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The reassignment of functions as a form of discrimination based on sexual orientation: the case of Pavez Pavez vs. Chile

On several occasions we have discussed the absolute prohibition of discrimination on the basis of sexual orientation and some ways in which this protection operates. Recently, the Inter-American Court of Human Rights delivered its judgment in the case of Pavez Pavez vs Chile in which it explores a different form of discrimination based on sexual orientation. This blog will comment on this judgment.

Mrs. Pavez was a Catholic religion teacher in a public education institution. Her suitability certificate for her position was revoked based on her sexual orientation and she was unable to teach anymore. Mrs. Pavez was reassigned duties based on a new employment contract.

What is interesting about this case is that the Inter-American Court analyzed whether the reassignment of functions to Mrs. Pavez could be considered discriminatory treatment, taking into account that her new position was a promotion, with better pay and greater responsibilities. In the specific case, the Court concluded that, despite these circumstances, Mrs. Pavez’s teaching vocation was undermined and therefore, it constituted a form of job impairment.

A key aspect in the Court’s analysis was the fact that the reassignment of functions was not based on public interests, but rather based on Mrs. Pavez’s sexual orientation. For this reason, the treatment qualified as discriminatory and therefore incompatible with article 1.1 of the American Convention on Human Rights.

This precedent of the Inter-American Court of Human Rights is essential for the defense of the human rights of the LGBTQI+ community. There are many occasions in which a reassignment of functions is carried out due to a person’s sexual orientation, gender identity or expression, and not based on public interest. In those cases, legal actions could be filed before constitutional or labour courts on behalf of the victim.

At CELIG we provide specialized services to the LGBTQI+ community. If you want more information or make an appointment with us, call us at 4800-0248 or write to us at info@celigcr.com.

We are located in San José, Barrio Escalante.

M.Sc. Ana Isabel Sibaja Rojas

CELIG – Center for Equal Litigation