Procedural Posture
Constitutional challenge to the disciplinary regulations of the Colombian Army.
Issue
Whether it was lawful to discipline soldiers on active duty on the grounds that they lived in concubinage or adultery, associated with “anti-social” elements such as homosexuals or prostitutes, or practiced homosexuality or prostitution.
Domestic Law
Constitution of Colombia, Article 1 (respect for human dignity), Article 7 (recognition of cultural diversity), Article 13 (equality before the law and non-discrimination), Article 15 (right to privacy), and Article 16 (right to free development of personality).
Decree 85 of 1989, Article 184, Paragraphs (b), (c) and (d).
Sentencia C-481/98, Constitutional Court of Colombia, 1998.
Sentencia T-539/94, Constitutional Court of Colombia, 1994 (affirming that homosexuals cannot be discriminated against just because their sexual conduct is not that which the majority of the population has adopted).
International Law
International Covenant on Civil and Political Rights, Article 2 (non-discrimination), Article 17 (protection of privacy), and Article 26 (equality and equal protection).
Reasoning of the Court
The plaintiff argued that the challenged provision (Decree 85 of 1989, Article 184) amounted to discrimination on the basis of sexual orientation and therefore violated the Constitution of Colombia as well as human rights treaties to which Colombia was a party.
The Ministry of Defence and the Ministry of the Interior intervened in the proceedings to defend the provision. They argued that the conduct of the Army had to be impeccable and therefore its disciplinary regime could deal with the realm of ethics.
The Prosecutor General also intervened, arguing that the expression “homosexuals and prostitutes” in paragraph (c) had to be struck out because neither constituted anti-social conduct. According to the Prosecutor, such activities did not cause any damage to society nor did they violate the rights of others. Moreover, paragraph (d) had to be struck out as well because the sanction imposed on “carrying out homosexual acts” violated the right to privacy and the right to free development of one’s personality.
The Court first dealt with the prohibition of living together outside of marriage and it found that this provision violated Article 42 of the Constitution, explicitly recognising de facto unions.
Considering the other challenged provisions, the Court noted that the conduct prohibited under the military disciplinary code had often been linked to behaviour that was subject to prejudice and social censorship. However, a characteristic of the Constitution was that it allowed a broad margin for the defence and protection of personal autonomy. According to the Court, the Constitutional Assembly had decided to protect personal freedom as a fundamental right, and therefore emphasised the liberal principle of institutional non-interference in private issues that do not threaten social coexistence. Within the recognition of the right to free development of one’s personality, the Constitution protected the individual’s right to self-determination. The sole limit on this right was that its exercise should respect the constitutional order and the rights of others.
Furthermore, the Court noted that sexuality is inherent to being human and associated with a person’s most intimate experience of himself or herself. The constitutional protection of the individual, represented by the right to personal development and the right to privacy, must necessarily include sexual orientation. According to the Court, since no public interest or social danger was engaged, neither the State nor society were entitled to interfere with the development of an individual’s sexual identity. In a democratic society the right to sexual self-determination could not be the result of a legal restriction mandating that everyone should have the sexual orientation that was most deeply or commonly expressed in traditional mores.
In support of its position, the Court cited the ICCPR and the jurisprudence of the Human Rights Committee on sexual orientation based discrimination, which established that the word “sex”, among the prohibited grounds of discrimination, also covered sexual orientation. It also cited its own jurisprudence, which recognised that homosexuality is a legitimate sexual orientation and affirmed that discrimination on the basis of sexual orientation was prohibited (Sentencia T-539/94).
The Court next considered the consequences of including homosexual acts in the list of offences against military honour. It noted that this stigmatised homosexuals and condemned private acts that, if carried out in a responsible way and in private, did not interfere with being a member of the military. According to the Court, the stigma was caused by the fact that only homosexual conduct was considered to be an offence against honour. As for the intrusion into privacy, the Court noted that the wording of paragraph (d) included every homosexual act, even if carried out in private, and therefore condemned homosexuality itself. Citing its Sentencia C-481/98, the Court then reaffirmed that every provision of law tending to stigmatise a person on the basis of his or her sexual orientation was contrary to the Constitution and therefore explicitly rejected by the Court.
The Court affirmed that an individual participating in community life, including in the military, did not renounce to his or her right to a private life. Nevertheless, this protection of private life did not cover sexual acts (whether homosexual or heterosexual) carried out in public or while on duty or within military premises.
The Court declared unconstitutional the paragraph of the challenged provision concerning concubinage and adultery as well as the paragraph categorising homosexuals and prostitutes as “anti-social”. It read down the remaining challenged paragraph (“carry out homosexual acts”), limiting its application to sexual acts (whether committed by homosexuals or heterosexuals) carried out in public or on duty or within military premises.
Sentencia C-507-99, Constitutional Court of Colombia – Spanish (full text of judgment in Spanish, PDF)