component of the public authority to non-State entities, such as religious authorities, and that such
delegation was made in absolute terms, without establishing safeguards to prevent it from being
carried out in an arbitrary manner or in violation of fundamental rights, including the principle of
equality and non-discrimination. Based on these two elements, the Commission considered that the
actions of the religious authorities in exercise of the mandate contained in Decree 924 of 1983 for the
exercise of a public office, necessarily compromise the State’s international responsibility. Finally, it
pointed out that, upon learning of a discriminatory act or an unjustified differentiated treatment by a
non-State actor, the State has a duty to protect and respond in order to put an end to such
discrimination and provide full reparation. It is therefore essential to provide effective judicial remedies
to protect individuals against discriminatory acts by both the State and non-State actors.
39.
Consequently, the Commission concluded that the difference in treatment based on sexual
orientation to the detriment of Sandra Pavez Pavez did not have the least justification that would allow
for an analysis of the first step of the proportionality test, namely, the legitimacy of the purpose. The
latter, when it refers to the suspect categories set forth in Article 1(1) of the Convention, must be
assessed strictly in terms of requiring a compelling reason. Thus, in this case, said difference in
treatment does not pass the first step of the proportionality test and, therefore, it is discriminatory
and violates Articles 24 and 1(1) of the Convention.
40.
Furthermore, the Commission considered that Sandra Pavez Pavez was discriminated against
for her sexual orientation in relation to her work as a teacher, and that there were no concrete and
deliberate efforts to prevent such a violation. On the contrary, the State ratified and reinforced it
through the decisions of its judicial authorities. It noted that the nature of Ms. Pavez’s job as a
schoolteacher also involved the exercise of a public service, and that discrimination in the continuance
of this work performed for many years of her professional career resulted in the violation of the rights
of access to public service under conditions of equality and to non-discrimination in the workplace,
protected by Articles 23(1)(c) and 26 of the American Convention.
41.
Regarding the right to privacy and autonomy, the Commission concluded that both the prior
inquiries into Sandra Pavez’s sexual orientation and life with her partner, including warnings that she
“correct” said matters, as well as the withdrawal of the certificate of suitability precisely on the basis
of the latter, constituted an intrusion into her privacy and autonomy. Thus, it argued that in this case
it was not possible to demonstrate a legitimate purpose that was fully applicable to this matter and,
therefore, it was sufficient to establish that the intrusion into Sandra Pavez Pavez’s privacy and
autonomy was arbitrary, in violation of Article 11(2) of the Convention.
42.
The representatives agreed with the Commission and added that “this is a case about
religious freedom in the understanding that religion has limits: it cannot intervene in the State and
cannot be a basis for discrimination.” They indicated that Sandra Pavez Pavez suffered “a dismissal
based on her lesbianism with the tolerance of the State; therefore, this case does not refer to
interference with the doctrine of the Catholic Church.” They added that the “background to this case
is that of a democratic State governed by the rule of law that allows religious entities to discriminatorily
interfere in public employment matters and dismiss a person objectively qualified to teach.” They
added that the acceptance that acts protected by religions have a “license to discriminate” would be
tantamount to destroying the entire system of respect and guarantee of human rights.
43.
In its final arguments, the State referred to the content and scope of the right to religious
freedom, which is recognized in Article 12 of the American Convention and includes, inter alia, the
right of parents and guardians to ensure that their children and wards receive a religious education in
keeping with their own convictions. It also pointed out that the principle of religious freedom protects
the right of religious communities to freely choose their teachers and that this principle has been
reflected in precedents both in the universal system of human rights and in the European regional
system, as well as in the comparative jurisprudence of the American States.
44.
In addition, it noted that in this case there are no elements that would make it possible to
attribute responsibility to the State. First, with respect to the duty to adopt provisions of domestic
law, it argued that Decree 924 is consistent with the Convention insofar as this norm was necessary
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