The Inter-American Court of Human Rights has condemned Columbia’s failure to provide a gay man with equal access to public benefits following the death of his partner, as prohibited discrimination on the basis of sexual orientation. See I/A Court H.R., Duque v. Colombia. Preliminary Objections, Merits, Reparations and Costs. Judgment of 26 February 2016. Series C No. 310 (Spanish only). This case involved a petitioner, Ángel Alberto Duque, who alleged that he was denied the right to a survivor’s pension due to his sexual orientation. [IACHR Press Release] The Inter-American Commission on Human Rights (IACHR) submitted the case to the Court’s jurisdiction on October 14, 2014 after Colombia failed to comply with its merits report recommendations. [IACHR Press Release] The Court held that Colombia had violated the petitioner’s right to equality and non-discrimination as provided for in the American Convention on Human Rights (American Convention). See Duque v. Colombia. Judgment of 26 February 2016. para. 62. Duque’s case is the first time the Court has ruled on the issues of discrimination and access to social rights as they pertain to same-sex couples. [IACHR Press Release]
Ángel Alberto Duque applied to receive his partner’s pension after his partner, JOJG, died, leaving Duque without the financial assistance JOJG had provided him during the 10 years they were together. See IACHR, Report No. 5/14, Case 12.841, Ángel Alberto Duque (Colombia), 2 April 2014, paras. 39 and 38. Before JOJG’s death, the couple lived together permanently, and JOJG helped Duque pay for personal expenses and medical care, including antiretroviral medication for HIV See id. at paras. 8, 38. Duque subsequently applied to receive JOJG’s pension as his surviving partner on March 19, 2002. See id. at para. 39.
Compañía Colombiana Administradora de Fondos de Pensiones y Cesantías (COLFONDOS S.A.), in which JOJG had been enrolled, denied Duque his deceased partner’s pension on April 3, 2002. Id. at para. 40. COLFONDOS informed him that Colombia’s law on social security, Law 100 of 1993, precluded him from receiving JOJG’s pension because under the law only opposite sex couples are eligible to receive a surviving partner’s pension. See id. at paras. 39, 40. COLFONDOS, therefore, refused to process Duque’s application. See id. at para. 40.
On April 26, 2002, Duque filed a tutela (constitutional remedy) action in the domestic courts to gain recognition of his right to a survivor’s pension. See id. at para. 47. He asserted several facts in support of his action, including that he was JOJG’s partner, he lives with HIV and receives anti-retroviral treatment, and he had no income or job for financial support. See id. at para. 47. He also alleged that the denial to a same-sex partner of his deceased partner’s pension violates several rights, including the rights to equality and to constitute a family. Id.
The tutela action was subsequently denied by the Tenth Municipal Civil-Law Court of Bogota on June 5th of the same year. Id. at para. 48 The court held that Duque did not meet the requirements for a beneficiary of a survivor’s pension under the law and the matter should be resolved through the regular judicial processes available. See id. The issue, the court determined, is rooted in the statutory language, and, therefore, must be dealt with through ordinary proceedings instead of a tutela action. Id. On appeal, the Twelfth Circuit Civil Court found that a family is created through the union of a man and a woman and as a survivor’s pension is intended to protect the family, same-sex couples are excluded from that benefit. See id. at para. 49. The Constitutional Court refused to review the tutela case. See id. at para. 50. Duque later submitted his petition to the Inter-American Commission in February 2005. See id. at para. 5.
Before the Commission heard the case, significant changes pertaining to the rights of same-sex couples occurred between 2007 and 2008 due to various decisions made by Colombia’s Constitutional Court. See id. at para. 51. In particular, the Constitutional Court granted same-sex couples the same pension and social security benefits as those enjoyed by heterosexual couples. See id. The Constitutional Court ruled that there was no justification for the difference in treatment between same-sex couples and heterosexual couples with regard to access to a survivor’s pension. See id. at para. 53. Additionally, in 2011, the court held that its earlier judgment regarding survivors’ pensions for same-sex partners applied retroactively where the deceased partner died before the 2008 ruling. Id. In its merits report concerning Duque’s petition, the Commission nevertheless focused on the alleged violations in view of the law in force when they occurred. See id.
In his petition, Duque argued that the State violated articles 5(1) (personal integrity), 8(1) (fair trial), 24 (equal protection), and 25 (judicial protection) of the American Convention, read in conjunction with articles 1 (obligation to respect and ensure rights) and 2 (domestic legal effects) of the Convention. See id. at para. 14. The Commission agreed with Duque and held that Colombia was responsible for violating all of the articles Duque cited. See id. at para. 102. In particular, the Commission, in assessing the allegations of a violation of equal protection under Article 24, considered “whether the exclusion of same sex couples from the right to a survivor’s pension pursued a legitimate aim and, if so, whether such restriction complied with the requirements of suitability, necessity and proportionality.” Id. at para. 75. The Commission found that the reason for denying the survivor’s pension to Duque “was expressly and exclusively based on the fact that they were a same-sex couple,” and that this rationale was insufficiently related to the State’s purported goal of protecting the family, since same-sex couples fall within the Commission’s understanding of “family.” See id. at paras. 76-78.
The Court’s decision
The Court dismissed all of the State’s preliminary objections before discussing the alleged violations of the rights to equality and non-discrimination, judicial protection, personal integrity, and life. See Duque v. Colombia. Judgment of 26 February 2016. at para. 14. The State argued that Duque failed to exhaust domestic remedies and that the allegations made by Duque were hypothetical in that they claimed a violation of articles 4(1) and 5(1) that had not occurred. See id. at para. 14. The Court dismissed its objections. Id.
The Court held that Colombia’s domestic law relating to the right of same-sex couples to a survivor’s pension was discriminatory and contrary to the right of equality, as of 2002. See id. at para. 99. The Court stated that Colombia’s internal regulations had only provided access for heterosexual couples to obtain a survivor’s pension and the State failed to provide an “objective and reasonable justification” as to the reason for the differential treatment. See id. at para. 124. The Court stressed that sexual orientation is a protected category under the American Convention and that any restrictions placed on the rights of a protected class must be based on serious justifications and reasoning. See id. at para. 106. It reviewed relevant international human rights standards, as well as the practices of States within the region, reiterating its understanding that a lack of consensus among its Member States as to the rights of sexual minorities does not mean the Court to avoid deciding the issue. Id. at para. 123.
Because Colombia’s legal framework had changed subsequent to Duque’s case, the Court then considered whether the violation had been redressed. Id. at para. 127 et seq. It noted that a three-year statute of limitations applied to claims for a survivor’s pension, and it was unclear whether Duque would be entitled to compensation dating back to his 2002 claim. Id. at 134. Accordingly, the Court held that there was a violation of Article 24 (right to equal protection) of the American Convention taken in conjunction with Article 1(1) of the Convention. See id. at para. 138.
The Court did not find violations of the other rights raised in the complaint. The Court held that there was no violation of the right to judicial protection because Duque was not able to establish that Colombia lacked an effective domestic remedy at the time he brought his claim. See id. at para. 158.
The Court also held that there was no violation of Duque’s right to personal integrity and right to life. See id. at para. 192. The Court stated that there was no evidence of psychological harm, which is necessary to find a violation of his right to personal integrity. See id. at para. 184. Furthermore, with regard to Duque’s argument that he received a lower quality of treatment when he had to change to a subsidized health plan, the Court stated that there was not enough evidence to find a difference in treatment or services when he was on the contributor-based social security health system, which JOJG had enrolled in when alive, versus the subsidized system. See id. at paras. 182-192. The Court, therefore, held that there was insufficient evidence to find a violation of the right to life. See id.
As part of the reparations, the Court ordered that the State ensure Duque receive priority processing for his survivor’s pension application. See id. at X (Puntos Resolutivos). Additionally, the Court will monitor compliance of its judgment and will consider the case closed when the State has fully complied with its decision. See id.
This is not the first case in which the Inter-American Court has ruled on the issue of discrimination based on sexual orientation. [IACHR Press Release] The Court’s first ruling on this issue dealt with discriminatory treatment and arbitrary interference into the private and family life of a lesbian woman when she was denied custody of her children based on her sexual orientation in the case of Atala Riffo and Daughters v. Chile. [IACHR Press Release]