LGBT rights in Colombia

LGBT rights in 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	Same-sex marriage since 2016
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 regard to 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] On 28 April 2016, the Constitutional Court legalized same-sex marriage.

Constitution and law

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".

Law reforms in the 1990s equalized the age of consent in Colombia at 14 for both homosexual and heterosexual sex.^[1][2] In 1998, 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.^[3] 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."^[3]

Recognition of same-sex relationships

On 7 February 2007, the Colombian Constitutional Court extended common-law marriage property and inheritance rights to same-sex couples,^[4][5] 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 Congress. On 19 June 2007, a gay rights bill, treating unregistered same-sex partners the same as unregistered opposite-sex partners, was defeated in Congress.^[6] 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.^[7][8]

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 same-sex 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 same-sex 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.^[9] As the Colombia Congress failed to pass a same-sex marriage bill, the courts instead began approving marriages themselves.^[10] The same-sex marriage issue once again came before the Constitutional Court in 2015 after the country's Inspector General requested that the Court invalidate all the marriages approved in Colombia.^[11] A hearing took place in July 2015.^[12]

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.^[13]

In March 2016, the first same-sex marriage conducted abroad was registered in Colombia and the National Registry issued a memo to all notaries and registrars ordering them to register same-sex marriages performed outside the country. Same-sex couples married abroad will be entitled to the same visa, healthcare benefits, inheritance and pension rights as heterosexual spouses once they take a stamped marriage certificate and identification papers to the nearest designated office.^[14]

On 7 April 2016, the Constitutional Court voted 6–3 against a proposal which said that marriage applies only to one man and one woman.^[15][16] A second ruling legalizing same-sex marriage was voted on April 28 with 6–3 of the Court magistrates in favour. The ruling effectively grants same-sex couples the right to marry as it orders all judges and notaries to grant the couples marriage licenses.^[17]

The first same-sex wedding in the country happened in Cali on 24 May 2016.^[18]

Discrimination protections

In 2011, Congress passed a bill that penalises discrimination based on sexual orientation. The law established imprisonment for one to three years and economic fines for people who discriminate against different groups including the LGBT community.^[19][20]

The law also states that penalties are increased when discrimination is executed in a public space, when it is carried out through mass media, if the act is carried out by a public official, when acts based on discrimination deprives someone of their labour rights or in the provision of a public service. The penalty is reduced if the person who committed the act of discrimination apologizes publicly.^[21]

Discrimination in schools

In August 2014, a student called Sergio Urrego committed suicide because he had suffered 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 favour of Urrego's family, 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 to make a public act of forgiveness and ordered the Ministry of Education that within a year it 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 cannot discriminate against students because of their sexual orientation.^[22]

Government decree

The Colombian Ministry of Interior will release in the spring of 2016 a presidential decree that will provide a broad policy of procedural obligations for government institutions and territorial entities regarding LGBTI rights. The document calls for creating an Intersectional Commission for the Guarantee of Rights of the LGBTI Community. The decree specifically addresses rights for LGBTI Colombians in public education, health care, prisons and as victims of armed conflict. The text clarifies that “national entities may not refuse to recognize that a same-sex couple can constitute a family, and in consequence, can enjoy the constitutional protections and equality of opportunities afforded other families.^[23]

Right to express affection in public

The Constitutional Court of Colombia has issued 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's refusing to show a commercial which featured a same-sex couple. This statement was followed by others as the T-268 of 2000, where the Court disapproved of 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's refusal to allow access to some homosexuals to two events that were held in its facilities. In that ruling the Court urged the 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 when they express their affection in public.^[24]

Military service

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".^[24]

Gender identity

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.^[25][26]

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

Adoption rights

In 2011, the Constitutional Court recognised same-sex couples as a family. In May 2012, the Constitutional Court issued a ruling in favour of 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 cannot ask the sexual orientation of a person when they wish 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.^[27] Opponents of the ruling said they would appeal.^[28] On 31 March 2016, a campaign wanting to force a referendum on adoption rights for same-sex couples had gathered 1.8 million signatures, including 45 members of Congress. The campaign aims to repeal the ruling the Constitutional Court issued in November 2015 which allowed adoption of children by same-sex couples. However the signatures must first be accepted by Colombia’s Registrar then the proposal will go to Congress where it must be debated and passed by a majority in both its chambers, twice. Finally the proposal must also be approved by the Constitutional Court, the very court who’s authority it seeks to challenge.^[29]

Legal registration of children

On 12 November 2015, the Constitutional Court ruled that same-sex couples must be allowed to register newborn children in both parents' names, with birth certificates listing two mothers or two fathers. In a 5-2 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 children's if procreation is taken for artificial insemination processes. This decision will also have effect for adopted children of same-sex couples.^[30]

Blood donation

In 2012, the Constitutional Court found that one's sexual orientation cannot 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.^[31]

Gay life in Colombia today

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 LGBT community. Local politicians, among them Mayor Luis Eduardo Garzón and prominent members of Congress such as Senator Armando Benedetti, have supported the drive to give more rights to same-sex couples. Current President Juan Manuel Santos and his Government has shown support of LGBT Rights, having two openly gay ministers. Also the mainstream media has a comprehensive coverage about the LGBT community. In the last two years the television in the country has soap operas with gay characters, specially a gay love scene in the prime time soap opera Dr Mata and a Lesbian scene in the series A Corazon Abierto. Despite support from the media, the Government, several politicians, change in laws giving equal rights to homosexuals and transgender people and a more open debate about LGBT rights, Colombian society is still conservative about this issue. A recent poll has shown support for same-sex marriage at 40% and 57% opposed ^[32]

Still, socially, more and more people are comfortable openly-identifying as LGBT, as demonstrated by the emergence of new public-facing online publications like OutinColombia.com and egoCity Magazine.

Summary table

Same-sex sexual activity legal	(Since 1981)
Equal age of consent	(14)
Anti-discrimination laws in employment only	(Since 1999)
Anti-discrimination laws in the provision of goods and services	(Since 2007-2008)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech)	(Since 2011)
Right to express affection in public	(Protected by Constitutional Court Ruling)
Same-sex marriages	(Since 2016)
Recognition of same-sex couples	(Since 2007)
Recognition of same-sex marriage from abroad	(Since 2016)
Step-child adoption by same-sex couples	(Since 2014)
Joint adoption by same-sex couples	(Since 2015)
Adoption by single LGBT person	(Since 2012)
Legal recognition of children of same-sex couples	(Since 2015)
Commercial surrogacy for gay male couples
Access to IVF for lesbians
LGB allowed to serve openly in the military	(Since 1999)
Transgender can serve openly within the Colombian military	(Since 2015)
"Neutral" or blank space in Gender on birth certificates	(Since 2015)
Right to identity	(Since 1993)
Right to change legal gender without psychiatric or physical evaluations	(Since 2015)
MSMs allowed to donate blood	(Since 2012)

See also

• LGBT rights in the Americas

References

External links

• (Spanish) Colombia Diversa
• (Spanish) LGBT Uniandino
• (Spanish) Partido Socialista Español (PSOE) - Apoyos Politicos a la causa gay lesbica en Colombia (Spanish Socialist Party news article on political supporters of gay and lesbian rights in Colombia)