Non official brief

Opinion first part

[This summary was developed by the Secretariat of the Inter-American Court of Human Rights. It relates only to the merits and reparations aspects of the judgment. A more detailed, official abstract (in Spanish only) is available on that Court’s website: http://www.corteidh.or.cr/.] 

The request – The Republic of Costa Rica presented a request for an advisory opinion from the Inter-Amer­ican Court to rule on the protection afforded by Articles 11(2), 18 and 24 in relation to Article 1 of the American Convention on Human Rights (ACHR) concerning the recognition of a change of name in accordance with the gender identity of the person concerned. Costa Rica submitted the following spe­cific questions for the Court´s interpretation:

(1) Taking into account that gender identity is a category protected by Articles 1 and 24 of the ACHR, and also the provisions of Articles 11(2) and 18 thereof: Does that protection mean that the State must recognise and facilitate an individu­al´s change of name in accordance with his or her gender identity?

(2) If the answer to the preceding question is affirmative, could it be considered contrary to the ACHR that those interested in changing their given name may only do so by resorting to judicial pro­ceedings, in the absence of a pertinent administra­tive procedure?

Law

Concerning the right to identity, and in particular gender and sexual identity, the Court interpreted that: (i) the right to identity emanates from the rec­ognition of the free development of the personality and the right to respect for private life, which covers a series of factors related to the dignity of the person, including, for example, the ability to develop their own personality, aspirations, determine their iden­tity and define their personal relationships; (ii) such right has been recognised by the Court as pro­tected by the ACHR; (iii) it can be conceptualised as the collection of attributes and characteristics that allow for the individualisation of the person in a society, and it comprises other rights, accord­ing to the persons and circumstances involved in each case, though it is closely related to human dignity, the right to life, and the principle of per­sonal autonomy; (iv) recognition of the affirmation of sexual and gender identity as a manifestation of personal autonomy is a constitutive component of the identity of the individual which is protected by the ACHR under Articles 7 and 11(2); (v) gender and sexual identity are linked to the concept of liberty, the right to respect for private life, and the possi­bility for all human beings to self-determine and freely choose the options and circumstances that give meaning to their existence, according to their own beliefs; (vi) gender identity was defined as the internal and individual experience of gender just as each person perceives it, whether or not it corre­sponds to the sex assigned at birth; (vii) sex, gender, as well as the socially constructed identities, attrib­utes and roles that are ascribed to the biological differences determining the sex assigned at birth, are not to be regarded as objective and unchangea­ble elements that characterise an individual. Rather, they are traits that depend on the subjective appre­ciation of the person concerned and are based on a construction of the self-perceived gender identity related to the free development of the personality, sexual self-determination, and the right to respect for private life; (viii) the right to identity also holds an instrumental value for the exercise of certain rights; (ix) State recognition of gender identity is critical to ensure that transgender persons can fully enjoy all human rights, including protection from violence, torture, ill-treatment, as well as the rights to health, education, employment, housing, access to social security, and freedom of expression and association; and (x) States must respect and ensure the coexistence of individuals with distinct identi­ties, gender expressions and sexual orientations, so that they are able to live and develop with the same dignity and respect to which everyone is entitled.

The Court stated that individuals in their diver­sity of sexual orientations, identities and gender expressions should be able to enjoy their legal capacity in all aspects of life. In accordance, the Court established that the right of individuals to autonomously define their sexual and gender identity becomes effective by ensuring that such definitions are consistent with, or correspond to the identification data recorded in different registries as well as identity documents. Hence, the Court deter­mined that the ACHR protects name change, the amendment of photographs, and the rectification of the sex or gender reference in public records and identity documents, so that they correspond to the self-perceived gender identity, through the provi­sions that guarantee the free development of per­sonality (Articles 7 and 11(2)), the right to respect for private life (Article 11(2)), the right to recogni­tion of juridical personality (Article 3), and the right to name (Article 18). Consequently, pursuant to the obligation to respect and ensure rights without any discrimination (Articles 1(1) and 24), and the obliga­tion to adopt domestic legal provisions (Article 2), the Court concluded that States are obliged to rec­ognise, regulate and establish appropriate proce­dures to this end.

Concerning the procedure for requesting amend­ment of identity data, the Court recognised that States may determine and establish, in accordance with the characteristics of each context and their domestic law, the most appropriate procedure for a name change, amendment of photographs and rec­tification of the reference to sex or gender in records and on identity documents so that they conform with the self-perceived gender identity. The proce­dures may be administrative or judicial in nature, however, according to the Court, they should pref­erably be administrative or notarial and comply with the following minimum requirements: (i) focused on a comprehensive adjustment of all identity compo­nents to the self-perceived gender identity; (ii) based solely on the free and informed consent of the appli­cant and not require medical and/or psychological certifications or other requirements that could be unreasonable or pathologising; (iii) confidential. The changes, corrections or amendments should not be reflected in the registries or the identity documents; (iv) prompt and, insofar as possible, free of charge, and (v) should not require evidence of surgery and/ or hormonal therapy.

The Court underlined that the foregoing consider­ations concerning the right to gender identity are also applicable to children who wish to apply for recognition of their self-perceived gender identity in their records and on their documents. Thus, any restriction imposed on the full exercise of that right by provisions aimed at the protection of the child can only be justified based on the principles of the child’s best interests, progressive autonomy and the right to be heard. The child’s views should be taken into account in any procedure that concerns them, respect the right to life, survival and develop­ment, and should not be discriminatory or dispro­portionate.

Opinion (second part) 

[This summary was developed by the Secretariat of the Inter-American Court of Human Rights. It relates only to the merits and reparations aspects of the judgment. A more detailed, official abstract (in Spanish only) is available on that Court’s website: http://www.corteidh.or.cr/.] 

The request – The Republic of Costa Rica pre­sented a request for an advisory opinion from the Inter-American Court of Human Rights (hereafter, “the Court”) to rule on “the protection afforded by Articles 11(2) and 24 in relation to Article 1 of the American Convention on Human Rights (ACHR) to the recognition of the patrimonial rights derived from a relationship between persons of the same sex.” Costa Rica submitted the following specific questions for the Court´s interpretation:

1. Taking into account that non-discrimination based on sexual orientation is a category protected by Articles 1 and 24 of the ACHR, in addition to the provision of Article 11(2) thereof, should the State recognise all the patrimonial rights derived from a relationship between persons of the same sex?

2. If the answer to the preceding question is affirm­ative, must there be a legal institution that regulates relationships between persons of the same sex for the State to recognise all the patrimonial rights that derive from that relationship?

Law – Concerning the treaty-based protection of the relationship between same-sex couples, the Court interpreted that: (i) the questions submit­ted refer to the patrimonial rights derived from the relationship which results from the emotional ties between same-sex couples; (ii) in general, the rights resulting from emotional ties between couples are protected by the ACHR through the family and family life institutions. The ACHR con­tains two provisions that provide complementary protection to both family and family life (Articles 11(2) and 17(1)); (iii) the ACHR does not refer to a rigorous and exhaustive definition of what should be understood by “family” and does not protect a specific model of family. Its conceptualisation has varied and evolved over time, and is not restricted to family ties derived from marriage; (iv) Article 17(2) of the ACHR, when referring to the “right of men and women of marriageable age to marry and to raise a family,” is merely establishing, expressly, the treaty-based protection of a specific model of marriage. This wording neither proposes a restric­tive definition of how marriage and family should be understood nor means that this is the only form of family protected by the ACHR; (v) all family models require protection by society and the State. A restrictive interpretation of the definition of “family” that excludes the emotional ties between same-sex couples from the Inter-American protec­tion would defeat the object and purpose of the ACHR; (vi) there is no reason to ignore family rela­tionships formed by same-sex couples seeking to undertake a joint life project and it is not the Court’s role to give preference to or distinguish one type of family tie over another; (vii) under the ACHR, it is the obligation of States to recognise those family ties and to protect them, taking into considera­tion the principle of non-discrimination and the “equal protection of the law” clause with regard to all their domestic laws and their enforcement; (viii) all the patrimonial rights derived from a family relationship between same-sex couples must be protected, pursuant to the right to equality and non-discrimination; (ix) however, such protection is not restricted to patrimonial rights issues, but permeates other rights protected internationally, as well as those established in domestic law for family relationships of heterosexual couples.

The Court established that States may resort to diverse mechanisms and measures to protect the rights of same-sex couples. If a State decides that it is not necessary to create new legal institutions to ensure such rights and, consequently, chooses to extend existing institutions to same-sex couples – including marriage – based on the pro persona principle, such extension would also be protected by Articles 11(2) and 17 of the ACHR. The Court considered that this would be the most simple and effective way to ensure the rights derived from the relationship between same-sex couples.

The Court stated that the establishment of a dif­ferentiated treatment between heterosexual and same-sex couples regarding the way they can form a family – either by a de facto marital union or a civil marriage – does not pass the strict test of equality because there is no purpose acceptable under the ACHR for which this distinction could be consid­ered necessary or proportionate. The Court noted that, in order to deny the right to marry, it is typ­ically asserted that its purpose is procreation and that the union of same-sex couples cannot meet this purpose. This assertion was found to be incom­patible with the purpose of Article 17, which is the protection of family as a social reality. Moreover, the Court considered that procreation is not a charac­teristic that defines conjugal relationships. Affirm­ing the contrary would be demeaning for couples – whether married or not – who, for any reason, are unable or unwilling to procreate.

Moreover, in the Court’s opinion, there would be no point in creating an institution that produces equal effects and gives rise to the same rights as marriage, but is not called marriage, except to draw atten­tion to same-sex couples by the use of a label that indicates a stigmatising difference or that, at the very least, belittles them. On that basis, marriage would be reserved for those who, according to the stereotype of heteronormativity, were considered “normal,” while another institution with identical effects but under a different name would exist for those who do not fit this stereotype. Consequently, the Court deemed inadmissible the existence of two types of formal unions that create a distinction based on an individual’s sexual orientation. This would be discriminatory and, therefore, incompat­ible with the ACHR.

Based on the above, the Court interpreted that States must ensure access to all legal institutions that exist in their domestic law to guarantee the protection of all rights of families composed of same-sex couples, without discrimination. To this end, States may need to amend existing institutions to extend such mechanisms to same-sex couples. The Court noted that States may encounter institu­tional difficulties to adapt the existing provisions. However, on a transitional basis, and while pro­moting such reforms in good faith, States remain obliged to ensure equality and parity of rights for same-sex couples with respect to heterosexual couples, without any discrimination.