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).
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 zalo database 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.