individuals because of their sexual orientation and gender identity.112 The prohibition of
discrimination based on sexual orientation has also been highlighted in numerous reports by
special rapporteurs of the United Nations.113
91.
Bearing in mind the general obligations to respect and guarantee the rights
established in Article 1.1 of the American Convention, the interpretation criteria set forth in
Article 29 of that Convention, the provisions of the Vienna Convention on the Law of
Treaties, and the standards established by the European Court and the mechanisms of the
United Nations (supra paras. 83-90), the Inter-American Court accepts that the sexual
orientation of persons is a category protected by the Convention. Therefore, any regulation,
act, or practice considered discriminatory based on a person’s sexual orientation is
prohibited. Consequently, no regulation, decision, or practice of domestic legislation,
whether by state authorities or individuals, may diminish or restrict, in any way whatsoever,
the rights of a person based on their sexual orientation.
92.
With regard to the State’s argument that, on the date on which the Supreme Court
issued its ruling there was a lack of consensus regarding sexual orientation as a prohibited
category for discrimination, the Court points out that the alleged lack of consensus in some
countries regarding full respect for the rights of sexual minorities cannot be considered a
valid argument to deny or restrict their human rights or to perpetuate and reproduce the
112
United Nations Human Rights Council, Resolution regarding human rights, sexual orientation and gender
identity, A/HRC/17/L.9/Rev.1, June 15, 2011.
113
Cf., Among other reports, Report of the Special Rapporteur on the right of all persons to enjoy the highest
attainable standard of physical and mental health, E/CN.4/2004/49, February 16, 2004, paras. 32, 38
(“International human rights law proscribes all discrimination in access to health care and the underlying
determinants of health, and to the means for their procurement, on the grounds of …… sexual orientation [...]
discrimination on the grounds of sexual orientation is impermissible under international human rights law”). See
also the Report of the Special Rapporteur on freedom of religion or belief, A/HRC/6/5, July 20, 2007, para. 28;
Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related
intolerance, Mission to Brazil, E/CN.4/2006/16/Add.3, February 28, 2006, para. 40; Report of the Special
Rapporteur on violence against women, its causes and consequences, Integration of the human rights of women
and gender perspective: violence against women, Investigation into the links between violence against women and
HIV/AIDS, E/CN.4/2005/72, January 17, 2005, para. 27, 58; Report of the Special Rapporteur on extrajudicial,
summary or arbitrary executions, civil and political rights, in particular questions related to disappearances and
summary executions, E/CN.4/2003/3, January 13, 2003, paras.. 66, 67; Report provisional of la Special
Rapporteur of the Human rights Commission on extrajudicial, summary or arbitrary executions, A/57/138, July 2,
2002, para. 37; Report of the Special Representative of the Secretary General on human rights defenders,
E/CN.4/2001/94, January 26, 2001, para. 89 g); Special Rapporteur on the independence of judges and lawyers,
civil and political rights, in particular questions related to: the independence of the judicial branch, the
administration of justice, impunity, Mission to Brazil, E/CN.4/2005/60/Add.3, February 22, 2005, para. 28; Report
of the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment, A/56/156,
July 3, 2001, paras.. 17-25; Report on civil and political rights, in particular questions related to torture and
detention E/CN.4/2002/76, December 27, 2001, page. 14; Report of the Special Rapporteur on torture and other
cruel, inhuman or degrading treatment, E/CN.4/2004/56, December 23, 2003, para. 64; Report of the Special
Rapporteur on the sale of children, child prostitution and the use of children in pornography E/CN.4/2004/9,
January 5, 2004, para. 118; Working Group on Arbitrary Detention, Opinion No. 7/2002 (Egypt),
E/CN.4/2003/8/Add.1, January 24, 2003, page. 72, para. 28. Within the framework of comparative law some
States explicitly prohibit discrimination based on sexual orientation in their Constitutions (for example Bolivia,
Ecuador, Kosovo, Portugal, South Africa, Sweden and Switzerland) or through laws, for example in matters of
family law, regarding granting homosexuals the same rights as heterosexuals. For example, in Argentina, Articles 2
and 4 of Law No. 26.618 of July 21, 2010 establish that: “Marriage shall have the same requirements and effects,
regardless of the fact that the spouses are of the same or of different sex” and "In marriages constituted by samesex couples, in the absence of an agreement, the judge shall decide [on custody] taking into consideration the best
interests of the child”; Uruguay approved Law No. 18.246 (Diario Oficial No. 27402, January 10, 2008), which
recognizes civil unions ("concubinary unions ") between same-sex couples. In 2009, Law No. 18.590, (Diario Oficial
No. 27837, 26 October 2009), authorized joint adoption by couples living in civil union.
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