The IACtHR Advisory Opinion: one step forward or two steps back for LGBTI rights in Costa Rica?

On 9^th January 2018, the IACtHR issued Advisory Opinion No. 24 on gender identity, equality and non-discrimination for same-sex couples, a ground-breaking decision for the advancement of LGBTI rights in the Americas. However, the adverse effect it had on the recent presidential elections in Costa Rica may jeopardise this achievement.

The Advisory Opinion was requested by Costa Rica in 2016. the IACtHR was called to clarify the interpretation and scope of several articles of the American Convention on Human Rights (ACHR) in relation to the following questions:

1. Considering that gender identity is a protected category within the American Convention, does the state have an obligation to recognise and facilitate the change of name of individuals in accordance with their own gender identity?
2. If so, is the judicial procedure for the change of name, instead of an administrative one, contrary to the American Convention?
3. According to the American Convention, is the current Costa Rican judicial procedure for the change of name not applicable to individuals who wish to change their name based on their gender identity? Should they rather be given the possibility of resorting to a free, fast and accessible administrative procedure?
4. Considering the duty not to discriminate on the basis sexual orientation, should the State recognize all patrimonial rights deriving from a same-sex relationship?
5. If so, is it necessary for the State to establish a legal institution regulating the legal status of same-sex couples, and to recognise all patrimonial rights stemming from such relationships?

In response to the first three questions, the IACtHR recalled its jurisprudence on the matter (e.g. Atala Riffo and Daughters v Chile and Duque v Colombia) and strongly confirmed that sexual orientation and gender identity are protected categories under the American Convention. As such, any discriminatory treatment on this basis constitutes a breach of the ACHR. However, the IACtHR went further, considering gender identity as an integral and essential element of a person’s identity and linking its recognition by the State to the enjoyment of other fundamental rights, such as human dignity, self-determination, freedom from torture and freedom of expression (para 98). In light of this, the Court established that Costa Rica had a duty to recognise and facilitate the change of name according to gender identity in order to fully ensure that everyone, regardless of their sexual orientation or gender identity, enjoys the same dignified life (vida digna) (paras 100, 116).

As for questions 2 and 3, the IACtHR established that the aforementioned rights should be practically guaranteed by developing procedures for modifying registry entries of gender or sex, name and images that are based on a list of principles that significantly increase transgender rights and finally overcomes differences in domestic legislations. Indeed, these procedures should be: i) based on a self-perceived gender identity; ii) based on free and informed consent of the interested person without requiring medical or psychological certificates or other documents; iii) confidential, and amended documents should not report changes of gender identity; iv) expedient and, as far as possible, free of charge; v) not requiring the performance of surgical and/or hormonal treatments. Therefore, Costa Rica could maintain its current judicial procedure, although an administrative one would be preferred, provided its interpretation, in line with the conventionality control doctrine, is interpreted in conformity with the IACtHR’s opinion.

Moving to question 4, the IACtHR held that the concept of family should be broadly defined and that a same-sex couple does constitute a family for the purposes of article 11 (right to private and family life). In doing so, it relied heavily on the established jurisprudence of the European Court of Human Rights (ECtHR) and the Yogyakarta principles, recognising that the social norms have always developed faster than domestic legislation (paras 177-178). The IACtHR then concluded that the family bond, which stems from a same-sex relationship, is protected under the American Convention and, therefore, it should be recognised and protected by the state parties so as to ensure the enjoyment of patrimonial rights without discrimination between homosexual and heterosexual couples (para 199).

The final part of the opinion, addressing question 5, is certainly the most controversial and innovative. It is the only section in which the Court was not unanimous (Judge Vio Grossi voted against and wrote a very detailed separate opinion). The question,  formulated in very general terms, was whether it was necessary to establish some kind of legal institution to recognise same-sex relationships and the deriving rights and duties. The IACtHR acknowledged the vagueness of the question and decided to take advantage of this to expand and advance LGBTI’s rights in the Americas. Recalling the case-law of the ECtHR and the domestic legislation of some countries in the region (with no reference to a regional consensus though), the IACtHR argued that member states have a duty to provide some kind of legal recognition to homosexual relationships. As established by the ECtHR in Karner v Austria, the options are different and include civil unions and other partnerships. However, in the case of Costa Rica, the Court observed that it would not be necessary to establish a new legal institution since civil marriage is already in place. What Costa Rica does need to do in order to comply with the ACHR, is to extend the existing institution of marriage to same-sex couples (para 218). In supporting this landmark statement, the IACtHR held that any argument in favour of the exclusivity of a heterosexual marriage (because of religious or philosophical beliefs or based on the alleged natural link between marriage and procreation) is not acceptable to justify different treatment between heterosexual and homosexual couples and that “there is no legitimate aim that could make this distinction necessary and proportionate under the Convention” (freely translated from Spanish throughout-para 220). Moreover, “the Court observes that often the opposition to same-sex marriage is based on religious or philosophical beliefs. While recognising the importance of these beliefs […], they cannot be used as parameters of conventionality and cannot guide the Court’s interpretation of human rights” (para 223). And even more strongly, the Court opined that: “establishing a legal institution that produces the same effects and grants the same rights as marriage but under a different name carries no purpose, except to socially mark and stigmatise same-sex couples, or at least convey that they are undervalued.” (para 224).

In a slightly milder final paragraph, the Court acknowledged that some countries may encounter difficulties in adapting their legislation to the ACHR as interpreted by the Court and allowing same-sex marriage. In light of this, the Court will allow member states to maintain temporarily, and in good faith, an exclusive heterosexual marriage with the condition that they grant to homosexual couples the same rights and duties of heterosexual married couples.

This Advisory Opinion is certainly a win for the LGBTI communities across the Americas, both for the strong protection of gender identity and for the opening to same-sex marriage. It is a natural follow-up of the US Supreme Court’s judgment of 2015 (see Marko Milanovic’s post here).

However, this leads to a clear situation of judicial fragmentation within IHRL. Although the IACtHR made extensive use of external references, especially to UN Human Rights Committee (HRC) and to the ECtHR, the conclusions of this ruling clearly divert from the position of the other two bodies, both in relation to transgender rights and to the right to marry for same-sex couples.

Requiring its member states to recognise a change of gender identity where the individual has not undergone hormonal or surgical therapy nor provided a medical certificate is a massive advancement for transgender rights and goes well beyond the existing case-law from other human rights bodies. Indeed, the ECtHR recognised in A.P. v France that making recognition of the sexual identity of a transgender conditional on undergoing an operation or sterilising treatment was against the Convention but considered that France was not in breach of the ECHR when ordering forced medical examination or mental health diagnosis.

On same-sex marriage, perfectly in line with the HRC in Joslin v New Zealand, the ECtHR, in Schalk and Kopf v Austria (oddly repeatedly cited in the opinion), held that while same-sex couples should be legally recognised, there was no duty upon states to allow these couples to enter into marriage.  The ECtHR, indeed, found that there was no regional consensus on the matter and decided to grant a wide margin of appreciation to its member states. On the contrary, the IACtHR in this Advisory Opinion acknowledged the lack of a regional consensus (only Argentina, Brasil, Colombia, Uruguay and some Mexican states recognise homosexual marriages) but strongly stated that this should not constitute an obstacle to the advancement of human rights (219). Even more, in virtue of the conventionality control, all member states are now required to align their domestic legislation with the current interpretation of the ACHR provided by the Court, thus establishing a further layer of control over its member states.

This landmark ruling had an immediate effect on Costa Rica and its current presidential elections. On Sunday 4^th February, Costa Rica held the first round of its presidential election with the unexpected exploit of Fabricio Alvarado, an evangelical preacher that centred his campaign on the defence of traditional family and the opposition to same-sex marriage following the Advisory Opinion. Fabricio Alvarado surprisingly led the first round with 24.8% of the vote, gaining more than 15 points in less than a month (in the polls made before the issuing of the Advisory Opinion in early January he was given between 3 and 9.5%). Alvarado was able to lure all the conservative and catholic voters by labelling the IACtHR’s decision a violation of Costa Rica’s sovereignty and threatening to withdraw from the Court’s jurisdiction in order not to comply with the opinion.

Considering how, apparently, the IACtHR contributed to boosting the conservative evangelical candidate, it is worth reflecting upon the possible adverse effects of supranational adjudication on domestic politics. If Fabricio Alvaredo wins the second round in April and stays true to his promise of opposing this Opinion and withdrawing from the Court’s jurisdiction, this could be an enormous step backwards for Costa Rica, for the IACtHR, and for the LGBTI community in the region. In light of this, it is legitimate to question whether this very proactive and confident approach of the IACtHR towards the advancement of human rights is really effective in practice, considering the high risk of political backlash. Possibly, the ECtHR’s approach, more cautious in establishing anything new and strongly relying on the regional consensus, may be more appropriate. However, it could be argued that if you lower the bar, there will always be someone who believes that bar is still too high. (see the separate opinion of Judge Pinto de Albuquerque in Hutchinson v UK)

A balanced attitude may be the best solution but it should be taken into consideration that the regional specificities play a huge role in influencing the behaviour of a court. In the meantime, it will be interesting to see what happens in Costa Rica on the 1^st April and how the rest of the region reacts to this Advisory Opinion, with the hope that some countries will ultimately follow the recommendations of the Court.