B.4 Application of standards to the specific case
105. With regard to the instant case, the Court will now examine (i) the grounds for the
rulings issued in the domestic administrative and judicial proceedings and, in particular,
the standard of proof applied to the case, (ii) the alleged use of discriminatory
stereotypes related to sexual orientation and gender expression in administrative
proceedings; (iii) the alleged failure to comply with the guarantee of reasonable time;
and, finally, the Court will formulate the relevant (iv) conclusions on the alleged violation
of Articles 7, 8(1), 11(2), 13(1), 24, and 25(1) of the American Convention, in relation
to Article 1(1) of the same instrument. Regarding the alleged violation of Articles 8(1)
and 25(1), the Court will examine two aspects: first, it will analyze the alleged violation
of said articles based on the alleged lack of access to justice 131 (sections B.4.1 and B.4.2)
and, secondly it will consider the alleged violation of Article 8(1) due to the alleged failure
to observe the guarantee of reasonable time 132 (section B.4.3).
B.4.1 Standard of proof applied to the case in the administrative and judicial
proceedings
106. In order to analyze the standard of proof applied in this case by the domestic
administrative and judicial authorities, it is first necessary to recall that discrimination
refers to any distinction, exclusion, restriction, preference or other differentiated
treatment based directly or indirectly on prohibited grounds for discrimination, which
has the intention or effect of annulling or impairing the recognition, enjoyment or
exercise, on an equal footing, of human rights and fundamental freedoms in the political,
economic, social, cultural or any other sphere. 133 In terms of discrimination, victims of
business-related violations face barriers associated with information and power
asymmetries between victims and corporations. In this regard, the Committee on
Economic, Social and Cultural Rights has indicated in its General Comment No. 24 that,
among the obstacles to effective access to remedies for victims of human rights
violations committed by business entities, is “the difficulty of accessing information and
evidence to substantiate claims, which is often largely in the hands of the defendant
company.” 134
Cf., Case of Velásquez Rodríguez v. Honduras. Preliminary objections. Judgment of June 26, 1987.
Series C No. 1, para. 91, and Case of Aroca Palma et al. v. Ecuador. Preliminary objection, merits, reparations
and costs. Judgment of November 8, 2022. Series C No. 471, para. 103.
132
Cf., Inter alia, Case of Genie Lacayo v. Nicaragua. Merits, reparations and costs. Judgment of January
29, 1997. Series C No. 30, para. 77, and Case of Cortez Espinoza v. Ecuador. Preliminary objections, merits,
reparations and costs. Judgment of October 18, 2022. Series C No. 468, para. 96.
133
Cf. International Convention on the Elimination of All Forms of Racial Discrimination, Article 1;
Convention on the Elimination of All Forms of Discrimination against Women, Article 1 Convention on the Rights
of Persons with Disabilities, Article 2; Human Rights Committee, General Comment No. 18, “Nondiscrimination,” 37th Session, November 10, 1989, para. 6, and Committee on Economic, Social and Cultural
Rights, General Comment No. 20, “Non-discrimination and Economic, Social and Cultural Rights” (Article 2,
paragraph 2 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/GC/20, July 2,
2009, para. 7.
131
134
Cf. Committee on Economic, Social and Cultural Rights. General Comment No. 24 on the obligations
of States under the International Covenant on Economic, Social and Cultural Rights, in the context of business
activities, E/C.12/GC/24, August 10, 2017, para. 42.
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