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Chile is accused of violating a lesbian judge's rights

The Inter American Human Rights Commission ruled that Chile violated the rights of a judge who lost custody of her children solely because she was a lesbian.

In its final report — issued late December but revealed only Monday — the OAS Commission recommends the State of Chile to fully compensate magistrate Karen Atala for having “violated her right to live free from discrimination.”

Atala filed the case at the Commission in November 2004 after the Chilean Supreme Court revoked her custody over her three daughters because she was gay.

When Atala separated from her husband after accepting the fact that she was a lesbian, the couple agreed she would have custody of their three daughters. In 2002, however, she began a relationship with a woman, who moved in with her and the three girls. Half a year later, Atala’s former husband went to court to claim custody over the children, arguing Atala’s behavior negatively affected the girls “normal development” and exposed them to sexually transmitted diseases such as herpes and AIDS.

In October 2003, after custody was temporarily given to the father, a higher court ruled that Atala’s sexual orientation was no impediment to her custody of the girls and there was no evidence the children were being negatively affected by her behavior. However, after a series of appeals, in May 2004 the Supreme Court decided to grant custody to the father, saying Atala had put her personal interests above those of her daughters by deciding to be open about her sexuality and live with her partner. The ruling included testimony from experts who said the girls could eventually be confused about their sexual roles and suffer social discrimination.

The commission admitted the case in 2008 after hearing both parties. The State of Chile, through the Foreign Ministry’s Human Rights Department, argued that the Supreme Court ruling was based on the children’s ulterior interest, given that Atala’s cohabitation with someone of the same sex was “inconvenient for the girls’ education and poses a risk for their development in the current context of Chilean society.”

In its resolution, the commission recommends the Chilean state adopt “legislation, public policies, programs and guidelines to prohibit and eradicate sexual discrimination in all spheres of public administration, including the judicial system”, in two months time.

Specific funds and human resources should be allocated to implementing these measures and training public employees on the issue, adds the commission report.

The Chilean government was notified of the ruling in late March and must send its official response promptly. Once Chile has responded to the resolution, the commission will decide if it submits the case to the Inter American Human Rights Court.

Atala’s attorney, Jorge Contesse, said the resolution sets a precedent for gay rights. “I am curious to see how the government of Sebastian Pinera reacts to this, since during the electoral campaign he was emphatic about opening spaces for gays. I would expect the government to keep its word on campaign promises,” he said.