Decision of the Constitutional Court would be applied gradually from 2026, after addressing the principle of financial sustainability of the pension system.
This was resolved by the Plenary Chamber of the Constitutional Court after studying a claim against a section of article 9 of Law 797 of 2003. According to the plaintiff, the rule ignored the right of women to obtain special protection in the field of social security, to guarantee them material equality in access to the old-age pension.
It was then up to the Plenary Chamber to determine whether: establishing a uniform contribution time requirement for men and women, in order to access the old-age pension in the average premium regime, violated articles 13 (equality), 43 (protection of women and, especially, of the head of the family) and 48 (social security) of the Political Constitution?
To resolve this question, the Court reiterated its jurisprudence on the principle of equality and the fundamental rights to social security and pension. Then, he exposed the limits to the normative configuration in the matter.
Based on this, she explained the right of women to obtain special protection in the workplace and old age in the comprehensive social security system. At this point, he emphasized the inequities suffered by women in terms of social protection and insurance in old age. Also, she analyzed the measures adopted at the national and international level to overcome the gap between women and men in said scenario..
He considered that advances have been made in terms of reducing inequalities between men and women, although they are insufficient, especially, to guarantee conditions of autonomy for women, particularly those who are older adults or are in the third age. Factors such as informality, discrimination in the workplace and the invisibility of unpaid work in the care economy, which is mainly performed by women, cause a structural deficiency that prevents adequate conditions of material justice for them.
For the Court, the difference in the pension age, which has been the scheme traditionally used by the legal regime in the country, today is insufficient in order to deepen the application of the constitutional mandate to overcome discrimination based on gender and, even, it is deactivated by requiring women the same contribution density as men, in less time. As the right to social security is an essential path to achieve dignity, justice and solidarity, pension protection must be applied progressively under conditions of equality, which eliminate all direct or indirect discrimination between men and women.
The Corporation concluded that the defendant norm, although it is considered neutral, is unconstitutional, since it creates a legal situation of indirect discrimination for women that must be overcome.
In order for women today to be able to access the old-age pension, they must accredit the same 1,300 weeks of contributions as men, without considering the barriers and difficulties they face in accessing and staying in the labor market and assuming the obligations of caring for the home, both such as those that intensify when they reach older adulthoodadds the judicial pronouncement.
And it is that, from a strict judgment of equality, the Chamber evidenced that the norm, although it sought to improve the financial conditions of the average premium regime in its interaction in the current pension system, generates a disproportionate impact on the rights of women, particularly, in the need to guarantee their autonomy and economic independence in old age.
Hence, the accused provision applies identical treatment between men and women, despite the fact that each group faces different conditions in the workplace and social security and that a structural situation of discrimination that affects them has not been overcome. This translates into the fact that the norm does not contain the gender approach that is constitutionally demanded at present, to attend to the conditions of women and the real and effective guarantee for their access to the pension.
In other words, although the measure is effectively conducive and necessary to guarantee the principle of financial sustainability of the pension system, it is not to fulfill the principles of universality and progressivity in relation to women’s access to the old-age pension.
And he warned that the measure generates a disproportionate sacrifice of the rights of women to human dignity, to equality, to social security, to a pension, to the vital minimum and to obtain special protection in the field of labor and social security. . Thus, it accredited its unconstitutionality and considered the need to carry out a weighting exercise that would allow a decision to be adopted that fulfills, to the greatest possible degree, the constitutional principles of universality and financial sustainability in tension.
Decision
The unenforceability of subsection 2 of numeral 2 of article 9 of Law 797 of 2003 was declared, which modified subsection 2 of numeral 2 of article 33 of Law 100 of 1993 and the final section of subsection 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.
It is up to Congress, in coordination with the National Government, to define a regime that guarantees effective access to the right to an old-age pension for women, especially those who are heads of household, in equitable conditions, and that contributes to closing the historic gap by gender.
now finally meet the principle of financial sustainability of the pension system, it was established that the effects of the decision will be applied as of January 1, 2026inasmuch as if said regime has not been adopted by that date, it was ordered by the Court that the number of minimum weeks of contribution that women are required to obtain the old-age pension in the average premium regime will be reduced by 50 weeks for the year 2026 and, as of January 1, 2027, it will decrease by 25 weeks each year until it reaches 1,000 weeks.
Finally, given the evidence of barriers and obstacles for women to access and remain in the labor market and to guarantee their pension rights, as well as the inequitable conditions experienced by women in the care economy, informality, vulnerability and exclusion, Congress and the Executive branch were urged to adopt complementary policies and programs to the public pension policy, which contribute to closing the gap in gender equality, especially with regard to the recognition of the care economy and the need to socially protect those who exercise it.
Taking into account the principle of financial sustainability, the effect of the measure is deferred until December 31, 2025, so that in said period the Congress, in coordination with the National Government, adopts a regime of causation of the right to pension of old age in which the gender approach is fully considered and, especially, the condition of women heads of households. As of January 1, 2026, and if the legislature does not adopt said regime, the weeks of contribution will gradually decrease, until reaching 1,000.