Church. The Court will now examine the arguments on the merits in the following order: a) the rights
to equality, to access to public service, to personal liberty, to privacy and to work in relation to the
obligation not to discriminate and to adopt provisions of domestic law, and b) the rights to judicial
guarantees and judicial protection in relation to the obligations to respect and guarantee rights and
to adopt provisions of domestic law.
VI.1.
RIGHTS TO EQUALITY, EQUAL ACCESS TO PUBLIC SERVICE, 66PERSONAL LIBERTY, 67
PRIVACY, 68 AND TO WORK 69 IN RELATION TO THE OBLIGATION NOT TO DISCRIMINATE 70
AND TO ADOPT PROVISIONS OF DOMESTIC LAW 71
65
A. Arguments of the parties and the Commission
34.
The Commission noted that there is no dispute that the reason for revoking Sandra Pavez
Pavez’s certificate of suitability was her sexual orientation, which constituted a difference in treatment
based explicitly and exclusively on that very reason. There is also no dispute concerning the suspect
category of sexual orientation, both in case law and in accepted doctrine. In this regard, the
Commission recalled that, in this case, there was a difference in treatment that also translates into an
interference in private life and autonomy, which is presumed to be in conflict with the State’s
international obligations. Thus, it is necessary to determine whether there is a justification of sufficient
weight to overcome a strict scrutiny of a proportionality test.
35.
In this regard, the Commission considered that the contents of the revocation do not offer any
explanation to suggest a compelling need for the difference in treatment, the suitability of said
difference in relation to such need, nor its strict proportionality. On the contrary, it indicated that the
revocation is limited to stating explicitly that the differentiating criterion was the sexual orientation of
Ms. Pavez without offering any reason that would pass a simple test of objectivity and reasonableness,
much less a strict scrutiny as required in the case of such a category.
36.
It argued that in order to determine whether Sandra Pavez Pavez could be removed from her
position as a religious education teacher, the State had the obligation to analyze various aspects in
order to safeguard the rights at stake and ensure that the restriction on her rights was not
disproportionate. It recalled that the counterpart of respect for religious autonomy is the public sphere
of the State, which must be strictly governed by human rights obligations.
37.
The Commission also indicated that the Chilean authorities were faced with a difference in
treatment based on sexual orientation, which gave rise to specific obligations, such as the obligation
to reverse existing discriminatory situations to the detriment of a certain group of persons. It recalled
that the State authorities did not consider these duties in relation to the right to religious freedom,
though it appeared that the latter collided with the scope of protection of the right to equality.
38.
Regarding the attribution of the facts to the State, the Commission recalled that: a) Sandra
Pavez Pavez was a teacher at a public school with the status of a public official and, therefore, she
had a direct relationship with the State, and b) the power given to religious authorities to certify the
suitability of persons is provided for in the legislation. Therefore, it was the State that delegated a
65
Article 24 of the American Convention.
66
Article 23 (1)(c) of the American Convention.
67
Article 7(1) of the American Convention.
68
Article 11(2) of the American Convention.
69
Article 26 of the American Convention.
70
Article 1(1) of the American Convention.
71
Article 2 of the American Convention.
13