Case SU-623/2001

Cesar Augusto Medina Lopera (the Plaintiff) requested the Health Security Company Comfenalco (H.S.C, the Respondent), to affiliate him to the Social Security System in Health as beneficiary of his life partner, Jairo Castaño Suescún, who was a contributor to this H.S.C. The Respondent denied the affiliation and argued that, in accordance with Colombian Political Constitution, only heterosexual relationships could be recognized as de facto marriages, and therefore the right to membership to health services of the Plaintiff as beneficiary of his homosexual partner could not be granted. A writ of tutela was filed against the H.S.C by the Plaintiff who argued that the denial of his access to membership is a violation of his rights to health and to social security as well as to equality and to free development of personality.

The protection requested by the Plaintiff was denied by the Judge of first instance (ninth municipal judge of Medellin). The writ of tutela was selected by the Third Chamber of Revision of the Constitutional Court for revision which decided to confirm the decision of the first instance judge.

The Court found that there had been no breach of the Plaintiff’s rights. It considered that excluding a historically marginalized group such as homosexual life partners from a social security scheme was not necessarily a violation of the rights to social security and equality. Financial, budgetary and demographic considerations meant that constitutional courts should give leeway to the political branches of the State in setting the criteria for eligibility as a social security beneficiary.

In this case, the Court found that the legislature had intended for the scheme to exclusively cover families, and that this was for the constitutionally valid purpose of protecting the family and ensuring equal coverage of men and women. It considered that homosexual life partnerships were not of the same character as families formed between heterosexual partners, and pointed out that many relationships, heterosexual or homosexual, did not qualify for social benefits, even if they had some characteristics of family relationships. Further, it considered that regardless, the different treatment was proportional and justified, as there were other means to affiliate to the health insurance schemes, and homosexual persons were therefore not being excluded from health services because of their sexual orientation.

The Court also dismissed the Plaintiff’s claims with regard to the right to health and the right to free development of personality. It held that as the Plaintiff was healthy and had not needed a particular health service, his right to health was unaffected as he had not been excluded from health care. Likewise, affiliation as a beneficiary to the health system was not needed to ensure the Plaintiff’s ability to freely develop his personality.

“…it is important to affirm that the legislator’s decision to use the family criterion as grounds to include the beneficiaries of the main affiliate within the contributory regime is not in contradiction with the principle of universality that underlies the system of social security in health. Homosexual couples are not being excluded based on their sexual orientation as there are other means to become an affiliate of the system. Besides the possibility of becoming part of the system as beneficiary of the contributory regime, any person can be affiliated as an independent worker, if he/she has the capacity to pay. If he/she does not have that capacity, he/she can be affiliated to the subsidized regime; and if the person does not fulfill the requirements to be in any of those categories, he/she can be part of the system regardless his/her sexual orientation.” Translation, page 17.

“Universality implies that the coverage must be gradually extended to a greater part of the population and that, within the process of extending coverage of persons who can be covered by one of the schemes, the discrimination against specific groups of the population cannot be accepted as constitutionally valid. Therefore, for example, the decision of an entity not to affiliate a person to the health security system based on her/his sexual orientation clearly constitutes a violation of the right to equality. However, this does not mean that sexual orientation should become a criterion for deciding to whom the coverage of the service of social security in health should be extended.” Translation, page 18.

“… the legal dispositions that determined the beneficiaries of the affiliate to the contributory regime of social security continuously make reference to the concept of family, and within the family they include “the spouse or the permanent couple of the affiliate when their union has lasted more than two years”. A simple reading of the title of the article – “familial coverage” –, shows that the expression ‘permanent couple’ presupposes a familial coverage and, therefore, a heterosexual relation. To confirm this, it suffices to quote the definition of the concept of family given by the Constitution in Article 42 …” Translation, pages 26-27.