In November 2011, the Inter-American Commission on Human Rights (IACHR, Commission) created a Unit on the Rights of Lesbian, Gay, Transgender and Intersex Persons (Unit) to improve its ability to protect the rights of lesbian, gay, transgender, and intersex (LGBTI) individuals. The IACHR will evaluate the Unit’s work after a year and determine whether to create a rapporteur on LGBTI rights. The Unit was created after the IACHR held a hearing focusing on the lack of protection of the LGBTI community throughout the Americas and states’ failures to prosecute hate crimes against LGBTI persons. Article 1 of the American Convention on Human Rights requires signatories to respect the rights of all persons without discrimination, and Article 24 guarantees all people equal protection.
In establishing the Unit, the IACHR cited the legal discrimination and physical violence suffered by LGBTI-identified people in the Americas. The IACHR has addressed these human rights violations using a variety of methods including precautionary measures, hearings, country visits, and promotional activities. In March 2011, for example, the IACHR issued precautionary measures to protect Jamaican LBGTI activist Maurice Tomlinson, who was receiving death threats that the IACHR believed were not adequately addressed by the state. Similarly, in an April 2011 hearing, the IACHR heard from petitioners on the situation of the LGBTI community in Haiti after the earthquake. The petitioners explained that in times of chaos, violence against the LGBTI community increases; in fact, claims that the earthquake was Haiti’s punishment for allowing the presence of LGBTI persons are a common justification for renewed violence. In May 2011, the IACHR condemned the murder of Mexican LGBTI rights defender Quetzalcóatl Leija Herrera. In September 2010, the IACHR found that Chile had discriminated against a lesbian mother on the basis of her sexual orientation, and referred her case to the Inter-American Court of Human Rights (IACtHR, Court) for its binding adjudication. The Court found that Chile violated her rights to equal protection under the law (Article 24), privacy (Article 11), and her right to a family (Article 17) when it denied her custody of her children based on her sexual orientation.
The development of the Unit is part of a larger LGBTI advocacy movement within Latin America. Mexico City was the first city in Latin America to legalize same-sex marriage and adoption in 2009. In July 2010, Argentina became the first Latin American country to legalize same-sex marriage and adoption nationwide. In November 2011, Ecuador’s Ministry of Health closed approximately thirty clinics claiming to “cure homosexuality.”
Despite these advancements in the recognition and protection of human rights, LGBTI individuals still struggle with a culture that is slow to change and hesitant to recognize LGBTI-identified people equal rights. Additionally, many Latin American leaders balk at passing strong legislation protecting LGBTI rights, and often avoid prosecuting crimes against the LGBTI community as hate crimes due to their conservative cultural backgrounds.
The Unit forms part of the IACHR’s plan of action to enhance protection of LGBTI rights in the region, and will hopefully counter the pervasive anti-LGBTI sentiment throughout the Americas. One of the Unit’s tasks will be to document sexual orientation and gender identity-derived human rights issues and make recommendations on public policy, legislation, and judicial interpretation. Additional responsibilities include ensuring prioritization of discrimination cases against LGBTI persons and further developing the Organization of American States General Assembly’s resolutions pertaining to LGBTI rights.
Although many human rights organizations such as the International Gay and Lesbian Human Rights Commission celebrate the creation of the Unit, it has also been met with some criticism from conservative commentators. Professor Ligia M. De Jesus of the Ave Maria School of Law claims that the Unit is an indication that “activists, rather than jurists” control the IACHR. Others who have chosen to remain anonymous claim that by protecting the rights of certain groups, the IACHR is failing to protect other groups.
The IACHR’s creation of the Unit on the Rights of LGBTI persons is an indication that LGBTI rights are gaining more attention and protection in Latin America, even amidst discrimination and conservative social beliefs. The Unit’s increases the capacity of the IACHR to protect vulnerable people throughout the Americas by focusing attention and resources on LGBTI rights, and will likely be followed by the creation of a rapporteurship.