THE COURT RECOGNIZED MARITAL UNION AND PROPERTY RIGHTS OF SAME-SEX COUPLES IN COLOMBIA
Judges: Jaime Córdoba Triviño (separate opinion), Jaime Araújo Rentería (dissenting), Nilson Pinilla Pinilla (separate opinion), Manuel José Cepeda Espinosa, Humberto Antonio Sierra Porto, Rodrigo Escobar Gil (wrote the opinion), Álvaro Tafur Galvis, Marco Gerardo Monroy Cabra (separate opinion), Clara Inés Vargas Hernández.
This decision was issued despite the fact that within the ruling sectors of Colombian society as well as in public opinion there is a strong opposition to legal recognition of the LGBT community as being entitled to human rights. Congress had rejected all bills regarding the rights of same sex couples.
Additionally, there is high discrimination and marginalization of LGBT persons. For example, a 2008 study from Bogotá's Mayor's Office showed that 55% of persons interviewed dislike having homosexual neighbors. Both public figures and high ranking officials have made homophobic and discriminatory statements.
This decision recognized the rights of same sex couples.
On February 7, 2007, the Court stated that Colombia’s laws regulating de facto marital union had to include same sex couples. This was the first time that the rights of same sex couples were legally recognized, after a 40-year struggle by LGBT persons, groups and organizations.
This decision implies a transcendental change in the Court's case law, which previously had only recognized the need for protection from discrimination against individuals based on their sexual orientation, and had refused to recognize same sex couples stating that the only protected type of family was heterosexual. Previous to this decision only individual rights of homosexual persons were protected but not when it related to rights derived from cohabitating as a couple.
Decision C-075 opened the door to several more decisions acknowledging the human rights of LGBT persons
The decision referred to two articles of Act 54/90, which regulates de facto marital unions and their joint property. This law is the basis for many other laws, which means that many doors were open for later decisions that made same sex couple rights analogous to those of heterosexual couples; it was thanks to this decision that those new decisions have been possible.
The decision was a relief for LGBT couples
It is estimated that about 300,000 couples in Colombia are potential beneficiaries of both decision C-075 and the decisions issued later. Even though there are no statistics about the impact of this decision, a year later, the media highlighted its benefits and scope not only with respect to same sex couples themselves, but in terms of changing a homophobic culture.
The decision was the result of a lawsuit filed by NGO Colombia Diversa and the Public Interest Law Group of the University of Los Andes, regarding the constitutionality of the phrase “man and woman” in articles 1 and 2 of Act 54/90, which regulates de facto marital unions and their property rights.
THE COURT GRANTS CUSTODY OF THE COUPLE'S MINOR DAUGHTERS TO THE FATHER STATING THAT THE "HOMOSEXUAL CONDITION" OF THE MOTHER IS DETRIMENTAL FOR THEM.
Judge: Fernando Ferrín Cálamita
During these divorce proceedings both father and mother requested exclusive custody of their two minor daughters. The judge states that to determine custody issues, only the interest of the child can be taken into account without giving prerogatives to one or the other and that the reason for the divorce should not be considered unless it is brought up and constitutes a harm for the children.
The judge states that being "a drug addict, a pedophile, a prostitute, belonging to a satanic cult, or the condition of being a homosexual gravely affect children."
He continues to state that if proven, the condition of being a homosexual can be grounds to declare the marriage null since heterosexuality is an essential requirement for "traditional" marriage, -which was in place in Spain before the "unfortunate" amendment to Spanish law, and would vitiate the consent of one of the parties.
According to the judge, being homosexual is harmful to the children because "they have a right to a father and a mother, not to two mothers or two fathers. The most prestigious specialists state so. There is no need to be an specialist, common sense mandates it. Men and women complement each other. Two women or two men don't. . . . It is the homosexual atmosphere what harms the children and significantly increases the chance that they become homosexuals too." It concludes by saying that it is impossible for a homosexual parent to provide an integral education to his/her children.
In this openly homophobic decision, the judge grants custody of the daughters to the father. Judge Ferrín Calamita was suspended because of this ruling.
THE TRIBUNAL DECLARES THE MORNING-AFTER PILL UNCONSTITUTIONAL STATING THAT IT VIOLATES THE RIGHT TO LIFE AS IT IS POSSIBLE THAT IT PREVENTS THE IMPLANTATION OF A FERTILIZED EGG IN THE UTERUS.
Judges: Raúl Bertelsen Repetto, Mario Fernández Baeza, Marcelo Venegas Palacios, Juan Colombo Campbell (dissenting), Hernán Vodanovic Schnake (dissenting), Jorge Correa Sutil (dissenting), Francisco Fernández Fredes (dissenting), José Luis Cea Egaña, Marisol Peña Torres.
On March 5, 2007, 36 representatives filed a petition before the Constitutional Tribunal requesting that certain provisions of the Decree titled "National Provisions Regulating Fertility" were declared unconstitutional.
The representatives challenged the section referring to Hormonal Emergency Contraception (morning-after pill) and Non-hormonal contraception and IUD arguing that they are abortive methods and therefore violate the constitution. Additionally, they also challenged the section referring to the provision of confidential counseling to adolescents, which does not require knowledge or consent by the parents, stating that it violates the right to life.
After considering multiple third-party intervention, including that of the President who submitted an opinion favoring the challenged provisions, the Tribunal declared unconstitutional the section allowing for the provision of emergency contraception to both adults and adolescents, stating that it violates the right to life since a potential effect of the morning-after pill is preventing the implantation of a fertilized egg.
The Tribunal rejected the other claims.
THE COURT HELD THAT THE PROVISIONS THAT EXEMPT DOMESTIC WORKERS FROM THE 8-HOUR WORK DAY AND LIMIT THE TIME TO PAY DAMAGES AFTER THEY HAVE BEEN FIRED ARE NOT DISCRIMINATORY.
Judges: Mario Pérez Guerra, Gladys Chacón Corado, Juan Francisco Flores Juárez, Roberto Molina Barreto, Alejandro Maldonado Aguirre, Carlos Enrique Luna Villacorta y Jorge Mario Álvarez Quirós.
A local women workers' rights organization challenged the constitutionality of various provisions in the Guatemalan Labor Code for being discriminatory against women. Especifically, they challenged the provisions that exclude domestic workers (the vast majority of them, women) from the requirement to limit work days to 8 hours and work weeks to 44 hours and the ones that limit the payment of damages to 4 months when they have been terminated.
The Court reasoned that domestic workers are in a particular situation because they live with their employers and therefore, their work cannot be considered continuous. This "particular situation" makes domestic work not comparable to other kinds of work and therefore, the provisions regulating it are not discriminatory or unconstitutional.
THE COURT HAD PREVIOUSLY FOUND THAT DISPLACED WOMEN'S RIGHTS WERE BEING VIOLATED IN A SYSTEMATIC, EXTENDED AND MASSIVE MANNER AND IN THIS DECISION IT ORDERS THE GOVERNMENT TO ENACT VARIOUS MEASURES TO ADDRESS THIS SITUATION.
Judges: Manuel José Cepeda Espinosa (wrote the opinion), Jaime Córdoba Triviño, Rodrigo Escobar Gil
In a previous decision (T-025 of 2004), the Colombian Constitutional Court had held that the situation of the female displaced population was one of the gravest manifestations of unconstitutionality on the part of the government as their rights were being violated in a systematic, extended and massive manner. The Court held that the government had the obligation to the appropriate measures which, in an integral and efficient way, restored and protected women's fundamental rights. The failure to adopt such measures drove the Court to issue Court Order 092/08.
The Court Order demands that the government enacts a series of measures to prevent the disproportionate gender effect of armed conflict and displacement on women. Such measures are: (i) creating thirteen (13) programs to fill the existing gaps in public policy for the assistance of displaced persons from a gender perspective so they address the "gender risks" associated with armed conflict and the "gender facets" of forced displacement; (ii) establishing two constitutional presumptions to protect displaced women, (iii) issuing individual orders of protection on behalf of six-hundred (600) displaced women and the communication and (iv) communicating the Attorney General's office of numerous sexual crimes committed within Colombia's armed conflict.
To reach this decision, the Court identified several "gender risks" derived from armed conflict, including: a) the risk to suffer sexual abuse, rape and be subjected to other forms of sexual slavery by the armed actors; b) the risk of labor enslavement; c) the risk of having their financial provider murdered, d) the risk for their children to be forcibly recruited by armed actors, e) the risk of being persecuted and murdered by armed actors, f) risks derived from the higher discrimination and vulnerability that displaced women face, g) risks derived from contact or relations they voluntarily, accidentally or presumably sustain with members of armed groups, h) risks derived from their participation in social or human rights organizations, i) the risk of being dispossessed from their lands more easily.
Additionally, the Court identified 18 "gender facets" affecting displaced women, including, a)disregard for and violation of their right to health, especially of their sexual and reproductive rights; b)open disregard for their right to justice, truth, reparation and a guarantee of no-repetition, as victims of the armed conflict; c) severe discrimination against indigenous and afrocolombian women; d)graver obstacles to access education and work opportunities; e) patterns of structural gender violence and discrimination, which include increased risk of being subjected to sexual violence, including rape and sexual abuse, forced prostitution, sexual enslavement, trafficking for sexual exploitation, and domestic violence.
The Court ordered the Attorney General to appear before the Court six months after the Court Order to report on the progress of this mandate.
THE UN HUMAN RIGHTS COMMITTEE FOUND THAT THE PERUVIAN GOVERNMENT VIOLATED KAREN LLANTOY'S RIGHTS. SHE WAS PREGNANT WITH AN ANENCEPHALIC FETUS AND WAS REFUSED AN ABORTION AND FORCED TO NURSE THE BABY, WHO DIED AFTER 4 DAYS.
Committee Members: Prafullachandra Natwarlal Bhagwati, Christine Chanet, Maurice Glèlè Ahanhanzo, Edwin Johnson, Walter Kälin, Ahmed Tawfik Khalil, Rajsoomer Lallah, Michael O'Flaherty, Elisabeth Palm, Rafael
Rivas Posada, Nigel Rodley, Ivan Shearer, Hipólito Solari-Yrigoyen (individual opinion) and Roman Wieruszewski
In 2005, the UN Human Rights Committee ordered the Peruvian government to pay damages to a 17-year-old woman who had been pregnant and was carrying an anencephalic fetus (with no brain) and who was denied an abortion as her doctors had recommended. When the baby was born she was forced to nurse her and see her die four days later. This situation caused her profound suffering and a severe depression. The Court found that the government had violated the woman's rights to be free from cruel, inhuman and degrading treatment, her right to privacy and the special protections for minors and ordered the government to regulate access to legal abortions in the country.
THE SUPREME COURT DECLARED MEXICO CITY'S LAW ALLOWING ABORTION UNTIL THE 12TH WEEK OF PREGNANCY, CONSTITUTIONAL.
Judges: Sergio Salvador Aguirre Anguiano (wrote the opinion/dissenting), José Ramón Cossío Díaz, Genaro David Góngora Pimentel (concurring), Sergio A. Valls Hernández (concurring), José de Jesús Gudiño Pelayo (concurring), José Fernando Franco González (concurring), Olga Sánchez Cordero de García Villegas (concurring), Margarita Beatriz Luna Ramos (concurring), Juan N. Silva Meza (concurring), Sergio Salvador Aguirre Anguiano, Mariano Azuela Güitrón (dissenting) y Guillermo Ortiz Mayagoitia (dissenting)
On April 26, 2007 the Legislative Assembly of Mexico City amended the Criminal Code and the Health Act to allow abortions up to the 12th week of pregnancy. On May 24, 2007 the National Commission on Human Rights and the Attorney General's Office challenged the constitutionality of the law before the Supreme Court. On August 28, 2008 the Court, by an 8-3 majority, decided that the law was constitutional. More information about the case and broadcasts of the public hearings can be obtained at http://informa.scjn.gob.mx/
The Supreme Court found that there is not a definition of "pregnancy" in the General Health Act and that the Legislative Assembly of the Federal District exercised it qualifying autonomy when it amended the crime of abortion and defined "pregnancy" as "a part of the human reproduction process that starts with the implantation of the embryo on the endometrium", for the purposes of defining the crime of abortion in the Federal District.
After analyzing both previous case law and international human right treaties to which Mexico is a party, the Court found that there is no absolute right to life and that it is protected by prohibiting its arbitrary elimination and the death penalty. Therefore, there are no constitutional or international law grounds to force the legislator to maintain or establish abortion as a felony.
Furthermore, the Court held that by not only amending the crime of abortion but also by creating obligations for the government of the Federal District, the Legislative Assembly made effective its obligation to provide services to its constituents. The Assembly's objectives when amending the law was to "end with a public health problem derived from the practice of clandestine abortions, considering that the decriminalization of abortion will allow women to voluntarily end their pregnancy in hygienic and safe conditions; to guarantee equal treatment to women, especially low-income, as well as recognize their freedom to determine the circumstances in which they desire to have sexual intercourse and exercise their reproductive function; to recognize that forced maternity should not exist and that women should be allowed to develop their life project as they consider convenient. Additionally, the Assembly decided to limit abortion to the first twelfe weeks as it is more advisable and safe in medical terms."
The Court also held that there is no violation of the right to equality as unwanted pregnancies affect women and men differently and established that there in no constitutional obligation to create a separate regime for minors as they should be autonomous to decide and already receive special attention under the Health Act.
THE COURT SUSPENDS THE REGISTRY AND CERTIFICATION OF THE MORNING-AFTER PILL (POSTINOR2) INDEFINITELY, SO IT CANNOT BE SOLD.
Judges: Manuel Viteri Olvera, Lenin Arroyo Baltán y Jorge Alvear Macías.
The petitioner requests the suspension of the Sanitary Registry to commercialize Postinor 2, known as the "morning-after" pill arguing that it violates the right to life. The Court held that Postinor 2 prevents the implantation of a fertilized egg and therefore it violates the right to life. Additionally, the Court states that the right to life of the fetus must prevail over women's sexual and reproductive rights. The Court held that issuing a certification for Postinor 2 was an illegitimate act by the authorities and suspends the certification indefinitely to prevent the sale of the medication.
This decision reinforces a view of women as NOT SUBJECTS OF RIGHTS contributing to perpetuate the control and domination over women's bodies, sexuality and reproductive choices. It underestimates maternal mortality rates originated in unwanted pregnancies as well as their effect on women's life plan. It violates women's right to choose about something that has significant repercussion on their life and personal freedom as well as their right to life, equality before the law, freedom, and to make responsible decisions about sexual and reproductive issues, among others and other rights contained in international human rights treaties signed and ratified by Ecuador.
Additionally, the decision does not acknowledge scientific evidence showing the contraceptive and not abortive nature of the morning-after pill, it does not balance the issues involved and lacks a systematic interpretation of the Constitution.