The Inter-American Court of Human Rights ruled in favor of Karen Atala last month, showing how one lesbian mother's determination and legal savvy to be with her daughters turned into a landmark case for LGBT and family rights.
The IACHR decision in the case that pitted Atala, an out lesbian judge, against the state of Chile was the first time the court heard a case addressing LGBT issues.
The court's decision was made public late on March 21.
In the landmark ruling, IACHR, the court of the Organization of American States, condemned Chile's government for breaching the American Convention and international law in Atala's case, clearly stating sexual orientation is a protected class. The decision mandated Chile to compensate Atala and her three daughters for court costs and damages. Furthermore, the court set a precedent mandating LGBT sensitivity training throughout Chile's government.
Chile has been a signatory to the American Convention, which provides protection on the grounds of sexual orientation under the phrase "other social condition," since 1990.
"[IACHR] has now stated that discrimination based on sexual orientation is protected by the American Convention of Human Rights and that the 'best interest of the child,' cannot be used as an excuse to discriminate against people because of their sexual orientation,'" said Macarena Saez, one of the Chilean attorneys who worked on behalf of Atala through Public Liberties, along with Chilean organizations Humanas and Universidad Diego Portales Law School.
The victory means that sexual orientation is clearly protected as a human right, gave children rights, and protected family rights without discrimination, not "traditional families," said Saez.
"Everyone has a right to family regardless of their sexual orientation," Saez said.
Lisa Davis, the human rights advocacy director at Madre, an international women's rights organization in New York City, and clinical professor for law for the International Women's Human Rights Clinic at CUNY Law School, agreed.
"It doesn't just apply to this case it applies to all future cases on discrimination," said Davis, who co-authored the amicus brief to IACHR in support of Atala's case with attorneys from Morrison and Foerster that was signed onto by 13 other organizations.
"It shows there's a sense of solidarity in a movement for rights and that there is hope for those rights to be protected. It really unites everyone under the banner of Convention to finally have recognition that we all have the right to live free from discrimination," Davis continued.
Human rights advocates applauded IACHR's decision.
"This ruling is a celebration for non-discrimination and equality and will boost lesbians, gays, bisexuals, and transgender people �" whose human rights are violated on a daily basis �" to stand up against injustice," said Boris Dittrich, advocacy director of the LGBT rights program at Human Rights Watch, in a March 23 statement. "This judgment promises to have far reaching impact on the jurisprudence of all members of the Organization of American States and hopefully on respect for the rights of all LGBT persons in the region."
The National Center for Lesbian Rights, which has won groundbreaking family rights cases in the U.S., also praised the ruling.
"No child should ever be separated from her parent based on the long-discredited and unsupportable notion that being raised by lesbian parents is harmful for children," said Cathy Sakimura, staff attorney and family protection project director for NCLR.
Atala, 48, isn't granting media interviews, she said in an email message to the Bay Area Reporter through her partner, historian Emma De Ramon Acevedo.
A mother's love
The nearly decade long legal wrangling over custody Atala's three daughters began a year after she divorced her then-husband and father of their three children, Jaime Lopez Allende, in 2002.
The three girls are only identified in court documents as M., V., and R., who will be 18, 14, and 13 years old, respectively, this year, according to Atala's petition to IACHR.
Divorce is a new concept in Chile, only becoming legal in 2004. Custody of children is almost always granted to the mother, unless she's deemed unfit as a parent due to alcohol or drug addiction, prostitution, or homosexuality, reported the New York Times.
Allende protested when he discovered his former wife was living and raising their children with Acevedo. In his 2003 child custody suit, he claimed the children's "physical and emotional development was seriously at risk," according to the petition.
Chile's appellate courts ruled in Atala's favor twice, finding that she was fit as a mother and her sexual orientation didn't affect her ability to be a parent.
But the country's Supreme Court disagreed. It overturned the lower courts' decisions and granted custody of the children to Allende because Atala lived openly as a lesbian with her partner, according to the petition.
Atala claimed discrimination by the court due to her sexual orientation and her rights as a parent and to have a family were violated in her petition to the Intern-American Human Rights Commission, which recommended the case to IACHR.
After eight years, IACHR heard the case in August 2011.
The court fined Chile's government $50,000 to compensate Atala and her daughters and another $12,000 for court costs, according to media reports.
Additionally, Atala is ordered to receive $20,000 for her suffering and $10,000 for medical and psychological expenses. Her daughters are to receive $10,000 each for "intangible damages," reported the Santiago Times.
Atala's children remain with their father, reported the Daily Tatler.
The victory and the financial gains resulting from the court's decision won't replace the years lost with her daughters. However, it provides the foundation to protect LGBT individuals and families in the future, which was Atala's goal after she let go of her personal battle, said Saez, who is a professor at American University in Washington.
"The damage her family suffered cannot be repaired, that's for sure. She lost her family," said Saez. "She didn't want a mother or father to lose custody of their children because of sexual orientation."
No satisfaction
Chilean LGBT advocates aren't completely satisfied.
LGBT activists were quick to point out that the court's decision focused on the Supreme Court's interpretation of the law rather than question the discriminatory nature of Chile's laws. It also didn't require the government to amend laws in the country's constitution or civil code.
Chile's government struck down civil unions in January and the government is currently revising its anti-discrimination law. The Christian Democrats struck sexual orientation from the clause and the legislation is now being fast tracked due to a recent brutal anti-gay attack on Daniel Zamudio, a young gay man, in Santiago, according to media reports.
Zamudio died from his injuries this week.
Saez disagreed with the critics, pointing out that the anti-discrimination legislation was so watered down that is won't make a difference. Additionally, Saez pointed out that sexual orientation is protected in the American Convention.
She believes the IACHR decision is "more important" due to its mandate for mandatory sensitivity education and training for government employees.
"That could have a huge impact, because at the end of the day it's not so much how important it is to have statutes to protect sexual orientation," said Saez. "It's more important to have good judges that have good judgment and that believe in equality."
Got international LGBT news tips? Call or send them to Heather Cassell at 00+1-415-221-3541, Skype: heather.cassell, or .