265. The arguments presented by the Commission and the representatives regarding
measures to prevent the repetition of these violations include: i) the training of public
officials; and ii) adoption of domestic legislation, reforms and the updating of laws against
discrimination.
266.
The State argued that these requests “are not admissible” because “[Chilean]
national legislation is not discriminatory.” It considered that “the application of legislative
measures of non-repetition [is only justified] when the international Court declares that a
general violation of a fundamental right exists on the part of a State, violations which have
not been proven in this case, and should not be, in order to get around the subject of the
proceeding.” The State argued that “Ms. Atala’s statement was not correct” when she
indicated at the public hearing that “the judgment of the Supreme Court has given rise to
discriminatory case law against homosexual mothers involved in custody battles.” The State
also mentioned and attached a number of judicial decisions issued by courts of first instance
and the Supreme Court in order to demonstrate the Chilean national jurisprudence adheres
to international law 278.
267. The Court emphasizes that some discriminatory acts analyzed in the previous
chapters relate to the perpetuation of stereotypes that are associated with the structural
and historical discrimination suffered by sexual minorities (supra para. 92), particularly in
matters concerning access to justice and the application of domestic law. Therefore, some
reparations must have a transformative purpose, in order to produce both a restorative and
corrective effect279 and promote structural changes, dismantling certain stereotypes and
practices that perpetuate discrimination against LGBT groups. It is on this basis that the
Court will analyze the requests of the Commission and the representatives.
a. Training for public officials
268. The Commission emphasized the importance of implementing “training programs for
judicial authorities” and “campaigns to foster a climate of tolerance regarding a problem
that has been hidden.”
269. The representatives urged the Court to order that the State “include mandatory
courses on human rights with a special emphasis on topics related to gender and
278
Cr. Judgments of lower courts: Judgment RIT No. C-178-2005 issued by the Family Court of Santa Cruz;
Judgment RIT No. C-917-2005 issued by the Family Court of Temuco; Judgment RIT No. C-1075-2008 issued by
the Second Family Court of Santiago, and Judgment RIT No. C-1049-2010 issued by the Family Court of Villarrica.
Judgments issued by the Supreme court of Justice of Chile: Vásquez Martínez, Case file No. 559-2004 of December
13, 2006; Albornoz Agüero, Case file No. 4183-2006 of April 18, 2007; Massis and Sánchez, Case file No. 6082010 of June 24, 2010; Mesa and De La Rivera, Case file No. 4307-2010 of August 16, 2010; Poblete con Díaz,
Case file. 5770-2010 of November 18, 2010; Barrios Duque, Case file. 1369-09 of January 20, 2010; Encina Pérez,
Case file No. 5279-2009 of April 14, 2010; “Episodio Chihuío”, Case file No. 8314-09 of January 27, 2011; Farías
Urzúa, Case file No. 5219-2010 of July 2011; Iribarren González, Case file No. 9474-2009 of December 21, 2011;
Silva Camus, Case file No. 1198-2010 of December 20, 2010; Figueroa Mercado, Case file No. 3302-2009 of May
18, 2010; González Galeano, Case file No. 682-2010 of August 19, 2011; Ríos Soto, Case file No. 6823-2009 of
August 25, 2011; Brothers Vergara Toledo, Case file No. 789-2009 of August 4, 2010; Prats González, Case file No.
2596-2009 of July 8, 2010; Aldoney Vargas, Case file No. 4915-2009 of May 5, 2011; Linares Solís, Case file No.
2263-2010 of April 27, 2011; Ortega Fuentes, Case file No. 2080-2008 of April 8, 2010; Robotham and Thauby,
Case file No. 5436-2010 of June 22, 2011; Juan Llaupé et al., Case file No. 5698-2009 of January 25, 2011, and
Soto Cerna, Case file No. 5285-2010 of June 11, 2011. Judgments issued by the Constitutional Court: Case file No.
786-07 of June 13, 2007, and Case file No. 1309-09 of April 20, 2010 (record of Merits, volume XII, pages 5882,
5912, 5913, 5914, 5956 to 6325, and record of Merits, volume XIII, pages 6325 to 7039).
279
Cf. Case González et al. ("Cotton Field "), supra note ¡Error! Marcador no definido., para. 450.
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