The Basis of the Law Must be the Human Aspect and not the Sexual. The Diffuse ex Officio Control of Conventionality as a Mechanism for the Protection and Procurement of Human Rights of Equality and Non-Discrimination

Abstract

This article carries out an analysis of sex, gender and the implications that have emerged in the legal-political sphere by the protection of human rights to equality and non-discrimination, based on the fact that all human beings are born free and equal in dignity and rights without any distinction. Likewise, we define the gender perspective as an analytical category which welcomes the methodologies and mechanisms appropriated for the study of cultural and social constructions, also understood as proper for men and women, namely, what historically, socially and culturally has been understood as woman and man. Additionally, we consider the concepts of the family, marriage and cohabitation established by the current Civil Code of the State of Mexico, all discriminatory in nature, since they are limited only to the binary classification of man and woman and, therefore, only recognize the right to marriage, to a family and, where applicable, to the cohabitation of heterosexual couples. Thus violates the human right to equality and non-discrimination of homosexual couples, which also implies that rights such as food, social security, inheritance and all derivatives of marriage or cohabitation are prohibited for them. Finally, the text underlines the importance of the jurisdictional work of judges, within the scope of their competence. Who, after the constitutional amendment of June 2011, are obligated to promote, respect, protect and guarantee the human rights in accordance with the principles of universality, interdependence, indivisibility and progressivity. Aditionally, the judges have the power to use mechanisms for the protection of human rights, especially those of equality and non-discrimination, as well as access to justice, contained in Article 1 and 24 of the American Convention on Human Rights. Whenever they are presented with applications for the accreditation of cohabitation derived from same-sex relationships.