Constitutional Protection of the Widower, Gender-Based Differentiation, and Access to a Pension in the Case Law of the Constitutional Court of Peru

Huamán Ordóñez L.A.; Espinoza Escobar J.H. · Cuestiones Constitucionales (2026) · DOI: 10.22201/iij.24484881e.2026.55.20282

Resumen

This essay analyzes the judicial protection granted by the Peruvian Constitutional Court to widowers in its recent ruling contained in Judgment núm. 468/2025 of Case File num. 01929-2024-PA/TC, which holds particular relevance for social security law. To this end, it examines the regulatory framework applicable to military and police personnel, as established by Legislative Decree núm. 19846, which created distinctions among individuals eligible to access a retirement pension under that special regime, without taking into account the potential infringement of fundamental rights such distinctions may cause. Subsequently, the essay reviews the grounds for differentiation historically adopted by the legislature for access to pension benefits under said regime. It is further argued that the judgment outlines a significant development in substantive justice by establishing that the requirements imposed solely on men -and not on women- for obtaining a retirement pension amount to discrimination. Finally, it analyzes the provision that conditions men’s access to retirement benefits on being either disabled or economically unable to support themselves —a requirement not imposed on women— thereby evidencing conduct contrary to the constitutional mandate of equality before the law. By employing sociological, hermeneutic, and historical methods, the essay concludes that the Constitutional Court’s decision overcomes gender-based distinctions that must be rejected within Constitutional State governed by the rule of law. © Esta obra está bajo una Licencia Creative Commons Reconocimiento-NoComercial 4.0 Internacional.

Instituciones: Universidad Nacional Pedro Ruiz Gallo; Universidad Privada Norbert Wiener