On March 19, 2026, GQUAL and CEJIL appeared before the Inter-American Court of Human Rights in the context of the Advisory Opinion on democracy and its protection in the Inter-American System, urging the Court to recognize gender parity as a structural component of representative democracy.

With the participation of Viviana Krsticevic, María Noel Leoni, and Claudia Martin, our intervention emphasized that equal and inclusive participation in decision-making spaces is an essential component of democracy. But that equality cannot be merely formal: it must be substantive. This means that, in the face of structural discrimination and exclusion — such as that faced by women in access to power — States must adopt concrete measures to overcome it.

 

Arguments Before the Inter-American Court

Viviana Krsticevic, Executive Director of the Center for Justice and International Law and member of the GQUAL Secretariat

My name is Viviana Krsticevic, and it is an honor to appear, on behalf of CEJIL and the GQUAL Campaign, together with my colleagues Maria Noel Leoni and Claudia Martin, to present the core arguments of our intervention in the context of the debates held in Brasília.

The Court has an opportunity to examine the relationship between democracy, substantive equality in political and public participation, and gender parity in light of the Inter-American and international legal framework, as well as the normative and jurisprudential developments that have taken place across States in the region.

The Inter-American system has consistently recognized the interdependence between democracy and human rights: there can be no full exercise of rights without democracy, and no democracy without the effective exercise of rights. Both, in turn, are grounded in the principle of equality.

The Inter-American legal framework recognizes democracy as a structural element of the system, a guiding principle, an interpretive standard, and an international legal obligation.

This Advisory Opinion offers the Court an opportunity to clarify the scope of one of democracy’s fundamental components: the right to political participation and representation, protected under Article 23, and its exercise on equal terms for women.

As this Court has already held, that right must be interpreted broadly, encompassing the rights to vote and to be elected, to take part in the conduct of public affairs and in policymaking, and to access decision-making spaces, both nationally and internationally.

And this must be effectively guaranteed under conditions of equality.

Equality and non-discrimination are fundamental rights within the Inter-American system, recognized, among others, in Articles 1.1, 2, and 24 of the Convention, which impose on States the obligation to guarantee the exercise of rights without discrimination, to adapt their legal frameworks accordingly, and to refrain from maintaining laws or practices that are discriminatory either in purpose or in effect.

This protection expressly prohibits discrimination against women.

At the same time, equality requires more than refraining from discrimination. It also demands the adoption of measures to guarantee substantive equality. This means recognizing that, even in the absence of explicitly discriminatory laws, structural barriers — institutional, social, and cultural — continue to limit the effective exercise of rights by certain groups, and that States have a duty to adopt measures to remove them.

In other words, where there is structural exclusion from power, the rights to equality and non-discrimination require concrete corrective action.

And that is precisely the case for women.

Although women make up half of the population, they remain underrepresented in spaces of power linked to democratic governance and decision-making, both nationally and internationally. This exclusion is not the result of a lack of merit, but of structural patterns that have historically restricted women’s access to political power.

And its consequences go beyond equality alone: they constitute a democratic deficit that affects the legitimacy, representativeness, and capacity of democratic systems to guarantee rights.

María Noel Leoni Zardo, Deputy Executive Director of CEJIL and Director of the GQUAL Campaign

Honorable Court,

In light of this framework, equality in women’s political participation requires reinforced measures capable of ensuring their effective representation. The measure of that equality is parity. This standard is not foreign to Inter-American law.

In Advisory Opinion OC-27, this Court established the obligation to adopt measures to overcome the obstacles to women’s leadership and to move toward parity, as well as the duty to ensure the effective implementation of those measures.

In the same vein, the Inter-American Commission on Human Rights has affirmed that States must adopt all necessary measures — including legislative reforms, budget allocations, and temporary special measures — to advance parity at all levels.

Within the OAS itself, parity has progressively been incorporated as an institutional standard. Since 2016, the General Assembly has adopted resolutions calling for parity in the composition of the organs of the Inter-American system, directly linking it to the obligations of equality and non-discrimination. This development has been further consolidated through recent reforms to the statutes of key bodies — including this Court — which incorporate corrective mechanisms to address gender imbalances in nomination processes. Likewise, the OAS Secretariat has adopted a Parity Plan based on a resolution of the Permanent Council, and the Inter-American Commission of Women has adopted a Model Law on Parity aimed at guaranteeing equal participation in decision-making spaces.

Similarly, gender parity is not a novel concept in the region. At least nine OAS Member States have incorporated parity into their constitutional, legal, and jurisprudential frameworks. These developments must also be read in light of the most recent evolution of international human rights law.

In particular, General Recommendation No. 40 of the CEDAW Committee provides an authoritative interpretation of the scope of States’ obligations regarding equality in political and public participation. As this Court has recognized, those standards constitute relevant parameters for the evolutive interpretation of the Convention.

General Recommendation No. 40 defines parity as a 50/50 distribution between women and men, applicable to all decision-making spaces, from the national to the international level, and conceives it as a permanent legal principle and a structural feature of good governance.

In that sense, parity is not a temporary measure. It is the structural expression of substantive equality in the exercise of power.

Parity does not limit equality; it operates as its guarantee. For that reason, this Court has the opportunity to affirm that parity constitutes the measure of equality in women’s political participation and an essential component of the right to democracy, in light of Articles 1.1, 2, 23, and 24 of the Convention.

That recognition carries clear legal consequences. Parity cannot remain at the declaratory level. It must translate into concrete, structural, and verifiable measures that ensure its effective realization.

Affirmative measures are not optional tools. They are indispensable mechanisms for immediately guaranteeing an already defined standard of equality: parity.

Claudia Martin, Co-Director of the Academy on Human Rights and Humanitarian Law at American University and member of the GQUAL Secretariat

Yesterday, the Inter-American Commission of Women requested that this Court, in the framework of this Advisory Opinion, provide guidance to States on the adoption of legal frameworks that allow for the implementation of parity as a permanent measure at the national level.

We join that request, but we would like to add a complementary one in order to strengthen the guidance the Court can provide at this stage. While States move toward the legal recognition of parity, they remain under an obligation to adopt positive measures to guarantee women’s equality in political and public participation in practice. And parity is one of the guarantees of the principle of equality, as we have argued.

We therefore ask the Court to consider developing a more robust equality and non-discrimination test for women’s rights that incorporates gender parity, in order to guide the branches of government — especially the judiciary — on how to guarantee women’s equal access to decision-making spaces.

In its case law, the Inter-American Court has recognized that gender is a suspect category because it is linked to “permanent traits of persons from which they cannot divest themselves without losing their identity,” and because women belong to a group that has traditionally been excluded from public and political participation or subordinated through deeply entrenched social stereotypes. Differential treatment based on gender thus constitutes “an indication that the State has acted arbitrarily.” To justify such a distinction, the measure must survive strict scrutiny, which requires a rigorous and weighty justification on the part of the State. In order to pass that scrutiny, the differentiating measure must be the least restrictive means available, and it must be evaluated under a necessity test in a democratic society.

Moreover, the existence of a distinction based on one of these categories reverses the burden of proof, meaning that it is for the State to demonstrate that there is no discriminatory purpose or effect. Such distinctions may, for example, be justified in cases involving temporary affirmative measures designed to compensate for situations of vulnerability or structural inequality.

For that reason, we consider that the failure to recognize the principle of parity in domestic legislation, or the failure to apply it effectively across all decision-making spaces, constitutes adverse differential treatment based on gender — a suspect category — and therefore requires the State to provide a rigorous and weighty justification. In addition, because the adverse distinction is based on a suspect category, the arbitrariness of the measure must be presumed and the burden of proof shifts to the State, which must justify its acts or omissions. If the State fails to demonstrate such a justification, the failure or omission will amount to discrimination and will require correction through positive measures.

A review of constitutional jurisprudence in several national jurisdictions shows that a number of high courts in the region have already adopted this approach, recognizing gender as a suspect category and taking into account the structural and historical discrimination suffered by women in access to decision-making spaces when assessing discrimination claims, insofar as exclusion operates to the detriment of a group that constitutes half of the population. These courts have also affirmed that the adverse differentiation resulting from non-compliance with parity is presumed to be arbitrary, thereby triggering heightened scrutiny of State measures or omissions.

The Inter-American Court now has the opportunity to reaffirm the application of this strict scrutiny test by incorporating lack of gender parity as a metric for the presumption of a violation of the right to equality in this Advisory Opinion. Doing so would help consolidate this interpretation for future contentious cases, not only within the Inter-American system but also within the domestic jurisdictions of OAS Member States through the principle of conventionality control. The application of this test would lay the groundwork for moving from parity as a positive measure to guarantee equality toward its legal consolidation as a rule of democratic representation, the breach of which would in itself violate the guarantee of women’s equal and inclusive representation.