Inter-American Commission on Human Rights (IACHR), María Eugenia Morales De Sierra v. Guatemala, Report No. 4/01/OAE/Ser.L./V/II/111, Doc. 20 Rev. (2001), excerpt

Inter-American Commission on Human Rights

María Eugenia Morales de Sierra v. Guatemala

Inter-Am.C.H.R. Report No. 4/01/OAE/Ser.L./V/II/111, Doc. 20 Rev. (2001) (footnotes omitted)

1. On February 22, 1995, the Inter-American Commission on Human Rights (hereinafter "Commission") received a petition dated February 8, 1995, alleging that Articles 109, 110, 113, 114, 115, 131, 133, 255, and 317 of the Civil Code of the Republic of Guatemala (hereinafter "Civil Code"), which define the role of each spouse within the institution of marriage, create distinctions between men and women which are discriminatory and violate Articles 1(1), 2, 17 and 24 of the American Convention on Human Rights (hereinafter "American Convention").  …

3. The petitioners reported that the constitutionality of these legal provisions had been challenged before the Guatemalan Court of Constitutionality in Case 84-92.  In response, the Court had ruled that the distinctions were constitutional … The petitioners requested that the Commission find the foregoing provisions of the Civil Code incompatible in abstracto with the guarantees set forth in Articles 1(1), 2, 17 and 24 of the American Convention. 

28. … Article 109 provides that representation of the marital union corresponds to the husband, although both spouses have equal authority within the home.  Article 110 stipulates that the husband owes certain duties of protection and assistance to the wife, while the latter has the special right and duty to care for minor children and the home.  Article 113 sets forth that the wife may exercise a profession or pursue other responsibilities outside the home only insofar as this does not prejudice her responsibilities within it.  Article 114 establishes that the husband may oppose the pursuit of his wife’s activities outside the home where he provides adequately for maintenance of the home and has “sufficiently justified reasons.”  Where necessary, a judge shall resolve disputes in this regard.  Article 115 states that representation of the marital union may be exercised by the wife where the husband fails to do so, particularly where he abandons the home, is imprisoned, or is otherwise absent. Article 131 states that the husband shall administer the marital property. Article 133 establishes exceptions to this rule on the same basis set forth in Article 115.  Article 255 states that, where husband and wife exercise parental authority over minor children, the husband shall represent the latter and administer their goods.  Article 317 establishes that specific classes of persons may be excused from exercising certain forms of custody, including, inter alia, women….

31. The right to equal protection of the law set forth in Article 24 of the American Convention requires that national legislation accord its protections without discrimination.  Differences in treatment in otherwise similar circumstances are not necessarily discriminatory. A distinction which is based on “reasonable and objective criteria” may serve a legitimate state interest in conformity with the terms of Article 24.  It may, in fact, be required to achieve justice or to protect persons requiring the application of special measures. A distinction based on reasonable and objective criteria (1) pursues a legitimate aim and (2) employs means which are proportional to the end sought.

32. Pursuant to the status of Guatemala as a State Party to the Convention on the Elimination of All Forms of Discrimination against Women, and the terms of Article 29 of the American Convention, it must be noted that Article 15.1 of the former requires that States Parties shall ensure that women are accorded equality with men before the law. Article 15(2) specifies that women must be accorded the same legal capacity as men in civil matters, particularly with respect to concluding contracts and administering property, and the same opportunities to exercise that capacity.  Discrimination against women as defined in this Convention is: 

any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. 

This definition, responding as it does to the specific causes and consequences of gender discrimination, covers forms of systemic disadvantage affecting women that prior standards may not have contemplated.  …

34. … [According to the Guatemalan Constitutional Court, the] Constitution establishes that men and women are entitled to equality of opportunities and responsibilities, whatever their civil status, as well as to equality of rights within marriage.  It notes that certain human rights treaties, including the Convention on the Elimination of All Forms of Discrimination against Women, form part of internal law.  In its analysis of Article 109, the Court indicates that the legal attribution of representation of the marital unit to the husband is justified by reason of “certainty and juridical security.”  This does not give rise to discrimination against the wife, the Court continues, as she is free to dispose of her own goods, and both spouses are attributed with equal authority within the home. The Court validates Article 115 on the same basis.  With respect to Article 131, which vests authority in the husband to administer jointly held property, the Court recalls that, pursuant to Article 109, both spouses shall decide on matters concerning the family economy, including whether property shall be held separately or jointly.  In the absence of such a decision, reasons of certainty and juridical security justify the application of Article 131. 

35. In analyzing Article 110, which attributes responsibility for sustaining the home to the husband, and responsibility for caring for minor children and the home to the wife, the Court emphasizes the mutual support spouses must provide each other and the need to protect the marital home and any children.  The division of roles is not aimed at discriminating, the Court finds, but at protecting the wife in her role as mother, and at protecting the children.  The woman is not prejudiced; rather, the provisions enhance her authority.  In analyzing Articles 113 and 114, which permit a woman to pursue work outside the home to the extent this does not conflict with her duties within it, the Court states that these contain no prohibition on the rights of the woman.  As no right is absolute, the Articles contain limitations aimed primarily at protecting the children of the union.  Consistent with the duties of each spouse, the husband may oppose his wife’s activities outside the home only if he offers adequate sustenance and has justified reasons.  The disposition that a judge shall decide in the event of a disagreement protects against the possibility of arbitrary action, as it ensures that the husband’s reasons refer to the legally defined role of the wife and the protection of the children. 

36.  The Commission observes that the guarantees of equality and non-discrimination underpinning the American Convention and American Declaration of the Rights and Duties of Man reflect essential bases for the very concept of human rights.  As the Inter-American Court has stated, these principles “are inherent in the idea of the oneness in dignity and worth of all human beings.”  Statutory distinctions based on status criteria, such as, for example, race or sex, therefore necessarily give rise to heightened scrutiny.  What the European Court and Commission have stated is also true for the Americas, that as “the advancement of the equality of the sexes is today a major goal,” … “very weighty reasons would have to be put forward” to justify a distinction based solely on the ground of sex.

37. The gender-based distinctions under study have been upheld as a matter of domestic law essentially on the basis of the need for certainty and juridical security, the need to protect the marital home and children, respect for traditional Guatemalan values, and in certain cases, the need to protect women in their capacity as wives and mothers.  However, the Court of Constitutionality made no effort to probe the validity of these assertions or to weigh alternative positions, and the Commission is not persuaded that the distinctions cited are even consistent with the aims articulated.  For example, the fact that Article 109 excludes a married woman from representing the marital union, except in extreme circumstances, neither contributes to the orderly administration of justice, nor does it favor her protection or that of the home or children.  To the contrary, it deprives a married woman of the legal capacity necessary to invoke the judicial protection which the orderly administration of justice and the American Convention require be made available to every person.   

38. By requiring married women to depend on their husbands to represent the union–in this case María Eugenia Morales de Sierra–the terms of the Civil Code mandate a system in which the ability of approximately half the married population to act on a range of essential matters is subordinated to the will of the other half.  The overarching effect of the challenged provisions is to deny married women legal autonomy. 

39. In the instant case the Commission finds that the gender-based distinctions established in the challenged articles cannot be justified, and contravene the rights of María Eugenia Morales de Sierra set forth in Article 24. These restrictions are of immediate effect, arising simply by virtue of the fact that the cited provisions are in force.  As a married woman, she is denied protections on the basis of her sex which married men and other Guatemalans are accorded.  The provisions she challenges restrict, inter alia, her legal capacity, her access to resources, her ability to enter into certain kinds of contracts (relating, for example, to property held jointly with her husband), to administer such property, and to invoke administrative or judicial recourse.  They have the further effect of reinforcing systemic disadvantages which impede the ability of the victim to exercise a host of other rights and freedoms.  

40. Article 17(1) of the American Convention establishes rights pertaining to family life pursuant to the disposition that, as “the natural and fundamental group unit of society,” the family “is entitled to protection by society and the state.”  The right to marry and found a family is subject to certain conditions of national law, although the limitations thereby introduced must not be so restrictive “that the very essence of the right is impaired.” Article 17(4), which derives from Article 16(1) of the Universal Declaration of Human Rights, specifies that “States Parties shall take appropriate steps to ensure the equality of rights and the adequate balancing of responsibilities” in marriage and its dissolution.  In this regard, Article 17(4) is the “concrete application” of the general principle of equal protection and non-discrimination of Article 24 to marriage.   

41. In the case of Guatemala and other States Parties, the Convention on the Elimination of All Forms of Discrimination against Women specifies steps that must be taken to ensure substantive equality in family law and family relations.  Pursuant to Article 16 of that Convention, States Parties are required to ensure, inter alia, “on the basis of equality between men and women,” the same rights and duties with respect to the exercise of custody or other types of guardianship of children; the “same personal rights … to choose a family name, a profession and an occupation;” and the same rights with respect to the ownership, administration and disposition of property.    …

44. The Commission finds that, far from ensuring the “equality of rights and adequate balancing of responsibilities” within marriage, the cited provisions institutionalize imbalances in the rights and duties of the spouses.  While Article 110 suggests a division of labor between a husband’s financial responsibilities and the wife’s domestic responsibilities, it must be noted that, pursuant to Article 111, a wife with a separate source of income is required to contribute to the maintenance of the household, or to fully support it if her husband is unable to do so.  The fact that the law vests a series of legal capacities exclusively in the husband establishes a situation of de jure dependency for the wife and creates an insurmountable disequilibrium in the spousal authority within the marriage.  Moreover, the dispositions of the Civil Code apply stereotyped notions of the roles of women and men which perpetuate de facto discrimination against women in the family sphere, and which have the further effect of impeding the ability of men to fully develop their roles within the marriage and family.  The articles at issue create imbalances in family life, inhibiting the role of men with respect to the home and children, and in that sense depriving children of the full and equal attention of both parents.  “A stable family is one which is based on principles of equity, justice and individual fulfillment for each member.”

45. In the case of Ms. Morales de Sierra, the Commission concludes that the challenged articles controvert the duty of the State to protect the family by mandating a regime which prevents the victim from exercising her rights and responsibilities within marriage on an equal footing with her spouse.  The State has failed to take steps to ensure the equality of rights and balancing of responsibilities within marriage.  Accordingly, in this case, the marital regime in effect is incompatible with the terms of Article 17(4) of the American Convention, read with reference to the requirements of Article 16(1) of the Convention on the Elimination of All Forms of Discrimination Against Women….