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Sentencia C-481/98, Constitutional Court of Colombia (9 September 1998)

Procedural Posture

Germán Humberto Rincón Perfetti filed a petition for judicial review of Article 46 of Decree 2277 of 1979 (Standards for the Exercise of the Teaching Profession). The Constitutional Court granted the petition and decided the issue after holding a public hearing and requesting opinions from experts and persons directly involved in the matter.


Whether Article 46 of Decree 2277 categorising homosexuality as a ground of misconduct in the teaching profession violated the right to privacy, the right to free personal development, the right to work, and the right to equality under the Constitution of Colombia.

Domestic Law

Constitution of Colombia, Article 13 (equal protection), Article 15 (right to privacy), Article 16 (right to free development of personality), Article 26 (right to work), and Article 26 (right to chose one’s profession).

Decree 2277 of 1979 (Standards for the Exercise of the Teaching Profession), Article 46 (“homosexuality or the practice of sexual aberrations” amounts to grounds of misconduct in the teaching profession).

Sentencia T-477/95, Constitutional Court of Colombia, 1995 (holding that one of the fundamental aspects of a person’s individual identity is sexual identity).

The Court also referred to its earlier decisions about homosexuality for the propositions that homosexuality in itself could not be condemned and homosexual conduct could only be sanctioned if it violated the rights of others or produced social harms.

International Law

Dudgeon v. United Kingdom, ECtHR, 1981 (finding that the sodomy laws of Northern Ireland violated the right to privacy under the European Convention).

Modinos v. Cyprus, ECtHR, 1993 (finding that the sodomy laws of Cyprus violated the right to privacy under the European Convention).

Norris v. Ireland, ECtHR, 1988 (finding that the sodomy laws of Ireland violated the right to privacy under the European Convention).

Toonen v. Australia, United Nations Human Rights Committee, 1994 (finding that the sodomy laws of Tasmania violated the rights to privacy and non-discrimination under the ICCPR).

Reasoning of the Court

According to the petitioner and some of the interveners, Article 46 provided for the adoption of sanctions against a teacher for the mere fact of being gay. This, they argued, constituted discrimination on the basis of sexual orientation and violated rights protected by the Constitution.

Opposing interveners considered that Article 46 was consistent with the Constitution. Some restriction of the rights of homosexual persons was justified to protect the rights of minors, including denying them access to the teaching profession.

Lastly, some interveners argued that limiting the law’s application to public homosexual conduct would resolve the issue, removing any need to declare the regulation unconstitutional.

The Court started by examining the legal and scientific debate about homosexuality and its causes. It recalled that homosexuals had long been discriminated against on the basis of misconceptions that they were abnormal, sick or immoral. However, the American Psychiatric Association removed homosexuality from its list of mental disorders in 1973 and the World Health Organization did the same in 1993. Clearly, homosexuality could no longer be considered a sickness.

The Court assessed the constitutionality of the contested regulation in terms of two different theories of homosexuality: as biologically determined, or a product of free will.

According to the Court, if homosexuality were considered to be biologically determined, every difference in treatment based on sexual orientation would amount to unacceptable discrimination, since it would be a distinction based on a feature that the individual did not choose. Discrimination based on sexual orientation would therefore violate the equality principle, protected by Article 13 of the Constitution. This situation appeared even more intolerable to the Court because differential treatment based on sexual orientation rarely served a constitutionally relevant aim, since sexual orientation was not linked to the capacities required for carrying out a task.

The Court also dealt with the “suspect classification” theory, originally elaborated by the United States Supreme Court. It provided criteria for assessing whether a ground for different treatment was “suspect” and should be considered potentially discriminatory. The Court identified the following criteria for potentially discriminatory forms of classification: classification on the basis of permanent personal characteristics that an individual cannot choose to change; classification on the basis of characteristics that historically were subject to social or cultural prejudice; and classification on the basis of characteristics that had no relevance to the rational distribution of rights or assignments.

If homosexuality was biologically determined, a difference in treatment based on sexual orientation should be prohibited.

If homosexuality was freely chosen, the Court considered the right to privacy and the right to free development of personality under Articles 15 and 16 of the Constitution.

The Court emphasised that Article 16 of the Constitution did not provide for acceptable and unacceptable models of the development of personality. The only limiting conditions were not to affect the rights of others and not to infringe the constitutional order. The Court stated that sexual identity was a fundamental element of life. Moreover, an individual’s sexual orientation pertained to the sphere of his or her individual autonomy, allowing for the adoption, without external coercion, of any sexual orientation that did not violate the constitutional order. In the words of the Court:

Sexuality, besides involving the most intimate and personal sphere of an individual (Colombian Constitution, Art. 15), pertains to the field of his or her fundamental freedom, and in those [domains] the State and the community cannot intervene, since no relevant public interest is at stake, nor is any social harm caused.

Therefore, any restriction in obtaining a teaching position based on an individual’s sexual orientation would violate his or her right to free development of personality and would undermine the value of pluralism, which was protected by Article 1 of the Constitution.

According to the Court, regardless of which theory was used, the same conclusion would be reached. Every differential treatment based on an individual’s sexual orientation was to be presumed unconstitutional and thus subject to strict scrutiny. The measure adopted must not only be grounded in a legitimate aim but must meet a pressing social need in order to satisfy the standards of strict scrutiny. Differential treatment not only had to be adequate in order to achieve that aim but also strictly necessary, that is, there must be no alternative measure available; and different treatment must meet a pressing and significant social need without affecting the group concerned by the measure disproportionately.

With regard to the aim pursued by the contested provision, the interveners argued that it protected children against possible abuses and the risk of “improper influence” on children. The Court did not accept the first part of this argument, on the ground that homosexuals have no predisposition to child abuse. It also disagreed with its second part, arguing that the development of an individual’s sexual orientation was a complex phenomenon, and the presence of a homosexual teacher could not be considered sufficient to “cause” changes to occur in the sexual orientation of his or her students. Otherwise, it would not be possible to explain the existence of homosexual children with heterosexual parents.

The Court also dismissed the Attorney General’s suggestion that Article 46 might not be declared unconstitutional if its application were limited to cases of public homosexual conduct. In the Court’s opinion, this would protect the privacy of gay individuals (at least to some extent) but would fail to address prejudice and discrimination. Moreover, the provision would remain discriminatory because it did not impose similar constraints on heterosexual individuals.

For these reasons, the Court deemed it necessary to exclude from the law a provision which was openly incompatible with the principles and values set forth in the Constitution, derived from old prejudices, and hindered the development of a pluralist and tolerant democracy. The Court declared the regulation unenforceable.

Sentencia C-481 98, Constitutional Court of Colombia (full text of judgment, PDF)