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Colombia: legal uncertainty over gay rights


Same-sex couples in Colombia continue to face systematic institutional discrimination despite considerable legislative protection.

The on-going controversy surrounding lesbian, gay, bisexual and transgender (LGBT) family rights highlights an environment of heterosexism and machismo culture – a common problem in Latin America as a whole, and a core obstacle to the goal of full equality before the law.colombia gay demo

It is estimated that 8 per cent of the Colombian population identify as LGBT. The protection of minority groups derives from Article 13 of the Colombian Constitution of 1991, which stipulates 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.’

In 1980, Colombia was among the first countries in the region to decriminalise consensual homosexual activity. The extent of legal protection for LGBT Colombians puts the Andean nation on the map as one of the most advanced societies in Latin America.

With regards to education, Colombia’s Constitutional Court has ruled that sexual orientation does not justify the firing of state school teachers, nor are private schools allowed to refuse homosexual students on the grounds of religious belief. Similarly, a unanimous decision by the Court in 1999 established that LGBT individuals could not be banned from joining the armed forces. Between 2007 and 2008, the Constitutional Court officially granted the same pension, social security, health security and property rights to registered homosexual and heterosexual couples. Discrimination on the basis of sexual orientation was further banned in 2011 and is now punished with imprisonment between one to three years or monetary fines. 

Same-sex marriage lottery

The issue of same-sex marriage and equal adoption rights, however, contradicts the positive trend in the country. Whereas Argentina and Uruguay lead the progressive front, having legalised both equality indicators, Colombia clings on to its traditionally conservative value system.

Opponents of the gay rights movement include not only the Catholic Church, but also conservative lawmakers and the country’s inspector general, who all reject modern definitions of a ‘family’ that do not conform to their traditional understanding. 

The main argument of these powerful groups is that family rights should only be granted to those unions formed by a man and a woman – any deviation from this norm is considered a ‘sin’. As a result of the prevalence of such attitudes, Colombians face considerable ambiguity concerning same-sex marriage and adoption.

In 2011, the Constitutional Court ruled that LGBT couples should be given the right to marry despite significant opposition from the Colombian Congress, and ordered lawmakers to create a ‘solemn contract’. By 2013 the deadline for a marriage equality bill had passed, with no regulation having been formalised. This discrepancy leaves the final decision to grant or withhold a marriage license to the discretion of local judges and notaries.

In 2014, Colombia’s president Juan Manuel Santos officially pledged his support for same-sex marriage saying that: ‘Marriage between homosexuals to me is perfectly acceptable and what is more, I defend unions that exist between two people of the same sex with the rights and all of the same privileges that this union should receive.” 

Nonetheless, marriage equality remains elusive in the country and is not yet respected by all state actors. According to most recent figures from the LGBT organisation Colombia Diversa only 30 same-sex couples have been married to date.

Colombia gay pride marchThe head of the organisation, Mauricio Albarracin, explained the low numbers by stating that: “While we have laws on gay rights, they aren’t always clear, and there are sectors of our society that refuse to accept them.”

The current Attorney General, Dr. Alejandro Ordoñez Maldonado, opposes the advancement of gay rights and has announced an appeal to the Constitutional Court this year to have all approved same-sex marriages annulled. Ordoñez Maldonado’s effort is no surprise given his well-known atttitude towards recognising the existence of same-sex families, including the right to adopt. In his own words, Ordoñez Maldonado has stated that same-sex adoptions should not be legalised because LGBT couples ‘are not naturally open to the conservation of the human species’.

Colombia Diversa has expressed deep concern following these statements, warning that ‘the person who is expected to protect human rights does not consider sexual and reproductive rights as such.’

Adoption rights restricted

Given the current political context, the realisation of full adoption rights appears to be utopian in the foreseeable future. On 19 February 2015, Colombia opted for the ‘middle ground’ and gave partial adoption rights to same-sex couples, meaning if one partner is a biological parent the other is permitted to legally adopt the child. However, even the official procedures concerning this basic right are deeply flawed and legal requests are systematically denied.

Colombia Diversa protests that state actors’ bias in the matter ‘results in differential, unjustified and unreasonable treatment of the child as compared with children who have grown up in heterosexual families.’ LGBT-friendly lawmakers are set to challenge this latest ruling. ‘We’ll take the fight again to the Constitutional Court,’ Albarracin said. ‘Our main argument is that our rights, as enshrined in Colombia’s 1991 constitution, are being violated. The current laws discriminate against same-sex couples and violate their human dignity.’

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