Rights to the same-sex couples

Colombian Constitutional Court

Decision C-029 of 2009

January 28th, 2009

Civil unions under one name or another (civil partnership, domestic partnerships or registered partnerships) have been established by law in many developed countries in order to provide same-sex couples rights, benefits, and responsibilities similar to opposite-sex civil marriage. In 2009, the Constitutional Court ruled that same-sex couples must be extended all of the rights offered to cohabitating heterosexual couples. Couples can claim these rights after living together for two years and by registering their partnership.

The Constitutional Court repeated its jurisprudential line according to which:

(i) the Constitution has outlawed all forms of discrimination based on sexual orientation; (ii) there are clear differences between homosexual and heterosexual couples and therefore there is no constitutional requirement to give them equal treatment; (iii) the Congress has the responsibility to define the necessary measures to address the protection and care of different social groups and of those who are in marginal situations; (iv) any difference in treatment is constitutionally permissible only if it obeys the principle of sufficient reason. Therefore, in each case, one must examine if the situation between heterosexual and homosexual couples is equivalent, and then come to define whether the different treatment provided by a specific rule is discriminatory or not.

According to previous decisions, the Court found that all of the legal regulations[1] -subject of this lawsuit- involved discrimination toward same-sex couples, concerning its life in common, mutual assistance and solidarity among its members. Regardless of it is a same-sex couple or not, their members enjoy the same rights and benefits and have the same burden of responsibilities. As established in a previous decision (C-075/2007), while there may be some differences between heterosexual and same-sex couples, both represent the same value and equal dignity, therefore results in similar protection mechanisms.

Taking into account that the legal regulations -subject of this lawsuit- addressed heterosexual couples, and don’t include those of the same sex, the Court proceeded to exclude the interpretation that violates the fundamental right to equal treatment and therefore declared their constitutionality conditioned in the sense that all of those legal regulations now include same-sex couples, on an equal basis as to heterosexual couples. This means that civil and political rights such as nationality, residency, housing protection and state benefits will now be granted to same-sex partners.

The Constitutional Court decisions can be summarized as in equal rights to the same-sex couples in the following areas:

• Real estate (residence only) of the same-sex couple can be declared “Family dwelling” and can’t be seized
• Civil obligation to pay maintenance
• Legal guardianship
• Migration rights to acquire Colombian nationality
• Right to not incriminate the same-sex partner
• Aggravating circumstances when the victim is the same-sex partner

• Got included as possible perpetrators of the crimes of embezzlement and squandering of family property, domestic violence and threats to witnesses, when the victim is the same-sex partner
• Rights to justice and reparation for victims of heinous crimes: The definition of victim now includes same-sex couples. Right to claim and receive the dead body. Right to know the measures taken to search for the missing person. Right to family reunification of displaced persons
• Civil protection measures for victims of heinous crimes
• Benefits in the retirement and health plan for members of the Armed Forces and National Police
• Being eligible for government benefits in health and educational programs
• Being eligible for government benefits for family housing
• Access to land ownership, it can be made on behalf of both same-sex partners
• Beneficiaries of death compensation in a traffic accident
• Got included in the limitations by conflict of interest for the exercise of public functions and to subscribe state contracts