Colombia’s Constitutional Court ruled Thursday that sexual orientation cannot be applied as a discriminating factor in second-parent adoption cases.
The latest in a string of steadily favorable precedents set down by the court, Colombia’s highest, the decision is being heralded as a “historic step” toward full legal equality by LGBTI advocacy groups throughout the country.
The court had been asked to decide a five-year legal battle launched by Ana Elisa Leiderman and Veronica Botero, a Medellin couple currently raising two children, a boy and a girl, six and four-years-old, respectively. In Colombia, same-sex marriage still exists in an ambiguous gray area, though couples like Leiderman and Botero’s have been afforded most of the same legal protections as so-called traditional partnerships.
The problems arose for their family when Botero attempted to legally adopt Leiderman’s biological children but was denied by the Institute of Family Wellbeing on the basis of her gender and sexual orientation.
The “legalization” process, also called second-parent adoption, would have served to ensure that Botero enjoyed full parental rights over their shared children, in the event that something should happen to Leiderman, for example.
Leiderman and Botero filed a “writ of protection” against the state and eventually were allowed to present their case before the Constitutional Court, which ruled that sexual orientation was not sufficient grounds to deny their request.
| “We’re a conventional family, like any other Colombian family […] We just don’t have the same rights.” |
While the court’s decision does not grant the adoption outright, state officials will now have to reconsider the Liederman-Botero request strictly on the basis of the standards applied in all other cases, requirements such as income stability, fixed home address, consent of the biological parent, and at least two years spent living together — all of which Botero and Liederman are said to meet.
“This is a decision we’ve been waiting on for a long time,” said Liederman, in an interview with Colombia’s La FM Radio.
“The family is going to stay the same,” said Lierdamn, when asked what the ruling would mean for her and her children. “This isn’t an adoption. This is [Botero’s] family.”
Liederman said her and Botero are happy with the court’s decision but frustrated with its neccessity. “We don’t need anyone’s permission to be a family,” she said.
Asked what she had told her children throughout the legal proceedings, for example, Liederman said there was nothing to tell them. “Adoption implies that there is some problem or lack of something, and they’ve never lacked for anything,” she said.
“We’re a conventional family, like any other Colombian family […] We just don’t have the same rights.”
A “historic step”
When the decision was first announced, many in the gay community reacted with mixed sentiments, pointing out that the ruling would only apply to couples in which the children are biologically related to one of the parents.
But as far as Mauricio Albarracin, director of the national Colombia Diversa LGBTI advocacy group, is concerned, the court’s ruling is “purely positive.”
“The court recognized the rights of the family, they recognized the rights of both the child and the parents to have the same protections as any other family,” said Albarracin, in an interview with Colombia Reports.
| “The court recognized the rights of the family, they recognized the rights of both the child and the parents to have the same protections as any other family.” |
“I think a lot of people misunderstand the circumstances,” he said. “The court made a specific ruling, because this was a specific case, but the precedent will also apply to all other families in the same position, and that covers a big part of the families that we are working with.”
Albarracin said he understands “people who say we deserve more, and we obviously deserve full equality.” But the court, he pointed out, has shown a preference for incremental steps, and this case in particular serves to “unify the existing precedent.”
“Think for a moment that seven years ago, same-sex couples had zero rights in Colombia — none,” he said. “We’ve already made a lot of progress.”
In 2012, the court ruled that sexual orientation could not be used to discrimate against single-parent adoption partitioners, a decision that ultimately allowed an American citizen to maintain custody of his two adopted Colombian children.
MORE: Colombian court allows adoption by gay father
And next year, Albarracin said, Colombia Diversa will be advancing an “abstract study” to push the court to decide on same-sex joint adoption requests: cases in which a same-sex couple is looking to adopt a non-related child. Should the court hand down another favorable ruling, Colombian law would cover every possible gay and lesbian adoption scenario.
“We understand that this is how things get done. You take one step, and you set down the legal precedence, and then you move forward from there. And the court is giving us the possibility to do that.”
Elsewhere in the country, the decision was received with similar enthusiasm, even by groups that find themselves at very different places in the struggle for equality.
“Cartagena is just beginning to set its trajectory as a city for the reclamation of equal LGBT rights,” said Christian Howard, the media coordinator for Corporacion Colectiva Calle Shortbus, a locally based LGBTI advocacy and support group.
“While in Bogota and Medellin, they’ve been involved in the process for 20 years, and have a much more ample focus. Here we’re still focusing on basic security for gays and lesbians,” he said.
“But What the Constitutional Court has done is take all of the organizations in all the cities in Colombia and unify us and strengthen us around these issues, even if each of the cities have their own distinct agendas.”
Backlash
Not everyone was as pleased with the Constitutional Court’s ruling.
The right-wing Democratic Center (Centro Democratico) party, for example, released a statement shorlty after the decision was announced saying, “The Democratic Center rejects the adoption of children by couples of the same sex.
“Our Party [sic] is respectful of the privacy of individuals and recognizes the civil rights of same-sex couples, but defends the protection of the Family [sic], conformed of a man and a woman, and the wellbeing of childhood as based in the existing norm.”
The Fundacion Marido y Mujer (Husband and Wife Foundation), a hardline social conservative group that filed petitions asking six Cosntitutional Court judges with track records in favor of LGBT issues to recuse themselves from the case, could not be reached for comment at the time this article was published.
Inspector General Alejandro Ordoñez, a devout Catholic, also spoke out against the ruling.
“Adoption is an judicial institution established to protect the superior interest of the child in a situation of vulnerability, and for that reason, only a family that has its origens in heterosexual relations is sufficient to comply with the goals the judicial order has defined,” he said in a statement.
The Church itself was not very far behind.
“What the Constitutional Court has done, as far as I can tell, is manipulate the Constitution for one particular case,” said Jose Daniel Falla, the secretary of the Episcopal Conference. “But it should be clarified that this deals only with one case in particular and can’t be extrapolated to absolutely anything else,” an assessment Ordoñez, one of the state’s highest independent legal authorities, concurred with.
Albarracin, however, took issue with the narrow interpretation. “The court can only decide the case that’s before it, but the reasoning behind the decision can be applied to anyone who finds themselves in the same circumstances,” he said.
“In the constitution of Colombia, children and parents cannot be discriminated against for any reason. It doesn’t matter if the family is conventional, or not conventional, or how the children were birthed, or any of that.”
Sources
- Interview with Mauricio Albarracin
- Interview with Christian Howard
- ‘Es un triunfo por las parejas homosexuales’: Veronica y Ana Elisa (El Tiempo)
- Corte autoriza a una pareja del mismo sexo adopcion de dos ninos (El Tiempo)
- No necesitamos permiso de nadie para ser familia: Ana Elisa Liederman (La FM Radio)
