Judge Karen Atala’s Remarks
It’s an honor to receive this award given to me by the International Gay and Lesbian Human Rights Commission, IGLHRC.
I am a Chilean woman, of Palestinian origin, a lawyer by profession, a judge by trade, a mother and a lesbian. These are some of the characteristics that define me and only one of them was enough for the Excellency Supreme Court of my country to deprive me of custody of my daughters in a 2004 ruling. They determined that my female partner and I constituted an exceptional family model, one that does not have value in the Chilean society. According to the ruling, only traditional, heterosexual families have value, and because our family is different, they ruled that my daughters would be exposed to stigmatization and be outcast by society.
In my position as a judge, I never doubted the institutions, the empire of Law and its technical character. It also never crossed my mind to lie about my lesbian relationship, to disguise it as a “friendship”. The truth prevails before everything and that is the measure that guides my work, that’s why I didn’t deny my sexual orientation during the custody hearings. However, that truth was not politically correct in those days.
And so, I saw my family fall apart. My daughters were taken away from me, when they were 3, 4 and 8 years old. I saw my boy devastated by the loss of his sisters.
If I had to choose one word to express that painful blow that came into my life, I would say that I was left astonished.
Astonished to see that my notion of justice had fallen to pieces, evoking the image of a mirror being shattered and the pieces of glass jumping towards my family and me.
I felt deep guilt, personally, for my family, and socially.
Socially because of the other women, mothers and lesbians in Chile. This ruling of the Tribunal of Justice set a pernicious precedent that sought shelter in prejudice and discrimination against all those who weren’t a traditional, socially acceptable, heterosexual family . We were forced to obscure our expressions of affection, and to hide, in the words of Oscar Wilde, that love that dare not speak its name. At the same time, other lesbians became worried; “if this happened to a judge of the Republic, what can we hope for ourselves?”
I felt the urgent need to correct this huge injustice, to shake off the fear. The only possible option, for a woman of law, was to turn to international courts of Human Rights.
Law is a tool for people to achieve a harmonious social coexistence. Social peace cannot be based on prejudices, whether they are religious, moral, atavistic, or other. Prejudices ignore the multiple expressions of human affection and sexuality between adults of the same sex or gender, and of their families, too, They fail to recognize their ethics to mutual care.
After that came a state of shock, and that left me with something that I didn’t like; to confirm that in Chile the State authority considers that a family made up of two women as a sexual couple is not a family and it refuses to let the mother raise and educate her children, putting her on an equal footing with an irreversible drug addict or a violent person that represents a danger to the health and life of her children.
It was shocking to see that the Law, which tells you that we are all equal and that family is the foundation of society, was interpreted according to the ideology preferred by the State and completely different from social reality.
After this I gave way to action. I had to study philosophy of gender to understand the nature of the blow I had received and to understand the extrajudicial reach that motivated that ruling and what it meant for me to lack a place in a macho and patriarchal society, but not a democratic one.
I had to do a philosophical and legal interpretation of the heteronormative ruling on marriage in Chile.
On the other hand, it was necessary to gather a legal team that would join me to make an international appeal and follow through. We coordinated with multiple actors in the world of civil rights, with the gay, lesbian, transsexual, intersexual community, as well as with women, to collaborate with their Amicus Curiae for the international bodies.
The action by itself was paradigmatic: a judge fighting for justice by challenging her hierarchical superior using international instruments and mechanisms. This was unprecedented in my country.
To work from the trenches of activism – a world unknown to me at that time – was not an easy task. There were scarce economic resources. I overcame this with the help of many lesbian mothers through Las Otras Familias (The Other Families), an organization whose mission was accomplished by making our diverse families visible in the homogenous society that Chile is.
To experience being a woman, lesbian, mother and judge in one single body has not been an easy task. I got worn out, which influenced my emotional health, the relationship with my partner, and with my children, and the Other Families, which we had to dissolve. The tears, the depression, the therapy sessions, the fear of rejection by my daughters because of my sexual orientation, make up a large part of the story. All of this made me mature as a mother and reconsider my role, which allows me to be strong in front of my children. The best cure and incentive was hope and trust.
The recent Inter-American Court of Human Rights ruling against the State of Chile, is without a doubt a cure for my family and for thousands of lesbian mothers and gay fathers not only in Chile but also in Latin America and the Caribbean. A great precedent has been set that without a doubt will inspire internal jurisprudence. It is history happening, since it is the first case that made it to the Inter-American system that refers to one’s right to sexual diversity, with a goal of getting a progressive interpretation of Human Rights.
In Chile, because of its recent history, it is stated that there have been violations to human rights, like the rights to life and to freedom. With the return of democracy, there have been efforts to address those violations by the branches of Government. However, the right to equality, especially with people of diverse sexual orientation and diverse gender expression, is still in debt, and different national LGTB associations are making an energetic demand backed up with facts of violence that have happened in recent times.
It is true that cases of profound homophobic violence make headlines only to be forgotten, and it is only starting this year that I could make a reference to the violence against the transsexual woman Sandy Iturra, that left her in a state of coma for weeks, and the attacks that caused the death of the young gay man Daniel Zamudio. Only a couple of months ago an anti-discriminatory law was approved in Chile, after 8 years of discussion in parliament. Even thought the law says discrimination on the basis of sexual orientation and gender identity will not be tolerated, it is a shy law, lacking affirmative action against discrimination and it does not satisfy the demands of most Chilean LGTB people.
The ruling against Chile requires that, among other things, the State train every State agent, especially judges and lawyers, on matters of gender. This is without a doubt the great legacy of this cause to the future Chilean generations: education to eradicate “machismo” and homophobia. To teach respect for the diverse Other in his or her dignity as a person.
The ruling also states, as a measure of redress, that the State must publicly recognize its international responsibility. My daughters and I on one part, and my son and my family on the other, we expect those public apologies for being discriminated against.
I would like to thank Emma de Ramón for her support during those years, my lawyers that agreed to the challenge of advancing this cause in front of the Inter-American system of Justice, collaborating with the debate, proceedings and other details of a judgment of this nature, during the almost 9 years and that will continue until succeeding in the fulfillment of the ruling.
I thank the sponsoring institutions of the international trial: Libertades Públicas (Public Freedoms), Asociación Gremial de abogados (Gremial association of lawyers), Centro de Derechos Humanos de la Universidad Diego Portales (Center of Human Rights of the Diego Portales University) and Coporación Humanas Chile (Humanas Chile Corporation).
I thank all of the civil rights organizations, LGTBI and women activists, and many other natural people that without second intentions helped with their Amicus Curiae in front of the Inter-American Commission and Inter-American Court of Justice, supporting my demand.
I thank all of those people that gave me their words and gestures of solidarity, expressed in multiple ways, encouraging me to keep on going forward.
I would like to extend this Felipa de Souza award to every diverse family of our Latin America composed by lesbians, gays and transsexuals, who struggle day by day for their space of acknowledgment and dignity. And that never again, a lesbian mother, gay father or transsexual has their children taken away for this sole reason.
Finally, I dedicate this award to my son Sergio and to my three daughters. Our children are the promise of making a society more worthy and decent.
Thank you very much.