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Lesbian Judge in Chile Wins Custody Battle With Pro Bono Help
The Litigation Daily
This summer The American Lawyer documented the globalization of the pro bono movement. In this column, which I plan to repeat annually, I spotlight one global pro bono case of drama and consequence.
As a Chilean judge of Palestinian origin, Karen Atala was a member of three conservative societies. The reaction of her older relatives is unknown, but neither Chile nor its judiciary reacted very gracefully when Atala began to live with a same-sex partner after separating from her husband in 2002. Atala's husband -- also a judge -- argued that she should lose custody of their three young daughters because of her "lifestyle choice." This was especially insulting as mothers in Chile are generally awarded custody except in cases of prostitution or substance abuse.
While her custody case was pending, a judge from the Court of Appeal, who supervised her professionally and would soon hear a portion of her case, ransacked Atala's computer and interrogated her colleagues about her sexual identity. While stopping short of disciplinary action, he concluded that "her peculiar emotional attachment ... clearly damages the image of ... the Judicial Branch."
Ultimately, the Juvenile Court held that by living as a lesbian, Atala had put her own interests before "the best interest of the girls ... in the context of a heterosexual and traditional society." In affirming, the Chilean Supreme Court cited "the preferred right of minors to live and grow within the bosom of a family that is structured normally." In 2004 Atala lost custody of her girls, then ages 3, 4 and 8.
Speaking in the court record about the judicial inspection, Atala stated: "I felt deeply humiliated, exposed, as if I had been stripped naked and thrown into a public square."
A coalition of NGOs -- as well as Morrison & Foerster acting pro bono -- pushed the case within the Inter-American system. In February the Inter-American Court held that Chile violated Atala's rights to equality and privacy, both by taking her children away and by conducting an arbitrary investigation.
Atala v. Chile established the principles that sexual orientation and gender identity are protected categories under the American Convention on Human Rights, and are not legitimate grounds for denying custody. "[I]f sexual orientation is an essential component of a person's identity," the court reasoned, then "it was not reasonable to require Ms. Atala to put her life and family project on hold." The American Convention does not "only protect a traditional model of the family," it noted, and "[t]he child's best interest cannot be used to justify discrimination."
Maybe Atala's experience was so flagrant that it would have inspired a broad ruling regardless of her background. But it couldn't be bad for the rights of sexual diversity that the test plaintiff was a jurist.
"There's something very powerful in the fact that she's a judge," said Macarena Saez, who served as one of Atala's lead attorneys and now teaches at American University Washington College of Law. "Ordinarily, one of the problems of marginalized populations is that the judges [who are presiding] struggle to see the claimant as one of their own, someone who could be their friend or classmate."
Atala's legal identity also made her a great test plaintiff because she approached the case with faith in the ideal of justice, and knowledge of how to navigate the system. Judge Atala is constrained by court rules from giving interviews, but she spoke eloquently in accepting an award last month from the International Gay and Lesbian Human Rights Commission.
"In my position as a judge, I never doubted the institutions, the empire of law," said Atala. But when her children were taken away, her "notion of justice" was shattered. "The only possible option, for a woman of law, was to turn to international courts," Atala said. "The action by itself was paradigmatic: a judge fighting for justice by challenging her hierarchical superior using international [law]."
Atala's daughters are now home. The years of lost custody cannot be restored, and no legislation must be changed under the Inter-American Court's ruling. But Chilean judges will receive diversity training, and Atala's lesson will reverberate around the world through judicial dialogue. "This is without a doubt the great legacy of this cause," said Atala last month. "To teach respect for the diverse Other in his or her dignity as a person."