principle of equality and non-discrimination. In cases where services of public interest are provided, such as
health services, the Inter-American Court has pointed out that states have the duty to regulate and supervise
these services, regardless of whether they are public or private; 69 the IACHR considers that education, which
includes labor aspects of teachers because it has a direct impact on that, brings together similar characteristics
for the application of said obligations. In that respect, for the IACHR it is essential for the principle of equality
and non-discrimination to steer all regulations governing the access and continuance of teaching staff in
schools in order to prevent human rights violations as those examined in the present case, a situation that is
not in line with the application of Decree 924 of 1983 for the above-mentioned reasons.
63.
The Commission recalls that it has already urged OAS member states to adopt and enforce
effective measures to prevent violence and discrimination against LGBTI persons in both public and private
educational institutions. 70 In this framework, the IACHR considers that acts of retaliation, discrimination, or
harassment at work on the basis of sexual orientation are especially critical when they take place in the context
of education, because states must guarantee that their education-related policies, which as indicated include
labor aspects of the teaching staff, must combat social and cultural patterns of discriminatory behavior.
Otherwise, a powerful social message of rejection is being transmitted against non-dominant diverse sexual
orientations, promoting not only behavior against the teaching staff but also against the student body, most of
them boys and girls belonging to this group, and at the same time reinforces stigmas and feelings of shame and
inferiority onto these persons.
64.
In addition to the violation of the principle of equality and non-discrimination, the
Commission believes that both the prior inquiries into Sandra Pavez’s sexual orientation and life with her
partner, including warnings that she “correct” said matters, and the withdrawal itself of the certificate of
suitability precisely on the basis of the latter, constitute an intrusion into her privacy and autonomy. The victim
herself indicated that internal procedures turned an aspect of her private life into a public matter. As indicated
earlier, in inter-American case law, the analysis of arbitrariness of intrusion into a person’s privacy and
autonomy responds to the same methodology relative to differences in treatment, that is, it refers to the same
judgment of proportionality. In that sense, the conclusion of the preceding paragraphs on how, in the present
case, it was not possible to give proof of a legitimate aim, it is fully applicable to this item and, therefore,
sufficient to establish that the intrusion into Sandra Pavez’s privacy and autonomy was arbitrary, in violation
of Article 11.2 of the Convention.
65.
The IACHR reiterates that, among the immediate obligations relative to the right to work
protected by Article 26 of the American Convention, there is the obligation to guarantee its exercise without
any discrimination and the obligation of adopting measures or take deliberate, concrete steps aimed at
ensuring the full realization of the right concerned. These obligations are not subject to any progressive
application nor are they subject to available remedies. According to the ESCR: “Discrimination in the field of
employment comprises a broad cluster of violations affecting all stages of life […] and can have a considerable
impact on the work situation of individuals,” therefore among the essential obligations there is the following:
“To avoid any measure that results in discrimination and unequal treatment in the private and public sectors
of disadvantaged and marginalized individuals and groups” in this area. 71 Therefore, according to facts proven
in this case, the IACHR observes that not only was Sandra Pavez discriminated against because of her sexual
orientation in her work as a teacher, but also there were no concrete and deliberate actions taken to prevent
this type of violation; on the contrary, the state ratified and reinforced them as a result of the decisions taken
by its judicial authorities. The IACHR underscores that one of the substantial elements of the contents of the
right to work involves the freedom of choice and acceptance of this work, which in turn leads to devoting
oneself to the activity that reasonably meets one’s expectations or plans for life, whether by creating
opportunities that permit this free choice or by adopting measures that do not prevent anyone from pursuing
his or her vocation.
69 I/A Court H.R. Case of Suárez Peralta v. Ecuador. Preliminary Objections, Merits, Reparations, and Costs. Judgment of May 21, 2013.
Series C No. 261, para. 132.
70 IACHR. Violence against Lesbian, Gay, Bisexual, Trans, and Intersex Persons in the Americas. November 12, 2015, para. 453.
71 Committee on Economic, Social and Cultural Rights. General Remark No. 18, February 6, 2006, para. 31.