By Juliana Martínez
Colombia has again shown itself to be a country of contrasts – a society ostensibly ruled by Catholic and conservative morals with one of the hemisphere’s most progressive Constitutional Courts – with two important legal decisions on LGBT rights. The Court has defended the democratic, pluralistic, and inclusive spirit of the Colombian Constitution against powerful authoritarian and conservative forces for years. In 2007 and 2008, it granted pension, social security, and property rights to registered same-sex couples, and it ruled that same-sex couples “constitute a family” in 2011. In spite of some recent rulings tarnishing its liberal record, last month the Court made two decisions that, though limited, have historic implications.
- It ruled in favor of step-child adoptions by gay couples. After much political, legal, and even religious debate, the Court broke a four-year silence on the highly contested issue, ruling 6 to 3 that Verónica Botero could legally adopt the biological children of her wife, Anna Leiderman. The ruling does not explicitly allow joint adoption by gay couples, but the decision cites ample scientific evidence and declares that parental homosexuality cannot be considered a risk factor for children, thus leaving the door open for further LGBT-friendly jurisprudence in the matter.
- The court recognized the gender identity of trans women by declaring that they do not have to comply with the compulsory military service required of all Colombian males. The case centered on Gracy Kelly Bermúdez, a transgender woman who filed a lawsuit against the mayor’s office in Bogotá when she was denied a job for failing to provide proof of her military service. Bermudez had not entered the military because she identifies as a woman, and therefore did not have the Military Service Registration Certificate (libreta militar) required when applying for jobs, studying at the university level or accessing health care services. She would have been exempted if she had undergone an official sex change – the right to change one’s sex has been protected in Colombia since 1993 – but this can only be legally done after undergoing sex realignment surgery, a procedure that most trans women do not have access to, cannot afford, or do not want. Therefore, despite their gender identity and expression, the legal sex of the majority of trans women continues to be “male.” The Court decided in favor of Bermúdez and ordered the mayor’s office to hire her immediately.
These decisions are far-reaching. In the Bermúdez case, the Court was essentially prioritizing gender identity over assigned sex at birth. It declared that asking trans women for the Military Service Registration Certificate when hiring them is unconstitutional because it violates their right to define their own gender. Furthermore, the Court told Congress to draft a bill that regulates the rights of transgender people in Colombia, paving the way for a much-needed Gender Identity Law. The ruling also has deep regional implications. Since Argentina passed a groundbreaking Gender Identity Law in 2012, many countries have been struggling to achieve similar results – and the Colombian legal precedent can become a viable alternative for impact litigation. Currently, at least ten countries in Latin America have compulsory military service with different levels of enforcement attached to non-compliance. But as the Bermúdez case illustrates, military conscription mandates can turn into strange, yet effective platforms to denounce how the state routinely imposes gender identity on its citizens, often against their own will, and to catalyze legal reform that advances LGBT rights in the Americas.
* Dr. Juliana Martínez teaches gender and sexuality and Latin American Literature in the Department of World Languages and Cultures at American University.
September 25, 2014