order to assess the suitability of the differentiating measure, the objective pursued must not only be
legitimate under the Convention, but also imperative. Moreover, the means chosen must not only be
adequate and effectively conducive, but also necessary; that is, it cannot not be replaced by other
less harmful means. In addition, the measure must undergo a strict proportionality test, according to
which the benefits of adopting the measure in question must clearly outweigh the restrictions it
imposes on the treaty-based principles it affects. (supra para. 69).
70.
With specific regard to the scope of the right to non-discrimination on the grounds of sexual
orientation, the Court has indicated that this is not limited to homosexuality per se, but that it also
includes its forms of expression and the logical consequences in the life project of the individual. 110 In
this regard, for example, sexual acts are a way of expressing a person’s sexual orientation, and are
therefore protected under the same right of non-discrimination on the basis of sexual orientation. 111
71.
It should also be recalled that in Advisory Opinion OC-24/17, this Court noted the important
role that cultural, religious, sociological, economic, ideological and linguistic convictions play in the life
and dignity of those who profess them. Nevertheless, it stated that these convictions cannot be used
as a parameter of conventionality since the Court could not use them as an interpretative guide when
determining the rights of human beings. In that sense, the Court is of the opinion that such convictions
cannot condition what the Convention establishes in relation to discrimination based on sexual
orientation. Thus, in democratic societies there must exist a peaceful coexistence between the secular
and the religious spheres, implying therefore that the role of the States and of this Court is to recognize
the sphere inhabited by each of them, and never force one into the sphere of the other. 112
b) The right to education, freedom of religion and religious education
72.
The Court has emphasized that “the right to education, which contributes to the possibility of
enjoying a dignified life and prevents unfavorable situations for the minor and for society itself, stands
out among the special measures of protection for children and among the rights recognized for them
in Article 19 of the American Convention.” 113 The Court has explained that this right, with respect to
children, arises from the aforementioned provision interpreted in accordance with the Convention on
the Rights of the Child, Article 26 of the American Convention and the Protocol of San Salvador. 114
The latter recognizes the right to education in Article 13, over which the Court may exercise its
jurisdiction. 115 Likewise, the right to education is recognized in Article 28 of the Convention on the
Rights of the Child. Furthermore, this right is established in Article XII of the American Declaration of
the Rights and Duties of Man, which states that “every person has the right to education, which should
be based on the principles of liberty, morality and human solidarity.” Article 3(n) of the OAS Charter
also states that the “education of peoples should be directed toward justice, freedom, and peace.” In
turn, Article 30 of that instrument establishes that “integral development encompasses the economic,
social, educational, cultural, scientific, and technological fields.”
73.
The Constitution of Chile recognizes the right to education and states that its purpose is “the
full development of the person in the distinct stages of his life.” It also states that parents or guardians
110
Cf. Case of Atala Riffo and Daughters v. Chile. Merits, reparations and costs, supra, para. 133, and Advisory Opinion
OC-24/17, supra, para. 82.
111
Cf. Case of Flor Freire v. Ecuador, supra, para. 119, and Advisory Opinion OC-24/17, supra, para. 82.
112
Cf. Advisory Opinion OC-24/17, supra, para. 223.
Juridical Condition and Human Rights of the Child. Advisory Opinion OC 17/02, supra, para. 84 and Case of Garzón
Guzmán et al. v. Ecuador. Merits, reparations and costs, supra, para. 117.
113
114
The Protocol of San Salvador was not ratified by Chile. It is mentioned here for illustrative purposes.
The Court has jurisdiction to decide on contentious cases concerning the right to education by virtue of Article 19(6)
of the Protocol of San Salvador. This allows for the application of the system of individual petitions regulated by Articles 44 -51
and 61-69 of the American Convention on Human Rights in the event of a violation of Article 8, paragraph a) (Union Rights)
and 13 (Right to Education) of the Protocol. Cf. Case of Garzón Guzmán et al. v. Ecuador. Merits, reparations and costs, supra,
para. 117, and Case of Gonzales Lluy et al. v. Ecuador, supra, para. 234 and footnote 263.
115
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