English translation of excerpts from the report Voces excluidas. Legislación y derechos de lesbianas, gays, bisexuales y transgeneristas en Colombia published by Colombia Diversa in 2005.

CONCLUSIONS OF THE REPORT

§ Even though homosexuality has not been a crime in Colombia since 1980, the country possesses a heterosexist legal system that contains both explicit norms and implicit content that do not recognize diversity of sexual orientations and gender identities, and generates privileges in the exercise of human rights for certain persons.

§ In Colombia advances in the recognition of LGBT rights have been mainly through judicial pronouncements from high courts via review of appeals (acciones de tutela) and constitutional sentences. The effects of many sentences -both positive and negative- by lower courts have not been documented in a systematic manner.

§ Decisions by the Constitutional Court have allowed for advances in the recognition of rights, especially those that have to do with equality and fundamental individual freedoms. Positive decisions from the high courts have meant significant advances in the transformation of negative and prejudicial images of LGBT persons on the part of Colombian society. Also these decisions have contributed to the political mobilization of LGBT persons nationwide.

§ The advances promoted by the Constitutional Court have not been without tensions and contradictions. The same Court has not favorably resolved topics such as recognition of same-sex partners nor the issue of public expressions of sexual orientation and gender identity and its effects on third parties.

§ In Colombia there have been advances in the recognition of rights of LGBT persons at the judicial level, especially in the high courts. Nonetheless, there have not been equivalent advances in norms or public policies. In other words, jurisprudential recognition has not been translated into plans and programs designed by the executive branch at the national or local level, with the one exception of the Police Code of Bogotá. Because of deficiencies at the legislative level, LGBT persons have found the appeal mechanism (acción de tutela) to be the principal tool to guarantee the exercise of their rights. Thanks to this mechanism, LGBT persons have been able to protect their rights to work, education, health, freedom, dignity and equality. However in terms of social justice, it begs the question of why a segment of the population has in the majority of cases only one tool available to defend its rights.

§ The majority of appeals (acciones de tutela) have to do with gay men, demonstrating a less frequent use of available legal mechanisms by lesbians, bisexuals and transgendered persons. These groups are less visible and more vulnerable socially and legally.
§ There have been some important legal advances in the area of transexuality and intersexuality, both through decisions of the Constitutional Court and normative development, which have recognized rights such as the free development of personality and the self-determination in sexual and gender matters. However, there persists a judicial void in this area, especially with regards to sex reassignment surgeries and psycho-social support for these persons and their families.

§ In general, with regards to LGBT issues, Colombian norms are not clear nor sufficient. Additionally, there are norms that have been drawn up ambiguously, with criteria such as “morality” or a “healthy environment” that are dangerous sources of potential discrimination.

The right to equality

§ Sexual orientation as a suspect criterion for discrimination is a very potent legal instrument that can be used by LGBT persons. For this reason, it is important to disseminate information in order to create awareness among LGBT people about their rights, promote the use of existing legal mechanisms and contribute to generating respect for sexual orientation and gender identity as human rights among the general population.
§ LGBT persons should be considered to be at risk of discrimination and, therefore, require special protection by the State in virtue of the principle of equality. Also, in accordance with international human rights instruments, the State must not be neutral with regards to discriminations and must practice an active interest in eradicating them.
§ In Colombia, no norms exist which develop the constitutional right to free development of personality or which establish the right to freedom of sexual orientation. It is indispensable to develop legislation in accordance with the rights that have been established by the Constitutional Court. This not only guarantees the legitimacy of these rights, but also assures their judicial security and respect.

The right to establish a family

§ In Colombia, the right to establish a family is permanently violated. The Constitutional Court has interpreted Article 42 of the Constitution in such a way as to exclude homosexual persons from all the rights derived from the establishment of a family. This is a serious situation that merits a fast and effective remedy. This right is closely linked to the right personal and familial intimacy, as well as to the right of free development of personality, both of which are recognized constitutionally. At the same time, the right to intimacy of same sex couples is related to the right to free sexual orientation and to the exercise of sexuality (conjugal visits for incarcerated persons) recognized by the jurisprudence of the Constitutional Court.
§ The lack of legal recognition of homosexual couples (even minimal patrimonial rights) contradicts the right to equality guaranteed by Article 26 of the International Pact of Civil and Political Rights. The Committee for Human Rights, the organ charged with safeguarding this pact, in a recent decision (Young vs. Australia, 2003) considered that not recognizing the pension of a survivor of a homosexual couple was a form of violation of the right of equality on the part of the state. The lack of legal recognition of same-sex couples has forced many LGBT people to recur to costly legal mechanisms and to incur in greater transactional costs in order to have some rights as couples. This particularly affects LGBT people of scarce means. The current situation not only establishes differences in the protection of heterosexual and of same-sex couples on the part o the state, but also excludes persons that do not access to additional legal mechanisms.
§ At present there is legislation pending in the Colombian Congress regarding the recognition of same sex partners. It is the latest of four projects in this area, three of which have been rejected by the legislative branch not strictly for legal reasons but rather on religious and moral grounds. This latest project, of a limited nature with respect to previous bills, is for now the only possible means for same sex couple to gain legal recognition. This bill merits support not only because it establishes patrimonial rights for same sex couples, thus reducing their legal vulnerability, but also because it contributes to generating an atmosphere of greater respect and social inclusion for LGBT people in Colombia .

The right to education

§ In Colombia, based on pronouncements of the Consitutional Court, the right to education for LGBT persons is guaranteed. Nevertheless, the Colombian State lacks public policies that explicitly contemplate the issue of diverse sexual orientations and gender identities. In the National Sexual Education Plans there persists a heterosexist vision of sexuality.

§ In Colombia studies have been made principally to identify sexism and racism in schools. There is no systematic registry of discrimination based on sexual orientation or gender identity which would permit the State to design plans to eradicate homophobic educational practices and contribute to creating school environments based on the respect and recognition of diversity.

The right to work

§ In Colombia there exist labor norms that allude to “good behavior” and “morality” of the employees. Given the system of discrimination against LGBT persons in Colombia, these words can generate vulnerable situations for LGBT persons in the workplace.

The right to health and social security

§ The right to equality implies equal protection under the law for same-sex partners. In Colombia, the law and jurisprudence have established discrimination against same-sex partners and this has limited their access to the social security system (both access to the health system and to the pension system). This situation has not been resolved satisfactorily by judicial, legislative or executive instances. In the executive branch, this has never even been a topic for discussion.

PROPOSALS

Note: these proposals are based on the results of this study. They are by no means exhaustive but do include some of the most pressing legal issues.

The right to equality

§ It is important to take full advantage of sentences of the Constitutional Court that have recognized that sexual orientation is a suspect criteria for discrimination and that all differentiation against a person based on sexual orientation in any field (health, education, work, social security, culture) is contrary to the Constitution.

§ Colombia requires anti-discrimination legislation for LGBT persons which expressly identifies sexual orientation as a forbidden criterion of discrimination. This legislation should establish penal, social or administrative sanctions and protection systems to guarantee the exercise of Article 13 of the Constitution. The bill, currently being drafted by the Office of the Human Rights Ombudsman (Defensoría del Pueblo) to establish a statutory law against discrimination is an urgent necessity. The establishment of such a law has already has been the object of recommendations by human rights organs. The lack of existence of this law constitutes a form of violation by omission of international human rights law on the part of the Colombian State. Independent of whether or not this bill is presented in upcoming legislative sessions, it is a strategy that the LGBT movement must enforce .

§ It is important to continue working for the establishment of affirmative action measures to protect LGBT persons.

§ Given that respect of LGBT rights doesn’t limit itself to the prohibition of discrimination, it is necessary to legally establish the existence of a right to freedom of sexual orientation. This right has been recognized in the jurisprudence of the Constitutional Court, but that is not sufficient. The explicit recognition of the right in a statutory law would be an important legal guarantee.

§ It is fundamental to amply disseminate the jurisprudence of the Constitutional Court in order to inform and contribute to the social mobilization of LGBT persons. This will generate greater appropriation and conscience of rights among LGBT persons and understanding of the tools that they can use in case of violations of their rights in their everyday lives. Many LGBT persons believe that, given their sexual orientation or gender identity, they do not have rights, that the State does not have an obligation to protect them, or that relevant international norms are not valid in Colombia. Many others are afraid to take advantage of their rights and the possibility of knowing of others who do stand up for their rights could help mobilize them.

The right to a free sexual orientation

§ The inclusion of a constitutional article that expresses that Colombia must recognize and guarantee the respect for the freedom of sexual orientation could be a starting point for laws aimed at non-discrimination or the recognition of same-sex couples. This would generate greater social and legal legitimacy for the exercise of non-hegemonic sexual orientation and gender identity.

The right to establish a family

§ It is necessary to undertake appeals (acciones de tutela) and other legal initiatives in order to achieve a pronouncement about the right to intimacy for same-sex partners.

§ It is important to legally recognize this fundamental right. Based on this recognition, there exist the legal tools necessary to defend this right successfully in the fields of education, work, health and other related fields.

§ The goal is to achieve equitable legislation that recognizes families made up of same-sex partners (with or without children) and offers them a realm of legal possibilities to protect their interests as a couple and as a family, according to nature of their mutual commitments.

§ Coverage of domestic violence should be extended immediately to families formed by same-sex partners. The lack of such norms is a form of violation of pacts that protect women against violence and that protect the rights of children and senior adults.

§ The need for norms concerning same-sex families is evident in the area of civil affinity, especially with regard to the regime of incompatibilities in the public sector.

The right to education

§ The State must advance effective policies, document and design means to eradicate discrimination based on sexual orientation and gender identity in schools, not only through studies and measures to control discrimination but also through affirmative measures that protect LGBT persons, as well as other groups traditionally discriminated against.

§ It is indispensable that the State advance educational campaigns that teach students about respecting others based on the principles of plurality and democracy. Education should begin with respect on the part of teachers of sexual freedom.

§ The Office of the Human Rights Ombudsman (Defensoría del Pueblo) and the General Law of Education have established criteria that must be followed to adequately fulfill the right to sexual education. It is necessary to monitor the actions of the Ministry of Education and undertake legal actions to ensure that these criteria are applied.

§ It is necessary to establish follow-up mechanisms so that respect for plurality and the free development of personality are guiding principles of education in Colombia.

§ It is necessary to develop policies with the concept of equality in education. This implies, for example, contributing to the transform sexist and homophobic stereotypes in textbooks and in pedagogical practices.

§ Education should be guided by criteria of inclusion and non-discrimination. Neither individual beliefs nor culture should be used as pretexts for an education that contradicts human rights. It is important to document discrimination in schools and train educators, administrative personnel and students about respect for sexual diversity.

The right to work

§ Labor norms should recognize sexual orientation as a prohibited criterion for discrimination.

§ Colombian legislation needs affirmative action measures that bring into effect Article 13 (right to equality) of the Constitution. It is necessary to enact legislation that prohibits job dismissal based on discrimination for LGBT persons, persons with non-traditional gender identities, and those who live with HIV/AIDS.

§ Again, keeping in mind that sexual orientation is a suspect criterion of discrimination, it is important to presume that when an LGBT person loses his or her job, it could have been because of their sexual orientation. In this case, the dismissal should be considered void and the employer should pay fines and back-salaries and reinstate the worker to his or her job.

The right to health and social security

§ So long as the Constitutional Court as well as in other national judicial instances are reluctant to recognize the right to social security for same-sex partners, it is necessary to resort to international instances to put an end to this form of discrimination.

§ The explicit and legal recognition of the right to freedom of sexual orientation and of sexual rights is an obligation of the State with regards to the right to health.

§ The expedition of anti-discrimination norms and the instruction and dissemination of information about sexuality and the respect for sexual diversity will protect the mental health of persons who must hide or negate their sexual orientation due to fear of rejection, exclusion or discrimination in all its form.

§ The social security system should cover the costs of sex-reassignment surgery in consideration of health issues as well as the rights to the free development of a person’s personality, intimacy and dignified life. Sex-reassignment surgery is not based on aesthetic considerations. It is a fundamental need, intimately linked to the person’s sexual, social and affective fulfillment.

§ It is necessary to promote the expedition of adequate legislation of diversity among sexual identities, according to the socio-cultural development in this area.