Socio-legal effects of the old-age pension in transgender people in Colombia, period 2015-2020

Abstract

The objective of this research is to analyze the social and legal consequences generated by the change of sex of those who aspire to access the old age pension. For this purpose, the national and some international regulations were reviewed to formulate alternatives that help to facilitate the granting of old age pension to transgender persons in Colombia. In this way, we seek to provide an analysis of pension law and to put forward a legal position based on the legal system, comparative law and international conventions ratified by Colombia. In accordance with the above, it is expected that knowledge of the socio-legal effects of the old-age pension on transgender of old-age pensions for transgender people is expected to contribute with recommendations that will guarantee the old-age pension for this population. Thus, at the time of applying for the recognition of this right, a trans person should be treated under his or her gender identity and not under the one socially assigned to him or her. To achieve the stated objectives, a qualitative approach was implemented in which secondary sources were analyzed, taking national and international legislation to understand the situation experienced by transgender people when applying for old-age pensions. In the results, when reviewing the Colombian regulations, it was evidenced that it lacks a gender approach. Regarding the jurisprudence, a recent case was found that grouped the topic of interest, such as the old-age pension and a transgender person in Colombia, as is the case of the plaintiff Helena Herrán Vargas, whose right was initially violated. pension, despite the fact that it was finally recognized by judicial means in the Judgment of September 10, 2020 of the Superior Court of Bogotá, which was reviewed by the Constitutional Court in Judgment SU-440 of 2021. On the other hand, when comparing regulatory and social aspects in Argentina, the United Kingdom and Colombia, it was found that Colombia has the least restrictive requirements for the change of the sex component. Finally, once the liquidation formula of the pension allowance has been made, recommendations are made to protect human rights and dignity, where it is suggested to use constitutional control in article 33 of Law 100 of 1993 and two legal figures: the periodic review and the revocation of the pension.