makes of oneself and upon social perception
vi
. At the same time, in
the context of international law of human rights sexual orientation and by analogy also gender identity
and gender expression- has been understood as personal characteristics that are innate and inherent to
the person
vii
(such as race and ethnicity) and immutable, understood as meaning it is a characteristic that
is difficult to control and which a person cannot abandon without sacrificing his or her identity.
viii


8. This apparent contradiction refers juridically to two characteristics of the categories of
sexual orientation, gender identity and gender expression. On the one hand, in the sphere of intimate and
personal decisions and as an essential part of their life project, people can be in a process of constant
and fluctuating development, constructing themselves with respect to a specific sexual orientation, gender
identity and gender expression. However, these categories and the possible fluctuation and mobility of



2
one or more of these categories that are inherent to the person does not imply that they can be modified
by third parties or by the State, as this would tantamount to a violation of their dignity
ix
.

9. In the realm of health sciences, a category or classification can serve a scientific
purpose, which is to describe the treatment that a person can be offered. For example, in its work on
providing comprehensive care to transgender and transsexual persons in Latin America and the
Caribbean, the Pan American Health Organization (hereinafter PAHO) recommends that when treating
someone in a health center the individual be asked his/her assigned sex at birth (male, female, or other)
and how the person identifies himself/herself in terms of gender identity (feminine, masculine, trans
female, trans male, trans person, transvestite, or other). PAHO observes that this information is vital to
determining the proper treatment. Statistics have to be developed to highlight otherwise invisible
problems: as PAHO points out, for example, trans persons are 40 times more affected by sexually
transmitted infections than the general population, but this alarming difference is missed unless the data
are broken down by sexual identity.
x
This will inevitably influence the shape of public policies on
prevention, treatment and allocation of resources.

10. The legal effects of references to these categories of discrimination are evident in the
language of OAS General Assembly resolution AG/RES. 2653 (XLI-O/11), in which the member states
resolved:

1. To condemn discrimination against persons by reason of their sexual orientation and
gender identity, []

2. To condemn acts of violence and human rights violations committed against persons
because of their sexual orientation and gender identity []

3. To encourage the member states to consider, within the parameters of the legal
institutions of their domestic systems, adopting public policies against discrimination by
reason of sexual orientation and gender identity [and]

4. To urge states to ensure adequate protection for human rights defenders who work on the
issue of acts of violence, discrimination, and human rights violations committed against
individuals on the basis of their sexual orientation and gender identity.

11. This document discusses these categories in order to establish a common language or
terminology that can be used as a point of reference. Through this document, the IACHR is not
attempting to coin its own definitions, establish discrete, distinctive categories or boundaries between
persons based on sexual orientation, gender identity or gender expression;
xi
nor is it suggesting that the
use, meaning or sense of any definition, category or classification discussed herein is universal.

12. The instant compilation presents some accepted notions of sex, gender, sexual
orientation, gender identity, and gender expression. In closing, reference is made to the standards for the
definition of discrimination, specifically as it relates to sexual orientation, gender identity, and gender
expression, as well as standards related to sexual orientation, gender identity and gender expression as
aspects pertaining to the right to private life of the person and the corresponding State obligations.

III. TERMINOLOGY AND RELEVANT STANDARDS

A. Sex

13. In the strict sense, the term sex refers to biological differences between men and
women,
xii
their physiological characteristics,
xiii
the sum of biological characteristics that define the
spectrum of humans as females and males,
xiv
or a biological construct, referring to the genetic,
hormonal, anatomical, and physiological characteristics on whose basis one is labeled at birth as either
male or female.
xv


Intersex persons



3

Sex is understood to refer to men, women and to intersex persons as well. In the
literature, intersexuality has been defined as all those situations in which an individuals
sexual anatomy does not physically conform to the culturally defined standard for the
female and male body.
xvi
The understanding of this specific biological identity has
historically been identified with the mythological figure of Hermaphroditus, a person born
with both sexes; in other words, with a penis and a vagina.
xvii
The term intersex also
appears in legal
xviii
and medical
xix
writings. At the present time, the term intersex is
considered more technically correct both by the LGTBI movement and in the medical and
legal literature.
xx


B. Gender

14. The difference between sex and gender is that the first is a reference to a biological
difference, whereas the second is a social construction. The United Nations Committee that monitors
compliance with the Convention on the Elimination of All Forms of Discrimination against Women
(hereinafter, the CEDAW Committee) has written that the term sex refers to biological differences
between men and women. The term gender refers to socially constructed identities, attributes and roles
for women and men and societys social and cultural meaning for these biological differences.
xxi


15. Both in society and in literature, a distinction has been made between sex and gender.
This distinction is now also being made with increasing frequency in the language of the law. At the
international level, however, and with some degree of uniformity at the domestic level, the categories sex
and gender have historically been used interchangeably
xxii
. Hence, in some international treaties and
other bodies of law in which the gender category was not used, the sex category is understood to
include the gender category, in order to ensure the effet utile of comprehensive and inclusive legal
protection.
xxiii


C. Sexual Orientation

16. A persons sexual orientation is independent from his or her biological sex or gender
identity. It has been defined as each persons capacity for profound emotional, affectional and sexual
attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender
or more than one gender.
xxiv
Within comparative law, sexual orientation is understood as a suspect
category of discrimination tested by various criteria, one of which is the immutability of sexual orientation,
understood as a characteristic that is difficult to control and which a person cannot abandon without
sacrificing his or her identity.
xxv




17. The terms heterosexuality, homosexuality and bisexuality come under the heading of
sexual orientation and can be defined as follows:

Heterosexuality

This term refers to a persons capacity for profound emotional, affectional and sexual
attraction to a person of a different gender and to the capacity to maintain intimate and
sexual relations with that other person.

Homosexuality

This term refers to a persons capacity for profound emotional, affectional and sexual
attraction to a person of the same gender and to the capacity to maintain intimate and
sexual relations with that other person. From the information the Commission has
received, the trend within the LGBTI movement seems to be to reclaim
xxvi
the use of and



4
reference of the terms lesbian
xxvii
(for female homosexuality) and gay [or gai
xxviii
in
Spanish] (for male or female homosexuality).

Bisexuality

This term refers to a persons capacity for profound emotional, affectional and sexual
attraction to a person of a different gender and of the same gender, and to that persons
capacity to maintain intimate and sexual relations with these persons.

D. Gender identity

18. According to the Yogyakarta Principles,
xxix
gender identity is

each persons deeply felt internal and individual experience of gender, which may or may not
correspond with the sex assigned at birth, including the personal sense of the body (which may
involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other
means) and other expressions of gender, including dress, speech and mannerisms.
xxx


19. Gender identity includes the category of transgenderism or trans. The following are the
most commonly accepted definitions of this category and subcategories.

Transgenderism or trans

This umbrella term which includes the subcategory of transexuality and other variations-
is used to describe the different variants of gender identity, whose common denominator
is that the persons biological sex and the gender identity traditionally assigned to that
sex do not match.
xxxi
A trans person can construct his/her identity regardless of surgical
interventions or medical treatment.
xxxii


Transsexualism

Transsexual persons feel and perceive themselves as belonging to a gender that is not
the one socially or culturally associated with their biological sex and who opt to have
medical treatment hormonal, surgical or both- to adapt their physical-biological
appearance to their mental, spiritual and social sense of self.


Other subcategories that do not necessarily imply body alterations

In this category we find persons who are travesties (South America) and transvestites
(North America). In general terms,
xxxiii
it could be said that travesties are persons who
express their gender identity either on a permanent or temporary basis- by wearing
articles of clothing and adopting the deportment and mannerisms of the gender opposite
to the one socially and culturally associated with their biological sex. This may or may not
include body modifications.

Other terms have also been included under the category transgender, such as: cross-
dressers (persons who occasionally wear clothing of the opposite sex); drag queens
(men who dress as women, exaggerating feminine traits, generally on festive occasions);
drag kings (women who dress as men, exaggerating male traits, generally on festive
occasions); and transformistas [sometimes referred to as transgender performers] (men
or women who play characters of the opposite sex in shows).
xxxiv


20. The legal,
xxxv
medical-scientific,
xxxvi
and social
xxxvii
discussions of these categories
approach them from a variety of angles. However, there is a certain degree of consensus
xxxviii
concerning
the referents and self-referents used for and by transgender persons: a trans women is when the



5
biological sex is male and the gender identity is female; a trans man is when the biological sex is female
and the gender identity is male; a trans person or trans is when the persons conviction is to self-identify
outside the male/female classification.

E. Gender expression

21. Gender expression has been defined as the outward manifestations of the cultural traits
that enable a person to identify himself/herself as male or female, according to the patterns that, at a
particular moment in history, a given society defines as gender appropriate.
xxxix


22. The International Commission of Jurists has held that:

[t]he notion of what properly constitutes male or female norms has been a source of human rights
abuses against individuals who do not fit or conform to the stereotypical models of masculine or
feminine. Personal deportment, mode of dress, mannerisms, speech pattern, social behavior and
interactions, economic independence of women and the absence of an opposite-sex partner are all
features that may subvert gender expectations.
xl


23. In one school of thought, gender expression falls under the category of gender identity.
Recently, however, others have started to draw a distinction between gender identity and gender
expression, with the latter being included specifically in a number of laws,
xli
thereby acknowledging that
gender expression presupposes specific aspects of the outward manifestation and social perception of
gender identity which had traditionally been invisible.

24. It is vital to bear in mind that gender expression is an outward or external expression, and
that -even though that outward manifestation may not match ones definition of ones own identity- third
parties can always draw an association with a given sexual orientation or a given gender identity.
xlii


25. In law, the distinction is an important one, as it entitles a person to protection regardless
of whether his/her gender expression matches up with a given gender identity or is merely perceived that
way.
xliii


F. Discrimination based on gender identity, sexual orientation and gender expression

26. The various international conventions and treaties define discrimination as any
distinction, exclusion, restriction or preference made on the basis of any attribute of the person and
whose effect or purpose is to impair or nullify the recognition, enjoyment or exercise, on a basis of
equality, of human rights and fundamental freedoms.
xliv


27. The IACHR defines discrimination based on sexual orientation, gender identity or gender
expression as any distinction, exclusion, restriction or preference made against a person on these
grounds, which has the effect or the purpose whether de jure or de facto-
xlv
of impairing or nullifying the
recognition, enjoyment or exercise, on the basis of equality, of human rights and fundamental freedoms,
taking into account the social and cultural attributes that have been associated with those categories.

28. Nevertheless particularly given the absence of specific, exhaustive regulations
governing the prohibited grounds of discrimination for these categories-, from a legal standpoint, non-
discrimination on the basis of sexual orientation and gender identity has generally been subsumed under
two prohibited grounds for discrimination under international law, namely: discrimination by reason of
sex,
xlvi
and under the open-ended non-discrimination clause of discrimination on the basis of any other
social condition.
xlvii


29. As for the interpretation of these provisions and the application of these standards within
the inter-American human rights system, the Commission and the Inter-American Court of Human Rights
(hereinafter Court or Inter-American Court) have maintained that sexual orientation and gender
identity
xlviii
are covered under the phrase any other social condition that appears in Article 1(1) of the



6
American Convention on Human Rights (hereinafter American Convention or Convention). Hence,
any difference in treatment based on sexual orientation is a suspect category and presumed to be
incompatible with the American Convention. The State is required to prove that the difference in
treatment meets the especially rigorous test used to measure the reasonableness of the difference in
treatment.
xlix
In a statement that the Inter-American Court echoed in its judgment, the Commission
argued that when interpreting the expression any other social condition that appears in Article 1(1) of
the Convention, one must always opt for the alternative most conducive to the protection of the human
rights protected by the Convention, in keeping with the principle of the rule most favorable to the human
being.
l


G. Sexual orientation, gender identity and gender expression as aspects of the right
to private life

30. Regarding the specific content of the right to privacy, the Commission has indicated that
it encompasses all spheres of the intimate realm and autonomy of an individual, including his or her
personality, identity, decisions over his or her sexual life, and his or her personal and family relations
li
.
With respect to sexual orientation and its link to the right to privacy, the Commission has indicated:

Sexual orientation constitutes a fundamental component of the private life of an individual that
should be free from arbitrary and abusive interferences by the State, in the absence of weighty and
convincing reasons.
lii
There is a clear nexus between the sexual orientation and the development of
the identity and life plan of an individual, including his or her personality, and relations with other
human beings. () The Commission reiterates that the right to privacy protects the right to
determine ones own identity and to establish personal and family relations on the basis of that
identity, even if it is not accepted or tolerated by a majority within society.
liii


31. Sexual orientation, gender identity and gender expression are fundamental components
of peoples private life or privacy. The Inter-American Commission has highlighted that the right to private
life guarantees spheres of privacy in which the State or anyone cannot intrude, such as the ability to
pursue the development of ones personality and aspirations and determining ones identity, as well as
those spheres of activities such as decisions, interpersonal and family relations, and the home.
liv
In this
regard, the Inter-American Court has established that the sphere of privacy is characterized by being
free and immune to the intrusions and abusive aggressions by third parties or the State
lv
. Regarding State
interference on the basis of a persons sexual orientation, the IACHR, echoing a decision by the
European Court of Human Rights, has indicated that such interference affects an intimate part of
someones private life, requiring States to present particularly compelling and good reasons to justify such
actions.
lvi



i
With respect to the discrimination these persons face, the Inter-American Court has indicated the alleged lack of a
consensus domestically in some countries for the full respect for the rights of sexual minorities cannot be considered a valid
argument to deny or restrict their human rights or to perpetuate and reproduce the discrimination that these minorities have suffered
historically and structurally. I/A Court H.R., Case of Karen Atala Riffo and daughters v. Chile, Merits, Reparations and Costs.
Judgment of February 24, 2012. Series C. No. 239, para. 92 (Free Translation by the IACHR).
ii
IACHR, Press Release No. 115/11, IACHR Creates Unit on the Rights of Lesbians, Gays, Trans, Bisexual, and Intersex
Persons, November 3, 2011. In response to the many and varied categories that exist today and the debates ongoing in certain
areas, the IACHRs Unit for the Rights of Lesbian, Gay, Trans, Bisexual and Intersex Persons (LGBTI) has adopted this easily
recognizable name as a practical way of synthesizing some of the principal discussions still underway on the issue of categories of
sexual orientation, gender identity and gender expression. In this way, the Commission is acknowledging the terminology; however,
as a guiding principle, it is also embracing the notion of each persons self-identification; consequently, it is possible that the persons
who are the focus of the Units work may not identify themselves as belonging to these or other categories.
iii
OAS, General Assembly, Human Rights, Sexual Orientation and Gender Identity, AG/Res. 2653 (XLI-O/11), approved at
the fourth plenary session, held on June 7, 2011.
iv
Although the political, social, sexual and gender identities encompassed by LGBTI are not equally relevant in all
communities and/or for all individuals, the category of LGBTI exists as a collective concept that has been claimed by some
individuals and activist groups in many countries to assert their demand for recognition, space and legal personhood. In other
words, it has been successfully used for political, social and economic organizing purposes. However, the LGBTI categorization
contains several weaknesses. First, it lumps women, men, transgender and intersex people together, even though the human rights
abuses they most commonly face may be significantly different. It also risks erasing differences of history, geography and politics,



7

as well as other characteristics for which individuals face stigma and discrimination, such as their race, ethnicity, (im)migrant status,
health status, language, etc. Finally, it may put out of sight culturally specific sexual and gender identities, giving the wrong
impression that those identities originated in the West, and only recently. Global Rights: Partners for Justice, Demanding Credibility
and Sustaining Activism, A Guide to Sexuality-Based Advocacy, 2010, p. 14. This guide was co-authored and edited by Stefano
Fabeni, who was an expert consulted for the drafting of the Yogyakarta Principles.
v
Professor Alice Miller suggests that although the UN experts and bodies have used this cover term to refer to issues of
discrimination, exclusion and stigmatization, it is unclear which groups are included among the sexual minorities and how they are
determined to be sexual minorities. She observes that although this category is useful to highlight these questions, it coul d be a
problematic clubbing together in terms of gender- and sexuality-related categories of human rights abuses. See International
Commission of Jurists, Sexual Orientation, Gender Identity and International Human Rights Law, Practitioners Guide No. 4, 2009, p.
25.
vi
According to the literature: Perhaps instead of thinking of identity as an already accomplished fact, which the new
cultural practices then represent, we should think of identity as a 'production', which is never complete, always in process, and
always constituted within, not outside, representation. Stuart Hall, Cultural Identity and Diaspora, in Identity, J.Rutherford (ed.),
Lawrence and Wishart, pp. 222237, 1990.
vii
I/A Court H.R., Case of Karen Atala Riffo and daughters v. Chile, Merits, Reparations and Costs. Judgment of February
24, 2012. Series C. No. 239, para. 87, citing ECHR, Clift v. UK, (No. 7205/07), Judgment dated July 13, 2010. Final, November 22,
2010, para. 57.
viii
IACHR, Application before the Inter-American Court of Human Rights In the case of Karen Atala and daughters (Case
12.502) against the State of Chile, September 17, 2010, para. 94.
ix
In 2009 the American Psychological Association ruled out the effectiveness of therapies that aim at changing the sexual
orientation of persons. To this respect, see the Report of the APA Task Force on Appropriate Therapeutic Responses to Sexual
Orientation, available at: http://www.apa.org/pi/lgbt/resources/sexual-orientation.aspx.
x
PAHO; Blueprint for the provision of comprehensive care to transgender and transsexual persons and their communities
in Latin America and the Caribbean (LAC); in association with IAPAC; mimeograph, limited distribution, p. 7.
xi
Hall, Stuart. (1990) Cultural Identity and Diaspora. In Pensar (en) los Intersticios. Teora y prctica de la crtica
poscolonial. Santiago Castro, Oscar Guardiola and Carme Milln (eds.): 131 145. Pensar Universidad Javeriana. Bogota. See
also Cuerpos Construidos para el Espectculo: Transformistas, strippers y drag queens. In Cuerpo: Diferencias y desigualdades.
Mara Viveros and Gloria Garay (eds.). Universidad Nacional CES. Bogota. 1999.
xii
Committee on the Elimination of All Forms of Discrimination against Women, General Recommendation No. 28 on the
core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women,
CEDAW/C/GC/28, December 16, 2010, para. 5.
xiii
United Nations. Committee on Economic, Social and Cultural Rights. General Comment No. 20: Non-Discrimination in
Economic, Social and Cultural Rights (art. 2, paragraph 2), E/C.12/GC/20. 2009, paragraph 20.
xiv
Pan American Health Organization and American University Washington College of Law, The Right of Young People to
Health and Gender Identities: Findings, Trends and Targets for Public Health Action, Washington, D.C., 2011, p. 7.
xv
Institute of Medicine (National Academies of Sciences of the United States); The Health of Lesbian, Gay, Bisexual, and
Transgender People: Building a Foundation for Better Understanding, The National Academies Press 2011; p. 25, available at:
http://www.iom.edu/Reports/2011/The-Health-of-Lesbian-Gay-Bisexual-and-Transgender-People.aspx.
xvi
Cabral Mauro and Benzur Gabriel. Cuando Digo Intersex. Un dilogo introductorio a la intersexualidad, Cad.
Pagu no.24 Campinas Jan./June 2005 [Free translation by the IACHR].
xvii
Cabral Mauro and Benzur Gabriel. Cuando Digo Intersex. Un dilogo introductorio a la intersexualidad, Cad.
Pagu no.24 Campinas Jan./June 2005 [Free translation by the IACHR].
xviii
In 1999, the Constitutional Court of Colombia studied a case involving the castration of a pseudo-hermaphroditic boy.
Doctrine Unification Judgment SU-337 of 1999.
xix
In medicine, there are three types of hermaphroditism: feminine pseudo-hermaphroditism, masculine pseudo-
hermaphroditism and true hermaphroditism. The Constitutional Court of Colombia studied these various medical categories in
1999, using a variety of medical books and specialized journals on the subject. See, inter alia: Bruce Wilson, William Reiner,
Management of intersex: a shifting paradigm in The Journal of Clinical Ethics, Vol 9, No 4, 1998, p 360 and Hermaphrodites and
the Medical Invention of Sex. Cambridge: Harvard University Press, 1998.
xx
In medical literature, the term intersexuality is now preferred over hermaphroditism or pseudo-hermaphroditism to
designate Disorders of Sexual Development (DSD); they are now referred to as 46, XX Intersex; 46, XY Intersex; True Gonadal
Intersex; and Complex or Undetermined Intersex. For its part, domestic case law, like Colombias, has used the expression
intersex conditions when discussing this topic, particularly in its judgments T-1021 from 2003 and T-912 from 2008. International
organizations that are pioneers in this area, such as the Intersex Society of North America, have also preferred the term intersex
over hermaphroditism, although divorced from the concept of a disorder of sexual development.



8

xxi
Committee on the Elimination of All Forms of Discrimination against Women, General Recommendation No. 28 on the
core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women,
CEDAW/C/GC/28, December 16, 2010, para. 5.
xxii
In a broader sense, the meaning of the term sex goes beyond strictly biological characteristics. As the United Nations
Committee on Economic, Social and Cultural Rights has held, the notion of sex has evolved considerably to cover not only
physiological characteristics but also the social construction of gender stereotypes, prejudices and expected roles, which have
created obstacles to the equal fulfillment of economic, social and cultural rights. United Nations Committee on Economic, Social
and Cultural Rights. General Comment No. 20, E/C.12/GC/20, July 2, 2009, para. 20.
xxiii
For example, in interpreting the CEDAW, its Committee has written that [a]lthough the Convention only refers to sex-
based discrimination, interpreting article 1 together with articles 2 (f) and 5 (a) indicates that the Convention covers gender-based
discrimination against women. The Committee on the Elimination of All Forms of Discrimination against Women, General
Recommendation No. 28 on the Core Obligations of States parties under Article 2 of the Convention on the Elimination of All Forms
of Discrimination against Women, CEDAW/C/GC/28, December 16, 2010.
xxiv
Yogyakarta Principles, p. 6, footnote 1. Principles on the application of international human rights law in relation to
sexual orientation and gender identity, 2006.
xxv
IACHR, Application before the Inter-American Court of Human Rights In the case of Karen Atala and daughters (Case
12.502) against the State of Chile, September 17, 2010, para. 94.
xxvi
Back on May 17, 1990, the World Health Organization (WHO) removed homosexuality from the International
Statistical Classification of Diseases and Related Health Problems. The term homosexuality tends to be associated with the
pathology of homosexualism, which was for many years listed among the classifications of psychiatric disorders. It was the social
movement that rejected this term, preferring instead the term gay.
xxvii
In the English-speaking countries, the term gay tends to be used indiscriminately to refer to male and female.
However, in Spanish-speaking countries, the preference is to use the adjective gay to refer to men, and lesbian to refer to
women. The persistent association of the expression lesbian with lesbianism-homosexualism (as an illness or disorder) is
problematic, which has made for opposing viewpoints on the use of this category.
xxviii
In its pan-Hispanic dictionary of doubts, the Royal Academy of the Spanish Language makes gai the preferred
orthography, rather than gay, and says the following in this regard: Although among Spanish speakers the English pronunci ation
[gi] is widespread, the recommended usage in Spanish is to adapt the pronunciation to the orthography, which would mean that the
pronunciation would be [gi] [Free translation by the IACHR].
xxix
The Yogyakarta Principles are today an important source for a legal understanding of LGTBI persons and their rights,
because experts on the subject were instrumental in crafting those principles. Accordingly, some of the definitions used are based
on these principles, as a reference, coupled with other relevant legal pronouncements on the subject. Yogyakarta Principles.
Principles on the application of international human rights law in relation to sexual orientation and gender identity, 2006.
xxx
Yogyakarta Principles, p. 6, footnote 2. Principles on the application of international human rights law in relation to
sexual orientation and gender identity, 2006.
xxxi
In her The Apartheid of Sex: A Manifesto on the Freedom of Gender, Dr. Martine Aliana Rothblatt developed this
generic category, which the LGBTI social movement and academia have used as a cover term for the various expressions of
transgender gender identity. The opposite of the transgender category is the cisgender category, which is when ones gender
identity matches the behavior or role considered appropriate for ones biological sex. The subcategory of cis male refers to a
biological male with male gender identity, whereas the cis female would be a biological female with a female gender identity. See
in this regard, Serano, Julia. Whipping Girl: A Transsexual Woman on Sexism and the Scapegoating of Femininity. Seal
Press (Emeryville, CA), June 2007.
xxxii
See, for example, the Gender Identity Act, Uruguay, October 12 2009. This Act establishes in Article 3 (requirements)
that in no case it is required to have sex reassignment surgery for the granting of registration of the name or sex that does not
conform to the gender identity of the person that is referred to in that document (Free Translation by the IACHR).
xxxiii
In general terms there is a wide range of political positions around the term travesti. On the one hand, some groups of
trans activists have pointed out that this term is derogatory, while other groups see the term travesti as a political term with great
significance (see, for example, the Declaration of Feminist Travestis, XI Feminist Meeting of Latinamerican and the Caribbean.
Mexico City, March 2009). Organizations such as Global Rights have indicated that the definition of a travesti person, as has been
used in some parts in Latin America, has been used to refer to males who, often at very young ages, adopt female names, clothing
styles, hairstyles, and pronouns. They may or may not take female hormones, modify their bodies with silicone and/or undergo sex
reassignment sur- gery. Generally travestis do not identify them- selves with men or women, but claim their own identity. Travesti is
a less comprehensive term than transgender is in English and they do not necessarily identify with the English usage of
transvestite. (p. 98). In the U.S. context, this organization points out, the term transvestite is an out-of- date description most often
referring to men who wear clothes conventionally associated with another gender. (p. 16). See Global Rights: Partners for Justice,
Demanding Credibility and Sustaining Activism: A guide to sexuality-based advocacy, 2010, pp. 98, 16. The DSM or Diagnostic and
Statistical Manual of Mental Disorders (302.3 transvestic fetishism) defines these persons as heterosexual men who recurrently
and with sexual intensity elaborate fantasies or actions that involve use of female clothing.
xxxiv
Information received by the IACHR in thematic hearings on the Situation of Human Rights of Lesbians, Gays, Trans,
Bisexual and Intersex Persons.



9

xxxv
At the international level, the cases heard by the European Court of Human Rights such as B v. France and
Christine Goodwin v. United Kingdom- examine the legal implications of the discrimination experienced by transsexual persons who
have undergone surgical treatment to become trans women.
xxxvi
The Diagnostic and Statistical Manual of Mental Disorders IV (or DSM IV, its acronym in English) of the American
Psychiatric Association (APA) includes the nomenclature Gender Identity Disorder in Adolescents or Adults and Transvestic
Fetishism [302.xx] to refer to transsexuality and transvestism, respectively.
xxxvii
The LGBTI movement, especially the trans movement, has mobilized to reject the medical-psychiatric categories
under which they are classified. An example is the movement called Stop Trans Pathologization 2012 whose goal is to get
gender dysphoria and gender identity disorders delisted from the APAs DSM-IV.
xxxviii
From the information received by the Commission through hearings, information asserted in the reports sent to the
Commission, and the complaints it received of alleged human rights violations, the Commission has become acquainted with some
of the referents and self-referents. These vary according to a number of different factors, such as the LGTBI social sector, the
country of origin, social or economic position or level of education. Nevertheless, there is a core consensus regarding certain
referents and self-referents that harmonize those factors for practical reasons.
xxxix
Rodolfo and Abril Alcaraz, El derecho a la no discriminacin por identidad y expresin de gnero, Textos del caracol,
No. 4. Dante No. 14, CONAPRED 2008, p. 6 [free translation by the IACHR]. See also, International Commission of Jurists, Sexual
Orientation, Gender Identity and International Human Rights Law, Practitioners Guide No. 4, 2009, p.21.
xl
International Commission of Jurists, Sexual Orientation, Gender Identity and International Human Rights Law,
Practitioners Guide No. 4, 2009, p. 21.
xli
For example, countries like Sweden prohibit discrimination by reason of a persons transgender identity or expression.
(See Swedens Anti-Discrimination Act, which entered into force on January 1, 2009). See also the Gender Expression Non-
Discrimination Act (GENDA), New York State, United States. The International Commission of Jurists has written that: The second,
social perception, approach examines whether or not members of a group share common characteristics constituting a
recognizable group which sets them apart from society at large. The UNHCR Guideline on Membership of a Particular Social
Group cites women, families and homosexuals as examples recognized under this analysis as particular social groups, depending
on the circumstances of the society in which they exist. () Expressions of gender identity could conceivably be included in this
approach. Gender expression is visible and can be a source of identification, especially when, through characteristics such as
dress, mannerisms and modification of the body it subverts traditional expectations of gender expression. See Guidelines on
International Protection (Membership of a particular social group within the context of Article 1A(2) of the 1951 Convention and/or
its 1967 Protocol relating to the Status of Refugees), paragraph 1. International Commission of Jurists. Sexual Orientation, Gender
Identity and International Human Rights Law, Practitioners Guide No. 4, 2009, pp.132-133.
xlii
This may be the case of those persons who could be labeled as queer and, even though they do not lay claim to any
category or would like to be labeled in any of them, society may label them because of their gender expression and the way society
perceives them. Theoretician Judith Butler writes that gender is performative; i.e., the social definition of gender identity, and even of
sexual orientation, is permeated by peoples expressions and how they are perceived socially. See, inter alia, Judith Butler, Gender
trouble: feminism and the subversion of identity, November 15, 1989.
xliii
In the Case of Perozo et al. v. Venezuela, the Inter-American Court observed that: "[i]t is possible for a person to feel
discriminated by the way other people think about its relation to a group or social sector, independently of whether such perception
corresponds to reality or to the victims self-identification. I/A Court H.R., Case of Perozo et al. v. Venezuela. Preliminary
Objections, Merits, Reparations and Costs. Judgment of January 28, 2009. Series C No. 195, paragraph 380. Similarly, other
domestic courts like the United Kingdoms Asylum and Immigration Tribunal ruled as follows in one case: [w]e find that as the
reasons for persecution must be found in the mind of the persecutor there is no need to differentiate between such categories. The
only question we need to ask is whether an individual is a member of a particular social group. It may matter a great deal to an
individual whether he is or is not homosexual but, certainly in the context of Jamaica, whether an individual is or is not homosexual,
bisexual or asexual is of far less importance than the question whether he is perceived to be homosexual. There is some force in the
suggestion, that "perception is all". DW (Homosexual Men - Persecution - Sufficiency of Protection) Jamaica v. Secretary of State
for the Home Department, CG [2005] UKAIT 00168, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate
Authority, 28 November 2005, para. 71, available at: http://www.unhcr.org/refworld/docid/46836aa80.html. The position of the Office
of the United Nations High Commissioner for Refugees is similar. In this regard, it has held in UNHCRs view, homosexuals can be
within the ambit of a social group category, either as a group sharing a common characteristic or because they are perceived as a
cognizable group in the society () This is widely accepted in practice of various jurisdictions. UN High Commissioner for
Refugees, Advisory Opinion by UNHCR to the Tokyo Bar Association Regarding Refugee Claims Based on Sexual Orientation, 3
September 2004, para. 8, available at: http://www.unhcr.org/refworld/docid/4551c0d04.html.
xliv
See, for example, the Convention on the Elimination of All Forms of Discrimination against Women, adopted by the UN
General Assembly and opened for signature and ratification in its resolution 34/180 of December 18, 1979, and whi ch entered into
force on September 3, 1991, pursuant to Article 27(1); and the International Convention on the Elimination of All Forms of Racial
Discrimination, adopted by the UN General Assembly and opened for signature and ratification in its resolution 2106 A (XX) of
December 21, 1965. Entered into force on January 4, 1969, pursuant to Article 19.
xlv
The IACHR is of the view that this discrimination can manifest itself directly (intentionally or with the effect of), or
indirectly (unintentionally or with the purpose of). Also that discrimination can be de facto when it manifests itself in practice- or de
jure when its source can be traced to the law or a legal norm.



10

xlvi
The universal system for the protection of human rights has interpreted sex-based discrimination as including
biological-physiological characteristics, but also discrimination based on gender, sexual orientation, gender identity and gender
expression. In the case of Toonen v. Australia (April 1994), the United Nations Committee on Civil and Political Rights affirmed:
The State party has sought the Committee's guidance as to whether sexual orientation may be considered an "other status" for the
purposes of article 26. The same issue could arise under article 2, paragraph 1, of the Covenant. The Committee confines itself to
noting, however, that in its view, the reference to "sex" in articles 2, paragraph 1, and 26 is to be taken as including sexual
orientation." Toonen v. Australia, Communication No. 488/1992, U.N. Doc. CCPR/C/50/D/488/1992 (1994). See also the cases of
the United Nations Committee on Civil and Political Rights: Edward Young v. Australia (Communication No. 941/2000),
CCPR/C/78/D/941/2000, 6 August 2000) and X v. Colombia (Human Rights Committee, Communication No. 1361/2005: Colombia.
14/05/2007. CCPR/C/89/D/1361/2005).
xlvii
The Inter-American Commission and Court have statements in this regard in interpreting article 1.1 of the American
Convention. Article 1.1 of the American Convention establishes: [t]he States Parties to this 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. See IACHR, Application before the Inter-American Court of
Human Rights In the case of Karen Atala and daughters (Case 12.502) against the State of Chile, September 17, 2010, paras. 95
and 105; I/A Court H.R., Case of Karen Atala Riffo and daughters v. Chile. Merits, Reparations and Costs. Judgment of February
24, 2010. Series C No. 239, paras. 84, 85, 91 and 93. See IACHR, Application before the Inter-American Court of Human Rights in
the case of Karen Atala and Daugthers v. Chile, Case 12.502, September 17, 2010, pra. 95, 105. The Committee on Economic,
Social and Cultural Rights of United Nations has indicated that Other status as recognized in article 2, paragraph 2, includes
sexual orientation. (). States parties should ensure that a persons sexual orientation is not a barrier to realizing Covenant rights,
for example, in accessing survivors pension rights. In addition, gender identity is recognized as among the prohibited grounds of
discrimination; for example, persons who are transgender, transsexual or intersex often face serious human rights violations, such
as harassment in schools or in the workplace. UN, Committee on Economic, Social and Cultural Rights. General Comment No. 20:
Non-Discrimination in Economic, Social and Cultural Rights, E/C.12/GC/20. 2009, para. 32 (see also 15 and 27). The European
Court of Human Rights has indicated that sexual orientation is a concept covered under Article 14 of the European Convention on
Human Rights. Article 14 of that treaty establishes: [t]he enjoyment of the rights and freedoms set forth in this Convention shall be
secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or other status. See ECHR, Salgueiro da Silva Mouta V. Portugal,
(No. 33290/96), Judgement dated 21 December 1999. Final, 21 March 2000, para. 28. See also ECHR, Clift V. UK, (No. 7205/07),
Judgement 13 July 2010. Final, 22 November 2010, para. 57; ECHR, Frett V. France, (No. 36515/97), Judgement 26 february
2002. Final, 26 May 2002, para. 32; ECHR, Kozak V. Poland, (No. 13102/02), Judgement 2 March 2010. Final, 2 June 2010, para.
92; J.M. V. UK, (No. 37060/06), Judgement 28 September 2010. Final, 28 de diciembre de 2010, para. 55, y Caso Alekseyev v.
Russia, (No. 4916/07, 25924/08 y 14599/09), Judgement 21 October 2010. Final, 11 April 2011, para. 108 (cited in I/A Court H.R.,
Case of Karen Atala Riffo and daughters v. Chile. Merits, Reparations and Costs. Judgment of February 24, 2010. Series C No.
239, para. 87). See also the Presentation by the Office of the United Nations High Commissioner on Human Rights at the
International Conference on LGBT Human Rights, Montreal, July 26, 2006, available at:
www.unhchr.ch/huricane/huricane.nsf/0/B91AE52651D33F0DC12571BE002F172C.
xlviii
In this regard, the Inter-American Court indicated: Taking into account the obligations of respect and guarantee under
Article 1.1 of the American Convention, the criteria of interpretation established under article 29 of this Convention, the texto f the
Vienna Convention on the Law of Treaties, the OAS General Assembly Resolutions, the standards established by the European
Court and the United Nations mechanisms, () the Inter-American Court affirms that the sexual orientation and gender identity of
persons are protected categories under the Convention. I/A Court H.R., Case of Karen Atala Riffo and daughters v. Chile. Merits,
Reparations and Costs. Judgment of February 24, 2010. Series C No. 239, para. 91 (Free Translation of the IACHR).
xlix
This case concerns a mothers loss of custody of her daughters by virtue of her sexual orientation, in violation of the
rights, inter alia, to due process and non-discrimination protected by the American Convention. Based on its analysis, the IACHR
concluded that by taking away the mothers custody of her daughters because of her sexual orientation, the State violated her right
to equality protected under Article 24 of the American Convention, read in conjunction with Article 1(1) thereof, as there was no
logical causal relationship between the means of removing custody and the end sought, which was the best interests of the girls.
IACHR, Application before the Inter-American Court of Human Rights In the case of Karen Atala and daughters (Case 12.502)
against the State of Chile, September 17, 2010, paras. 95, 105.
l
I/A Court H.R., Case of Karen Atala Riffo and daughters v. Chile. Merits, Reparations and Costs. Judgment of February
24, 2010. Series C No. 239, paragraph 84. For an analysis of sexual orientation based on the jurisprudence of international human
rights law, see in general paragraphs 83-93.
li
IACHR, Application before the Inter-American Court of Human Rights In the case of Karen Atala and daughters (Case
12.502) against the State of Chile, September 17, 2010, para. 111.
lii
The Commission has established in the past that the right to privacy can be implicated in denying intimate visits to
women in jail based on their sexual orientation. In the case of Martha Lucia Alvarez Giraldo the petitioner alleged that her personal
integrity, honor and equality, had been affected by the denial by penitentiary authorities to authorize the exercise of her right to
intimate visits due to her sexual orientation. She alleged that the authorities made a distinction between the right to intimate visits for
heterosexuals and homosexuals in jail. The State alleged for its part that to authorize intimate visits to homosexuals would affect the
internal disciplinary regime of the jail establishments, since in its opinion, the Latin American culture is not tolerant to homosexual
practices in general. The Commission admitted this complaint considering that these facts could characterize a violation of article
11(2) of the American Convention. See, IACHR, Report No. 71/99, Case 11.656, Martha Luca Alvarez Giraldo, Colombia, May 4,
1999.



11

liii
IACHR, Application before the Inter-American Court of Human Rights In the case of Karen Atala and daughters (Case
12.502) against the State of Chile, September 17, 2010, paras. 111 and 116.
liv
IACHR, Report N. 4/01, Mara Eugenia Morales de Sierra (Guatemala), January 19, 2001, para. 47 and IACHR, Report
No. 38/96, X and Y (Argentina), October 15, 1996, para. 91 cited in IACHR, Application before the Inter-American Court of Human
Rights In the case of Karen Atala and daughters (Case 12.502) against the State of Chile, September 17, 2010, para. 110. In this
regard, see also the decision by the Human Rights Committee in the matter of Toonen v. Australia, Communication No. 488/1992, U.N.
Doc. CCPR/C/50/D/488/1992 (1994), para. 8. The Committee then said: [t]he prohibition against private homosexual behaviour is
provided for by law, namely, Sections 122 and 123 of the Tasmanian Criminal Code. As to whether it may be deemed arbitrary, the
Committee recalls that pursuant to its General Comment 16[32] on article 17, the "introduction of the concept of arbitrariness is
intended to guarantee that even interference provided for by the law should be in accordance with the provisions, aims and
objectives of the Covenant and should be, in any event, reasonable in the circumstances" (4) The Committee interprets the
requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary
in the circumstances of any given case.
lv
I/A Court H.R., Case of Karen Atala Riffo and daughters v. Chile, Merits, Reparations and Costs. Judgment of February
24, 2012. Series C. No. 239, para. 191 (Free Translation by the IACHR) para. 161, citing its own jurisprudence in the cases of
Masacres de Ituango v. Colombia. Preliminary Exception, Merits, Reparations and Costs. Judgement 1 July 2006 Serie C No. 148,
para. 194 and Fontevecchia y D`Amico v. Argentina, Merits, Reparations and Costs. Judgement 29 de noviembre de 2011, Serie C.
No. 238, para. 48.
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IACHR, Application before the Inter-American Court of Human Rights In the case of Karen Atala and daughters (Case
12.502) against the State of Chile, September 17, 2010, para. 111 citing the European Court of Human Rights, E.B. v. Francia,
Application No. 43546/02, 22 January 2008, para. 91; European Court of Human Rights, Smith and Grady v. the United Kingdom,
Applications Nos. 33985/96 and 33986/96, 27 September 1999, para. 89; European Court of Human Rights, Lustig-Prean and
Beckett v. the United Kingdom, Applications Nos. 31417/96 and 32377/96, 27 September 1999, para. 82; European Court of Human
Rights, Karner v. Austria, Application No. 40016/98, 24 July 2003, para. 37.