Thursday, January 29, 2009

Colombia Diversa on yesterday's landmark ruling granting equal rights to same-sex couples

I am still wrapping my brain around yesterday's ruling by the Constitutional Court in Colombia.

Reading the first news brief that appeared online in El Tiempo, it promised less than the article's title implied: "Full recognition from Constitutional Court to same-sex partners."

Yes, the Court had ruled that a series of rights afforded to long term heterosexual partners should be also granted to long term same-sex partners BUT it
seemed to stop short of granting civil union or common-law union status (unlike a blurb at The Advocate online implies today).

In fact, I consciously decided not to translate the article's title in my post yesterday because I wanted to make sure that I wasn't misreading the information before calling it a "full recognition" of same-sex partnerships.

Well, after translating the statement below and discussing the ruling with Colombia Diversa's director Marcela Sánchez, I have come to realize that this is much bigger than I originally thought particularly outside a framework that puts same-sex marriage as a measure of full equality.

In fact, Marcela is quoted today by El Tiempo stating that the ruling gives same-sex couples in Colombia "equality".

"We are not putting ourselves above others, instead we were putting [ourselves] as equals," she says, "They are not additional rights but the same (as those of heterosexuals)."

In a brief e-mail exchange I asked if it was truly "equality" and she said "Yes, it is equality; We have all the rights of a common-law union, minus adoption."

She also told me that the organizations that brought the lawsuit before the court made a conscious decision to specifically ask for the rights and not for civil or common-law unions which is the reason why the court did not pronounce itself on those matters.

So, here is a concept: Colombian same-sex partners, following a series of High Court rulings including the one announced yesterday, probably enjoy more rights than same-sex couples in any other Latin American nation with the exception - perhaps - of Uruguay which approved civil unions in December of 2007 - and yet they have achieved this without having yet been granted civil marriage or common-law marriage status?

Just amazing and it speaks to the hard work of hundreds of LGBT advocates throughout Colombian history including my friends Germán Humberto Rincón Perfetti and Manuel Antonio Velandia Mora who did so much in the a980's and 1990's to bring equal rights issues to the forefront in Colombia.

Through their efforts, as well as hat of many others, different same-sex partnership bills have come close to being adopted by the county's legislature (the last one was rejected by the Senate in October of 2008). With yesterday's ruling, passage of such a bill seems predestined.

Colombia Diversa, the leading LGBT rights organization in Colombia and one of the organizations that asked the Constitutional Court to determine whether same-sex partners should enjoy all the rights of heterosexual partners, released the following statement on yesterday's landmark ruling (I have translated it from the Spanish language original):


Historic ruling by the Constitutional Court in Colombia recognizes equality between heterosexual common law partners and those of the same sex.

Today, January 27, 2009, the Constitutional Court brought the country one step forward - a fundamental one - in matters of human rights. The High Tribunal acknowledged that a number of civil, political, social, economic, criminal and immigration rights, among others - previously reserved for heterosexual couples, also apply to same-sex couples.

In this way, Colombia has made progress in fulfilling its international commitment to incorporate Equality into its domestic legal norms, on behalf of a population that has historically been vulnerable due to their sexual orientation. Eighteen years after the enactment of the 1991 Constitution, [promoting] equality between all people, this principle has effectively been by lifting a series of limitations in Colombia that weighed down on rights, depending to the sexual orientation of individuals.

It was confirmed that equal rights cannot allow qualifications, nor exceptions nor mitigating circumstances that depend on sexual orientation.


The path that led to the Court's recent ruling began with a lawsuit. On April 28, 2008, Colombia Diversa, The Law, Justice and Society Study Center (Dejusticia), and The Public Interest Rights Group of the University of Los Andes, filed a lawsuit seeking equal rights between permanent partners, heterosexual and homosexual, and thus eliminate all forms of discrimination.

The lawsuit was actively supported by a diverse group of 32 human rights organizations, most of which do not represent an exclusive advocacy for LGBT rights. Such was the case with Human Rights Watch, the Colombian Commission of Jurists and Sisma Woman among many others (see list). Their primary interest was to bring domestic legislation in Colombia closer to a genuine concept of Equality.

Rights and responsibilities recognized

Specifically, it was a claim of inconstitutionality en masse against a series of laws that guarantee these rights and responsibilities to unmarried heterosexual couples, so that same-sex couples could be included as beneficiaries.

The plaintiffs asked the Court to extend the protections inherent in all rights afforded to heterosexual partners in a common-law union, to same sex-couples. At the same time, there was a request for the same order of duties and responsibilities for both types of couples.

In short, the rights and responsibilities that were demanded and recognized by the Court are related to:
  • Civil rights norms which establish limitations to the access and exercise of civil service and the establishment of contracts with the State.
  • Civil and political rights, such as housing protections, so that the so-called 'family patrimony' cannot be seized and [establishes] joint family housing rights [la afectación de vivienda familiar].
  • Access to a Colombian nationality, and residence in the department of San Andres and Providencia.
  • The right to benefits, allowances and compensation measures of a social nature in favor of same-sex couples.
  • This is the case with the special social security norms that apply to public law enforcement, family allowance, family allowance for housing, subsidies for rural access to property, and indemnity coverage for death in a traffic accident of a permanent partner.
  • Crime punishment and prevention norms, misconduct and the guarantee not to incriminate a partner.
  • Rights for permanent partners of victims of heinous crimes.
Here is how EFE breaks it down:
The ruling means that property of homosexual couples that is considered part of the family possessions, including the home, can not be embargoed or distrained.

On the other hand, if a foreigner enters into a same-sex union with a Colombian in Colombia, he or she may obtain Colombian citizenship if and when that union has been under way for more than two consecutive years.

Members of same-sex couples cannot be forced to testify against their partners.

Regarding public officials, when one takes the oath of office, that person's same-sex partner - if any - will also take the office.
Update: Former right-wing congressman Victor Velazquez is incensed! From Colombia Reports (based on this article from El Espectador)

Former congressman Victor Velasquez petitioned the high court to reverse its ruling, accusing the Court it is out of line and should leave legislation about gay rights to Congress.

Velasquez called on the Catholic Church to denounce the ruling and wants a referendum held to let the Colombian people reverse what "undermines the morale of the country."

"With this decision the Court wants to put the country in reverse; the countries that ruled in favor of homosexuals are left without population, because two men and two women can't reproduce," the former lawmaker told the press.

Best Spanish language articles so far on yesterday's court ruling...

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