INTER-AMERICAN COURT OF HUMAN RIGHTS
ADVISORY OPINION OC-24/17
OF NOVEMBER 24, 2017 REQUESTED BY THE REPUBLIC OF COSTA RICA
GENDER IDENTITY, AND EQUALITY AND NON-DISCRIMINATION OF SAME-SEX COUPLES
STATE OBLIGATIONS CONCERNING CHANGE OF NAME, GENDER IDENTITY, AND RIGHTS DERIVED FROM A RELATIONSHIP BETWEEN SAME-SEX COUPLES (INTERPRETATION AND SCOPE OF ARTICLES 1(1), 3, 7, 11(2), 13, 17, 18 AND 24, IN RELATION TO ARTICLE 1, OF THE AMERICAN CONVENTION ON HUMAN RIGHTS)
The Inter-American Court of Human Rights (hereinafter “the Inter-American Court” or “the Court”), composed of the following judges:
Roberto F. Caldas, President
Eduardo Ferrer Mac-Gregor Poisot, Vice President Eduardo Vio Grossi, Judge
Humberto Antonio Sierra Porto, Judge
Elizabeth Odio Benito, Judge
Eugenio Raúl Zaffaroni, Judge, and
L. Patricio Pazmiño Freire, Judge;
also present,
Pablo Saavedra Alessandri, Secretary, and Emilia Segares Rodríguez, Deputy Secretary,
Covering these topics:
On equality and discrimination:
The right to equality and non-discrimination of LGBTI Persons
Sexual orientation, gender identity and gender expression as categories protected by Article 1(1) of the Convention
Differences in treatment that are discriminatory
On the right to gender identity
The right to recognition of juridical personality, the right to a name, and the right to gender identity
The procedure for requesting the rectification of identity data to conform with the self- perceived gender identity
The procedure for the complete rectification of the self-perceived gender identity
The procedure should be based solely on the free and informed consent of the applicant without requirements such as medical and/or psychological or other certifications that could be unreasonable or pathologizing
The procedure and the changes, corrections or amendments to the records should be confidential and the identity document should not reflect the change in gender identity
The procedure should be prompt and, if possible, cost-free
Regarding the requirement to provide evidence of surgical and/or hormonal therapy
The procedures in relation to children
The nature of the procedure
Article 54 of the Civil Code of Costa Rica
On International protection of relationships between same-sex couples
The treaty-based protection of the relationship between same-sex couples
The mechanisms States could use to protect diverse families
On May 18, 2016, the Republic of Costa Rica presented the request for an advisory opinion for the Court to rule on:
“[T]he protection provided by Articles 11(2), 18 and 24 in relation to Article 1 of the [American Convention] to the recognition of a change of name in accordance with the gender identity of the person concerned.”
“[T]he compatibility with Articles 11, 18 and 24, in relation to Article 1 of the Convention of the practice of applying Article 54 of the Civil Code of the Republic of Costa Rica, Statute No. 63 of September 28, 1887, to persons wishing to change their name based on their gender identity.”
[T]he protection provided by Articles 11(2) and 24 in relation to Article 1 of the [America Convention] to the recognition of the patrimonial rights derived from a relationship between persons of the same sex.”
Costa Rica set out the considerations that had given rise to the request indicating that:
“Recognition of the human rights derived from sexual orientation and gender identity has been characterized by diverse processes in the different member States of the Inter-American system.” It further indicated that “[a] wide range of situations can be distinguished, from countries that have fully recognized rights to lesbian, gay, bisexual, transgender and intersex persons, to those member States that, to date, maintain in force laws that prohibit any form of lifestyle and expression contrary to heteronormativity or that have failed to recognize the rights that relate to these groups.”
In addition, it “recognized that, in the cases of Atala Riffo and daughters v. Chile and Duque v. Colombia, the Court had determined that actions denigrating a person based on either their gender identity, or especially as in these cases, sexual orientation, constituted a type of discrimination that the Convention provided protection against.”
Despite this, Costa Rica indicated that it “was unsure about the extent of the prohibition of discrimination based on sexual orientation and gender identity or, in other words, that problems remained when determining whether certain actions are included in such category of discrimination.” Accordingly, it asserted that “an interpretation by the Inter-American Court on the standards indicated above would make a significant contribution to the State of Costa Rica and all the countries of the Inter-American system of human rights, because it would allow them to adapt their domestic laws to the inter-American standards, providing a guarantee to individuals and their rights. In other words, it would guide and strengthen the actions taken by the States towards full compliance with their obligations regarding these human rights.”
Lastly, it “consider[ed] necessary that the Court issue its opinion regarding the conformity with the Convention of the practice of requiring those who wished to change their name based on their gender identity to follow the voluntary jurisdiction procedure established in Article 54 of the Civil Code of the Republic of Costa Rica.” In this regard, it mentioned that “the said procedure involves expenses for the applicant and entails a lengthy delay [...], [and therefore it] asked whether the application of that provision to the cases indicated is contrary to human rights.”
Based on the foregoing, Costa Rica submitted the following specific questions to the Court:
1. “Taking into account that gender identity is a category protected by Articles 1 and 24 of the ACHR [American Convention on Human Rights], as well as the provisions of Articles 11(2) and 18 of the Convention: does this protection and the ACHR imply that the State must recognize and facilitate the name change of an individual 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 through a judicial procedure, in the absence of a pertinent administrative procedure?”
3. “Could it be understood that, in accordance with the ACHR, Article 54 of the Civil Code of Costa Rica should be interpreted as to imply that those who wish to change their given name based on their gender identity are not obliged to submit to the judicial procedure established therein, but rather that the State must provide them with a free, prompt and accessible administrative procedure to exercise that human right?”
4. “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 provisions of Article 11(2) of the Convention: does this protection and the ACHR imply that the State should recognize all the patrimonial rights derived from a relationship between persons of the same sex?” and
5. “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 recognize all the patrimonial rights that derive from that relationship?”