Saturday, December 2, 2023

Pension vocation rules must be interpreted without gender discrimination

On September 20, AMBITO JURÍDICO published an article titled “Coexistence can be supplemented by the procreation of children, regardless of whether the person claiming the pension is a woman or a man,” based on Sentence SL2089-2023 (95635), which was issued by Judge Jimena Isabel Godoy Córdoba, of the Decongestion Chamber 3 of the Labor Chamber of the Supreme Court of Justice.

We allow ourselves to correct the publication, considering that the title and the introductory text of that note do not reflect the analysis made by the Chamber, which shows that the corporation supports the application of the provisions that, according to the interpretation of the censorship, it is ordered to allow that the requirement of three years of cohabitation to achieve the widow’s pension, according to the case analyzed, can be met by proving the birth of a child with the insured.

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Precisely, the corporation’s statement is limited to examining the objections that support the appeal against the judgment that condemned the UGPP to recognize and pay the survivors’ pension for the benefit of the plaintiff and permanent partner of the deceased member, which is applied in articles 55 and 62 of Law 90 of 1946 (creating Social Security), 33 and 34 of Decree 3170 of 1964 and 21 of Agreement 224 of 1966.

The charges criticize the misinterpretation and direct violation of the aforementioned provisions, because, in the opinion of the appellant, even if the coexistence required by article 55 of Law 90 can be given to the birth of children, his insults based on this possibility. conceived by the legislator only for the benefit of women.

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And that is the question that the Court focuses on. From there, remember that in Sentence SJSL672-2021, repeated in Sentence SL3776-2021, it is taught that, for the allocation of labor rights, a comprehensive interpretation must be made of men and women, which guarantees to establish arbitrary and unjustified differences. .

Its conclusion, then, emphasizes that if a rule refers to a person with a pension vocation, “it is not allowed to make gender differences, because no one is deprived of the effective enjoyment of their rights in a capricious way from a repressive and exclusive perspective, as The censorship raises it in this matter, because of the sex of the complainant…”.

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This is what he warned that the court did not make the legal mistakes attributed to the unusual appeal “because it considers that the rule should be interpreted without odious distinction by gender” (MP Jimena Isabel Godoy Fajardo, decongestion magistrate ).

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