Sentencia C-029/09, Constitutional Court of Colombia (28 January 2009)
Colombia Diversa, Dejusticia, and the Group for Public Interest Rights from the University of the Andes filed a public action challenging the constitutionality of various laws concerning partnership and marriage benefits. The Constitutional Court had previously found that discrimination based on sexual orientation was prohibited by the Constitution. In these laws, however, benefits were only granted to opposite-sex civil partners.
Whether, in the texts of the challenged provisions, the use of the gendered words for “partner” (compañera y compañero), the terms “a man and a woman”, or “spouse” (which under Colombian law was limited to opposite-sex partners), discriminated against same-sex couples.
The complaint challenged many different laws concerning civil partnership benefits.
Sentencia C-075/07, Constitutional Court of Colombia, 2007 (extending marital property protections already provided to heterosexual civil unions to same-sex unions and finding that the lack of protection of same-sex couples with regard to joint property violated the right to free personal development and constituted prohibited discrimination).
Sentencia C-811/07, Constitutional Court of Colombia, 2007 (extending social security and health benefits to same-sex civil unions).
Sentencia T-856/07, Constitutional Court of Colombia, 2007 (concluding that the refusal to extend health benefits to a same-sex partner was discriminatory).
Sentencia C-336/08, Constitutional Court of Colombia, 2008 (extending pension benefits to same-sex civil unions).
Reasoning of the Court
The Court distinguished between a difference in treatment based solely on sexual orientation, which was prohibited under the Constitution, and disparate treatment that was based on actual and substantial differences between same-sex and opposite-sex couples. The Court noted that, where clear differences existed between heterosexual and homosexual couples, no constitutional duty required their equal treatment. A valid claim of discrimination could be made only where the relationship of a same-sex couple was substantially similar to the relationship of an opposite-sex couple. On this ground, the Court dismissed the plaintiffs’ request that it should apply to all the challenged laws the assumption that any difference in treatment between same-sex and opposite-sex couples was discriminatory and therefore unconstitutional. Due to the number and breadth of the different laws at issue, a constitutional test of proportionality had to be applied to each one.
The Court distinguished between rights and benefits that protected and promoted families and those that protected and promoted civil partnerships. (The latter term referred to the legal protection of two people in a relationship and not to parent-child units.) Only rights and benefits provided to opposite-sex civil partnerships should be extended to same-sex couples. Denying same-sex couples the protections afforded to family units was not inherently discriminatory.
However, the Court held that people in civil unions, whether heterosexual or homosexual, were entitled to a minimum level of protection, without which their rights to human dignity and free personal development would be compromised. The Court therefore analysed when different treatment for same-sex civil unions might be justified, and determined that, to establish if differences of treatment were discriminatory, it was necessary to analyse whether the disparate treatment in question had a constitutionally permissible purpose, was adequate to achieve that purpose, and finally was proportional to the purpose.
Using this analysis, the Court held that the following rights should be extended to same-sex civil unions: marital civil rights, immigration benefits, testimonial privilege, guardianship and conservatorship, civil protections for partners in cases of disappearances or kidnappings, health care, retirement and pension benefits for partners of law enforcement officers, all family subsidies that had previously been extended only to opposite-sex civil partners, and all housing allowances that had previously been extended only to opposite-sex civil partners.
The Court also concluded that gender-specific terms in the challenged laws should be replaced by gender-neutral terms.
Sentencia C-029-09, Constitutional Court of Colombia – Spanish (full text of judgment in Spanish, PDF)