State and Corporate Homophobia: A Commentary on the Olivera Fuentes v. Peru case

On 11 April 2023, the Inter-American Court of Human Rights (“the Court”) published its long-awaited ruling in the Olivera Fuentes v. Peru case. The decision holds personal significance to Crissthian Olivera, a pioneering defender of LGBTIQ+ rights in Latin America, as it was the culmination of a 19-year journey to deliver justice following discrimination he faced due to his sexual orientation and gender expression.

The case addressed three pivotal issues under the American Convention on Human Rights (“the American Convention”): (i) the use of homophobic stereotypes in domestic rulings, (ii) the burden of proof for victims of discrimination by private actors, and (iii) the scope of anti-discrimination obligations for corporations. It should also be noted that this is the first of the Court’s ten decisions on the subject to adopt the expanded acronym LGBTIQ+. Prior to this case, the Court’s preferred acronym was LGBTI.

The facts

On 11 August 2004, Olivera and his partner were seated in a supermarket cafeteria in downtown Lima. There were no public displays of affection between them. However, after a few minutes, the store manager and security personnel approached them and requested they “stop their amorous scenes out of respect for others.” Apparently, another customer, accompanied by a child, expressed discomfort at the couple’s presence. When Olivera and his partner declined to leave, the company’s security staff attempted to remove them forcibly. Faced with this threat, the couple chose to leave the premises.

On 17 August 2004, Olivera took part in a television report in which two couples (one heterosexual and one homosexual) went to a store in the same supermarket chain to kiss and record staff reactions. The report showed that the staff only objected to the display of affection by Olivera and his partner. The report also documented an employee justifying the ejection of the couple as “company policy.”

On 1 October 2004, Olivera filed a discrimination complaint against the corporation that owned the supermarket chain (Supermercados Peruanos) with administrative authorities (Instituto Nacional de Defensa de la Competencia y de la Protección de la Propiedad Intelectual – Indecopi). This was the first time in Peruvian legal history that an individual lodged a discrimination claim based on sexual orientation. As evidence, Olivera submitted his own account of the events, along with the television report from 17 August.

In response to the complaint, Supermercados Peruanos justified the intervention against Olivera based on “respect for morality” and “the best interest of the child.” To support its position, the company submitted several documents, including: (i) a collection of letters from customers expressing disapproval of the alleged displays of affection, (ii) a psychiatric report warning of “the negative effects of exposing minors to the gay lifestyle,” and (iii) a report prepared by its security staff stating that two men had been found engaging in sexual activity in the supermarket’s toilets on a previous occasion.

The complaint went through two instances of review by Indecopi, both of which deemed it unfounded, citing the lack of sufficient evidence of discriminatory treatment provided by Olivera. During their analysis, the administrative authorities disregarded the television report, considering it a “fabrication” instigated by the victim. In the first of these instances, Indecopi even held that there existed a “scientific consensus on the consequences of the exposure of children to homosexual behaviour,” which they believed justified the attitude of the customer in the supermarket cafeteria.

Once the administrative procedures concluded, Olivera took his complaint to the judiciary, eventually reaching the Peruvian Supreme Court in 2011. However, the outcome was unchanged: the petition was deemed unfounded due to the purported lack of sufficient evidence to support a discrimination claim. As was the case with Indecopi, the judiciary relied on the company’s arguments to justify the actions of the supermarket staff.

After exhausting domestic remedies, on 29 November 2011, Olivera filed a petition with the Inter-American Commission on Human Rights (“the IACHR”) claiming that Peru had violated the principle of non-discrimination (Article 1(1)) enshrined in the American Convention in relation to his rights to a fair trial (Article 8(1)), privacy (Article 11(2)), freedom of expression (Article 13(1)), equal protection (Article 24), and an effective remedy (Article 25(1)). Almost a decade later, the IACHR found the Peruvian State responsible for discriminating against Olivera based on his sexual orientation and, on 4 June 2021, referred the case to the Court.

The Court’s analysis in Olivera Fuentes addressed four significant issues: (i) access to justice in discrimination complaints, (ii) public displays of affection of LGBTIQ+ persons, (iii) the obligations of corporations under the principle of non-discrimination, and (iv) the impact of discrimination on mental health.

Access to justice in discrimination complaints

The Court decided to approach the case through the lens of the right to “access to justice” enshrined in Articles 8(1) and 25(1) of the American Convention to scrutinise the reasons given by the Peruvian authorities for dismissing Olivera’s claim. The Court recalled that, under the American Convention, States have a general duty to prevent human rights violations by non-state actors, including private companies. This obligation includes closely monitoring corporate conduct to ensure that businesses adhere to human rights standards.

In this context, the Court’s analysis focused on two crucial aspects: (i) the burden of proof placed on Olivera, and (ii) the use of negative stereotypes by Peruvian authorities.

Regarding the burden of proof, the Court held that if the alleged discrimination by private companies falls under the prohibitions of Article 1(1) of the American Convention, complainants need to prove “differential treatment,” which entails presenting only “indications” of discrimination. The Court emphasized that this standard of proof requires that complainants present evidence they are “materially capable of providing.” This is particularly significant in cases where an inherent imbalance exists between the parties involved, as in situations where a consumer is facing a corporation.

The Court noted that the differential treatment standard of proof cannot be met solely through the victim’s testimony, as it required evidence to be adduced by the complainant that further substantiates a presumption of discrimination. However, the Court introduced nuance to this requirement, stating that in a context where prejudice and structural discrimination against groups persist, administrative bodies and courts should exercise caution when dismissing the testimony of complainants. The Court suggested that, in such situations, the complainant’s testimony might be sufficient, especially if they belong to groups that face systemic discrimination.

In any case, the Court found that the evidence presented by Olivera was more than sufficient to prove differential treatment. The Court concluded that the authorities had imposed on him a standard of proof that was unreasonably high and disproportionate. Furthermore, the Court criticised the Peruvian State for not adequately addressing the evidence provided by Supermercados Peruanos, which was clearly homophobic.

According to the Court, once a complainant successfully establishes differential treatment, a presumption of discrimination arises and the burden of proof shifts to the company to provide rigorous and weighty justification for its actions. If the company fails to provide a convincing argument, the presumption is confirmed, and the case is recognised as one of discrimination. But none of this happened when Olivera filed his discrimination complaint.

Regarding the misuse of “the best interest of the child” criterion by Supermercados Peruanos and the Peruvian authorities, the Court made it clear that no such objective was at issue in this case. Instead, the intention was to invoke this principle to conceal the discriminatory act against Olivera. The Court’s judgment did not delve into whether this constituted a case of “covert discrimination,” as it had done in its previous rulings in Granier and San Miguel Sosa. Nonetheless, it was evident to the Court that what had happened was not the scenario of “direct” or intentional discrimination with which it is usually confronted.

The Court then examined whether the reasons for demanding such a high burden of proof from Olivera in the domestic proceedings were based on stereotypes prohibited by the American Convention. The Court concluded that the high burden expected on Olivera was attributable to the homophobia displayed by Indecopi in its initial analysis, a situation that remained uncorrected throughout the judicial proceedings.

The Court conducted a thorough analysis of two specific homophobic stereotypes that were used against Olivera: (i) the perception that homosexuality is a pathology and (ii) the belief that queer expressions of affection are always erotic.

Concerning the first stereotype, the Court expressed surprise at the normalisation of pathologising biases used by the authorities when examining the case. The Court strongly condemned the use of evidence without scientific foundation and based on prejudice. This criticism is particularly significant, especially in Latin America, where so-called “conversion therapies” have yet to be banned. In respect of the second stereotype, the Court disagreed with the authorities’ characterisation of what transpired in the cafeteria as “erotic and excessive scenes,” even equating them with sexual acts and nudity. It emphasised that such interpretative leaps are incompatible with the American Convention, as they demean LGBTIQ+ affection and send a detrimental message that it is not worthy of being displayed in public.

The Court determined that the reliance on these two stereotypes in the domestic proceedings had a detrimental impact on the analysis conducted by the administrative and judicial bodies, leading to an act of discrimination against Olivera based on his sexual orientation. Therefore, the Court concluded that this action violated the obligation of impartiality required by Article 8(1) of the American Convention.

It should be noted that the Court did not identify a violation of the same article concerning the guarantee of a hearing within a reasonable time with respect to the State’s actions. The exhaustion of domestic remedies in this case took 7 years, despite its relatively straightforward nature. However, the Court determined that there was insufficient evidence to assert that the Peruvian authorities had acted negligently in their management of the case. This finding was unexpected, particularly considering the Court’s prior identification of negative stereotyping by the authorities, an aspect which appears to have contributed to the length of proceedings.

The Court also identified a violation of Olivera’s right to an effective remedy as guaranteed under Article 25(1) of the American Convention. Although the Court did not explicitly state the reasons for this conclusion, it can be inferred that the presence of the stereotypes not only hindered Indecopi and the judges from acting impartially but also rendered the complaint filed by Olivera against the company ineffective. In other words, the legal proceedings were deemed a “doomed to failure” procedural exercise for Olivera due to the impact of these prohibited stereotypes. This marked the first instance in which the Court found a violation of the right to an effective remedy directly related to the use of negative stereotypes.

Public displays of affection of LGBTIQ+ persons

Another significant aspect of the ruling is its stance on public displays of affection by LGBTIQ+ individuals. The Court addressed this matter by highlighting that the outward expression of queer affection is safeguarded by the rights to personal liberty and privacy, as enshrined in Articles 7 and 11(2) of the American Convention. During the hearing, Olivera’s representatives argued that the right to freedom of expression under Article 13(1) of the American Convention was also relevant to this aspect of the dispute, but the Court found that it was not necessary to extend its analysis to this right, as it had done in, for example, in Vicky Hernández.

What is particularly significant is the Court’s assertion that the expression of affection is an integral part of personal freedom, which is understood in terms of autonomy. This ground-breaking concept was first developed in Vicky Hernández, where the Court granted a profound and transcendent guarantee, beyond mere legality, to the visible presence of LGBTIQ+ individuals in public spaces. With this affirmation, the Court clarified that States have not only a special obligation to ensure the participation of LGBTIQ+ individuals in society, but also a responsibility to implement policies that eradicate the contexts of homophobia and transphobia in which discrimination persists. Following this approach, the Court found that the American Convention does oblige States to require businesses to respect the expression of LGBTIQ+ affection.

A criticism that may be levied at the Court on this point is that it missed the opportunity to examine what happened to Olivera in the context of the category of “gender expression.” The Court mentioned that this is also a category protected by Article 1(1) of the American Convention, but its analysis in the judgment is exclusively in the category of sexual orientation. It would have been interesting for the Court to discuss the intersections between these categories in a case where the victim was discriminated against because of the external projection of his orientation in a public space.

Obligations of corporations under the principle of non-discrimination

Olivera Fuentes is particularly noted as a decision that clarifies the obligations of corporations under the principle of non-discrimination, with a specific focus on LGBTIQ+ individuals. The Court found obligations exist with reference to the overarching duties of States, and the derivative accountability that results from this for companies.

The Court situated its analysis of the role of States within the framework of “prevention,” which is derived from the obligation to guarantee rights and freedoms enshrined in Article 1(1) of the American Convention. This obligation gives rise to a duty of “special protection” concerning the acts and practices of third parties that perpetrate or support discriminatory situations. According to the Court, this duty requires the State to ensure that victims have access to “effective” mechanisms of redress in the face of human rights violations committed by non-state actors. The Court provided insightful examples of the measures that States can implement to hold companies accountable for human rights abuses. Hence, under this standard, States can be held internationally responsible if they fail to establish a legal framework that effectively prevents human rights violations by corporations.

The ruling emphasised that companies have a “primary responsibility” to conduct themselves in accordance with human rights standards. Moreover, the Court recognized that corporations, given their significant influence in society, not only have the capability but also a “responsibility to promote positive changes for the LGBTIQ+ community.” The Court established that this duty is evident in at least two areas: (i) employment practices and (ii) commercial relations when providing goods and services. The Court gave several examples to illustrate what companies must do to fulfil this purpose with a focus on LGBTIQ+ persons, such as: (i) formulating policies that explicitly acknowledge their human rights responsibilities, (ii) diligently identifying, preventing, and mitigating any negative human rights consequences they might have initiated or been involved in, and (iii) instituting mechanisms for redress any adverse human rights outcomes they have contributed to or are associated with.

The Court’s commentary directed at the obligations of businesses in relation to human rights represents an encouraging step forward, as this is the first time it has explicitly addressed companies on these duties. Significantly, the Court opted to underpin these obligations with soft law instruments, referencing the IACHR’s Report on Business and Human Rights, the Standards of Conduct for Tackling Discrimination against LGBTI People by the United Nations High Commissioner for Human Rights, and even the Yogyakarta Principles.

Impact of discrimination on mental health

A final notable aspect of this decision was the finding concerning the impact of these events on Olivera’s mental health. The victim’s representatives argued that reparations should be ordered, given the discriminatory acts Olivera suffered at the hands of the Peruvian authorities because of his complaint. The State opposed this request, arguing that Olivera’s mental health was never discussed before the IACHR.

While the Court did not find a violation of the right to personal integrity in the merits of the ruling, in the reparations section it acknowledged that Olivera had endured “profound suffering and anxiety” due to his pursuit of justice spanning nearly two decades. This aspect of the ruling is noteworthy as it could pave the way for future cases to explicitly argue that legal proceedings tainted by stereotypes exacerbate the already challenging experiences of LGBTIQ+ people.

Conclusion

Olivera Fuentes is a significant addition to the Court’s most relevant decisions concerning the rights of LGBTIQ+ people. Alongside Advisory Opinion 24/17 and the judgments in Atala Riffo and Vicky Hernández, this ruling stands as a testament to the Court’s contribution to the comparative discussion on issues related to LGBTIQ+ sexualities. The Court has shown exceptional leadership in this subject, surpassing its counterparts in the African, European, and universal systems.

Hopefully, Olivera Fuentes will foster more frequent dialogue between academics and practitioners from the English and French speaking worlds and the Inter-American system, as these exchanges have unfortunately become increasingly rare.

Note: The author was counsel for the applicant in the case.

Photo: CorteIDH (2023).