favorable option for the human being and in light of the evolution of fundamental rights in
contemporary international law96.
86.
In this regard, in the Inter-American system, the General Assembly of the
Organization of American States (hereinafter the OAS) has approved, since 2008, in its
annual meetings four successive resolutions referring to the protection of persons against
discriminatory treatment based on their sexual orientation, demanding the adoption of
specific measures for an effective protection against discriminatory acts.97
87.
With regard to the inclusion of sexual orientation as a forbidden category of
discrimination, the European Court of Human Rights has stated that sexual orientation is
“another condition” mentioned in Article 1498 of the European Convention on Human Rights
that forbids discriminatory treatments.99 Specifically, in the Case of Salgueiro da Silva
Mouta v. Portugal, the European Court concluded that sexual orientation is “a concept
covered by Article 14 of the European Convention. It also reiterated that the list of
categories in said article has illustrative purposes and is not exhaustive.100 Recently, in the
Case of Clift v. United Kingdom, the European Court reiterated that sexual orientation, as
one of the categories that may be included under “another condition”, is another specific
96
Cf. Advisory Opinion OC-16/99, supra note 93, para. 115.
97
Cf. AG/RES. 2653 (XLI-O/11), Human rights, sexual orientation and gender identity, approved at the
fourth plenary session, held on June 7, 2011 (“THE GENERAL ASSEMBLY […] RESOLVES: 1. To condemn
discrimination against persons by reason of their sexual orientation and gender identity, and to urge States, within
the parameters of the legal institutions of their domestic systems, to adopt the necessary measures to prevent,
sanction and eradicate such discrimination”); AG/RES. 2600 (XL-O/10), Human rights, sexual orientation and
gender identity, approved at the fourth plenary session, held on June 8, 2010 (“THE GENERAL ASSEMBLY […]
RESOLVES: 1. To condemn discrimination against persons by reason of their sexual orientation and gender
identity, and to urge states, within the parameters of the legal institutions of their domestic systems, to adopt the
necessary measures to prevent, punish, and eradicate such discrimination. 2. To condemn acts of violence and
human rights violations committed against persons because of their sexual orientation and gender identity, and to
urge States to prevent and investigate these acts and violations and to ensure due judicial protection for victims on
an equal footing and that the perpetrators are brought to justice. 3. To encourage the member states to consider,
within the parameters of the legal institutions of their domestic systems, adopting public policies against
discrimination by reason of sexual orientation and gender identity.”); AG/RES. 2504 (XXXIX-O/09), Human Rights,
sexual orientation and gender identity, approved in the fourth plenary session, held on June 4, 2009 (“THE
GENERAL ASSEMBLY […] RESOLVES: 1.To condemn acts of violence and human rights violations committed against
individuals by reason sexual orientation and gender identity. 2. Urge States to prevent and investigate these acts
and violations and to ensure due judicial protection for victims on an equal footing and that the perpetrators are
brought to justice”); AG/RES. 2435 (XXXVIII-O/08), Human rights, sexual orientation and gender identity,
approved at the fourth plenary session, held on June 3, 2008 (“THE GENERAL ASSEMBLY […] RESOLVES: 1.To
express concern over acts of violence and human rights violations perpetrated against individuals by reason of their
sexual orientation and gender identity”).
98
Article 14 European Convention: The enjoyment of the rights and freedoms set forth in this Convention
shall be secured without discrimination on any ground, such as sex, race, color, language, religion, political or
other opinion, national or social origin, association with a national minority, property, birth or other status.
99
Cf. ECHR, Case Salgueiro da Silva Mouta v. Portugal, (No. 33290/96), Judgment of December 21, 1999.
Final, March 21, 2000, para. 28; Case L. and V. v. Austria (No. 39392/98 and 39829/98), Judgment of January 9,
2003. Final, April 9, 2003, para. 45; Case S.L. v. Austria, (No. 45330/99), Judgment of January 9, 2003. Final,
April 9, 2003, para. 37; Case E.B. V. France, (No. 43546/02), Judgment of January 22, 2008, para. 50.
100
Cf. ECHR, Caso Salgueiro da Silva Mouta, supra note ¡Error! Marcador no definido., para. 28 (“the
applicant’s sexual orientation […] [is] a concept that is undoubtedly covered by Article 14 of the Convention. The
Court reiterates in that connection that the list set out in that provision is illustrative and not exhaustive, as is
shown by the words “any ground such as”., See also ECHR, Case of Fretté v. France, (No. 36515/97), Judgment of
February 26, 2002. Final, May 26, 2002, para. 32; Cf. ECHR, Case Kozak v. Poland, (No. 13102/02), Judgment of
March 2, 2010. Final, June 2, 2010, para. 92; ECHR, Case J.M. v. United Kingdom, (No. 37060/06), Judgment of
September 28, 2010. Final, December 28, 2010, para. 55 and ECHR, Case Alekseyev v. Russia, (No. 4916/07,
25924/08 and 14599/09), Judgment of October 21, 2010. Final, April 11, 2011, para. 108. (“The Court reiterates
that sexual orientation is a concept covered by Article 14”).
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