Costa Rica/OAS: Inter-American Court of Human Rights Declares Right to Marry Should Be Extended to Same-Sex Couples

(Feb. 9, 2018) On January 9, 2018, the Inter-American Court of Human Rights (IACtHR) published an advisory opinion stating that under the American Convention of Human Rights, the institution of marriage should be extended to same-sex couples. (Press Release, IACtHR, Advisory Opinion on Gender Identity and Nondiscrimination Against Same-Sex Couples (Jan. 9, 2018), IACtHR website (in Spanish); IACtHR, Advisory Opinion OC-24/17 of November 24, 2017, IACtHR website (in Spanish); American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123, United Nations Treaty Collection website.)

Article 64 of the Convention provides that any Member State of the Organization of American States (OAS) may request an advisory opinion from the IACtHR regarding the protection of human rights and the compatibility of its domestic laws with the Convention.

Costa Rica requested an advisory opinion on May 18, 2016, regarding whether parties to the Convention must recognize name-change and identity information of persons according to their preferred gender identity. They also asked for an opinion on whether parties must recognize economic rights derived from a relationship between people of the same sex. (IACtHR Press Release, supra.)

The IACtHR ruled that several rights under the Convention, including article 18 (right to a name), article 3 (right to legal personality), article 7.1 (right to personal liberty), and article 11 (right to privacy), encompass the right to change one’s name and have one’s personal identity information reflect the gender one prefers. (Advisory Opinion OC-24/17 of November 24, 2017, supra, para. 118.) The Court ruled that parties to the Convention are obligated to establish appropriate procedures under articles 1.1 and 24 to respect and guarantee rights without discrimination and under article 2 to adopt domestic law to the rights provided for under the Convention. (Id.)

The Court further ruled that article 11.2 (protection of private and family life) and article 17 (right to protection of the family) and other internationally recognized human rights protect the right of persons of the same sex to form a family bond, and that articles 1.1 and 24 require that this right be guaranteed without discrimination. (Id. para. 199.)

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