## Facts

- X, a Colombian man, had a long-term same-sex relationship with Mr. Y for 22 years, including seven years of cohabitation.
- Mr. Y died on July 27, 1993.
- X, economically dependent on Mr. Y, applied on September 16, 1994 to the Social Welfare Fund of the Colombian Congress for a survivor’s pension transfer.
- The Fund denied the application on April 19, 1995 because domestic law, as applied, did not allow pension transfers to a same-sex partner.
- X filed multiple constitutional protection actions (acción de tutela) challenging the denial; the courts rejected relief, and efforts to obtain Constitutional Court review were unsuccessful.
- An Ombudsman response stated that, absent express legal provisions, homosexuals did not have a right to a survivor’s pension.
- X alleged continuing financial hardship and discrimination from exclusion of same-sex partners from survivor benefits.

## Issues

1. Whether denying a survivor’s pension to a surviving same-sex partner, while permitting comparable benefits for different-sex permanent partners, violates ICCPR Article 26 (equality before the law and non-discrimination).
2. Whether the differential treatment was supported by reasonable and objective criteria tied to legitimate social-policy aims.

## Decision

- The Human Rights Committee found Colombia violated Article 26 by denying X a survivor’s pension on the basis of sexual orientation.
- The Committee treated the exclusion as differential treatment between similarly situated stable partnerships, with sexual orientation as the decisive factor.
- The Committee concluded Colombia’s justifications (protection of heterosexual families and regulation of de facto marital unions) did not provide a reasonable and objective basis for excluding same-sex partners from the benefit scheme.
- Certain aspects of the Article 3 claim were declared inadmissible for lack of substantiation, and other alleged violations (including under Articles 14 and 17) were not separately determined once the Article 26 violation was found.
- The Committee indicated Colombia must provide an effective remedy to X (including granting the survivor’s pension or equivalent reparation) and take steps to prevent similar discrimination in the future.

## Legal Principles

- Article 26 prohibits discrimination in law or in fact in areas regulated by public authorities; distinctions based on sexual orientation fall within prohibited discrimination.
- When a State establishes a social-security or benefits scheme, exclusions must not be arbitrary or unreasonable and must rest on reasonable and objective criteria.
- If benefits are available to unmarried different-sex partners in stable unions, denying the same benefits to unmarried same-sex partners requires specific justification; sexual orientation alone is not an objective and reasonable ground.
- Legitimate policy goals may justify distinctions only when the measures are necessary and proportionate to achieving those goals.

## Conclusion

The Committee held that Colombia’s denial of a survivor’s pension to a surviving same-sex partner, where analogous benefits were available to different-sex permanent partners, constituted discrimination prohibited by ICCPR Article 26 and required individual and prospective corrective measures.


X v. Colombia, Comm. No. 1361/2005, U.N. Doc. CCPR/C/89/D/1361/2005 (Hum. Rts. Comm. 2007)