The IACtHR Advisory Opinion: one step forward or two steps back for LGBTI rights in Costa Rica?
Posted: Tue Feb 18, 2025 4:57 am
The Advisory Opinion was requested by Costa Rica in 2016. the IACtHR was called to clarify the interpretation and scope of several articles of the American Convention on Human Rights (ACHR) in relation to the following questions:
Considering that gender identity is a protected category within the American Convention, does the state have an obligation to recognise and facilitate the change of name of individuals in accordance with their own gender identity?
If so, is the judicial procedure for the change of name, instead of an administrative one, contrary to the American Convention?
According to the American Convention, is the current Costa Rican judicial procedure for the change of name not applicable to individuals who wish to change their name based on their gender identity? Should they rather be given the possibility of resorting to a free, fast and accessible administrative procedure?
Considering the duty not to discriminate on the basis sexual orientation, should the State recognize all patrimonial rights deriving from a same-sex relationship?
If so, is it necessary for the State to establish a legal institution regulating the legal status of same-sex couples, and to recognise all patrimonial rights stemming from such relationships?
In response to the first three questions, the IACtHR recalled its jurisprudence on the matter (e.g. Atala Riffo and Daughters v Chile and Duque v Colombia) and strongly confirmed that sexual orientation and gender identity are protected categories under the American Convention. As such, any discriminatory treatment on this basis constitutes a breach of the ACHR. However, the IACtHR went further, considering gender identity as an integral and essential element of a person’s identity and linking its recognition by the State to the enjoyment of other fundamental rights, such as human dignity, self-determination, freedom from torture and freedom of expression (para 98). In light of this, the Court established that Costa Rica had a duty to recognise and facilitate the change of name according to gender identity in order to fully ensure that everyone, regardless of their sexual orientation or gender identity, enjoys the same dignified life (vida digna) (paras 100, 116).
As for questions 2 and 3, the IACtHR established that the aforementioned rights should be practically guaranteed by developing procedures for modifying registry entries of gender or sex, name and images that are based on zalo database a list of principles that significantly increase transgender rights and finally overcomes differences in domestic legislations. Indeed, these procedures should be: i) based on a self-perceived gender identity; ii) based on free and informed consent of the interested person without requiring medical or psychological certificates or other documents; iii) confidential, and amended documents should not report changes of gender identity; iv) expedient and, as far as possible, free of charge; v) not requiring the performance of surgical and/or hormonal treatments. Therefore, Costa Rica could maintain its current judicial procedure, although an administrative one would be preferred, provided its interpretation, in line with the conventionality control doctrine, is interpreted in conformity with the IACtHR’s opinion.
Moving to question 4, the IACtHR held that the concept of family should be broadly defined and that a same-sex couple does constitute a family for the purposes of article 11 (right to private and family life). In doing so, it relied heavily on the established jurisprudence of the European Court of Human Rights (ECtHR) and the Yogyakarta principles, recognising that the social norms have always developed faster than domestic legislation (paras 177-178). The IACtHR then concluded that the family bond, which stems from a same-sex relationship, is protected under the American Convention and, therefore, it should be recognised and protected by the state parties so as to ensure the enjoyment of patrimonial rights without discrimination between homosexual and heterosexual couples (para 199).
Considering that gender identity is a protected category within the American Convention, does the state have an obligation to recognise and facilitate the change of name of individuals in accordance with their own gender identity?
If so, is the judicial procedure for the change of name, instead of an administrative one, contrary to the American Convention?
According to the American Convention, is the current Costa Rican judicial procedure for the change of name not applicable to individuals who wish to change their name based on their gender identity? Should they rather be given the possibility of resorting to a free, fast and accessible administrative procedure?
Considering the duty not to discriminate on the basis sexual orientation, should the State recognize all patrimonial rights deriving from a same-sex relationship?
If so, is it necessary for the State to establish a legal institution regulating the legal status of same-sex couples, and to recognise all patrimonial rights stemming from such relationships?
In response to the first three questions, the IACtHR recalled its jurisprudence on the matter (e.g. Atala Riffo and Daughters v Chile and Duque v Colombia) and strongly confirmed that sexual orientation and gender identity are protected categories under the American Convention. As such, any discriminatory treatment on this basis constitutes a breach of the ACHR. However, the IACtHR went further, considering gender identity as an integral and essential element of a person’s identity and linking its recognition by the State to the enjoyment of other fundamental rights, such as human dignity, self-determination, freedom from torture and freedom of expression (para 98). In light of this, the Court established that Costa Rica had a duty to recognise and facilitate the change of name according to gender identity in order to fully ensure that everyone, regardless of their sexual orientation or gender identity, enjoys the same dignified life (vida digna) (paras 100, 116).
As for questions 2 and 3, the IACtHR established that the aforementioned rights should be practically guaranteed by developing procedures for modifying registry entries of gender or sex, name and images that are based on zalo database a list of principles that significantly increase transgender rights and finally overcomes differences in domestic legislations. Indeed, these procedures should be: i) based on a self-perceived gender identity; ii) based on free and informed consent of the interested person without requiring medical or psychological certificates or other documents; iii) confidential, and amended documents should not report changes of gender identity; iv) expedient and, as far as possible, free of charge; v) not requiring the performance of surgical and/or hormonal treatments. Therefore, Costa Rica could maintain its current judicial procedure, although an administrative one would be preferred, provided its interpretation, in line with the conventionality control doctrine, is interpreted in conformity with the IACtHR’s opinion.
Moving to question 4, the IACtHR held that the concept of family should be broadly defined and that a same-sex couple does constitute a family for the purposes of article 11 (right to private and family life). In doing so, it relied heavily on the established jurisprudence of the European Court of Human Rights (ECtHR) and the Yogyakarta principles, recognising that the social norms have always developed faster than domestic legislation (paras 177-178). The IACtHR then concluded that the family bond, which stems from a same-sex relationship, is protected under the American Convention and, therefore, it should be recognised and protected by the state parties so as to ensure the enjoyment of patrimonial rights without discrimination between homosexual and heterosexual couples (para 199).