Access to Justice in Puerto Rico
Days before retiring from the Puerto Rico Supreme Court, Chief Justice Federico Hernández Denton reflected on his years of service and concluded that one of the decisions he most regrets is his vote in a 2005 case that interpreted Puerto Rico law as preventing individuals who are transgender from amending their birth certificates to reflect their true identities.
At the time of Chief Justice Hernández Denton’s decision to join the court’s majority in that case, Ex parte Delgado Hernández, his vote was particularly troubling and surprising, because it contrasted with his support for LGB rights in other decisions.
The Chief Justice had dissented from the decision in Puerto Rico v. Ruiz Martínez, which held that domestic violence law did not protect individuals in same-sex relationships despite the statute’s gender-neutral terminology. And just last year he dissented again, when in Ex parte A.A.R, a majority of the Court refused to recognize the concept of second-parent adoptions and — even more alarmingly — narrowly interpreted the prohibition against sex discrimination in the Puerto Rico Constitution to exclude claims based on sexual orientation.
In his dissent in A.A.R., the Chief Justice assailed the majority for what he described as defiance of a growing international trend to protect the human rights of people that are discriminated against based on their sexual orientation. He explained that being a judge is about having sensibility to the real problems faced by people and to comply with the constitutional obligation to defend and protect the dignity and equality of all human beings.
Puerto Rico’s Gov. Alejandro García Padilla has already nominated current Associate Justice Liana Fiol Matta to replace Justice Hernández Denton as Chief Justice. In the coming weeks, Gov. García Padilla will have the opportunity to name a new justice to the Puerto Rico Supreme Court.
Lambda Legal sent Gov. García Padilla a letter urging him to take certain considerations into account when nominating a new justice to the Puerto Rico Supreme Court or making any other judicial nominations. First and foremost, we urge Gov. García Padilla to ensure that any potential nominee’s judicial philosophy includes a commitment to rule fairly and impartially in cases involving LGBT and HIV-positive litigants and to follow the constitutional and legal precedents established in decisions like Romer v. Evans, Lawrence v. Texas and United States v. Windsor.
Second, we urge Gov. García Padilla to seek thoughtful jurists who reflect Puerto Rico’s rich diversity. It is critical that the judiciary be composed of judges who truly represent and understand the issues faced by all who are subject to their rulings.
The letter sent to Gov. García Padilla is only one part of the work that Lambda Legal is pursuing on behalf of LGBT people and people living with HIV within Puerto Rico. Last year, we filed a friend-of-the-court brief urging the Puerto Rico Supreme Court to reconsider its ruling in Ex parte A.A.R. Just a few weeks ago, our Transgender Rights Project Director, M. Dru Levasseur, addressed challenges to discriminatory health care exclusions as well as issues and policies affecting the coverage and access to health care for the transgender community at the third annual Puerto Rican Summit for LGBT Health (“3ra Cumbre Puertorriqueña en Pro de la Salud Lesbiana, Gay, Bisexual, Transgénero y Transexual”). We look forward to continuing our work in the Commonwealth of Puerto Rico on behalf of LGBT people and those living with HIV.