57.
According to the standards described and because its involves a suspect category protected
by Article 1.1 of the Convention, the difference in treatment is alleged to clash with the state’s international
obligations and it must be assessed whether or not there is a sufficiently solid justification outweighing a strict
scrutiny of the steps of the above-mentioned judgment of proportionality. Regarding this, the Commission
observes that the contents of the withdrawal does not provide any explanation that would make it possible to
determine the imperative need sought by the difference in treatment, the suitability of said difference in
connection with said need, nor its strict necessity or proportionality. On the contrary, the withdrawal is
confined to explicitly indicating that the differentiating criterion was Sandra Pavez’s sexual orientation without
providing any reason that would pass a minimum test of objectivity and reasonability, much less a rigorous
scrutiny as required when dealing with this category.
58.
The Commission, however, also observes that the defense of the Chilean state rests rather on
the fact that the domestic regulatory framework grants the respective religions the authority to certify the
suitability of persons who are going to teach religious education, as a result of which these decisions would not
come under the state’s responsibility. In fact, the state alleges that the ultimate goal of this regulation is to
respect the freedom of worship and that it is not up to the state to intrude in such matters.
59.
The Commission considers that these arguments made by the state would seem to be more
connected to a dispute about the attribution of international responsibility for the actions taken by religious
authorities in the exercise of the legal authority granted to them by Decree 924 of 1983. Regarding this matter,
the Commission believes it must set forth various considerations.
60.
The first is that there is no dispute about the fact that Sandra Pavez was a teacher in a public
high school and that she held a public service post. In that respect, the relationship with the state was direct.
The second is that the authority granted to religious authorities to certify the suitability of persons is not
provided for by law, as a result of which it was the state that delegated a component of public service to nonstate bodies, such as religious authorities. In that respect, the Commission observes that this delegation was
made on the basis of absolute terms, without establishing any safeguards to prevent its implementation in an
arbitrary fashion or in violation of fundamental rights, including the principle of equality and nondiscrimination. On the basis of these two elements, the Commission considers that the actions taken by
religious authorities when exercising the delegation contained in Decree 924 of 1983 for the exercise of a public
service necessarily engages the state’s international responsibility.
61.
The third consideration is that, without detriment to the above and, for the sake of argument,
even when it is accepted that it did not involve an action that can be attributed to the state, the principle of
equality and non-discrimination, because of its essential nature, extends its impacts onto relationships between
individuals, imposing erga omnes obligations. This means that the state must guarantee its strict enforcement
not only in the sphere of state actions, but also in the private realm. Thus, when apprised of an unjustified
discriminatory act or differentiated treatment by a non-state party, the state is required to discharge its duty
of protecting and responding in order to stop said discrimination and to provide due reparations. That is why
it is essential to have effective judicial remedies to protect persons against discriminatory acts perpetrated by
both the state and non-state parties.
62.
On the basis of the above-mentioned elements, the Commission reiterates that the difference
in treatment on the basis of sexual orientation to the detriment of Sandra Pavez did not benefit from the least
justification that would make it possible to conduct an analysis even on the first step of the judgment of
proportionality, that is, the legitimacy of the end, which in the case of the suspect categories set forth in Article
1.1 of the Convention must be assessed strictly in the sense of requiring an imperative need. Thus, said
difference in treatment does not outweigh the first step of the judgment of proportionality and, therefore, it is
discriminatory and violates Articles 24 and 1.1 of the Convention. This discrimination is attributable to the
Chilean state, because it involves an unjustified difference in treatment not only in the exercise of a public
service, such as education, but also in her status as a worker on the basis of her direct labor relation with the
state, which, in addition, took place as a result of a regulation that granted absolute powers in the matter to
religious authorities without any safeguard to prevent the violations of fundamental rights, including the