5 21. The petitioners maintain that although social security is a right recognized under Article 9 of the Protocol of San Salvador and in the provisions of Colombia’s Constitution, laws of lower rank make access to social security via the survivor’s pension conditional upon the existence of a heterosexual marital union, excluding, without justification, same-sex couples. Thus, according to the petitioners, the laws that define “partner or permanent partner” discriminate based on sexual orientation, since the community that a same-sex couple forms is not protected; hence, the State has introduced in its laws cause for exclusion based on sexual choice, which is unjustified discrimination in that it is not informed by criteria of reasonableness and justice. 22. The petitioners point out that in this case the enforcement of this discriminatory legal provision had the effect of unfairly denying Mr. Duque his inalienable right to social security, an injustice compounded by the looming danger that a person living with HIV faces. 23. As for developments since 2007 in the Colombian Constitutional Court’s case law on the subject of the rights of same-sex couples, the petitioners argue that while it may be effective in preventing discrimination in similar cases in the future, that case law was developed subsequent to the facts in the present case and subsequent to the date on which the present petition was filed. As such, they argue, at the time of the events in this case, the legislation in force excluded same-sex couples. Furthermore, the petitioners point out that the case law did not have retroactive effects and could not serve as an effective remedy, because of: (i) the established means of proof; (ii) the temporal effects of the judgments; and (iii) the fact that by the time of these developments in case law, Mr. JOJG had already died. 24. As for the State’s argument regarding the progressive realization of the right to social security within the context of ESCR, the petitioners point out that the obligations set forth in articles 1(1) and 2 of the American Convention are also incumbent upon the State with respect to the right protected under Article 26 thereof, and that aspect was never a consideration in the debate with the authorities who denied Mr. Duque his legitimate right to the survivor’s pension. The petitioners stress the fact that the denial of the right to the survivor’s pension and other related benefits was not due to the State not having sufficient means; instead, Mr. Duque’s exclusion was due to his sexual orientation as the surviving half of a same-sex couple. 25. As for the right to judicial guarantees and judicial protection, the petitioners allege that the Colombian authorities prevented Mr. Duque from being able to secure effective judicial protection of his rights, by means of the following: (i) laws that, by providing rights to couples composed of a man and a woman, effectively introduce factors that discriminate against same-sex couples; and (ii) a narrow interpretation and enforcement of the applicable rules on social security and pension substitution, which had the effect of excluding same-sex couples as beneficiaries. 26. They also point out that the responses to the claims that Mr. Duque filed both with private institutions and public authorities, indicate that access to due process with the necessary guarantees, was not ensured. Thus, according to the petitioners, same-sex couples have been precluded from setting in motion the administrative and judicial actions allowed under the domestic legal system to claim the right to a survivor’s pension. Specifically, the petitioners stress that the purpose of a tutela action is to be able to avail oneself of constitutional jurisdiction in order to create the opportunity to have access to internal judicial due process that would open up, under conditions of equality, access to the right to pension substitution that heterosexual couples enjoy.