The Inter-American Court of Human Rights' Advisory Opinion on Gender Identity and Same-Sex Marriage
On January 9, 2018, the Inter-American Court of Human Rights (Inter-American Court or Court) issued an advisory opinion on Gender Identity, Equality, and Non-Discrimination of Same-Sex Couples. In a landmark decision, the Court declared that the change of name and the rectification of public records and identity documents to conform to a person's gender identity are protected by the American Convention on Human Rights. Additionally, the Court maintained that states must extend all existing legal mechanisms—including marriage—to same-sex couples.This Insight briefly examines the opinion's background and its main implications.
In May 2016, the Republic of Costa Rica requested that the Court interpret the scope of the rights to privacy, the right to a name, and the right to equal protection of the laws under the American Convention on Human Rights. In its Request, Costa Rica observed that protection of rights relating to sexual rights and gender identity vary significantly across the countries of the Organization of American States (OAS), and that further clarification as to what amounts to discrimination is needed. Hence, Costa Rica specifically asked the Court to address the following issues:
(i) Whether states must "recognize and facilitate the name change of an individual in accordance with his or her gender identity";
(ii) Whether the lack of administrative procedures for name change in such circumstances could be considered contrary to the American Convention on Human Rights;
(iii) Whether the American Convention requires states to recognize all patrimonial rights that derive from a same-sex relationship; and
(iv) Whether there must be a specific mechanism to govern relationships between persons of the same sex for the state to recognize all the economic rights that derive from that relationship.
As in other advisory proceedings, the Court invited a wide range of stakeholders—states, civil society organizations, academic institutions and international organizations—to submit written observations on the questions to be addressed by the Court. The Court received more than ninety briefs, and many of these organizations and individuals also participated in a public hearing in May 2017.
The Court issued a detailed opinion that will have significant implications for the area of LGBTI rights, including the right of same-sex couples to marry. The Court, reiterating a formula used in previous advisory opinions, declared that the opinion has "legal relevance for all OAS Member States," including those that are not party to the American Convention. As noted, the Court found that the right to name change is protected by the American Convention, and that all existing mechanisms—including marriage—should be equally extended to same-sex couples.
Gender Identity and the Right to Name Change
The Court's starting point is the right to equality—a norm that the Court considers as ius cogens. The Court identifies the principle of equality in the context of sexual orientation and gender expression from many sources: from OAS Resolutions, to UN Committees' General Comments, to decisions by both the European Court of Human Rights and the Inter-American Court.
After examining the development of sexual rights under international and regional human rights law, the Court first established that the change of a name, as well as the rectification of the image and the sex or gender in public records and identity documents is a right protected by the American Convention. Such a right is found in general principles pertaining to the right to a name and the right to identity, as articulated by international human rights bodies.
The Court also found that states are obliged to "recognize, regulate and establish appropriate procedures" to guarantee such right. It declared that states can choose the type of procedures that would realize such right—whether judicial or administrative—but such procedures must respect the guidelines set forth by the advisory opinion: they must be "based solely on the free and informed consent of the applicant" without involving requirements such as medical, psychological or other certifications, or hormonal therapy, and they must be "prompt and, insofar as possible, cost-free."
The Rights that Derive from a Same-Sex Relationship
In its arguably most groundbreaking section, the Court's opinion addressed—and ultimately went beyond—two specific questions related to the patrimonial rights derived from relationships between persons of the same sex: first, the legal standards that apply to said relationships, and second, the mechanisms that states should use to recognize and protect such relationships.
On the question of the legal standards that apply to same-sex relationships, the Court found that an interpretation of the concept of "family"—a notion that the American Convention does not define—that failed to encompass same-sex relationships "would defeat the object and purpose of the Convention." Although the Convention's drafters did not consider such issues, the Court declared that "by recognizing this type of family, the Court is adhering to the original intention [of the drafters]." The Court thus fashioned an expansive interpretation of its advisory jurisdiction, finding that "the protection of the family relationship of a same-sex couple goes beyond mere patrimonial rights issues," and that all types of rights—whether civil, political, economic or social—"applicable to the family relationships of heterosexual couples" should also extend to same-sex couples. Costa Rica had submitted a question about patrimonial rights, but the Court handed down a response regardingall rights.
Finally, with regard to the mechanisms that states should use to protect same-sex relationships, the Court reviewed the international and comparative practice on the subject, citing its own case law, the opinions of UN treaty bodies, the European Court of Human Rights' case law, and the practice of a wide range of OAS states.It noted that "states can adopt diverse types of administrative, judicial and legislative measures to ensure the rights of same-sex couples," and observed that extending already-existing institutions—including marriage—to same-sex couples is "the most simple and effective way" to ensure the realization of the standards set forth by the advisory opinion. However, the Court concluded that the existence of "two types of formal unions" is "inadmissible."
The Court anticipated and dismissed two potential counterarguments. First, the Court noted that the lack of consensus on the rights of "sexual minorities" is not a valid argument to deny equal protection of the law, following its doctrine articulated in Atala. Second, the Court dismissed the argument that "procreation" is the purpose of marriage, by citing to the intention of Article 17 of the American Convention on the rights of the family and a decision by the Supreme Court of Mexico. The Court interpreted Article 17 as protecting the "social reality" of the family and observed that procreation "is not a characteristic that defines conjugal relationships."
The Court's opinion was adopted unanimously except for a separate, partially dissenting opinion by Judge Vio Grossi regarding the extension of all existing rights guaranteed for heterosexual couples—including the right to marry—to same-sex relationships, and regarding the interpretative mechanisms used by the opinion.
Judge Vio Grossi's partial dissent took issue with the Court's activist approach, noting that "the situation of unions between same-sex couples is a matter that . . . falls within the internal, domestic or exclusive jurisdiction of the State," and that "the recognition and regulation of unions between same-sex couples cannot be imposed on States by jurisprudence, and especially by an advisory opinion." Significantly, Judge Vio Grossi—a public international lawyer—observed that the Court's opinion "prescinds [sic] of the application of Article 31" of the Vienna Convention on the Law of Treaties, meaning that it misapplied the rules of treaty interpretation. He concluded that "it would not be discriminatory if the domestic laws of the States of the Americas did not allow marriage between persons of the same sex."
The Inter-American Court has issued a landmark decision on the rights of trans persons and same-sex couples, establishing that the American Convention protects their rights on equal footing with heterosexual relationships and cisgender individuals. Since the Court's opinion was issued in January, the Constitutional Chamber of the Costa Rican Constitutional Court requested an opinion from the country's Attorney General's Office, which declared that the Inter-American Court's advisory opinion is binding upon Costa Rican judges. Also, the country's Supreme Electoral Tribunal has announced that individuals may now change their name at will according to their gender identity, in conformity with the Inter-American Court's decision. In Chile, the Supreme Court applied the advisory opinion to rule that a trans individual has a right to name change without the need to undergo surgery or hormonal treatment. It is unclear how other OAS members will react to the ruling, particularly whether states will feel obliged to adopt measures, as ordered by the Court's opinion, to legalize same-sex marriage. The Court's use of advisory opinions as a preventive mechanism that nonetheless imposes significant obligations upon states may also be signaling a new trend in its adjudication.
About the Author: Jorge Contesse, an ASIL member, is Assistant Professor of Law at Rutgers Law School.
 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), Advisory Opinion OC-24/17, Inter-Am. Ct. H.R. (ser. A) No. 24 (Nov. 24, 2017), available at http://www.corteidh.or.cr/docs/opiniones/seriea_24_eng.pdf [hereinafter Advisory Opinion].
 Id. ¶ 2.
 Id. ¶ 3.1.
 This term is understood to refer to rights and duties affecting the parties' economic situation and estates.
 Advisory Opinion, supra note 1, ¶ 3.5.
 Id. ¶ 6.
 The Opinion contains a Glossary in which the Court defines a number of concepts relevant to LGBTI rights, supported by multilateral treaties, regional human rights resolutions, and civil society instruments (including the recently adopted Yogyakarta Principles +10). Id. ¶ 32.
 Id. ¶ 28. This claim of expansive jurisdiction has appeared in every advisory opinion since Advisory Opinion No. 21/14 on the rights and guarantees of children in the context of migration and/or in need of international protection (¶ 32). See Advisory Opinions OC-22/16 (¶ 25), and OC-23/17 (¶ 30).Additionally, the Court claims expansive jurisdiction with regard to the questionsthe Court may address. ("[T]he Court considers that it is not necessarily restricted to the literal terms of the requests that are submitted to it." ¶ 25).
 Id. ¶ 61.
 Id. ¶¶ 72–79.
 Id. ¶ 116.
 Id. ¶¶ 107–111.
 Id. ¶ 116.
 Id. ¶ 160. The Court notes that administrative or "notarial" procedures are the most appropriate procedures to comply with the requirements. The Court also expressly stated some of the principles that should govern such procedures when children's interests are at stake. Id. ¶¶ 150–56.
 Id. ¶ 189.
 Id. ¶ 193.
 Id. ¶ 198.
 Id. ¶¶ 201–205.
 Id. ¶ 218.
 Id.¶ 224.
 Id. ¶ 219. In the landmark case of Atala Riffo and Daughters v. Chile, the Court held for the first time that sexual orientation and gender identity are protected categories under the American Convention on Human Rights. SeeAtala Riffo and Daughters v. Chile, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 239 (Feb. 24, 2012). This contrasts with the approach favored by the European Court of Human Rights, which has used the lack of "European consensus" to deny the existence of a right to marry under the European Convention of Human Rights. Schalk and Kopf v. Austria, App.No. 30141/04, Eur. Ct. H.R. ¶ 58 (2010).
 Advisory Opinion, supranote 1 ¶ 221.
 Judge Humberto Sierra Porto filed a separate, concurring opinion addressing the use of executive orders to regulate human rights matters, despite the American Convention's requirement that human rights may only be regulated by laws.
 Advisory Opinion, supranote 1, Judge Vio Grossi's separate opinion ¶ 70.
 Id. ¶ 71.
 Id. ¶¶ 85–90.
 Id. ¶ 108. Judge Vio's separate opinion also addressed the issue of conventionality control, a doctrine created in 2006 whereby all domestic judges must follow the Inter-American Court's interpretation of the American Convention.
 Laura Alvarado, Costa Rica's Attorney General Confirms Ruling of Inter-American Court Regarding Same Sex Marriage is Binding, The Costa Rica Star (May 13, 2018), https://news.co.cr/costa-rica-lgbti-rights-gay-rights-costa-rica-marriage/73000/.
 Laura Alvarado, Transgender Population in Costa Rica Will be Able to Choose the Name Shown in Their ID, The Costa Rica Star (May 14, 2018), https://news.co.cr/transgender-population-in-costa-rica-will-be-able-to-choose-the-name-shown-in-their-id/73032/.
 Supreme Court of Chile, Decision [No identification to protect applicant's identity] (May 29, 2018), available at http://www.pjud.cl/documents/396543/0/CAMBIO+NOMBRE+Y+SEXO+REGISTRAL+SIN+DATOS.pdf/4e7da234-bffe-4cab-9eab-88aa2765ad94.