Clinic Lauds Inter-American Court’s First-Ever Decision Rejecting Sexual Orientation Discrimination

Sexuality and Gender Law Clinic Submitted Amicus Brief Arguing that Chilean Supreme Court's Decision Denying Lesbian Mother Custody of Her Children Violated Mother's and Children's Human Rights


New York, Mar. 21, 2012—Columbia Law School’s Sexuality and Gender Law Clinic lauds the Inter-American Court of Human Rights’ decision, handed down March 20, 2012, which strongly rebuked the Chilean Supreme Court for ordering Karen Atala, a lesbian mother, to relinquish custody of her three children because of her sexual orientation.
Holding for the first time that the American Convention on Human Rights bars discrimination based on sexual orientation, the IACHR found that Chile, through its Supreme Court, violated the right of Ms. Atala and her children to equal protection before the law. The IACHR also found that the Chilean court decision conflicted with Convention protections for the rights of children and the right to private and family life.
The Clinic’s brief, submitted last August on behalf of 60 global experts in sexual orientation, gender, and family law, argued that the Chilean court’s discriminatory reasoning was inconsistent with a growing consensus among courts and human rights bodies in and outside the Americas. Those courts and bodies have regularly ruled 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 showed 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. 
The case came to the Inter-American Court after Atala, a Chilean judge, lost her case in the Chilean courts. In 2009, the Inter-American Commission on Human Rights found 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 Inter-American Court’s decision vindicates the American Convention’s basic promise of equality and non-discrimination and makes clear that lesbian and gay parents have and deserve these important human rights protections,” 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 Clinic’s global experts brief identified the trends in comparative and international law that the Court recognized in its decision. The brief also showed – and the Court also recognized – social scientists’ strong views that children of gay and lesbian parents are as likely to flourish as children of nongay parents.”
“The Inter-American Court’s historic ruling reinforces the rapid progress that government bodies in Latin America have made 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 Court, which sits in San José, Costa Rica, heard testimony related to the case last August in Bogotá, Colombia. The Court hears cases from countries that have agreed to its jurisdiction, including many Latin American countries, after those cases 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.