Two high court decisions handed down in Bogota Tuesday fell firmly in favor of their transgender plaintiffs, both of whom argued successfully that Colombia’s military service requirement was an infringement on their rights.
In one, the Constitutional Court gave the Bogota city government 48 hours to hire Grace Kelly Bermudez — legally named Ivan Andres Paez — who had been denied employment because she did not have a military exemption card, and ordered that in the future, exemption cards not be required of trans women during the application process.
“It is reprehensible that the Sub-Office on LGBTI Issues of the Mayor’s Office of Bogota, whose function is to put into practice processes and guarantees with the goal of achieving social inclusion and the strengthening ties of respect and acknowledgement with LGBTI sectors, has openly dismissed the rights of the plaintiff by denying her identity over a requirement only applicable to people of the male gender,” read the decision, according to Semana magazine.
Congress, said the court, should begin immediate work on comprehensive national legislation to protect the rights of trans persons.
The High Tribunal of Bogota, meanwhile, also took a strong stand on the issue of military exemption for trans women, ordering that Gina Hoyos Gallego — legally named Hernando Hoyos Gallego — be given a military exemption card and that the national Ministries of Defense and the Interior “advance whatever measures are necessary so that a policy related to obligatory military service on the part of the LGBTI population be taken into account,” reported the national El Espectador newspaper.
The Issue
While the specific facts of the cases vary slightly different, both suits cented around Colombia’s military service requirement, an issue of general importance to the trans community nationwide.
By law, eligible Colombian males must carry a military status card proving their exemption from mandatory enrollment, which can be obtained by individuals who are disabled, enrolled in higher university, or wealthy enough to pay for an exemption.
Women are automatically exempt from service, but there is currently no statute in place explicitly adressing cases of trans women assigned male sex at birth. And while it is possible for trans women to receive exemption status, institutional ambiguity and prejudice often leads to abuses at the hands of military officials, including open discrimination and aggression and invasive medical examinations.
Bermudez and Hoyos argued, moreover, that forcing trans women to adhere to an arbitrary legal designation of gender is an inherent violation of their right to self-identity.
And, as Colombia Reports previously reported, because private and public sector employers are required to check military exemption cards, trans women who don’t have them, like Bermudez and Hoyos, are effectively denied their constitutionally protected right to work.
The service requirement, in that sense, is seen as both a key factor contributing to disproportionate poverty within the trans community and as indicative of the broader systemic exclusion that has traditionally prevented trans persons from exercising their political rights and made them the frequent target of unchecked violence.
Judicial support
The Constitutional Court and Bogota High Tribunal sided unequivocally with the plaintiffs in both cases, filed as “writs of protection,” an emergency action available to individuals who feel their basic rights are being infringed. At the time this article was published, neither court had responded to Colombia Reports’ request for full copies of the decisions.
“People with transgender identities should not be submitted to restrictions on the exercise of their rights on the basis of identity, which is to say, their form of being as a legitimate and constitutional expression of their identity and self-determination,” ruled the Constitutional Court.
“The transgender community requires special protective measures, with the goal of providing dignified living conditions, in the face of the social exclusion derived from the impossibility of associating themselves with formal productive activities,” it determined.
Because of “the lack of a specific norm, the lack of a consequential public policy on the matter, the treatment to which these persons are submitted places at risk the fundamental rights of a population identified as vulnerable, and in a concrete manner, the right to the free development of personhood and to human dignity of the plaintiff,” agreed the High Tribunal, in its separate ruling.
Institutional recognition
In the words of the High Tribunal, “The LGBTI population is a group that has been the object of discrimination and marginalization. And within it, trans people are those with the least possibility of effectively enjoying the fundamental rights they have,” an assessment born out by extensive amicus material presented in the Bermudez case, as Colombia Reports was able to confirm previously.
With that in mind, the administration of Bogota Mayor Gustavo Petro has taken unprecedented, if limited, steps to open civil society to the trans community.
In what has become a pattern of inclusive minority appointments, Petro named Tatiana Piñeros, an openly trans woman, to head the Bogota Ministry of Social Integration. Piñeros, who was unavailable to be interviewed for this article, has since become the director of the Bogota District Institute of Tourism.
Even though it was the Sub-Office on LGBTI Issues’ refusal of Bermudez’s work application that sparked her trial in the first place, the sub-office actually submitted an amicus brief in her favor, explaining that it had acted within the confinements of the law as currently written but recognized the military service requirement as a discriminatory barrier.
A day after the decisions were announced, the Bogota Mayor’s Office hosted Trans-Forming Bogota, an “open invitation” town hall event projected to bring some 500 trans women from across the city together with government officials to discuss potential policy initiatives.
Reacting to the tribunal’s decision, Hoyos’ lawyer, German Humberto Rincon said to El Espectador, “Finally, the justice system is beginning to understand the relationship between identity and gender and differentiate it from sexual orientation or sexual diversity.”
If the respective public bodies adhere to the decisions, it appears the Colombian government soon will, too.
Tania Duarte, a trans activist who says she faced similar issues during her student registration process, told Colombia Reports, “Hopefully it’s not just a mere formality on paper, or in a decree; it has to be a visible fact.”
Sources
- Interview with Tania Duarte, a member of Corporacion Caribe Afirmativo, a gender identity and sexual diversity activist group
- La transgenero que no pudo laborar en la Bogota Humana (Semana)
- Las transexuales ya no tienen que penar por libreta militar (El Espectador)
- Administracion Distrital se reunira con mujeres transgenero de la ciudad (Bogota Humana website)
