legal rights of LGBT persons in Colombia
Tuesday, September 14, 2010
Boat Trouble Goes To Slow
For Velandia Mora, Manuel Antonio
Spain
Introduction
With all of the law
Bibliography
An analysis from the failures of the Colombian Constitutional Court
Introduction:
From 1936 until April 2008 in Colombia has implemented a substantial change in the issue of human rights understood as sexual rights, this is reflected in a series of rulings handed down by the Constitutional Court in recognizing the rights of gays and lesbians, and in a few cases some rights of transsexuals. This article presents and analyzes the most important legal decisions in Colombia and its importance for achieving the normalization of homosexuality, lesbians and transsexuals in this country.
With all of the law
The process in search of acceptance and tolerance of gays in Colombia has a first and substantial progress with reform Penal Code in force since 1936 (where homosexuality is no longer an offense to be considered a "disease"). More than twenty years, since the Colombian homosexual movement, created on 7 of April 1977 was the first major step to reform the Criminal Code of 1936, which decriminalized homosexual activity between adults of 14 years (Penal Code in force since 1981 disappeared Art. 323 and 329 that condemned .) Although there have been some advances, there is still discrimination based on sexual orientation and does not exist in Colombia so far no legal prohibition.
Although common in Colombia is not penalizing homosexual or lesbian behavior, gays and lesbians continue to be seen as behavior that undermine the moral and social order, that is based in the Judeo-Christian thought on love and sexuality. The national democratic process allowed some recognition to gay and lesbian, which was achieved through the work of individuals and organizations seeking fundamental rights and non-discrimination against homosexuals, lesbians and transgender people, however this has been achieved little compared to bisexual.
Despite advances in the rule of law continues to discriminate against gays and lesbians. The homosexual and lesbian behavior is seen as a situation that goes against the "morality" and socially established morality. Although not a disease, for many gay and lesbians remain "abnormal behavior" behavior more because they are considered to be dissident mentally behaviors that affect people in their individuality or the community as a moral or social.
The Constitution of Colombia's 1991 positive influence on this process by recognizing all individuals a set of fundamental rights and guarantees by creating mechanisms to protect them. In this legislative change Guardianship stands, which we have spoken, and judicial mechanism immediate protection fundamental rights of individuals.
Gays and lesbians who have been affected in various ways by their sex and even those who do not feel concerned, "They are legally protected interest, provided that in externalizing behavior not infringe a different behavior to that of heterosexuals, this does not legally have no legitimacy ... for the sake of the principle of equality enshrined in the Charter as a fundamental constitutional right of every human person, there is no legal entitlement that allows discrimination a homosexual. " As Case T-539/94 says the Constitutional Court, which as a speaker was Dr. Judge Vladimiro Naranjo Mesa.
Velandia (1999) reads, "The Principle of Equality is one of the values \u200b\u200band rights which is based on non-discrimination of minorities in Colombia, as all citizens of this country are the same freedoms and opportunities without discrimination on grounds of sex, race, national or family origin, language, religion, political or philosophical. (Art. 13 of the Constitution CP). It follows that all persons are equal before the law and authorities, and nobody can be discriminated against because their orientation sexual and socially it is not the considered as the "ought." Based on this principle of equality enshrined in the Charter as a fundamental constitutional right of every human person, no legal title to allow discrimination against a homosexual or a lesbian to adopt such a sexual orientation. "
In Case T-539/94 of the Constitutional Court, there is an explanation of vote of the judges Jorge Arango Mejía and Antonio Barrera Carbonell, which state: "Any consideration based on sexual behavior as a factor of inequality, carries within it the germ discrimination. The court for this reason, analysis should not start with an assumption that treating homosexuals as being different to the majority of humans. "Likewise, the ruling reads:" Homosexuals are not discriminated against because of their status. The fact that sexual behavior is not the same as that adopted most of the population does not justify unequal treatment. "
It follows that, the fact that people with sexual orientation different from heterosexual sex take actions or words that do not match those adopted by the majority of society does not justify being subjected to harassment and social signaling. And there to them a legally protected interest as long as its orientation does not harm or affect the interests of others or of society in general.
The Colombian constitutional debate over whether sexual orientation is biologically determined, or conversely, is a free choice of human beings is not particularly relevant, since both lead to thesis identical results in terms of degree of protection conferred by the Charter, as it not only prohibits discrimination based on sex (CP Art.13) but also guarantees the rights to privacy and, especially the free development of personality (CP, Arts. 15, 16).
From the preceding development can be seen that gay and lesbian people have a double constitutional protection. For if sexual orientation is biologically determined, as argued by some research, then the exclusion of homosexuals is discriminatory and violative of equality, equivalent to about a segregation of sex (CP Art.13). On the contrary, if sexual preference is taken freely by the individual, as argued by other approaches, then that choice is protected as an essential to their autonomy, their privacy and in particular their right to free development of personality (CP Art.16). By either of two paths to be analyzed, the result is identical constitutional, since it implies that any differential treatment based on the homosexuality of a person is presumed unconstitutional and is subject to strict constitutional control.
to honor law is another fundamental principle enshrined in the Colombian Constitution (Art. 21). Honour refers to the objective concept has us by others. Transcends the particular circle toward the group and social, their scope and knowledge is proportional to the descent that the person has in society. Therefore, this very personal right is the result of the valuation that society has shaped the person for their actions and executions, to be consistent with the law, provide the certainty that whoever it carries must have respect general of others.
The right to privacy (Art. 15). In the lives of men and women are public and private acts, the latter being restricted to the family orbit by the fact that only matter to those who make up the social unit and knowledge does not matter or are closed to other members of the society.
The right to free development of personality is based on the principle of freedom that allows human beings to perform all acts no more restrictive than those imposed by the rights of others and law, which all have a duty to comply. Be free implies the possibility of acting and feeling according to how one's conscience dictates. To choose a lifestyle in accordance with their own choices and aspirations, without prejudice to it the rights of others and the existing legal order.
Therefore, as we read in C-309/97 Judgement constitutes a violation of this right "any violation that prevents a person achieve or pursue legitimate aspirations of their lives and freedom to choose the options and circumstances that give meaning to their existence." However, the Constitutional Court has clearly indicated that, in interpreting this constitutional provision, it should emphasize the word "free", rather than the term "personality development", because this rule does not establish that there are some models personality that are permissible and others are excluded by the ordinance, but noted that this provision "that applies to the person choose their own life plan and develop personality according to their interests, desires and beliefs, provided these do not affect the rights of others or violate the constitutional order "
Colombia is one of the few countries in the world where homosexuality is a reason why a person is excluded from military service. In T. Case 097/94, which had as presiding judge Dr. Eduardo Cifuentes Muñoz, the Constitutional Court states:
"There is no necessary correlation between homosexuality and mannerisms and even less so between these behaviors and homosexual practices. (...) to prevail this type of argument, people whose behavior could be characterized as effete, would be in a situation of permanent danger of indictment (...) What decision should be made to the dilemma resulting from the existence of a social criticism toward homosexuality, which has no basis in the Constitution, but that somehow affects the development and the institutional objective of the police or the army? In other words, what is more important: the normative value and promote the right 'to be social or value determining factual and social reality against the law? We are then, in the presence of discrimination que viola el articulo 13 de la Carta, o más bien se trata de la exclusión razonable e inherente al funcionamiento y objetivos propios de la Institución? (…) De la condición de homosexual de una persona no debe derivarse un juicio de indignidad personal o institucional. El carácter peyorativo de representación popular del homosexualismo no debería ser un motivo para que la institución armada considere afectada su dignidad (…) Es importante subrayar que la sala, en modo alguno, prohíja el homosexualismo en los cuarteles y escuelas de policía. Entiende, eso sí, que el homosexualismo, en sí mismo, representa una manera de ser o una opción individual e íntima. (…) La condición homosexual should not be declared or obvious. The institution has the right to require its members discretion and silence on sexual preferences. "
Subsequently, failure of July 14, 1999, the Constitutional Court reviewed a number of provisions of the Disciplinary System of the Armed Forces (Decree 85 of 1989) and concluded that he was unaware rights enshrined in the Constitution such as privacy, free development of personality, and even the defense of the family. The Corporation supported the provision recognizing homosexual acts in public but did so with a condition: also applied to heterosexuals. Equate standard of conduct rules to be followed by one and another. According to the court, homosexuality can not be regarded itself as improper conduct, but the public performance of sexual acts within military installations or during the service. Judge Vladimiro Naranjo exemplified by stating: "The fact that a military openly disclose their homosexuality or lives with his partner in the houses of the military prosecutors can not lead to exclusion from service."
Since 1991, after the new Constitution and since the Constitutional Court have been issued in relation to guardianship, judgments and / or concepts of some judges in favor of equal rights for all people: heterosexuals, homosexuals, lesbians and bisexuals. Here I quote some of these failures, in which sometimes the names of people sheltered themselves, these names are dating because such documents are of public consultation, and that when people have expressly asked the Court to protect their privacy, failures to protect it.
In December 1993 the Constitutional Court, Decision T-594, 1993, authorized a man to change his name by another male women corresponding to their personal identity. It protects their right to free development of his personality. "It is legally feasible for a male is usually identified with a female name or vice versa: that a woman is identified with a name usually male., Or that either identifies with neutral names or names of things. All above, in order that the person prescribing, for the sake of the right to free development of personality, identity, according to his nature, his thought and his conviction to life. "
In July 1993, with a presentation by Judge Eduardo Cifuentes, Court protects the rights of due process and the good name of a student in the School of Police of the Police expelled for alleged homosexual conduct. In its ruling the court said that this condition is not a bar to serve their country and that "the punishment of a person because of his homosexuality from no trial can be based on moral, much less could be grounds for exclusion of an institution. " The decision was based on the protection of privacy and the free development of personality.
In March 1996, in its ruling issued by Judge Eduardo Cifuentes, while shielding the Right to Free Choice Sexual, arguing that "the law does not, in any way that gay couples are formed and not force people to renounce their status or sexual orientation and removes the possibility for the democratic process and the legitimacy to impose or capture through the law the majority sexual preference. Sexuality, apart from compromising the intimate and personal sphere of individuals, belonging to the field of fundamental liberty, and in them the state and the community can not intervene because no interest is at stake public and relevant merits it, nor generate social harm "
The Constitutional Court protected freedom sexual identity and said that homosexual conduct and behavior guidelines in the nature of valid and legitimate people.
In March 1998, the Court protects the right to education of two young people of Geneva (Valley) that had been excluded by his homosexuality and ordered to guarantee the quota for the next school term.
In September 1998, was debated and challenged the teachers' statute, or statute of Teaching established by Decree Law 2277 of 1979 in Colombia, who considered homosexuality grounds of misconduct which allowed for the punishment and the punishment of gay teachers. The reason for the request was to be declared inconsistent with the Constitution the term "homosexuality" the letter "B" of Article 46 of the Extraordinary Decree No. 2277. The Board fully conceptualized the Constitutional Court, Judgement C-481/98, that "Homosexuality is not a lack of discipline in the teaching practice."
As a homosexual, equilateral coordinator, professor and SCS Member of the scientific society with appreciation in Colombia, made a presentation on 01/09/1998 at the Hearing Room of the Constitutional Court, Velandia at that time (1998) stated, as one reads, verbatim:
"(...) The alternative in place since the Police Code and determination of some @ s representatives the authority to correct that @ s who experience their sexuality "outside" of the socially accepted pattern seems to be the "social cleansing". This "cleansing" exercise involves permanently, and in response to your fears, violence against those individuals who take @ s the considered for them, "immoral conduct." Violence leads to blackmail, physical and verbal aggression, to pay "tolls" or some members of the police, social isolation in the form of confinement in a police station, the exclusion from the workplace, including sexual violence and social and physical death. When it has been subject-object of stigma, sexism, discrimination, homophobia and violence is felt in the everyday experience of life, based on our experience and in response, showing our @ s alumn @ s that tolerance, respect and solidarity make life more fully and in these conditions is worth living and enjoyed life.
(...) In the case of considering homosexuality as a causal of misconduct for l @ s teachers and other sanctions were applied, how many men and few women would be affected @ s? To approach an understanding of this magnitude will quote some research regarding the frequency of occurrence of homosexuality.
(...) Homosexuality is also a social concept based on a sexological approach to the concept that refers to the preference to have the person will relate to persons of the same sex. This concept implies for each person immersed in a culture, space and imaginary time determined as to how that person takes his eroticism, affectivity, genitalia and even desire. This imagery is conceived from a model of what should be socialized, "heterosexuality." In practice, no man or woman up to the imagination, as their analysis and interpretation entails a vision (one's) which is essentially particular. Could then claim that homosexuality does not exist as such, but homosexuality and that a (-a) homosexual is just someone well is designed to one's self.
(...) An ethics based on the Human Rights and human excellence provides ethical standards to be applied not only in the privacy of the professionals but also the organizations that group, making it the ethical rule. Moreover, in a country like Colombia where the Constitution is based on the International Manifesto of Human Rights. Any analysis of the social role of men and women must be crossed by the respect for human rights l @ s @ s Human sexual rights, and carries an interest that any approach to the sexuality of a person or analysis of this latter, founded on ethical principles from which it is assumed that @ s tod @ sl beings, by virtue of being human @ s, have rights that are inherent and that his act is based on those principles and not on fear of punishment either social or legal.
The May 6, 1998 was a notary in Bogota the first "gay marriage" took place in the country, which was recorded by Deed. More correctly, this "marriage" is the formalization of an economic agreement explicitly stating that society is constituted by two homosexuals.
In July 1999, Case C 507/99, the Constitutional Court said yes to homosexuals in the military, warning that may reveal their sexuality but are subject to the same standards of conduct than heterosexuals. The Court recognizes that military codes of honor may be more stringent. Declaring that does not conform to the Constitution a provision prohibiting members of the military have relationships with people "gay" or make "homosexual acts." The Court found that these behaviors are protected by personal autonomy and can not be punished.
Mr. Carlos Julio Puentes filed in September 1999, supervisory action against the mayor of the city of Neiva to be considered violated by that locality, the constitutional rights of the gay community "equal and free personality development. The gay community of Neiva requested a permit from the mayor of that town, for a parade through the main streets of the city of Neiva, with the candidates to the National Pageant "gay" in its 1999 version, taking into account that during the festival of San Pedro was authorized and performed several shows both children and the elderly, reigns in the neighborhood and those related to the Festival and National Bambuco Reinado. In his case, as his reign took place after the festival of San Pedro, requested the opportunity to make the public parade, on 1 September 1999 (in the protection point 1 October), the possibility that was denied by the Neiva Mayor's reasoned decision of August 10, 1999. The court stated that about sexual diversity and public expression are protected by the Constitution. The ruling was issued in March 2000.
In May 2002, the city Néstor Osuna Patiño Ivan brought protection against paragraph 2 of Article 4 of Act 588 of 2000. The standard establishes defendant unjustified unequal treatment limiting citizens about the possibility of access to public functions in property. The Court, Case T-268/00, removed from the system a rule that established the "homosexuality" as inability to hold the office of notary. The Court held that this provision violates the personal autonomy and equality, and it is irrelevant from the standpoint of discipline.
In the same year, Mrs. Aracely Romero Ravelo, acting on behalf of his daughter, the youngest Daniela Giovanna Martinez, filed a custody action against the director of the College of Our Lady of Nazareth, the town of Bosa, considering that the stock has breached the fundamental rights of his daughter to equality, personal and family privacy, free development of personality and the right to education, giving him a discriminatory treatment and having canceled the registration, by decision of 28 August 2001 handed down by the Board of Directors of that institution. A student enrollment was canceled because they "doubted his sexual identity," about the Court, Decision T 435/02, stated that the schools can not establish rules of coexistence manuals attesting "homosexuality" or the "lesbian."
In September 2003 the homosexual leader Edgar Eduardo Robles Fonnegra tutela filed against the Scout Association of Colombia, who was expelled from his organization, because of their sexual orientation. The Court Judgement T-808/03, ordered his reinstatement to the association because private institutions have a duty not to discriminate against people for any reason.
In March 2004, Juan Pablo Noguera Villar tutela filed against the Police Department Santa Marta, with a view to protecting their rights to equality, integrity, free personality development, honor, good name and freedom of movement, after being illegally detained by members of the police, who considered their presence in a public place, affected morale. The Court, Case T-301/04, clarified that the only public morality may allow to restrict rights is one that is necessary to protect individual life plans in the light of a constitutional democracy and ordered a halt to these actions.
In May 2004, in exercise of the public action of unconstitutionality, the Patricia Marcela Jimenez Arango citizen, sued the unconstitutionality of articles 25, 26, 33, 40, 41, 42, 45, 47, 48, 49, 50, 58-1, 58-10, 59-1, 59-2, 59-6, 59-22, 59-35, 59-38, 59-46, 60-1, 60 - 4, 60-6, 60-8, 60-19, 60-22, 60-60 of Act 836 of 2003 "which is issued Disciplinary Regulation for the Armed Forces." By order of October 6, 2003, Judge substantiating decided to reject the claim. The Court, Judgement C-431 / 0, to review the decision declaring unconstitutional certain provisions of the rules of discipline of the military forces which included negative references to gay people.
In November 2004, in the process of review of the decision adopted by the Circuit Criminal Court Chaparral, Tolima, the Court in its Judgement, Judgement T-1096/04, protected the rights of A man detained in a prison facility, and who had reported being sexually abused by other inmates. Recognizing that because of prejudice social and human rights conditions in prisons, homosexuals have a higher social vulnerability and risk in these places.
In August 2005, nine of the ten processes analyzed in this case (Case T-848/05) as imterpuestas lawsuits by women who accuse the director, Carlos José Prada Ospina, and Assistant Director and Captain of the Guard of the District Jail Villahermosa in Cali, José Ramiro Gómez Tobar, of violating their rights to human dignity (Art. 1, CP), the right to health (Art. 49, CP) and discriminate "the woman's menstrual period." On the last of the 10 processes is discussed in the above, a plaintiff accuses the Manila District Jail, for men, of violating their rights to dignity, privacy and equality, also during the requisition to which had been submitted by guard. This process was also linked the National Prison Institute, INPEC. The Court drew attention to the directors of prisons to protect and respect the sexual freedom of the members of the prison community. The Court does not consider it reasonable to limit the right of any person to engage in conjugal visits 'environment with the necessary sanitary conditions', provided by the prison itself, or limit the right to 'grooming items necessary for conjugal visits', whose income should be allowed, or alternatively, the supply guaranteed.
In 2007 ruling, the court ruled that sexual orientation is a prohibited criterion of discrimination in employment (Case T-152/07). In February this year, the Constitutional Court, Case C-075/07, said the constitutionality of Act 54 of 1990, as amended by Act 979 of 2005, with the understanding that the system of protection contained in them also applies to homosexual couples, recognizing, the property rights of same-sex couples under the same terms and conditions for heterosexual couples.
In October 2007, accounted for the Court to establish if it violated fundamental rights to equality (Art. 13 CP) and human dignity (Art. 1 CP), among others, established in Article 163 of Act 100 of 1993 that the social security protection in the contributory regime has family outreach and therefore does not cover members of the same sex. The Constitutional Court, Case C-811/07, declared enforceable in Article 163 of Act 100 of 1993, with the understanding that the protection scheme contained in it applies to same-sex couples, recognizing the right of membership in health same-sex couples in the same terms and conditions of heterosexual couples.
"economic rights Equating the first step for the recognition of gay and lesbians as subjects of law in Colombia" (Velandia. 2007) is the headline of the article which follows this paragraph, AGMagazine written Argentina:
The February 7, 2007 will be a historic day in the struggle for human rights and sexual rights in Colombia, the Constitutional Court has guaranteed the property rights of homosexual couples. From this date shall be considered assets of the couple's assets acquired in living if you show two years of this.
The ruling was prompted by the lawsuit filed by the NGO Colombia Diversa against Act 54 of 1990 regulating the marital union, which stated that the union is the integrated "a man and a woman", the rapporteur of the ruling, Judge Rodrigo Escobar Gil, won eight votes in favor and only one against.
Declaring unconstitutional that section of pairs of men or women to check a coexistence of two years will achieve the same economic rights that were provided for free heterosexual unions, as part of the established equity partnership, assets acquired during the marriage, will be part of established company.
Germain Counsel Corner reports that in Colombia (in contrast to many countries) through Law 54 of 1990 recognized rights to couples made up of men and women who were not married granting economic effects. With the failure of same-sex couples who live together are treated as the shaped by a man and woman living together without being married, being on equal terms.
The high court has approved the marriage, in this regard has been emphatic in saying that this is a is an allocation that belongs to Congress. Demand drives once uttered the traditional negative responses to the rights of LGBT people by Christian associations and the Colombian Episcopal Conference, institutions that do not seem to understand the major differences between marriage and civil rights, a fact reflected in the words of Monsignor Fabian Marulanda, secretary general of the Bishops, who warned that the concern de la iglesia católica es que no se le llame matrimonio a la unión homosexual. Por supuesto cabe destacar el exabrupto cometido por el ex senador Carlos Corsi, de Laicos por Colombia, quien considera que la Corte ha creado un nuevo sexo: el gay.
En el articulo denominado "Establecen políticas públicas para gay, lesbianas, y trans en Bogotá" (Velandia. 2008a). Presenté la Política Pública para el sector LGBT en dicha ciudad, transcribo a continuación algunos apartes de dicho artículo:
Tras considerar que gay, lesbianas, bisexuales y transexuales conforman sectores social value to society, which are concentrated forms of discrimination and unequal treatment and unfair, the mayor of Bogotá saw the need for an LGBT Public Policy.
Three days before leaving office, the mayor of Bogotá, Luis Eduardo Garzon, pushed these policies after the commitment to LGBT organizations.
The joint work of several years of leadership, leaders and LGBT organizations Bogota has borne fruit with the issuance of Decree No. 608 issued last December 28 2007, by which sets out the guidelines of the Public Policy for the full guarantee of rights of lesbian, gay, bisexual and transsexual / transgender (LGBT) in Bogota, Distrito Capital.
This policy is the final step in a process that began with the signing of an agreement with Luis Eduardo Garzon-be presidential candidate, "that was ratified by the elected Mayor of Bogota which had its first result with the launch in June 2006 in an action from the mayor for a "Bogotá without indifference."
La alcaldía, igualmente, durante dos años consecutivos ha financiado el Centro Comunitario LGBT de Bogotá, que se ha convertido en el lugar de encuentro y convivencia con la diversidad de la población LGBT capitalina.
El Decreto considera que dichas formas de discriminación se dan tanto en los ámbitos cotidianos y familiares como en los públicos e institucionales y se expresan desde actos sutiles de segregación hasta crímenes y actos de violencia física causados por el odio y la intolerancia y que por tanto se hace necesario establecer los lineamientos de la Política Pública para la garantía plena de los derechos of lesbian, gay, bisexual and transsexual / transgender (LGBT) and gender identities and sexual orientations in the Capital District, and enacting other provisions.
In an article entitled "Justice authorized pensions for gay couples in Colombia" Velandia (20008b) relates that "The Colombian Constitutional Court on 17 April approved the payment of pension to survivors same-sex couples. A major legal step for the gay lesbian population, in addition to the failure of this Court to authorize a little more than a year the marital union and economic rights to these couples. "
to the High Court "the decision was made based on the principle of equality that should exist between the Colombian people, regardless of their sexual preferences." The rule clarifies that in order to further the procedures related to the payment of survivor's pension, the partners of gays and lesbians should be acknowledged before a notary, who are permanent partners and maintain a stable, unique and uninterrupted for five years before the death of the pensioner.
To receive the survivor pension, the couple should have lived, permanently, the union had maintained continuously for five. The temporary separation from work, school or travel not dissolve the marriage. If the person becomes a beneficiary has more than 30 years of age, the pension is for life, if you are under this age will receive 20 years.
The High Court ruling declared enforceable several articles of Law 100 of 1993, expanded the understanding of concepts and spouse or permanent companion to same-sex couples, thus determining their validity and giving also the possibility of applying for permanent partner of the same sex (a) affiliate (a) the social security system.
Mora Manuel Antonio Velandia. Sociologist, philosopher, Sexologist's, Master's in Education, Postgraduate Education Project Management, PhD in Psychology at the University of the Basque Country and Culture PhD in Nursing care at the University of Alicante. Colombian Homosexual Movement founder, former Vice President of the Colombian Association of Sexology and former Director of Latin American Journal of Sexology
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Velandia Mora, Manuel Antonio (1998). The Colombian Constitutional Court and the exclusion of teachers because of their homosexuality or lesbian. http://manuelvelandiaautobiografiayarticulos.blogspot.com/2007/08/la-vorte-constitucional-colombiana-y-la.html
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Velandia Mora, Manuel Antonio (2008b). The Justice authorized pensions for gay couples in Colombia. http://agmagazine.com.ar/index.php?IdNot=2381
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