Sexuality and Gender Law Clinic Submits Experts Brief In Case before Inter-American Court
Brief Argues that Denying Lesbian Mother Custody of Her Children Defies Children's Best Interests and Violates Mother's and Children's Human Rights
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New York, Aug. 22, 2011—Columbia Law School’s Sexuality and Gender Law Clinic submitted a briefamicus curiae Friday to the Inter-American Court of Human Rights on behalf of 60 global experts in sexual orientation, gender, and family law. The brief argues that the Chilean Supreme Court violated the American Convention on Human Rights when it ordered Karen Atala, a lesbian mother, to relinquish custody of her three children because of her sexual orientation.
After Atala, a Chilean judge, lost her case before the Chilean Supreme Court, she sought relief before the Inter-American Commission on Human Rights. The Commission found in 2009 that Chile had violated Atala's rights and those of her daughters under the American Convention. In 2010, the Commission referred the case to the Inter-American Court.
The Clinic’s brief demonstrates the overwhelming view among courts and human rights bodies in and outside the Americas that parental sexual orientation is not relevant in applying the “best interests of the child” standard, which governs parenting disputes under international law and in countries throughout the world.
The brief also shows that denying lesbian and gay parents custody of their children violates the rights of both children and parents to be free from discrimination, as guaranteed by numerous international human rights instruments and as demonstrated by an extensive body of comparative jurisprudence.
“We are long past the day when gay and lesbian parents should be denied custody of their children because of their sexual orientation,” said Suzanne B. Goldberg, Herbert and Doris Wechsler Clinical Professor of Law and Director of the Sexuality and Gender Law Clinic and the Center for Gender & Sexuality Law at Columbia Law School. “The Global Experts brief shows that courts and human rights bodies both in and outside the Americas agree that parental sexual orientation does not affect children’s best interests. Social scientific studies, also in the brief, reinforce that children of gay and lesbian parents are as likely to flourish as children of nongay parents.”
“Government bodies in Latin America, including in Chile, have made particularly rapid progress over the last decade toward recognizing the equal rights of gay men and lesbians, including in family and parenting matters,” added Michael Kavey, an Associate-in-Law at Columbia Law School who worked with the Clinic on the brief. “The Chilean Supreme Court’s discriminatory decision to remove Ms. Atala’s children from their mother’s care is at odds with these regional developments and with similar developments around the world.”
The Court, which sits in San José, Costa Rica, will hear testimony related to the case on Aug. 23 and 24 in Bogatá, Colombia. The Court hears appeals from decisions by national high courts that have agreed to its jurisdiction, including many Latin American countries, after those appeals have first been reviewed and referred by the Inter-American Commission on Human Rights. The United States and Canada have not accepted the Inter-American Court’s jurisdiction.
Adriana Luciano and others from the law firm of Paul, Weiss, Rifkind, Wharton & Garrison served as of counsel. Clinic students Sean Nelson ’11, Meghna Rajadhyaksha LL.M. ’11, and MiRi Song ’12 also assisted in writing the brief.
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