C. The right to equality and the prohibition of discrimination Arguments of the parties 72. Regarding the alleged violation of Articles 2481 and 1.182 of the American Convention the Commission argued that “it is widely acknowledged in the American States that discrimination based on sexual orientation is forbidden.” It noted that “sexual orientation […] was the grounds for the Supreme Court’s decision,” which presumably determined that Ms. Atala “should not have custody of her daughters [given that] she lived with a person of the same sex. The Supreme Court added that “a distinction was made to the detriment of [Ms.] Atala regarding the application of relevant legal instruments for the determination of family matters, based on the expression of her sexual orientation and her decision to form a couple and establish a life with her [partner].” It also noted that the “provisional custody decision […] was also a distinction based on Ms. Atala’s sexual orientation.” Furthermore, it stated that “in comparative constitutional law the definition of “suspect category has been used” and, consequently, a strict scrutiny test has been applied to cases related to sexual orientation.” 73. The representatives pointed out that the States “signed the American Convention with an open clause of non-discrimination, and therefore they cannot now claim that their level of social and political development prevents them from understanding that sexual orientation is included as a category for which discrimination is prohibited.” They also alleged that the “decision in the remedy of complaint is […] a judgment of scrutiny of [Mrs.] Atala and her private life, without considering her parenting skills, which was the issue that needed to be considered. They added that “the scrutiny judgment [was not applied] to the life of [Mr.] López, about which nothing is known, questioned or investigated, nor of his parental skills.” Therefore, they consider that “this mere fact constitutes a difference in treatment, which is not contemplated by Chilean Law and is clearly prohibited by international law.” Furthermore, they alleged that the “Supreme Court of Chile […] created a category of persons who, by their very nature, regardless of their behavior, would not be able to take care of their own children, by virtue of being associated with situations of mistreatment and neglect.” 74. The State argued that “the [Inter-American] System [of Human Rights] needs the credibility and trust of the Member States. A relationship based on mutual trust could be affected if the Court assumes an excessively regulatory role, without considering the views of the majority of the States.” The State argued that “upon signing [the American Convention], the Member States agreed to abide by its provisions. Although the legal 81 Article 24 of the American Convention (Right to Equal Protection) stipulates that: All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection before the law. 82 Article 1.1 of the American Convention (Obligation to Respect Rights) states that: The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction and free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color sex, language, religion, political or other opinion, national or social origin, economic status, birth or any other social condition. 26