Report No. 160 (2021) IACHR. Petition No. 974-17 (Honduras)

• Year: 2021
• Case Type: Admissibility
• Respondent State: Honduras
• Court: Inter-American Comission of Human Rights

REPORT No. 160/21

PETITION 974-17

REPORT ON ADMISSIBILITY

GABRIE MASS CÁCERES

HONDURAS

OEA/Ser.L/V/II.

D.. 168

14 J. 2021

Original: Spanish

Approved by the Commission electronically on J. 14, 2021.

Cite as: IACHR, R. No. 160/21, Petition 974-17. A.. Gabrie Mass Cáceres. Honduras. J. 14, 2021.

www.iachr.org

I. INFORMATION ABOUT THE PETITION

Petitioner:	Red Lésciba Cattarachas (Cattrachas Lesbic Network) and Lawyers Without Borders Canada
:	Gabrie Mass Cáceres
Respondent S.:	Honduras
Rights invoked:	Articles 3 (right to juridical personality), 8 (fair trial), 13 (freedom of thought and expression), 18 (right to a name), 24 (equality before the law) y 25 (judicial protection) of the American Convention on Human Rights1 in relation to its article 1.1 (obligation to respect rights)

II. PROCEEDINGS BEFORE THE IACHR2

Filing of the petition:	J. 7, 2017
Additional information received at the stage of initial review:	J. 12, 2017 and August 22, 2018
N. of the petition to the S.:	May 14, 2020
S.’s first response:	October 14, 2020

III. COMPETENCE

Competence Ratione persone:	Y.
Competence Ratione loci:	Y.
Competence Ratione temporis:	Y.
Competence Ratione materiae:	Y., American Convention (deposit of the instrument of ratification made on September 8, 1977)

IV. DUPLICATION OF PROCEDURES AND INTERNATIONAL RES JUDICATA, COLORABLE CLAIM, EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

Duplication of procedures and International res judicata:	No
Rights declared admissible	Articles 3 (right to juridical personality), 8 (fair trial), 13 (freedom of thought and expression), 18 (right to a name), 24 (equality before the law) and 25 (judicial protection) of the American Convention, in relation to its articles 1.1 (obligation to respect rights)
Exhaustion of domestic remedies or applicability of an exception to the rule:	Y., in the terms of section VI
Timeliness of the petition:	Y., in the terms of section VI

V. FACTS ALLEGED

1. The petitioner claims that the S. discriminated the alleged victim based on his gender identity for not having a remedy or procedure which allows him to adapt his identity information.

2. The petitioners claim that numbers 4 and 24 of Article 30 of the National Registry of Persons Regulations (hereinafter, “NRP Law”) forbids civil officials to order changes of names in the original birth registration, with limited exceptions3.

3. Due to this, they hold that on August 19, 2012 the alleged victim requested a notary to certify that G.M.C. -his assumed name- and M.G.C.P. -his legal identity- are the same person. T., on September 4, 2013 such notary certified, within his powers to publicly attest, that the two names correspond to the same person.

4. N., since the cited document does not grant the same juridical effects as a change of name at the national registry of persons, the alleged victim filed on March 3, 2014 a constitutional complaint, requesting to declare the invalidity of the abovementioned norms of the NRP Law Regulations. U. the dilation of the proceedings, on May 29, 2014 the lawyer of G.M.C. filed a request for a prompt response. After not receiving an answer, on October 3, this lawyer filed a complaint before the National Commissioner for Human Rights for the notorious unjustified tardiness of the Constitutional Chamber. H., they hold that such institution did not carry out a due backing to its complaint. They hold that only by March 24, 2015 did the Constitutional Chamber of the Supreme Court of Justice dismissed the constitutional complaint, arguing that the NRP Law Regulations are an administrative act, which is why it pertained the contentious administrative jurisdiction to settle the controversy.

5. U. this judgment, on May 4, 2015 the alleged victim filed a contentious administrative claim, pursuant to declare that the regulatory norms of the NRP Law are not in accordance with the legal system in force concerning Human Rights. In spite of this, on J. 17, 2015, the Contentious Administrative Court declared said remedy inadmissible, arguing expiration of the deadline for the filing of the complaint, since it should have been filed within the 30 working days following April 30, 2005, date in which the questioned regulation was published.

6. The representation of G.M.C. appealed such decision, for considering that there was a breach to the right to have an effective remedy consecrated in Article 25 of the American Convention; but the Contentious Administrative Labor Chamber rejected this remedy on October 1, 2015. Finally, on October 25, 2015 the representation of the alleged victim filed a cassation remedy, arguing that in the judgment of the controversy, Article 18 of the Constitution was not applied, which stipulates the supremacy of the treaty or Convention above the Law4. N., on May 16, 2017, the Supreme Court of Justice dismissed such remedy, for considering there was insufficient foundation concerning “separation and clarity, in order to raise […] juridical matters in a precise and reasoned manner, pertaining, either by breach of procedural norms or norms of law in their implementation and interpretation”.

7. In short, the petitioner claims that the S. discriminated the alleged victim by virtue of his gender identity, since its regulations forbid to rectify his identity information in his original birth registration, affecting his rights to a juridical personality and a name. L., holds that the cited restriction does not allow Gabrie Mass Cáceres to freely exert his expression of gender. Finally, argues that, to this date, the alleged victim does not have access to a suitable and efficient remedy to question such norms and achieve the adaptation of his identity.

8. The S., on its part, argues that the claimed facts do not characterize human rights violations. It holds that authorities guaranteed the right to juridical personality of the alleged victim, since on September 4, 2013 a notary attested that his assumed name and his legal identity respond to the same person. L., it holds that at no time was the victim limited from access to information on account of his gender identity and/or sexual orientation.

9. A., that the alleged victim had access to formulating his complaints, which were judged in a duly and legal fashion, with two judgments which analyzed and decided his demands. Finally, argues that the alleged victim has been treated at all times as any other H. or whoever seeks to run an errand before a certain state body, which is why no discriminatory act was ever committed against him. The S. holds that the law was simply applied, and that the petitioner did not credit any of the causes set forth in the of the NRP Law Regulations so as to achieve the change of name.

VI. ANALYSIS OF EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

10. According to the petitioner’s allegations, the Commission identifies that the intended by the alleged victim at a domestic level was to question the validity of the regulations of the NRP Law, in order to be able to modify his identification information on his original birth registration, since such regulations limited said possibility to exceptional situations. In spite of this, the domestic instances rejected his demands, for considering that the claim should have been filed within the 30 working days following the date of publishing of the questioned regulation, which means, between May and J. 2005, approximately. L., according to the information provided in the casefile, the IACHR observes that, to this date, the alleged victim only has a document that certifies the two names he uses, without the possibility of resorting to any prompt judicial or administrative remedy to achieve the rectification of his identity information in a confidential manner.

11. On this point, the Commission recalls that that the Inter-American Court on Human Rights, on its Advisory Opinion OC-24/17, has established that the S.s have the duty to adopt expeditious and confidential procedures which allow persons to integrally adapt their identity information according to their self-perceived gender identity5. A. these lines, said court stressed that the undesired publicity regarding a change of identity may place the requesting person in a situation of greater vulnerability toward several acts of discrimination against him or her, which is why all rectifications carried out on registrations and identity documents “must not be of public access, nor can they appear in the same identity document” (para. 135).

12. By virtue of such considerations, the IACHR concludes that, prima facie, the alleged victim would not have a suitable remedy available that meets the aforesaid characteristics, pursuant to protecting the rights he considers infringed. This is why, it considers pertinent to apply the exception to the exhaustion of domestic remedies set forth in Article 46.2.a) of the American Convention.

13. The present petition was received on J.7., 2017, and the facts subject of the complaint had occurred at least since 2014, and some of their effects extend until the present. T., in light of the context and characteristics of the instant case, the Commission considers that the petition was filed within a reasonable time in the terms of Article 32.2 of its Rules of Procedure.

VII. ANALYSIS OF COLORABLE CLAIM

14. In view of the...