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distinction must be particularly important or an pressing social need.99 In addition, it is not enough for
the measure to be suitable or for there to be a logical relationship of causality between it and the
objective pursued, but rather it should be strictly necessary to achieve that aim, in that there is no other
less harmful alternative.100 Finally, to meet the requirement of proportionality one must argue the
existence of an adequate balance of interests in terms of the degree of sacrifice and the degree of
benefit.101
100. Based on the evolutionary interpretation of treaties as “living instruments” whose
interpretation has to accompany the evolution of the current times and living conditions102, and also
considering international standards, case-law of the European Court of Human Rights and comparative
law, the IACHR already established that sexual orientation is a suspect category of discrimination under
the criteria of non-discrimination contained in Article 1(1) of the American Convention and as such any
distinction based on it should be examined with strict scrutiny.103 In addition, the Inter-American Court
has indicated that the expression “any other social condition” of Article 1(1) of the Convention should be
interpreted in the manner most favorable to the person and to the evolution of the fundamental rights
in contemporary international law.104 Accordingly, the Inter-American Court established in its recent
judgment in the case of Karen Atala Riffo and daughters v. Chile 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 domestic regulation, decision, or practice, whether by state
99
IACHR, Access to Justice for Women Victims of Violence in the Americas, OEA/Ser. L/V/II. doc. 68, January 20, 2007,
paras. 80 and 83; IACHR, Report on Terrorism and Human Rights, OEA/Ser.L/V/ll.116 Doc. 5 rev. 1 corr., October 22, 2002, para.
338; IACHR, Report No. 4/01, Case 11.625, María Eugenia Morales de Sierra (Guatemala), January 19, 2001, para. 36; IACHR,
Annual Report 1999, Considerations regarding the compatibility of affirmative action measures designed to promote the
political participation of women with the principles of equality and non-discrimination, chapter VI; European Court of Human
Rights, Salgueiro da Silva Mouta v. Portugal, Application No. 33290/96, December 21, 1999, para. 29; European Court of Human
Rights, Belgian Linguistics Case (Merits), Judgment of July 23, 1968, p. 34; European Court of Human Rights, Case of LustigPrean and Beckett v. United Kingdom, Applications 31417/96 and 32377/96, Judgment of September 27, 1999, final decision of
December 27, 1999; para. 80; European Court of Human Rights, Case of Smith and Grady, Applications Nos. 33985/96 and
33986/96, Judgment of September 27, 1999, para. 87.
100
IACHR, Report No. 38/96, X and Y (Argentina), October 15, 1996, para. 74; IACHR, Access to Justice for Women
Victims of Violence in the Americas, OEA/Ser. L/V/II. doc. 68, January 20, 2007, para. 83. Along similar lines see: European Court
of Human Rights, Karner v. Austria, Application no. 40016/98, Judgment of July 24, 2003, para. 41; European Court of Human
Rights, Salgueiro da Silva Mouta v. Portugal, Application No. 33290/96, Judgment of December 21, 1999, para. 29; European
Court of Human Rights, Belgian Linguistics Case (Merits), Judgment of July 23, 1968, p. 34.
101
IACHR, Application to the Inter-American Court of Human Rights, Karen Atala and daughters, September 17, 2010,
para. 89.
102
I/A Court H.R. Case of Karen Atala Riffo and daughters v. Chile. Merits, Reparations and Costs. Judgment of
February 24, 2012. Series C No. 239, para. 83; I/A Court H.R. The Right to Information on Consular Assistance in the Framework
of the Guarantees of the Due Process of Law. Advisory Opinion OC-16/99, October 1, 1999. Series A No. 16, para. 114; I/A Court
H.R. Case of the “Mapiripán Massacre” v. Colombia. Merits, Reparations and Costs. Judgment of September 15, 2005. Series C
No. 134, para. 106; European Court of Human Rights, Tyrer v. United Kingdom (No. 5856/72), Judgment of April 25, 1978, para.
31.
103
IACHR, Application to the Inter-American Court of Human Rights, Karen Atala and daughters, September 17,
2010,paras. 90-95.
104
I/A Court H.R. Case of Karen Atala Riffo and daughters v. Chile. Merits, Reparations and Costs. Judgment of
February 24, 2012. Series C No. 239, para. 85; I/A Court H.R. The Right to Information on Consular Assistance in the Framework
of the Due Process of Law. Advisory Opinion OC-16/99, October 1, 1999. Series A No. 16, para. 115.