Relevant concepts and applicable terminology

In response to the many and varied categories that exist today and the debates ongoing in certain areas, the IACHR’s Unit for the Rights of Lesbian, Gay, Bisexual, Trans and Intersex Persons (LGBTI) has adopted this easily recognizable name as a practical way of synthesizing some of the principal discussions still underway on the issue of categories of sexual orientation, gender identity and gender expression.  In this way, the Commission is acknowledging the terminology; however, as a guiding principle, it is also embracing the notion of each person’s self-identification; consequently, it is possible that the persons who are the focus of the Unit’s work may not identify themselves as belonging to these or other categories.

Sexual orientation has been defined 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 (Yogyakarta Principles).

Gender Identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms (Yogyakarta Principles)

Gender expression has been defined as “the outward manifestations of the cultural traits that enable a person to identify himself/herself as male or female, according to the patterns that, at a particular moment in history, a given society defines as gender appropriate.” (Rodolfo y Abril Alcaraz, 2008) The International Commission of Jurists (ICJ) has indicated with respect to gender expression that “[t]he notion of what properly constitutes male or female norms has been a source of human rights abuses against individuals who do not fit or conform to the stereotypical models of masculine or feminine.  Personal deportment, mode of dress, mannerisms, speech pattern, social behavior and interactions, economic independence of women and the absence of an opposite-sex partner are all features that may subvert gender expectations.” (ICJ, 2009)

The term Intersex refers to “all those situations in which an individual’s sexual anatomy does not physically conform to the culturally defined standard for the female and male body” (Mauro Cabral, 2005) The understanding of this specific biological identity has historically been identified with the mythological figure of Hermaphroditus, a person born with “both sexes; in other words, with a penis and a vagina” (Mauro Cabral, 2005). At the present time, the term intersex is considered more technically correct both by the LGBTI movement and in the medical and legal literature.

The IACHR understands that discrimination based on sexual orientation, gender identity or gender expression constitutes any distinction, exclusion, restriction or preference made against a person on these grounds, which has the effect or the purpose –whether de jure or de facto- of impairing or nullifying the recognition, enjoyment or exercise, on the basis of equality, of human rights and fundamental freedoms, taking into account the social and cultural attributes that have been associated with those categories.

Sexual orientation, gender identity and gender expression are fundamental components of people’s private life or privacy. The Inter-American Commission has highlighted that the right to private life guarantees spheres of privacy in which the State or anyone cannot intrude, such as the ability to pursue the development of one’s personality and aspirations and determining one’s identity, as well as those spheres of everyone´s own and autonomous activities.