“Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them.” Reads the first lines of the U.S. Supreme Court’s ruling on the ban on discrimination that protects gay, lesbian and transgender employees. There is no doubt that this decision opens up the legal system for a new era of trans rights. However, two years ago in Latin America a major initiative undertaken by the Inter-American Court of Human Rights passed almost unnoticed. More than unexpected consequences, that 2018 ruling is showing today its consequent and symbolic impact.
It may be seen as a small gesture in a region where some advocates claim that the life expectancy of trans women is less than half than of the rest of the population. But in that 2018 ruling the Inter-American Court of Human Rights banned all forms of discrimination on grounds of gender identity and sexual orientation. Deriving its power as the final interpreter of the meaning of the American Convention on Human Rights, the court has its seat in a quiet suburb of Costa Rica’s capital, San José. The ruling is binding in over 20 Latin American countries that fall under the court’s jurisdiction. The gesture is small. The consequences deriving from it, increasingly, are not.
On May 26, two women became the first same-sex couple to marry in Costa Rica. Marriage equality was possible after the Costa Rican Supreme Court enforced the Inter-American Court´s opinion. One year before Ecuador’s Constitutional Court also found that the ban was unconstitutional. Out of the 29 countries in the world where same-sex marriage is legal, seven are under the jurisdiction of the Inter-American Court (Argentina, Brazil, Colombia, Costa Rica, Ecuador, Mexico, and Uruguay.) Advocates around the region are pushing the domino tiles.
On trans rights, the terrain in Latin American seems even trickier. In the most violent region of the world, trans individuals are disproportionality affected. Violence has its seeds in a culture of widespread discrimination against non-binary individuals. Civil society organizations claim that only one in two trans persons have access to health care. Institutional policies are also rooted in hetero-cis-normative paradigms. The Inter-American Court’s decision challenged that institutionalized discrimination. Altogether with a ruling on a general ban against discrimination on grounds of gender identity, it also focused on the right to identity. The court’s groundbreaking decision considered that trans individuals have the right to have their gender identity officially recognized as they perceive it. In practice, it means that Latin American states have the obligation to update their documents without any invasive procedures, such as a probe of medical treatment, clinical tests or a physician’s certification. The only important requirement is that the official documents mirror the person’s self-perceived identity. Under the sponsorship of the Organization of American States (OAS), the umbrella organization under which the Inter-American Court was created, civil registries all around the region are working on adopting its practices and legislation to comply with the court’s mandate.
These are reasons to be optimistic. Still, there are reasons to be cautious. The political context in Latin American is as complex as in the U.S. today. All major initiatives always will still require many more small gestures. At least this time, the law is on the right side of history.