The Constitutional Court issued Ruling C-197 of 2023 on June 6, 2023, declaring the unconstitutionality of Article 9 of Law 797 of 2003, which established that women must have 1300 weeks of contributions to access the old age pension, just like men. The unconstitutionality lawsuit filed argued that the rule did not recognize the right of women to obtain special protection in the area of social security. In this sense, the court raises and clarifies the following question:
Did establishing a uniform requirement of contribution time for men and women, in order to access the old age pension in the average premium regime, violate Articles 13 (equality), 43 (protection of women and, in particular, the head of the family) and 48 (social security) of the Political Constitution?
In this regard, it is indicated that in order for women to qualify for an old age pension, they must accredit the same 1300 weeks of contributions as men, without considering the barriers and difficulties they face to access and remain in the labor market and assume the obligations of household care, as well as those that intensify when they reach old age.
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This regulation is therefore disregarding the principle of equality and the fundamental rights to social security and pensions. the principle of equality and the fundamental rights to social security and pension.
For the Court, the difference in the pension age, which has been the scheme traditionally used by the legal system in the country, is currently insufficient to deepen the application of the constitutional mandate to overcome gender discrimination, and is even deactivated when women are required to make the same contribution density as men, in less time. As the right to social security is an indispensable way to achieve dignity, justice and solidarity, pension protection must be applied progressively under conditions of equality, eliminating any direct or indirect discrimination between men and women, and although the measure is indeed conducive and necessary to guarantee the principle of financial sustainability of the pension system, it is not necessary to achieve the principles of universality and progressivity in relation to women’s access to old age pensions.
For the reasons stated above, it was declared the unenforceability of paragraph 2 of numeral 2 of Article 9 of Law 797 of 2003, which modified paragraph 2 of numeral 2 of Article 33 of Law 100 of 1993 and the final paragraph of numeral 5 of Article 10 of Law 797 of 2003, which modified Article 34 of Law 100 of 1993, in relation to its effects on women, and it remains within the functions of the Congress to define a regime that guarantees in conditions of equity the effective access to the right to an old age pension for women.
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