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Intervention in tutela for the of the right to equality and free development of personality of a transgender person

August 11, 2010

Colombia Diversa, Women’s Link and Dejusticia intervened before the Constitutional Court to protect the plaintiff’s rights to equality and free development of personality after having been denied entry to two nightclub due to his transgender identity.

We argue that although discrimination based on sexual orientation and gender identity is prohibited, transgender individuals are often subject to discrimination in multiple areas of social life. However, because such discrimination is often subtle and covert, we urge the Court to adopt specific standards for cases involving discrimination against transgender individuals. Under this standard, the plaintiff need not demonstrate discriminatory intent, rather, s/he should demonstrate that i) that s/he belongs to the group traditionally discriminated against, ii) s/he was treated differently than people from other social groups, in a given instance and iii) that the discriminatory treatment caused him/her harm. After demonstrating these three factors, the burden of proof should shift to the defendant, who must prove that the differential treatment was justified and had no discriminatory purpose.

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