Press Release

IACHR Brings Chile Case before the IA Court

February 14, 2020

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Washington, D.C. - On September 11, 2019, the Inter-American Commission on Human Rights (IACHR) filed an application with the Inter-American Court of Human Rights (IA Court) over case 12.997, Sandra Cecilia Pavez Pavez, concerning Chile.

The case concerns the state’s international responsibility for disqualifying Ms. Pavez from teaching religious education at a public institutional education, a position she held for more than 22 years, on the grounds of her sexual orientation. On July 25, 2007, the Vicariate for Education of the Diocese of San Bernardo revoked her certificate of aptitude (which is required by Ministry of Education Decree 924 of 1983) to teach religious education on the grounds of her sexual orientation, which meant that she was disqualified from teaching. Ms. Pavez filed an appeal for protection which was rejected by the San Miguel Court of Appeals on the grounds that the act she was contesting was not illegal or arbitrary, a decision which was upheld by the Supreme Court of Justice.

In Merits Report 148/18, after ascertaining that the case concerned differential treatment on the grounds of sexual orientation, which is prohibited by article 1.1 of the American Convention, the IACHR proceeded to closely scrutinize the elements of the proportionality test used in such cases. The IACHR concluded that the decision to revoke the certificate of aptitude was limited to making explicit the fact that the grounds for the decision were Sandra Pavez’s sexual orientation, without offering any reason that would pass a test of objectivity and reasonableness, much less strict scrutiny of the kind required concerning such decisions. On this basis, the IACHR concluded that this difference in treatment did not pass the first stage in the proportionality test and is thus discriminatory and violates article 24 and 1.1 of the American Convention and the right to privacy and autonomy.

The IACHR also determined that this discrimination can be attributed to the Chilean state because it constitutes an unjustified difference in treatment, was carried out in the exercise of a public function, and concerns a direct labor relationship with the state. It also considered that this discrimination was a consequence of a regulation that granted absolute powers on the matter to religious authorities without any safeguards to prevent violations of fundamental rights, including the principle of equality and nondiscrimination. The IACHR also deemed that this discriminatory act violated articles 23.1(c) and 26 of the American Convention as it had a direct impact on the victim’s rights to work and have equal access to employment in the public sector.

Finally, the IACHR stressed that the ruling on the appeal for protection revealed the total lack of defense in the face of this discriminatory act, as the Court of Appeals did not analyze whether the decision to revoke the certificate of aptitude violated the victim’s constitutional treaty rights, but instead limited itself to establishing the legality of the religious authority’s action on the grounds that Decree 924 remained in force. Despite the fact that in her appeal Ms. Pavez made explicit reference to the need for the arbitrary nature of the measure to be evaluated, the Supreme Court endorsed the decision fully without stating its grounds for doing so or determining whether the decision to revoke the certificate had violated her human rights. In this sense, the appeal violated the rights to a fair trial and to judicial protection set out in articles 8 and 25.1 of the American Convention.

In its Merits Reports, the IACHR recommended that the state of Chile should reinstate Sandra Pavez in her position as a teacher at a public educational institution, should she so wish, and that this decision should be agreed upon with her. It also requested that the state provide comprehensive tangible and intangible redress for the human rights violations described in the report. Finally, the IACHR recommended that the state implement nonrepetition mechanisms that include: (i) adapting internal regulations, including Ministry of Education Decree 924 of 1983, to ensure that the application of this decree does not promote acts of discrimination based on sexual orientation; (ii) adopting the necessary measures to ensure appropriate administrative and judicial oversight of possible discriminatory situations when the above-mentioned regulations are being implemented or enforced; and (iii) provide training for those responsible for evaluating the suitability of teachers and for judicial officers at all levels who are called upon to hear appeals for the protection of fundamental rights. This training should address the scope and content of the principle of equality and nondiscrimination, including the prohibition of discrimination based on sexual orientation.

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 and to defend 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. 038/20