Press Release

IACHR Congratulates Mexican Supreme Court for Adoption of Protocol Involving Sexual Orientation and Gender Identity

August 29, 2014

Washington, D.C. - The Inter-American Commission on Human Rights (IACHR) congratulates the Supreme Court of Justice of Mexico for its adoption of a Protocol aimed at aiding judges in deciding cases related to sexual orientation and gender identity in conformity with human rights and internationally recognized and binding human rights standards. The IACHR also wishes to acknowledge the leading role of Justice Juan N. Silva Meza, President of the Supreme Court, in this important initiative.

The IACHR takes note that this Judicial Protocol, albeit not binding, offers some key guiding principles to judges for the adjudication of cases involving sexual orientation or gender identity, and to some extent also body diversity. Most importantly, the Protocol identifies some common stereotypes and misconceptions about LGBTI persons, which usually hinder their right to access to justice free from discrimination in various spheres, such as gender identity recognition, family life and relationships, work and employment, violence and the criminal system, health, education, deprivation of liberty, and freedom of expression and association.

Commissioner Tracy Robinson, Chair of the IACHR and Rapporteur on the Rights of Lesbian, Gay, Bisexual, Trans and Intersex Persons, took part in the launching of this protocol in Mexico City on August 18, 2014. “I want to applaud the Supreme Court for taking this very important step in protecting human rights”, Tracy Robinson said. “This Protocol is pioneering, and one that is worth emulating throughout the Americas. It is a very important start and has the possibility of contributing to the transformation of justice not just in Mexico but in all the places which will model it”, Tracy Robinson added.

Over the years, the IACHR has received troubling information regarding the many obstacles faced by LGBTI persons in access to justice. These include inadequate and prejudice-based ill-treatment by law enforcement agents and state officials within the administration of justice system; the low priority assigned to these cases by the administration of justice system; the ineffectiveness of the judicial system, in particular regarding investigation into killings and acts of violence against LGBT persons, or those perceived as such, to open lines of investigation that take into account the sexual orientation or gender identity of the victim. These obstacles are linked to the application and use of misconceptions about these persons by officials within the administration of justice system. As a consequence, many LGBTI persons do not seek redress from the human rights violations inflicted upon them. This situation also contributes to a general mistrust from LGBTI persons in the judicial system, and its ability to respond adequately to their human rights abuses. Biased judicial decisions, as a consequence of the use of negative stereotypes against LGBTI persons certainly play a role in contributing to impunity and hindering LGBTI person’s in access to justice free from discrimination and violence.

In this trend, the Chair of the IACHR noted the importance of the Protocol indicating “stereotypes thwart justice and contribute to ‘judicial ineffectiveness’ with respect to these cases; judicial ineffectiveness leads to impunity, and impunity in turn contributes to societal tolerance for inequality”.

The Judiciary plays a key role in effecting change and reversing the use of stereotypes that negate the enjoyment of human rights by LGBTI persons, without discrimination. The Inter-American Court has already stated that “the law and the State must help to promote social progress; otherwise there is a grave risk of legitimizing and consolidating different forms of discrimination that violate human rights.”

This Protocol gives some important tools to judges when deciding cases involving issues of sexual orientation and gender identity, to identify, combat and eliminate socially construed preconceptions regarding the attributes, behaviors or characteristics of LGBTI persons from decision-making processes. As such, the Protocol calls on judges to question the neutrality of the law applicable to a case if a situation of disadvantage is identified on account of sexual orientation or gender identity, and to evaluate evidence without using stereotypes regarding sexual orientation or gender identity.

The IACHR encourages other OAS Member States to adopt similar protocols or other initiatives they deem suitable to aim at ensuring the realization of the right to access to justice by and on behalf of LGBTI persons, free from discrimination and violence. Furthermore, the IACHR encourages the State of Mexico to collaborate with other OAS Member States in replicating these initiatives.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 95/14