I probably wouldn’t have spent much time on the Atala v. Chile case if I had just come across the details in an LGBT news brief, but the successful resolution of this case touched me more so than most because I met Karen Atala, back in 2009, and saw her pain and frustration first-hand. All I knew how to do then, after hearing her speak both rationally and emotionally about her experiences at the Global Arc of Justice Conference, was give her a hug, and say “I am with you.” Through a language barrier, sometimes a hug is the best thing you can do in the face of such a frustrating and emotional story. A couple of weeks ago, long after I’d forgotten that experience, I learned that Atala won her case before the Inter-American Court of Human Rights, and I couldn’t help but celebrate.
The facts are not so dissimilar from those experienced by families with same-sex parents all around the world. Atala was denied custody of her three children of a previous (different-sex) marriage when she entered into a lesbian relationship and her ex-husband sued for custody. The case went all the way to the Supreme Court of Chile, which upheld custody for the father under a best interests of the child standard, and then was brought to the Inter-American Commission on Human Rights. When Chile did not follow the Commission’s recommendation in favor of Atala, the Commission brought the case before the Inter-American Court of Human Rights, which awarded Atala $50,000 in damages plus court costs. Notably, this is the first time the court has heard a sexual orientation case.
This case is not simply a big step for LGBT families interested in working within a human rights framework. It is also an illustration of the human costs of a human rights process where the rights of gender and sexual minorities (GSM) are not respected as matter of course, and where states are reluctant to follow the recommendations of human rights bodies despite the moral and practical implications of not doing so.
The frustration and emotion Atala displayed when we met are not surprising, given how long this battle lasted. Atala, a Chilean attorney and judge herself, spent ten years fighting this case, as well as thousands of dollars in court costs. During most of that time, the childrens’ father held custody, so the human costs for Atala and her partner are evident. Of course, most mothers and fathers in Atala’s situation cannot afford the time and money required to go through this kind of a battle. The trickle-down effects may benefit parents in Chile, but in other regions, and particularly in countries that do not respect the human rights of GSM without a ruling from a human rights body, or do not even respect these bodies for fear of their own compromised sovereignty, this case is very remote.
The case does have broader implications for the human rights of GSM in Chile. In one of the most conservative countries on these issues in Latin America, public officials were forced to comment on the case and on gay rights (if not GSM rights in general) when Atala’s case drew media attention. Though the situation may not be good for GSM in Chile, at least the issues GSM face are no longer entirely invisible. And in other Latin American countries, the final ruling is likely to change the face of family law, as some countries’ constitutions place decisions in the Inter-American system over those of their own highest courts.