The Inter-American Court of Human Rights released an Advisory Opinion on Gender Identity, Equality and Non-Discrimination Against Same Sex Couples claiming that marriage equality and the right to officially change transgender people’s name and sex must be provided by all member states which have recognized the court’s jurisdiction.
Twenty countries in the Americas have been mandated to ensure marriage equality and basic identity rights for the transgender community by the Inter-American Court of Human Rights. The judgement was made public on January 9th through an Advisory Opinion which is legally binding for all States that acknowledge the Court’s jurisdiction. Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican Republic, Surinam and Uruguay are bound to respect the Advisory Opinion delivered after Costa Rica submitted a motion regarding these issues in May 2016.
While Colombia, Argentina, Brazil, Uruguay and some states in Mexico have already recognized marriage equality, the Costa Rica government announced that they will fully comply with the court’s interpretation which implies that States must recognize and guarantee all rights derived from family ties between same sex people in accordance with the American Convention on Human Rights. The Advisory Opinion indicates that it is necessary that all States guarantee access to already existing domestic legal figures, including the right to marriage, to ensure the protection of all rights of same sex families without any difference from those families constituted by heterosexual couples.
Furthermore, the Court mandated that transgender people must be allowed to legally change their name and sex. The court ruled that this process must be expeditious, confidential and that civil registry offices must not ask for any requirements such as medical or psychological certificates for it must be solely based on the applicant’s free will. In the region only Argentina, Bolivia, Colombia, Ecuador, Mexico and Uruguay have laws that recognize the right of transgender people to legally change their name and sex prior to any surgery.
Costa Rica submitted the request on May 18, 2016, date from which 91 written observations were submitted by the member states of the Organization of American States (OAS), the Inter-American Commission on Human Rights, international organizations and States, associations, non-governmental organizations, academic institutions and individuals from civil society. Fundación Igualitos and HDuarte-LEX, a specialist in Arbitration and Human Rights, participated through Herman M. Duarte and Paula Siverino Bavio, who also attended the public hearing convened by the President of the Inter-American Court, Roberto Caldas, on May 17. of 2017. Both Duarte and Siverino offered their oral arguments before the Inter-American Court on the request of advisory opinion OC-24 presented by the Costa Rican State. The Court held its deliberation process at the end of 2017.
Furthermore, as reported by Chambers & Partners, Hduarte-LEX, Fundaciónn Igualitos, ACODI and ACCEDER promoted the I Congress of Equal Civil Marriage, which meant a meeting of 54 activists of 17 nationalities and 44 organizations, generating a before and after, as never before had an event of said caliber in the region. This congress was key to the overwhelming victory obtained with the Advisory Opinion 24 issued by the Inter-American Court of Human Rights. This was one of the high impact actions of Fuundación Igualitos and Hduarte-LEX in the year 2017.
Costa Rican Vice President Ana Helena Chacon, who presented the motion in behalf of the current administration two years ago, confirmed during a press conference that the government will comply with the resolution and said that the Executive branch will study the resolution in depth, reported the newspaper La Nacion.
“Ideally will be the Legislative Assembly the one called to pass the bills needed to abide by this ruling after such a clear resolution”, explained Elizabeth Jimenez, President of the Costa Rican Association of International Law, who also added that the acceptance of the Court’s jurisdiction binds all branches of the government, which means that if the Legislative Assembly were not to fulfill its duty, either the Judicial branch or the Executive branch could also take on the compliance with this international resolution, she said.
In this scenario, marriage equality and transgender identity rights are an imminent victory for those who have sought both human right achievements in the country. The news was met with celebration in the capital city, where people congregated in Rotonda La Hispanidad, one of the main intersections of the city. Costa Rica will be soon the first Central American country to win marriage equality.
As of now, representatives of the rest of the States expected to abide with the content of the Advisory Opinion haven’t made any comments about their position regarding this new international legal obligation.“The court has made a clear and categorical statement. All people are equal regardless of their race, gender, sex, sexual orientation or gender identity. Marriage is a civil institution that must be available for all people”, said Herman Duarte, founding partner of Hduarte-LEX, a boutique law firm specialized in arbitration and human rights and founder of Fundación IGualitos, the entity that promotes Freedom to Marry Latin America wide. “The depathologization of transgender identity and the need to protect all kinds of families with the highest possible legal standards is the news we have been expecting” added lawyer and human rights and bioethics specialist Paula Siverino, consultant of Hduarte-LEX.
Igualitos Foundation and HDuarte-LEX, were recognized by the Financial Times (UK) in the OUTstanding LGBT + Future Leaders List, rubbing shoulders with prestigious organizations such as GOOGLE, FACEBOOK, Herbert Smith Freehills, Freshfields, among others.