IACHR Files Case Concerning Brazil with IA Court Regarding Violations of Rights in Access to Gender Affirmation Surgery

August 21, 2023

Washington, D.C.—On June 7, 2023, the Inter-American Commission on Human Rights (IACHR) submitted Case 13.021 concerning Brazil to the Inter-American Court of Human Rights (IA Court) regarding violations of Luiza Melinho's human rights in relation to access to gender affirmation surgery.

In 1997, Luiza Melinho sought medical attention at the UNICAMP public hospital, where she was diagnosed with depression, suicide attempts, and "sexual identity disorder." In 1998, she underwent an initial gender affirmation procedure at the same hospital, with the expectation of completing the remaining procedures there. In 1999, a UNICAMP doctor requested a psychiatric evaluation for her admission to the "sex change" program. In 2001, although she was scheduled to undergo surgery to change the appearance of her larynx, this was canceled at the last minute, aggravating her depression.

In May 2001, the hospital claimed it was unable to perform the gender affirmation surgery and referred her to a hospital in another city that did not recognize UNICAMP's diagnosis, forcing Luiza Melinho to undergo another medical examination. In addition, the location of this hospital meant that Luiza had to travel constantly for two years to reach it, which posed obstacles to accessing the health services she needed.

In November 2002, Luiza Melinho sued UNICAMP for moral damages, claiming that the hospital had created the expectation of performing gender affirmation surgery. She requested that the hospital perform the surgery or pay for it to be performed at a private hospital. However, her lawsuit was rejected in October 2003.

In March 2005, Luiza Melinho requested the surgery again but received no response from the authorities. Unable to have the surgery performed at a public hospital, she obtained a loan in 2005 and underwent gender affirmation surgery at a private hospital.

In February 2006, an unfavorable ruling determined that the UNICAMP Hospital was not obliged to perform the court-ordered surgery, a decision that Ms. Melinho appealed before the São Paulo Court of Justice.

In August 2007, the Federal Regional Court of the Fourth Region decided that the public health system should include gender affirmation procedures. However, the São Paulo Court of Justice denied Ms. Melinho's appeal in June 2008, ratifying the previous decision.

The IACHR concluded that the State did not guarantee equal access to healthcare for Luiza Melinho, as evidenced by the obstacles to accessing the surgery she requested, such as the lack of facilities capable of performing it, the geographic distance to facilities that were capable of doing so, and the delays in the process. It also found there to be a lack of equitable access to healthcare services, especially given the vulnerability of the victim. It argued that the judicial delays affected Luiza Melinho's private life and her right to define her gender identity autonomously.

On the matter of judicial guarantees and judicial protection, the IACHR found there to have been an unjustified delay in the five and a half years it took to process the case, which had a negative impact on Luiza Melinho's physical and mental health, leading to suicide attempts, depression, and anxiety.

Based on these findings, the IACHR concluded that the Brazilian State is responsible for the violation of the rights contemplated in articles 5.1 (personal integrity), 8.1 (judicial guarantees), 11 (protection of honor and dignity), 24 (equality before the law), 25.1 (judicial protection), and 26 (economic, social, and cultural rights) of the American Convention, in relation to article 1.1.

The IACHR recommended the following reparation measures to the IA Court:

1. Provide comprehensive redress for the rights violations described in the report, including the payment of compensation for damages and the reimbursement of medical expenses.
2. Provide the necessary physical and mental healthcare measures for her rehabilitation.
3. Adopt measures to prevent similar situations from happening again in the future. This should include removing barriers in health protocols that make the provision of gender affirmation surgery ineffective, ensuring that court appeals related to gender affirmation surgery are resolved promptly, and promoting training for medical personnel who treat trans, nonbinary, and gender-diverse individuals to ensure their immediate access to health services in a nondiscriminatory manner.

The IACHR is a principal and autonomous body of the Organization of American States (OAS), whose mandate stems from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has the mandate to promote the observance and defense of human rights in the region and acts as an advisory body to the OAS on the matter. The IACHR is made up of seven independent members who are elected by the OAS General Assembly in their personal capacity, and do not represent their countries of origin or residence.

No. 190/23

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