The Right to Family Life Free from Discrimination on the Basis of Sexual Orientation: The European and Inter-American Perspectives

I. INTRODUCTIONThroughout (modern) history, sexual minorities have been treated differently and discriminated against by state actors. For example, seventy-eight states worldwide have criminalized sexual relations between consenting same-sex partners.1 After the May 2013 promulgation of a law permitting same-sex couples to marry and jointly adopt children, a social divide in France emerged and numerous demonstrations of those opposing such freedom took place.2 These examples demonstrate that sexual minorities are confronted with differential treatment by state actors and private individuals within their private as well as family lives.On numerous occasions, the regional human rights monitoring bodies of the European and Inter-American region, the European Court of Human Rights ("ECtHR" or "European Court"), and Inter- American Court of Human Rights ("IACtHR" or "Inter-American Court"), have dealt with the issue of sexual orientation discrimination within the sphere of family life. The ECtHR has done so throughout the years in various cases on subjects ranging from marriage and custody to adoption,3 while the IACtHR asserted itself for the first time in 2012 on discrimination on the basis of sexual orientation in Atala Riffo and Daughters v. Chile.4 There, the IACtHR found a violation of the right to family life based on the discrimination of a lesbian woman in a custody case before Chilean courts.5 The national court did not award her custody over her three daughters for it found it not to be in the children's best interests to live with their mother and her lesbian partner based on her sexual orientation.6 To what extent have these regional human rights systems of Europe and the Americas developed a right to family life, free from discrimination on the basis of sexual orientation?The interpretation of the term family differs from country to country and might even be different within the territory of one state;7 it is 3 4 5 6 7 essentially a social concept. Therefore how both the European and the Inter-American human right systems interpret the concept of family and whom it includes poses an interesting study.Within the scope of family life, this article will focus on the relationship between a child and parent of a different sexual orientation. To what extent does a right to family through adoption free from discrimination on the basis of sexual orientation exist within the regional human rights systems? Furthermore, to what degree do the systems permit the right to maintain family life through custody free from discrimination for reasons of sexual orientation?The scope of this article will be limited to the right to family life of homosexual, lesbian, and bisexuals and will not discuss transgender issues. The definition of sexual orientation used derives from the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity.8 This document, formulated by a group of human rights experts and initiated by a coalition of non-governmental human right organizations, contains basic principles of human rights as specifically applied to issues of sexual orientation.9 The Yogyakarta Principles define sexual orientation as "each person's capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender."10First, this article will set out the concept of discrimination.11 Thereafter, it will examine regional human rights treaties on whether they deal with discrimination on the basis of sexual orientation.12 Finally, this article will take a closer look at the ECtHR's and Inter- American Court's case law on issues of sexual orientation relating to 8 9 10 11 12 the right to family life, especially in custody and adoption cases, after which a conclusion shall be drawn.13II. DISCRIMINATION BASED ON SEXUAL ORIENTATION: PROHIBITED IN REGIONAL HUMAN RIGHTS TREATIES? …