on her sexual orientation and not on objective grounds of the requirements of the service. 165 Thus,
although she continued to carry out activities related to education, she could not continue to do so as
a Catholic religion teacher because she was subjected to discriminatory treatment, and, in this sense,
her right to job security was affected and, therefore her right to work.
141. Having established that there were restrictions to the rights to personal liberty, privacy, and
work, contained in Articles 7(1), 11(2) and 26 of the American Convention, the Court will now analyze
whether these were the result of discriminatory treatment. This will be determined on the basis of the
differentiating criterion, so it is appropriate to analyze whether it is proportional in the strict sense of
the word.
142. On this point, the Court recalls that, as indicated supra, the criteria for analyzing whether there
has been a violation of the principle of equality and non-discrimination in a specific case may be of
varying intensity, depending on the reasons for the difference in treatment. In this sense, the Court
considers that, in the case of a measure establishing a differentiated treatment involving one of the
categories protected by Article 1(1) of the Convention, the Court must apply a strict scrutiny that
incorporates particularly rigorous elements in the analysis. Thus, the different treatment must be
necessary to achieve an imperative objective recognized by the Convention, and the means chosen
must not only be adequate and appropriate, but also necessary. In other words, it cannot be replaced
by a less injurious measure. In addition, it must include the application of a strict proportionality test,
according to which the benefits of adopting the measure in question must clearly outweigh the
restrictions it imposes on the conventional principles affected by it.
143. In this case, there is no doubt or dispute about the fact that sexual orientation is a category
protected by Article 1(1) of the Convention.
144. This Court considers that the costs of the restrictive measure to the detriment of Sandra Pavez
Pavez do not outweigh the advantages obtained in terms of protecting religious freedom and the right
of parents to choose their children’s education. Indeed, at no time was there any consideration of the
effects that this measure would have on Sandra Pavez Pavez's personal life or on her teaching
vocation. Nor is it clear that there is an actual or potential infringement of the autonomy of the religious
community, or of the right to religion, or the right of parents or guardians to have their children or
wards receive the religious education that is in accordance with their beliefs. On the contrary, the
alleged victim stated - without this being challenged by the State - that she received support in the
form of 700 signatures “from students and their parents, who were even authorized to speak to the
Bishop on my behalf so that I could continue teaching, and from all the teachers who were there at
the time this happened in 2007.” 166 Finally, regarding the State’s argument related to the coherence
between the content of the religion classes and the conformity of the lifestyle of the person who
teaches those classes with the religious creed, this Court considers that it cannot operate in such a
way as to justify or legitimize different treatment that is discriminatory based on the categories
protected by Article 1(1) of the Convention, in the area of public education.
145. For the foregoing reasons, this Court considers that the decision of the authorities of the
“Cardinal Antonio Samoré” (public) High School to remove Sandra Pavez Pavez from her position and
assign her different duties other than those of a Catholic religion teacher, which resulted from the
revocation of her certificate of suitability by the Vicariate for Education of San Bernardo, did not meet
the strict test of proportionality and violated the principle of equality and non-discrimination to her
detriment.
d) Conclusion
165
During the public hearing, Sandra Pavez Pavez stated that she felt that she “was not doing what [she] [...] liked, [...],
that it was not what [her] inner self felt, it was like doing something because you have to do it and because you have to earn
money and make a living, but was not the [her[ inner essence. (She) felt she totally lost [her] dignity as a human being.”
166
Cf. Statement of Sandra Pavez Pavez during the public hearing and letter of support from her teaching colleagues at
the “Cardinal Antonio Samoré” High School (evidence file, folios 297 to 301).
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