Colombia: Reject Referendum on Rights of LGBT People

Dear Speaker Pinto,

I am writing to share the concerns of Human Rights Watch regarding bill 220 of 2017, which would establish a national referendum on whether same-sex couples and single people may adopt children.

As you know, single people and same-sex couples are allowed to adopt children in Colombia, in part, thanks to a 2015 ruling of the Constitutional Court. [1] Bill 220 of 2017, which has already been approved by the Senate, has the stated purpose of establishing a constitutional amendment to overturn that ruling and current law. [2] Human Rights Watch believes the amendment would constitute a troubling setback to the advancement of the rights of LGBT people in Colombia and would arbitrarily discriminate against single people on the basis of their marital status.

Proponents of the bill have argued that adoption can be limited to heterosexual couples because adoption is not a right under international law or the Colombian constitution but, rather, a measure to protect orphaned and abandoned children. In human rights terms, this argument misses the point. There is no “right to adopt,” but human rights standards forbid discrimination as well as arbitrary unequal treatment.[3] As the Inter-American Court of Human Rights has stated, equal protection under the law “prohibits any type of discrimination, not only with regard to the rights embodied [in the American Convention on Human Rights], but also with regard to all the laws that the State adopts and to their application.”[4]

Naturally, international law allows for states to treat people differently, as long as the justification is objective and reasonable. Proponents of the bill argue that, in this case, the best interest of the child is justification. Colombia is bound by international law to protect a child’s best interest, and proponents mention several studies allegedly showing that, to reach “optimal development,” children need a mother and a father.[5] Yet scholars have shown that proponents misquoted the research. [6] Human Rights Watch is aware of no conclusive evidence that children raised by a mother and father are more likely to reach “optimal development.” Numerous countries—including Argentina, Brazil, Mexico, South Africa and several in Europe—have considered the best interest of the child in allowing same-sex couples to adopt. The European Court of Human Rights has held that denying people an adoption based solely on sexual orientation is discriminatory and not in the child’s best interest. [7]

In addition, it is hard to believe that restricting the number of people available to adopt the orphaned and abandoned would achieve the best interests of children. Rather, the bill seems to apply ungrounded assumptions and discriminatory stereotypes in assessing sexual orientation or single status as determining whether a person is suitable to be a parent. 

Proponents of the bill have tried to defend it by invoking existing discrimination against LGBT people. They have argued that children adopted by LGBT couples are often subject to bullying, social pressure, and discrimination, owing to the “condition of their parents.” [8] It may be true that sectors of Colombian society are intolerant of diverse sexual orientation, but that is no reason to limit adoption to heterosexual couples. As the Inter-American Court on Human Rights has noted, “potential social stigma due to the mother or father’s sexual orientation cannot be considered as a valid ‘harm’ for the purposes of determining the child’s best interest,” as such consideration would only “legitimize that discrimination through the argument of protecting the child’s best interest.” [9] Rather, if children adopted by LGBT people suffer discrimination because of the sexual orientation of their parents, Colombian authorities should take measures to protect them and promote respect for sexual minorities. An important step in doing so would be rejecting this bill.

Proponents have also argued that they seek to limit adoption to heterosexual couples because, “as Christians, [they] recognize God’s original design of a family formed by a man and a woman.”[10] But international law expressly forbids states from discriminating on the basis of religion.[11] --something that Human Rights Watch has consistently criticized in countries as diverse as Iran, Saudi Arabia, Russia, and Nigeria, among others. [12] International human rights law supports the principle that everyone should be able form a family as he or she sees fit.[13]  

Finally, the rights of LGBT couples—or any other group-- to equal treatment before the law should never be the subject of a referendum. Rights—especially minorities’ rights—function precisely as a safeguard against the will of the majority and should not be subject to the whims of popular opinion.

Speaker Pinto, I hope that you and your colleagues in the House of Representatives will take these concerns into consideration and reject bill 220 of 2017. In recent years, Colombia has taken several important steps to recognize the rights of LGBT people in the country and has played a significant role in defending these rights internationally, including by recently co-sponsoring a resolution to appoint a UN independent expert on discrimination based on sexual orientation. Passing this bill, which amounts to nothing more than poorly disguised homophobia, would undermine that remarkable progress.  

José Miguel Vivanco
Human Rights Watch