Colombian High Court to Hear American Gay Adoption Case

Colombia's highest constitutional court has agreed to hear the case of an American gay man whose adoption of two boys in the country made international headlines after Colombian officials blocked him from returning to the United States with his legally adopted sons.

The fight over Jose and Angel Pinto Sierra has been an epic one. On March 30, 2011, Chandler Burr, a journalist and former perfume critic for The New York Times, was barred by an official with the Colombian Institute of Family Welfare (ICBF) from traveling to the U.S. with the boys, now legally named Brian, 13, and Joseph, 9, after he disclosed that he is gay. The boys had been abandoned by their biological parents and had been transferred into state custody a few years earlier.

After Burr had already finalized the adoption paperwork and received the adoption decree, he urged the official, Ilvia Ruth Cardenas, who heads the institute's adoption division, to rethink the country's position forbidding LGBT parents from "giving these kids the homes and love they need."

Despite a 1995 Colombian court decision finding that sexual orientation may not be used as a criterion for a prospective parent's suitability to adopt, the government's de facto policy has been to categorically deny adoption to gay individuals, whether Colombian or foreign.

"I said, 'You know me, you know I'll be a good parent. I'm gay,'" Burr recalled of his conversation with Cardenas. "And she immediately freaked out. ... I assumed, naively in retrospect, that since the boys were legally mine and she couldn't take them away legally, even if she was very upset, she wouldn't break the law. This is exactly what she and ICBF did."

Cardenas called the U.S. Embassy and demanded that the boys' adoption emigration visas be canceled (American officials complied). She then asked an ICBF attorney to initiate an investigation of fraud and perjury by Burr in his adoption process.

But in the ensuing months, Burr fought back, suing the ICBF with the help of the civil rights legal group Dejusticia. He lost in both district and appeals courts, but a family court judge eventually kicked the case back to ICBF, demanding it be resolved.

National debate over the case raged after Burr was interviewed by CNN on December 1 about his attempts to bring his sons to the U.S. Colombian bishop Juan Vicente Cordoba fumed in the press over the prospect of a gay man adopting boys, telling El Tiempo last month that Burr's "disorder of sexual identity" is troubling because "he will receive two children at an age when they may be attractive to him, which could be a temptation."

On December 12, an ICBF attorney returned the boys to Burr in an administrative decision -- much to his astonishment. Burr returned to the U.S. with Joseph and Brian a day later. The family lives in South Orange, N.J.

But Colombian adoption officials continue to fight for the return of the boys on procedural and administrative grounds.

Rodrigo Uprimny, Burr's lead Colombian attorney with Dejusticia, said the Constitutional Court will consider the following questions during oral arguments on a yet-to-be-announced date:

-Can a gay person adopt in Colombia?
-Must a potential adoptive parent disclose his or her sexual orientation?

Uprimny told The Advocate via e-mail, "Our position is that it would be discriminatory to forbid a gay person to adopt in Colombia, and that it would violate the rights of many abandoned children in Colombia to obtain a family, via adoption by a gay person or a gay couple."

"Sexual orientation should not be a [criterion] to decide about the suitability of a person to be a father," Uprimny added.

(Story continues on next page; Burr's CNN interview below.)

If the Constitutional Court decides to render a decision via a three-judge panel, an opinion would likely be issued within three or four months. Full consideration of the case by the court's nine justices would take longer, Uprimny said. Either way, the court's decision would be final.

Meanwhile, the Colombian equivalent of the U.S. Attorney General's office could be pursuing a criminal investigation against Burr for fraud and perjury.

"Perjury cannot exist without a question and a dishonest answer. They never asked me about my sexual orientation at any point, so no answer exists," Burr said. As for claims of fraud, "In eight months they were not able to show, not once, that I committed those crimes," he said.

Uprimny said the potential criminal case is not related to the constitutional question to be decided by the court. "On the contrary," he said, "if the Constitutional Court says that clearly a gay person can adopt and does not have to reveal his or her sexual orientation, it is obvious that the criminal case has to be [closed] in favor of [Burr]."

But a Colombian individual with knowledge of the case recently contacted Burr about the potential negative impact of a criminal investigation, claiming that new problems could arise in the adoption case, even though the boys are now in the United States.

Lambda Legal staff attorney Ivan Espinoza-Madrigal, who worked with the U.S. Department of Homeland Security and the State Department to ensure that American officials understood that Burr is the rightful adoptive father of the boys, said the case marks the first time that the Constitutional Court will consider the rights of single gay parents. A separate case involving a lesbian couple in Medellin seeking a second-parent adoption for the biological child of one of the women is currently pending before the court.

Despite Latin American LGBT rights gains in places such as Mexico City and Argentina, Burr's case shows how the broader homophobic culture of Colombia continues to affect same-sex couples and those who are open about their sexual orientation, Espinoza-Madrigal said. "Mr. Burr had not done anything wrong. He had gone through all the required adoption procedures and passed them with flying colors. There are no grounds for rescinding the adoption."

Burr said he has heard from countless people in the adoption field who are hopeful that his case will establish firm precedent about the rights of LGBT adoptive parents in Colombia.

Both boys are adjusting well to life in the States, Burr said. "They're doing great. They're in a terrific public school. And over the weekend, they just saw snow for the first time."

Correction: A previous version of this story incorrectly reported that an American official contacted Burr regarding the implications of the criminal investigation against him. The person who contacted Burr was a Colombian individual familiar with the case.