This week, the Inter-American Court of Human Rights held a hearing requested by the Inter-American Commission on Human Rights (IACHR) against the State of Chile over a Chilean Supreme Court custody decision the Commission contends revolves around “sexual orientation” discrimination. Critics counter that the best interests of the children has been lost amid the focus on the rights of adults.
Karen Atala, a Chilean judge and the mother of the three girls, left her family while declaring herself to be a “lesbian,” eventually seeking custody. The procedurally-complex case ultimately went to the Chile’s high court, which found the children’s best interests were served by awarding the father custody rather than having the mother and her live-in girlfriend raise them.
The case of the mother became a cause célèbre among supporters of the homosexual agenda and those seeking to expand transnationalist legal norms into areas that traditionally had been within the competency of domestic courts, such as child custody disputes. Atala brought her claim against the Chilean government before the IACHR, which in recent years has become aggressively ideological, arguing that custody denial was impermissibly premised on her sexual orientation in violation of the American Convention on Human Rights (ACHR). The ACHR, however, makes no mention of “sexual orientation.”
The IACHR sided with Atala, saying that Chilean courts had engaged in unjust discrimination and violated Atala’s “right to privacy.”
The father has now sought to intervene, arguing that the Chilean government never introduced testimony to the IACHR from the underlying case which overwhelming demonstrates that he is the more fit parent and that Atala ignored the children’s needs during her custodianship.
Though the IACHR maintains that a Court ruling in favor of Atala would not establish custody, it nevertheless sought expedited proceedings based on the ages of the “three minor daughters.”
Piero A. Tozzi, senior legal counsel with the Alliance Defense Fund, notes that the Commission’s emphasis on privacy makes no sense in a custody dispute, where case-by-case the fact finder must weigh parents’ private behavior in determining what best served the children’s interests.
Tozzi also cautioned that the Commission’s demand that the Court force Chile to “investigate and enforce … legal consequences” against the judges who “discriminated against and arbitrarily interfered” with Atala’s privacy threatens the Inter-American system’s integrity. “This undermines the principle of judicial independence, which both the Court and the Commission once fought to uphold as Latin America emerged from a period of authoritarian oppression.”
Petitioners utilizing the Inter-American system to advance rights under the ACHR must first obtain a non-binding ruling by the IACHR, which may then brings cases against a state party to the Court. A ruling interpreting the ACHR by the Costa Rica-based Court is binding upon nations that ratified the treaty.