The Case of Karen Atala and Daughters: Toward a Better Understanding of Discrimination, Equality, and the Rights of Women

Abstract

This article discusses the potential legacy and impact in the development of women’s rights standards of the case of Karen Atala and Daughters; the first ruling of the inter-American human rights system related to discrimination on the basis of sexual orientation. The author suggests that this judgment makes key contributions to international human rights law in five key areas related to the obligations not to discriminate, the guarantee of equality, and the rights of women, including: 1) the scope and reach of the obligations not to discriminate and to guarantee equality under articles 1.1 and 24 of the American Convention; 2) the features of the “rigorous scrutiny” standard and its applicability to prohibited factors of discrimination; 3) the prohibition of discrimination on the basis of sexual orientation and gender identity, and its applicability to individual cases related to women; 4) the correlation of this prohibition with the rights to privacy and to protection of the family under international human rights law; and 5) the content of the bests interests of the child under international human rights law. This article concludes that further definition by the Inter-American Commission and Court of Human Rights of the content and scope of the obligations not to discriminate and to guarantee equality in individual cases—such as the one related to Karen Atala and Daughters—is paramount to the development of adequate and effective international legal standards related to women’s rights. These obligations are of utmost importance as they constitute the backbone of the inter-American and universal systems of human rights. They are also priority women’s rights issues pertaining to civil, political, economic, social, and cultural rights. The author also contends that it is paramount to understand the connection between the obligations not to discriminate and to guarantee equality, and the full panoply of human rights involved in the obligation to respect and guarantee the rights of women, including those related to their sexual orientation, gender identity, privacy, and family. Legal developments in this sense will also open the door for the Inter-American Commission and the Court’s resolution of cases involving forms of discrimination that affect women based on their sex, and other factors of discrimination still unrecognized as “prohibited” or “suspect” by the international community.