Colombia: Support Civil Unions and Non-Discrimination Bill!

11/14/2001

SUMMARY

Senator Piedad Córdoba has introduced a Civil Union Proposal for same sex couples in the Colombian Legislature. The bill, drafted with the advice of several Colombian activists and organizations working for sexual diversity rights, has the support of the feminist and indigenous movements in the country. The draft legislation includes a wide array of benefits and legal protections for same sex couples as well as a provision forbidding discrimination based on sexual orientation or identity.

Parliamentary debates on the bill started November 7. During the deliberations, Colombia's Minister of Justice, Rómulo González Trujillo, denounced the proposal as "unconstitutional and inconvenient."

ACTION

IGLHRC and Colombian activists ask for urgent letters to the Minister, to support full equality for same sex couples in Colombia and to dispel some of the misconceptions voiced by the Minister of Justice.

Please write to:

Ministro de Justicia y Derecho Rómulo González Trujillo: Avenida Jiménez No. 8-89
Bogota, Colombia
Phone/fax: (571) 596 05 00
ministro@minjusticia.gov.co
Senadora Pilar Cordoba: Fax (571) 350 11 28

And please send a copy to:

Nelson Gomez - Comunidad Amigos Comunes: E-mail: amigoscomunes@hotmail.com
German Humberto Rincón Perfetti: E-mail: ghrinconperfetti@hotmail.com

SAMPLE LETTER

Dear Mr. Gonzalez Trujillo:

We are writing to you in support of Senator Pilar Cordoba's proposal of a civil union law for same sex couples.

We believe that Senator Cordoba's bill would allow a fuller enjoyment of the rights enshrined in the Colombian Constitution, would follow established precedents elsewhere as well as international law.

We base ourselves on our reading of the Colombian Constitution and of Colombia's obligations under international law.

Article 42 of the Colombian Constitution states that "the family is the fundamental nucleus of society … constituted by the free decision of man and woman …".

The same article refers repeatedly to "harmony and unity" as desirable attributes of a family unit; Articles 44, 45 and 46 highlight the importance of the family in "protecting" and/or "promoting the full development" of children, adolescents and seniors. We believe that what defines a family is the compliance with those functions, and not so much the gender/s, number/s or type of relationship/s between its members.

Legal recognition of same-sex civil unions is constitutional, is accepted in other countries of the world, and it is required under international law.

Same-sex couples are legally recognized in Sweden, Norway, Denmark, Iceland, the Netherlands, Finland, Belgium, France, Germany, Hungary, Portugal, the states of Catalunya and Aragon in Spain, and the state of Vermont in the USA. In addition many jurisdictions around the world grant specific benefits to same-sex couples.

Denying legal recognition of same-sex couples constitutes discrimination based on sex/gender, and as such it is not only forbidden by the Colombian Constitution (Article 13) but also by international law. Since 1994 (Toonen v Australia), the provision against discriminating on the basis of sex included in the International Covenant on Civil and Political Rights (ICCPR) is read as inclusive of "sexual orientation". Denying lesbians and gay men the conjugal rights the heterosexuals enjoy, constitutes discrimination based both on their sex/gender and on their sexual orientation.

We list as an attachment additional support in international law for Senator Cordoba's proposal.

Colombia is a signatory of the ICCPR and of the International Covenant on Economic, Social and Cultural Rights listed in the attachment, and under Article 93 of the Colombian Constitution establishes the prevalence of international treaties.

International law, established legal precedents in others countries, the Colombian Constitution, and Senator Cordoba's proposal reflect an undeniable reality -not only in Colombia but all around the world: same sex couples live together, many of them for their entire lives, sharing property and responsibilities. It is unfair to deny them some of the rights that a man and a woman would have in that same situation, only because of their gender.

The Colombian Constitution establishes another important right, from which legal recognition of same-sex couples must follow. Article 16 regarding the free development of one's personality, because the denial of rights to women and men who are in stable unions with somebody of their same gender does severely limit their autonomy and affects the free development of their own personalities. Other rights, guaranteed by the Colombian Constitution are at play as well. Particularly in a Latin American context, where in many cases solidarity makes the difference between life and death -or between mere surviving and living.

For example an unemployed gay man who is HIV positive and cannot utilize his partner's social security for "promoting, protecting and recovering (his) health", (Article 49); or a couple where neither partner would individually qualify for a mortgage but if considered a "family unit" could exercise their right to housing (Article 51) or to property (Article 60). Uncertainty, precarious conditions of living, the awareness of being treated as a "second class citizen" for no other reason other than one's choice of partner, certainly do not promote "the free development of one's personality."

We would like to clarify that contrary to your assertions in Parliament, Senator Cordoba's proposal does not include adoption rights for same-sex couples. The proposal under debate includes very specific rights, such as:

A shared patrimonial regime, that is, all economic benefits are shared equally between the partners.
Social security benefits
Inheritance rights -equal to those granted to spouses
Colombian nationality for foreign partners
The possibility to apply as a family unit for housing loans
Three days of mourning leave for the surviving partner
Right to decision making in health matters when a partner is unable to do so herself/himself
Mutual insurance benefits
Conjugal visits in hospitals or prison
Alimony rights

Lesbian and gay Colombians need these rights today. It is today that they are being deprived of their inheritance when their partners die, or forced to leave miles away from one another and refused any possibility of a joint life project when they are of different nationalities.

We urge you to support Senator Cordoba's proposal and not to set any obstacles in the way to equality for Colombian lesbians and gay men.

Sincerely,

ATTACHMENT TO LETTER: INTERNATIONAL LAW

International human rights legislation that supports the claim made by Senator Cordoba's proposal:

Right to non-discrimination (Article 2 of the Universal Declaration of Human Rights; Article 2 of the International Covenant on Economic, Social and Cultural Rights; Article 2 of the International Covenant on Civil and Political Rights; Article 1 of the Interamerican Human Rights Convention)
Right to equality before the law (Article 7 of the Universal Declaration of Human Rights; Article 26 of the International Covenant on Civil and Political Rights; Article 24 of the Interamerican Human Rights Convention)
Right to own property (Article 17 of the Universal Declaration of Human Rights; Article 21 of the Interamerican Human Rights Convention)
Right to freedom of association (Article 20 of the Universal Declaration of Human Rights; Article 22 of the International Covenant on Civil and Political Rights; Article 16 of the Interamerican Human Rights Convention)
Right to social security (Article 22 of the Universal Declaration of Human Rights, Article 9 of the International Covenant on Economic, Social and Cultural Rights)
Right to a standard of living adequate for the health and well being of her/himself and of her/his family (Article 25 of the Universal Declaration of Human Rights, Article 11/12 of the International Covenant on Economic, Social and Cultural Rights)

BACKGROUND INFORMATION ON DRAFT BILL

Senator Cordoba's proposal allows same sex couples to register their unions before a notary. It mandates the State to keep statistical records of registered unions.

The bill also acknowledges "unregistered unions", that is, same sex couples that have lived together for more than a year and have not registered their unions. These partners would have the same rights and obligations than those in registered unions, after proving that they have lived together for more than a year.

The rights conferred to registered unions (or non-registered unions with more than a year of living together) are as follows:

A shared patrimonial regime, that is, all economic benefits are shared equally between the partners.
Social security benefits
Inheritance rights -equal to those granted to spouses
Colombian nationality for foreign partners
The possibility to apply as a family unit for housing loans
Three days of mourning leave for the surviving partner
Right to decision making in health matters when a partner is unable to do so herself/himself
Mutual insurance benefits
Conjugal visits in hospitals or prison
Alimony rights

In addition, same sex unions would fall under the provisions already in place for situations of family violence (regarding access to the courts and to counseling services, among others).

Registered same sex unions could be dissolved by the will of the partners, the death of one of them or a judicial decision upon request by one of the partners. In the first case, dissolution would take place before the notary, while a civil judge would intervene if there is no agreement between the partners.

Senator Cordoba's proposal includes additional provisions beyond recognition of civil unions. The bill also incorporates an anti-discriminatory provision, penalizing discriminatory acts based on sexual identity or orientation, as well as the promotion of discriminatory ideas or ideas that propitiate discrimination through any media. Penalties include from 1 to 2 years of imprisonment, or prohibition to hold public office for the same period.

The bill also guarantees freedom of association between sexually diverse individuals.

The proposal would mandate the Education Ministry to:

eliminate all homophobic contents from school curricula
incorporate clear and objective information on sexual orientation and identity to current sex education programs

The bill would also require existing sexual and reproductive health committees of municipal health departments to include the issue of homosexuality in their work and cooperate with local non-governmental organizations dealing with sexual diversity issues.

SOME COMMENTS BY MINISTER OF JUSTICE

(As reported by gay activist and lawyer German Humberto Rincón Perfetti, who took part in the Senate debates as an invited expert)

"The proposal is not only unconstitutional but inconvenient. Certainly, homosexual unions are not recognized as a legitimate way to form a family, and thus rights recognized by our State in order to benefit families cannot be derived from those kind of unions, as the legislator pretends".

"Finally, it is important to voice a warning about the serious implications this proposal might bring for children in the future. As unions between homosexuals are recognized, a time might come when rights that are peculiar to straight couples are also recognized to them (to homosexuals) such as adoption. This goes against not only the children's best interest, and their integral and harmonious development, but also of society as a whole, as it weakens the fundamental pillar upon which it rests, bringing about its decadence".

According to Mr. Rincón Perfetti, the Minister of Justice closed his remarks in the Colombian Legislature, by quoting a French congressman debating against the PACs bill in France. The French parliamentarian had said and the Colombian Minister of Justice repeated "in 1920 homosexuality was criminalized, now it had been decriminalized and in a few more years it would be made compulsory, so I'd better run away."

The PACs, (Civil Solidarity Pact) recognizes de-facto unions, for both heterosexual and same-sex couples, and was passed into law in France in 1999.

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