The polysemy of gender discrimination in the IACTHR jurisprudence : towards the elimination of structural gender discrimination through transformative reparations

Abstract

This article focuses on the jurisprudence of the Inter-American Court of Human Rights (IACtHR) on structural gender discrimination and transformative reparations. It dwells on feminist legal and political analysis on the multiple meanings of gender discrimination and distinguish three feminist categories −that have been incorporated in the International Human Rights Law− that respectively focus on the disadvantaged group (‘women approach’), the discriminatory structure that produces disadvantage (‘gender approach’), and the combined effects of different grounds of discrimination (‘intersectionality approach’). The article is novel for its use of the polysemy of gender discrimination as a lens to analyze strengths and weaknesses of three emblematic cases of the IACtHR: González et al. (‘Cottonfield’) v. México, Atala Riffo v. Chile, and Gonzales Lluy et al. v. Ecuador. Our analysis shows that the IACtHR refers to different meanings of gender discrimination in the interpretation of the facts, on the one hand, and in the reparation and non-repetition measures, on the other. Our findings allow us to suggest that the pathway to strengthen the role of the Inter-American Court towards the elimination of gender structural discrimination is to issue transformative reparations that include the reforms of the legal and institutional gender-blind framework that maintain and reproduce such discrimination. This study is not only relevant for the Inter-American systems but also for the European Court of Human Rights and the African Court on Human and People’s Rights that can use the IACtHR jurisprudence as a model.