also argued that the State had failed to adopt measures to provide comprehensive care to
the presumed victims that took into account the different factors of vulnerability that
coalesced and resulted in a specific form of discrimination owing to their intersection.
Consequently, the Court will analyze whether discrimination existed in this case. Also,
bearing in mind that, in this case, it has been alleged that several individuals were victims
of discrimination for similar reasons, the Court will analyze each reason for which they were
discriminated against separately, as appropriate. This is notwithstanding the fact that the
Court understands that the combination of factors of discrimination in an intersectional
manner resulted in a discriminatory experience that differs from the simple accumulation of
different reasons for the discrimination against a person.146
129. In this regard, the Court recalls that, as a cross-cutting condition for the accessibility
of its health services,147 the State is obliged to guarantee equal treatment to all. Thus,
pursuant to Article 1(1) of the American Convention, discriminatory treatment is
prohibited,148 “for reasons of race, color, sex, […] economic status, birth, or any other social
condition.”149 The Court recalls that the list of elements by virtue of which discrimination is
prohibited under Article 1(1) of the American Convention is neither exhaustive nor
restrictive, merely indicative. Thus, the wording of this article leaves the criteria open with
the inclusion of the phrase “any other social condition” in order to incorporate other
categories that were not explicitly indicated. 150
130. In this regard, the Court indicates that, within the Convention’s sphere of protection,
HIV is a factor based on which discrimination is prohibited under the phrase “any other
social condition” in Article 1(1) of the Convention.151 The Court underscores that the right to
equality and non-discrimination has two aspects: a negative one related to the prohibition of
arbitrary differences in treatment, and a positive one related to the State obligation to
create conditions of real equality for groups that have historically been excluded or that are
at greater risk of being discriminated against, 152 as in the case of people living with HIV.153
The obligation to adopt positive measures is increased with regard to the protection of
Cf. Case of Ramírez Escobar et al. v. Guatemala. Merits, reparations and costs. Judgment of March 8,
2018. Series C No. 351, para. 277.
146
Cf. Case of Poblete Vilches et al. v. Chile. Merits, reparations and costs. Judgment of March 8, 2018.
Series C No. 349, para. 122. Cf. General Comment No. 14: The Right to the Highest Attainable Standard of Health,
August 11, 2000, U.N. Doc. E/C.12/2000/4, para. 12. In this regard, the General Comment indicates that
accessibility has four overlapping dimensions, one of them is that of non-discrimination, which means that “health
facilities, goods and services must be accessible to all, especially the most vulnerable or marginalized sections of
the population, in law and in fact, without discrimination on any of the prohibited grounds.”
147
Cf. Case of Poblete Vilches et al. v. Chile. Merits, reparations and costs. Judgment of March 8, 2018.
Series C No. 349, para. 122.
148
Cf. Case of Veliz Franco et al. v. Guatemala. Preliminary objections, merits, reparations and costs.
Judgment of May 19, 2014. Series C No. 277, para. 204, and Case of Poblete Vilches et al. v. Chile. Merits,
reparations and costs. Judgment of March 8, 2018. Series C No. 349, para. 122.
149
150
Cf. Case of Atala Riffo and daughters v. Chile. Merits, reparations and costs. Judgment of February 24,
2012. Series C No. 239 para. 85, and Case of Poblete Vilches et al. v. Chile. Merits, reparations and costs.
Judgment of March 8, 2018. Series C No. 349, para. 122.
Cf. Case of Gonzales Lluy et al. v. Ecuador. Preliminary objections, merits, reparations and costs.
Judgment of September 1, 2015. Series C No. 298, para. 255.
151
Cf. Case of Furlan and family members v. Argentina. Preliminary objections, merits, reparations and costs.
Judgment of August 31, 2012. Series C No. 246, para. 267, and Case of Poblete Vilches et al. v. Chile. Merits,
reparations and costs. Judgment of March 8, 2018. Series C No. 349, para. 123.
152
Cf. Case of Gonzales Lluy et al. v. Ecuador. Preliminary objections, merits, reparations and costs.
Judgment of September 1, 2015. Series C No. 298, para. 236.
153
46