Chile: High Court Discriminates Against Lesbian Mother

Report

By: Human Rights Watch

Date: June 2, 2004

Source: Human Rights Watch. "Chile: High Court Discriminates Against Lesbian Mother." 〈http://hrw.org/english/docs/2004/06/02/chile8722.htm〉 (accessed February 22, 2006).

About the Author: Human Rights Watch is an international, non-governmental organization devoted to monitoring human rights issues. Founded in 1978 as Helsinki Watch, the organization currently has over 150 journalists, lawyers, academics, and field experts documenting and analyzing situations related to human rights abuses.

INTRODUCTION

In February 2002, Karen Atala, a government-appointed judge from the town of Villarrica in the South American country of Chile, separated from her husband, Jaime Lopez. The couple had three daughters, then seven, three, and two years old. Atala openly admitted to Lopez that she was a lesbian and gave this as the reason for the separation. She was granted custody of the children when the couple split and sought therapy for herself and her daughters to aid in the family's transition.

Jaime Lopez, a lawyer, appealed in the Chilean courts for custody of the couple's daughters. In a second court ruling, Atala was granted custody again; the court found her to be a stable, loving mother who provided well for the girls. The father was granted noncustodial parental visitation rights.

The girls' father argued that Atala should not receive custody based on the fact that she was gay. Chile is one of the most socially conservative countries in South America. It is a devoutly Catholic country and one in which the right-wing, conservative policies of General Augusto Pinochet—the military commander who seized power in 1973 and who ruled until 1990—persist in civil and social society. The influence of the Catholic Church in Chilean politics runs very deep. Sodomy laws were repealed in 1999, and Chile did not have a divorce law on the books until 2004, long after other developed South American nations had enacted divorce reforms.

Jaime Lopez appealed his custody case to the Chilean Supreme Court, and, on May 31, 2004, the Supreme Court issued a stunning reversal of the two lower court decisions. On a three-to-two vote, the Supreme Court stated that custody should go to Mr. Lopez based solely on the fact that Karen Atala's choice to live openly as a lesbian was a sign that she placed her own interests above those of her children. Citing concerns about social, sexual, and emotional development in the children, the court did not use any other criteria, such as abuse or neglect, in removing the girls from Atala's custody.

PRIMARY SOURCE

(Santiago, June 2, 2004)—The Chilean Supreme Court has discriminated against a lesbian mother in denying her custody of her daughters on the basis of her sexual orientation, Human Rights Watch said today.

"The court deprived this mother of custody of her children only because she refused to hide her lesbian relationship from them," said José Miguel Vivanco, executive director of the Americas division of Human Rights Watch. "Lesbians should not be forced to choose between their sexuality and motherhood."

Karen Atala, a judge from the town of Los Andes, had been awarded custody of her three daughters by an appeal court. Her former husband appealed, arguing that the court had wrongfully put Atala's rights before those of her children. Accepting the appeal by 3 votes to 2, a Supreme Court panel on Monday held that Atala's open lesbian relationship disqualified her from the right to custody that separated mothers in Chile enjoy unless barred by exceptional circumstances. The decision is final, and she has no other avenue of appeal.

The panel considered that the children's emotional and sexual development could be harmed by the absence of a father in the home and "his replacement by another person of the female gender." It also expressed concern that Atala's children could suffer from discrimination and rejection since "their exceptional family situation is significantly different from that of their classmates and neighborhood peers." The justices also criticized the lower court for "a serious fault or abuse" because it chose not to uphold "the preferential right of the children to live and grow up in a normally structured and socially reputable family, according to the proper traditional model."

The type of appeal used in this case is known in Chile as a recurso de queja (complaint appeal). For the appeal to be successful, the appellant must establish that the sentencing court committed a serious fault or abuse. This invalidates the sentence and makes the judges responsible for it liable to disciplinary action.

"To add insult to injury, the Supreme Court is telling us that the lower court did wrong even though it resolved this issue on solid legal argument and principle," said Vivanco.

The two dissenting justices stressed that the sentencing judges had proceeded correctly. They argued that Atala's sexual orientation was not a ground for depriving her of the custody she would normally enjoy as a separated mother under Chilean law. Denying her custody would impose on her daughters as well as her "an unnamed punishment, outside the law as well as discriminatory."

The Atala case has stimulated debate in Chile about the right of gays and lesbians to express their sexual orientation without prejudice or discrimination. Human Rights Watch in May published an article and a letter in the prominent Chilean newspaper, El Mercurio, urging the Supreme Court to study recent jurisprudence of the European Court of Human Rights condemning discrimination on the basis of sexual orientation.

Article 26 of the International Covenant on Civil and Political Rights prohibits discrimination based on "race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." In 1994 the Human Rights Committee—the U.N. expert body charged with interpreting the Covenant—ruled that the reference to "sex" in the treaty should be interpreted as including sexual orientation. The Convention on the Rights of the Child requires states to "take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members."

Sodomy was decriminalized in Chile in 1999, but prejudice against gays and lesbians is still rife.

SIGNIFICANCE

Chile has a history of blending social conservatism with economic liberalism. One of the most developed South American nations, in recent years it has experienced annual economic growth near six percent and the development of a flourishing middle class as the country moves away from the extreme political conservatism of the Pinochet years. At the same time, the human rights abuses experienced under Pinochet's regime—which included more extreme cases of torture as well as curbs on freedom of speech, curtailment of women's rights, and repression of homosexuals—have come under scrutiny as more people speak out about past experiences and civil society moves toward a more progressive tone.

Karen Atala's occupation as a respected judge in Chile placed her in a difficult position when testifying in the custody trials. Unlike many lesbian mothers in Chile, who often lie about their homosexuality in order to preserve their custody rights, Atala could not lie. As an officer of the court, she believed that she needed to be open and honest under oath. Ninetynine percent of all child custody cases in Chile are found in the mother's favor.

Atala appealed the Chilean Supreme Court's decision to the the Inter-American Commission of Human Rights (IACHR) and its judicial branch, the Inter-American Court of Human Rights, both with oversight from the Organization of American States. The IACHR is designed to enforce the American Convention on Human Rights, a treaty which Chile ratified in 1990.

Karen Atala claims that her rights were violated under Article 1 to the convention, which states that citizens in member countries should have the full rights and freedoms of all others "without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth or any other social condition." The case is ongoing between the IACHR and the Chilean government as of February 2006.

On December 11, 2005, Chilean presidential elections were held. Michelle Bachelet, a self-described divorced socialist agnostic won forty-six percent of the vote. Bachelet had been tortured under General Augusto Pinochet's military rule in the early 1970s and her father, a military commander under Socialist President Salvador Allende, was killed in the 1973 coup. Her return to Chile and popularity in the election alarmed social conservatives. A run-off election on January 15, 2006, confirmed Bachelet's presidency when she received fifty-three percent of the total vote.

Bachelet campaigned on the issue of gender equality and used her status as a mother and a pediatrician to appeal to Chilean progressives. The election of a female socialist to the highest office in Chile bolstered hopes in the Chilean gay and lesbian community for an expansion of gay rights. However, as of February 2006, Karen Atala's children remained in the custody of their father.

FURTHER RESOURCES

Books

Power, Margaret. "Right Wing Women, Sexuality, and Politics in Chile During the Pinochet Dictatorship, 1973–1990," in Right Wing Women: From Conservatives to Extremists Around the World, edited by Paola Bacchetta and Margaret Power. New York: Routledge, 2002.

Stephen, Lynn. Women and Social Movements in Latin America: Power from Below. Austin, Tex.: University of Texas Press, 1997.

Web sites

Inter Press New Service Agency. "RIGHTS-CHILE: Gay Community Guardedly Optimistic About Future." 〈http://www.ipsnews.net/news.asp?idnews=32016〉 (accessed February 22, 2006).