Procedural Posture

More than a thousand private citizens, many of them members of LGBT or human rights organisations, brought a public action challenging the constitutionality of the law criminalising same-sex sexual conduct.

Facts

Shortly before the public action was brought, more than one hundred homosexuals were arrested in the city of Cuenca. This episode triggered denunciations and protests that created a favourable environment for challenging the criminal law.

Issue

Whether the criminalisation of same-sex sexual conduct violated the constitutional rights to equality before the law and to freedom of conscience and religion.

Domestic Law

Constitution of Ecuador, Article 22 (individual rights), Paragraphs 6 (equality before the law) and 7 (freedom of conscience and religion), Article 32 (State’s duty to protect the family), and Article 36 (protection of minors).

Criminal Code, Article 516 (1) (providing that consensual same-sex sexual conduct was punishable by a term of 4 to 8 years imprisonment).

Reasoning of the Court

The plaintiffs argued that the criminal law violated rights to equality before the law and to freedom of conscience protected under the Constitution of Ecuador. They requested that the challenged provision be declared discriminatory and thus unconstitutional.

The plaintiffs maintained that homosexuality was neither a crime nor an illness. In support they cited the position of the American Psychological Association and the World Health Organization, as well as legislation decriminalising same-sex sexual conduct or prohibiting discrimination based on sexual orientation adopted in several countries around the world. They argued, furthermore, that the criminalisation of same-sex conduct was degrading to lesbian and gay individuals.

The Government responded that the body competent to deal with decriminalisation was the legislature, not the Constitutional Tribunal. The Government agreed that same-sex sexual conduct should be decriminalised but only because the challenged provision was hardly ever enforced.

The Court adopted a medical theory that described homosexuality as a dysfunction of the endocrine system and on these grounds considered it appropriate to treat homosexuality medically rather than by penal sanction. Criminalisation and imprisonment would be ineffective.

The Court did not approve of homosexuality. It stated that, although homosexuality should not be legally sanctionable, neither should it be considered socially commendable. Homosexuals were entitled to enjoy all human rights in full equality provided that the “exteriorization of their conduct did not infringe on the rights of others”.

The Court declared unconstitutional the first paragraph of Article 516.

Postscript

The year after this decision was adopted the Constitution of Ecuador was amended and several new fundamental rights were included in the text including the right to make free, informed, voluntary and responsible decisions concerning one’s sexuality, life and sexual orientation; and the right to free personal development. Discrimination on grounds of sexual orientation was prohibited.

Case No. 111-97-TC, Constitutional Tribunal of Ecuador (full text of judgment, PDF)