The Path to Gender Justice in the Inter-American Court of Human Rights

In an individual opinion annexed to a December 2006 decision, the President of the InterAmerican Court of Human Rights stated that the case in hand was the first one to ever present the Court with women’s human rights issues1 . The current paper argues that this is not an accurate representation of Inter-American case law. While acknowledging that the number of gender relevant cases examined by the Inter-American Court of Human Rights (IACtHR or “the Court”) is very low in comparison with other international human rights bodies, the paper shows that there have been several cases presented to the Court where the human rights of women have been an issue and where the Court has failed to address those rights adequately (or even at all). Both the numerical lack of gender relevant cases before the Court and the unfortunate handling of most of those cases that it did consider are explained herein through an analysis of the male dominated nature of law in general and international law in particular as well as an analysis of how domestic and international judicial systems respond to women’s concerns. The lack of gender sensitive actors in these systems is a key factor in the phenomenon. Recent developments in the case law of the Court that show a newfound sensitivity to women’s rights issues can shed light on the factors that have triggered this turnaround. Although these new cases signal a positive shift toward gender justice, there continue to be serious deficiencies in the Court’s reasoning, particularly in its failure to extend gendered logic to reparations and its reliance on stereotypes of women in order to find violations. Additionally, it appears that the Court has attempted to make up for years of ignoring women’s rights by capitalizing on the trend of specialized treaties and taking the controversial decision to render the Belém do Pará Convention justiciable. While the president of the Court vigorously defends this move, there are strong reasons to doubt its appropriateness and it has yet to be seen if the lasting effect will be positive or negative for women. The paper then turns to the future cases that are making their way towards the Court and attempts to gauge how the new precedents will affect them. Finally, the paper suggests strategies to continue to enhance the sensitivity of the Court to gender issues in order to improve the treatment of women in the Inter-American Human Rights System and consequently in the region in general.