Colombia's Highest Court Mandates Equal Rights for Same-Sex Couples

With the caveat that I haven't seen the opinion (and probably could not read it, since it is in Spanish), I want to pass on the news that two LGBT outlets have reported that the highest court of the nationa of Colombia, the Constitutional Court, issued a ruling on January 28 in a pending case brought by Colombia Diversa (a gay civil rights advocacy group), The Centre for Law, Justice and Society, and the University of the Andes's Group for Public Interest Law, finding that the equal rights mandate in Colombia's constitution requires that same-sex couples be accorded the same rights that are now accorded to different-sex couples in common law marriages.  From the press reports, it seems that Colombia has extended a wide array of rights typical of marriage to different-sex couples who are cohabiting in a marital-like relationship.  Now same-sex couples with such relationships will have similar rights and responsibilities.

This is only the latest in a series of rulings by the courts in Colombia mandating equal rights for gay people.  Ironically, however, according to the report published in Pink News from the UK, life is not necessarily easy for gay people in Colombia, despite these legal victories.  It is said that the police have frequently mistreated gay people, and that "serious human rights violations against LGBT people are commonplace," according to Tony Grew, the author of the article published this morning.

So one asks from a U.S. perspective how immigration authorites would deal with a petition for asylum or withholding of removal by a gay person from Colombia in the present situation.  From reading many federal court rulings on appeals from denial of refugee status to gay people, it strikes me that evaluating a petition from a Colombian would pose significant problems.  On the one hand, there might be credible evidence of police mistreatment of gay people, which would be considered official persecution if it is adequately severe.  But, on the other hand, the legal establishment of the courts has staked out an anti-discrimination and equal rights position that is advanced to the stage of countries that are generally deemed gay-friendly.  So how would the court decide, in the absence of specific evidence showing that the individual petition has suffered persecution.  In cases where the individual has not personally experienced official persecution, courts have sometimes granted the right to remain in the U.S. based on evidence that there is systemic persecution in a particular country, usually at the hands of the police, such that an individual who is known to be gay is likely to be targeted.  But the results of the cases are mixed.

And, of course, as political and social conditions for gay people improve in any particular country, the use of asylum or withholding of removal as a device for allowing them to reside in the United States becomes questionable as a matter of U.S. policy.   So this new ruling poses interesting issues in terms of its possible influence outside of Colombia.