LGBT rights in Colombia

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LGBT rights in Colombia
Colombia
Colombia
Same-sex sexual activity legal? Legal
Gender identity/expression Right to change legal gender since 1993
Military service Yes
Discrimination protections Sexual orientation since 2011
Family rights
Recognition of
relationships
"Civil Unions / Marriage"
Adoption Full joint adoption since 2015

Lesbian, gay, bisexual, and transgender (LGBT) rights in Colombia have progressed since consensual homosexual activity was decriminalized in 1980 with amendments to the Criminal Code, making it one of Latin America's most advanced countries in regards with LGBT rights legislation. Between February 2007 and April 2008 three rulings of the Constitutional Court granted registered same-sex couples the same pension, social security and property rights as for registered heterosexual couples.[1] Law reforms in the 1990s equalized the age of consent in Colombia at 14 for both homosexual and heterosexual sex.[1][2]

According to an April 2002 report by the Home Office of the United Kingdom, "It is not against Colombian law to be homosexual, but a considerable amount of public ill-will exists, as in most Latin American countries where a machismo attitude is widespread."[3]

Constitution & Legal[edit]

Article 13 of the Colombian Constitution of 1991 states that "the State will provide conditions for the equality to be real and effective, and will adopt measures in favour of marginalised or discriminated groups."

Article 42 of the constitution states "The family is the basic nucleus of society. It is formed on the basis of natural or legal ties, by the free decision of a man and woman to contract matrimony or by their responsible resolve to comply with it".


A 2002 assessment by the United Kingdom Home Office states that "administrative changes and court decisions since 1995 have brought in a different environment of rights and precedents."[3] In 1998, for example, the Constitutional Court ruled that public-school teachers cannot be fired for revealing their sexual orientation, nor can private religious schools ban gay students from enrolling.[4] In 1999, the same court unanimously ruled that the armed forces could not ban homosexuals from serving, being a violation of constitutional guarantees of "personal and family intimacy" and "the free development of one's personality."[4]

Recognition of same-sex couples[edit]

On 7 February 2007, the Colombian Constitutional Court extended common-law marriage property and inheritance rights to same-sex couples,[5][6] thanks to the constitutional action presented by the public interest law group of the Universidad de los Andes against the Ley 54. The decision did not include pension or social security (health insurance) rights. In a second ruling of 5 October 2007 the Constitutional court extended social security (health insurance) benefits to same sex couples, and on a ruling of 17 April 2008 pension rights were extended. With these three rulings same-sex couples in Colombia now enjoy the main benefits as heterosexual couples under the same terms.

These three rulings by the Constitutional Court replace the defeated Civil Union Law that fell in the Congress. On 19 June 2007, a gay rights bill, treating unregistered same-sex partners the same as unregistered opposite-sex partners, was defeated in the Congress of Colombia.[7] Slightly different versions of the bill passed in each house of the legislature, and President Álvaro Uribe indicated he would support it. A compromise bill then passed one house but failed in the other.[8][9]

The bill was defeated by a bloc of conservative senators. The bill, which had been endorsed by President Álvaro Uribe, would have made Colombia the first nation in Latin America to grant gay couples in long-term relationships the same rights to health insurance, inheritance and social security as heterosexual couples. However, with the rulings of the Constitutional Court same-sex couples today enjoy the same rights that this failed bill would have given them. In July 2011, Constitutional Court rules in a historic decision, that same-sex couples have the right to marry in Colombia. The Colombian Congress must create an equivalent of marriage for gay couples by 20 June 2013, or else couples will automatically gain the right to go to any judge or notary public to formalise their union, according to the ruling.[10] As the Colombia Congress failed to pass a same-sex marriage bill, the courts instead began approving marriages themselves.[11] The same-sex marriage issue will now once again come before the Constitutional Court in 2015 after the country's Inspector General requested that the Court invalidate all the marriages approved in Colombia.[12] A hearing was scheduled for 7 May 2015.[13] The hearing was ultimately delayed as some judges were not present and a new hearing open to the public will be held some time in 2015.

In April 2015, it was announced that once Congress reconvenes, deliberation would begin on a same-sex civil union and adoption bill submitted by Senator Armando Benedetti.[14]

In February 11, 2016 the Constitutional Court will take a final decision on same sex unions.

Antidiscrimination Law[edit]

In 2011 Congress passed a bill that penalises discrimination based on Sexual Orientation. The law established imprisonment for 1 to 3 years and economic fines for people who discriminate against different groups including the LGBT community.[15][16]

The law also states that penalties are increased when discrimination is executed in a public space, when is carried out through mass media, if the act is carried out by a public official, when acts based on discrimination deprive someones of their labor rights or in the provision of a public service. The penalty is reduced if the person who committed the act of discrimination apologizes publicly.[17]

Prohibited discrimination in schools[edit]

In August 2014, a student called Sergio Urrego committed suicide because he had suffered the discrimination by the authorities of the school where he studied. The mother filed a lawsuit that after several appeals finally reached the Constitutional Court. The court ruled in favor of the family of Urrego, stating that the rights to dignity, education, equality, non-discrimination, the free development of personality, privacy and due process, justice, reparation and good name were violated . The court also ordered the school a public act of forgiveness and also ordered the Ministry of Education that within a year should review the " manuals of coexistence " (rules governing relationships between students themselves and others members of the educational community) of all schools in the country so that they do not contain articles that discriminate against children because of their sexual orientation or gender identity. With this decision colleges across the country can not discriminate against students because of their sexual orientation.[18]

Right to express affection in public[edit]

The Constitutional Court of Colombia have been issuing statements that protect the right of homosexuals to express themselves in public, including the right to express affection or love for their partners. In 1994 the Court disapproved the National Council of Television for refusing to show a commercial which featured a gay couple. This statement was followed by others as the T-268 of 2000, where the Court disapproved the mayor of Neiva for preventing a gay parade; the T-301 of 2004, which ordered the Santa Marta police to stop harassing homosexuals who visited the boardwalk of the city; the T-314 of 2011, which analyzed the Tequendama Hotel refusal to allow access to some homosexuals to two events that were held in its facilities. In that ruling the Court urged to Government to create a national policy that takes into account the LGBTI community.

The T-909 sentence of 2011 ordered guardianship officials of Cosmocentro mall in Cali and its security firm to conduct a course to learn not to repress homosexuals to express their affection in public.[19]

Military Service[edit]

Since 1999, the Court established that gays can serve in the military and that sexual orientation should not be a reason to prevent someone from entering the military. Judgment C-507 of 1999 declared unconstitutional the military rule prohibiting the making of "homosexual acts".[19]

Gender identity[edit]

On 4 June 2015, the government issued a decree to simplify the process by which individuals can legally change their gender. The decree, which was signed by the Ministry of Justice and the Ministry of the Interior eliminated the need for psychiatric or physical examinations to prove an individual’s gender identity.[20][21]

Since 2015, one can serve openly within the Colombian military, regardless of one's gender identity.

Adoption[edit]

In 2011 the Constitutional Court recognised homosexual couples as a family. In May 2012, the Constitutional Court supports the adoption of two children to the American Chandler Burr, who was about to lose custody because the ICBF (the institution responsible for carrying out the procedures of adoption) considered that he was hiding his sexual orientation. Since then the ICBF can not ask which is the sexual orientation of a person when he or she wishes to adopt individually. From 2014, LGBT individuals can adopt the biological child of their partner. On 4 November 2015, the Constitutional Court ruled 6-2 in favour of full same-sex adoption rights, the court instructing adoption agencies not to discriminate against gay men and lesbian women when providing adoption services.[22] Opponents of the ruling said they would appeal.[23]

Legal registration of children of same-sex couples[edit]

On November 12, 2015 Constitutional Court ruled that gay couples must be allowed to register newborn children in both parents' names, with birth certificates listing two mothers or two fathers.In a five-to-two decision, the court gave the national civil registry 30 days to change its forms so that children can be registered to same-sex couples.The case was brought by two gay men who were unable to register their newborn twins.Local media reports said the babies were born in the United States to a surrogate mother. They reportedly received US citizenship and documents but could not be registered in Colombia. With this decision the court recognizes that same-sex couples may be biological parents of childrens if procreation is taken for artificial insemination processes.This decision will also have effect for adopted children of same sex couples.[24]

Blood Donation[edit]

In 2012 the Constitutional Court found that the sexual orientation of the people can not be a criterion for preventing blood donation, for this purpose the Court ordered the Ministry of Health and Social Protection to change the current regulations which established that persons with homosexual orientation could not donate blood because they believed that they had a high risk of carrying HIV. The Court ordered the Ministry of Health that regulation on the donation must be addressed to verify and identify high or low levels of risk according to the sexual behavior of the person and that sexual orientation is not in itself a de facto risk but is a discriminatory act.[25]

Gay life in Colombia today[edit]

Main article: LGBT in Colombia

According to a report in the Washington Post, "Bogota and Medellin has a thriving gay neighbourhood, bars whose patrons are openly gay and a centre that provides counselling and legal advice to members of the gay community. Local politicians, amongst them Mayor Luis Eduardo Garzón and prominent members of Congress such as Senator Armando Benedetti, have supported the drive to give more rights to gay couples.

Summary table[edit]

Same-sex sexual activity legal Yes (Since 1981)
Equal age of consent Yes (14)
Anti-discrimination laws in employment only Yes (Since 1999)
Anti-discrimination laws in the provision of goods and services Yes (Since 2007-2008)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) Yes (Since 2011)
Right to express affection in public Yes (Protected by Constitutional Court Ruling)
Same-sex marriages No(Pending Constitutional Court ruling)
Recognition of same-sex couples Yes (Since 2007)
Commercial surrogacy for gay male couples No
Access to IVF for lesbians No
Adoption by single LGBT person Yes (Since 2012)
Step-child adoption by same-sex couples Yes (Since 2014)
Joint adoption by same-sex couples Yes (Since 2015)
Legal Recognition of children of same-sex couples Yes (Since 2015)
LGB allowed to serve openly in the military Yes (Since 1999)
Transgender can serve openly within the Colombian military Yes (Since 2015)
"Third gender" on birth certificates Yes (Since 2015)
Right to Identity Yes (Since 1993)
Right to change legal gender without psychiatric or physical evaluations Yes (Since 2015)
MSMs allowed to donate blood Yes (Since 2012)

See also[edit]

References[edit]

  1. ^ a b Ordóñez, Juan Pablo; Richard Elliott (1996). ""Cleaning up the Streets": Human Rights Violations in Colombia and Honduras". International Lesbian and Gay Association. Archived from the original on 24 June 2004. Retrieved 13 November 2009. 
  2. ^ (Spanish) Interpol report on legal age in Colombia (note that this report in Spanish seems to show the age of consent for females is 12, which contradicts other sources noted in this article).
  3. ^ a b "Colombia Country Assessment" (PDF). Country Information and Policy Unit, Immigration and Nationality Directorate, Home Office (United Kingdom). Retrieved 1 August 2007.  Cite error: Invalid <ref> tag; name "colombia042002" defined multiple times with different content (see the help page).
  4. ^ a b "World Legal Survey: Colombia". International Lesbian and Gay Association. 31 July 2000. Archived from the original on 29 June 2007. Retrieved 13 November 2009. 
  5. ^ (Spanish)EL TIEMPO - Corte da primer derecho a parejas gays
  6. ^ "Rights for Colombia gay couples". BBC News. 8 February 2007. Retrieved 30 July 2007. .
  7. ^ Boston.com Colombia court backs rights for gay couples
  8. ^ "Colombia Gives Gay Couples Same Rights As Marriage". 365Gay.com. 15 June 2007. Archived from the original on 18 June 2007. Retrieved 13 November 2009. 
  9. ^ "Colombia Gay Unions Bill Dies". 365Gay.com. 20 June 2007. Archived from the original on 26 June 2007. Retrieved 13 November 2009. 
  10. ^ Advocate:Colombian Court Rules for Marriage Equality
  11. ^ http://www.buzzfeed.com/lesterfeder/first-same-sex-couple-wins-marriage-suit-in-colomb-9a7s
  12. ^ El ‘viacrucis’ del matrimonio gay
  13. ^ Corte Constitucional iniciará discusión que anula matrimonios de parejas del mismo sexo
  14. ^ [1]
  15. ^ "Este miércoles el presidente Santos sanciona ley antidiscriminación". ElTiempo.com (in Spanish). 29 November 2011. Retrieved 30 September 2010. 
  16. ^ Colombian President Signs Anti-Discrimination Law
  17. ^ http://wsp.presidencia.gov.co/Normativa/Leyes/Documents/ley148230112011.pdf
  18. ^ http://www.eltiempo.com/politica/justicia/caso-sergio-urrego-corte-constitucional-fallo-a-favor-de-la-familia/16267834
  19. ^ a b [2]
  20. ^ These Ten Trans People Just Got Their First IDs Under Colombia’s New Gender Rules
  21. ^ Colombia Allows Transgender Community To Change Sex On IDs Without Physical Exams
  22. ^ Colombia lifts same-sex adoption limits
  23. ^ Adopción gay en Colombia fue aprobada
  24. ^ [3]
  25. ^ [4]

External links[edit]