Saturday, January 31, 2009

Colombia Constitutional Court, Same-Sex Marriage, and Intersex Children: Saturday Evening Review

This week, Colombia's Constitutional Court ruled that same-sex couples are constitutionally entitled to the same status as opposite-sex couples under Colombia's common law marriage scheme. 

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The case was brought by the organization Colombia Diversa, and the opinion (in Spanish) is available from the organization's website and as a pdf here.   An English press release on the website describes the ruling (available here) and also notes that  "Uruguay and Colombia are the only countries in the Western Hemisphere that
recognize same-sex civil unions."

Colombia's Constitutional Court is also a pioneer in another, less well-known, aspect of constitutional rights on the basis of gender and sexuality.  An article by Kate Haas, Who Will Make Room For The Intersexed?, 30 American Journal of Law & Medicine, 41 (2004), confronts the issue of the constitutional rights of children born with so-called "intersex" conditions, which are sometimes referred to as "ambiguous" or even "nonconforming" genitalia.  As Haas explains:

In 1995, Colombia's highest court, the Constitutional Court, addressed the legality of performing gender reconstruction surgery on children. The Constitutional Court has issued three decisions on the constitutionality of genital reconstruction surgery . . . . The first case that the court considered was brought by a teenage boy who had been raised as a girl  . . . .  Several years after this first case, the court decided two other cases involving children born with intersex conditions.  These three cases have limited parents' rights to choose genital reconstruction surgery for their children in Colombia.

The Colombia Constitutional Court balanced the constitutional rights of parents "over" their children (a concept familiar to US ConLawProfs from cases such as Pierce v. Society of Sisters and Yoder v. Wisconsin) with the constitutional rights of individuals, including minors, to bodily autonomy.  Haas' article discusses the Colombia Constitutional Court's three cases in depth and provides a context for understanding the issue of intersexuality, especially in the constitutional and human rights framework.  I think it is an excellent article, but I'll admit to some bias because Kate Haas wrote the piece while a student at CUNY School of Law.   And while it is not the only article now available on intersexuality - - -the Intersex Symposium issue, 12 Cardozo Journal of Law & Gender 1-366 (2005), is especially noteworthy - - - it contains an unparalleled  discussion of the Colombia Constitutional Court's cases on intersexuality.

RR
(with special thanks to Ricard Pla for the Colombia Diversa materials).

http://lawprofessors.typepad.com/conlaw/2009/01/this-week-colom.html

Comparative Constitutionalism, Equal Protection, Family, Gender, Medical Decisions, Recent Cases, Sexual Orientation, Sexuality | Permalink

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