#31M: Recognize and respect the gender identity of trans people for the full guarantee of their human rights
Washington DC, March 31, 2022. – On International Transgender Day of Visibility, the Institute on Race, Equality and Human Rights (Race and Equality) wishes to magnify the importance of recognizing and respecting the gender identity of trans people, as a basis for the full guarantee of their human rights, specifically their economic and social rights. In Latin America, people with diverse gender identity and expression face great challenges in accessing basic services which, in turn, constitute fundamental rights that every person should enjoy without suffering any type of discrimination or violence.
In at least 11 countries in Latin America and the Caribbean there are legal or administrative processes for trans people to rectify their identification documents according to their gender identity. For example, in Brazil—the country with the highest number of murdered trans people in the world—the Federal Supreme Court (STF) established in 2018 that trans people and transvestites over 18 years of age, regardless of sex reassignment surgery, hormonal treatment or the presentation of medical or psychological documents, have the right to change their name, gender, or both, at any Civil Registry office in the national territory, without the presence of a lawyer or public defender.
Meanwhile, in Mexico, 14 of the 32 States of this country recognize in their legislation the right to gender identity, so that trans people can access the modification of their sex or gender through an administrative process, without having to go through a judicial process. The State of Mexico was the last to incorporate this recognition, in July 2021, with a vote in Congress that had 59 votes in favor, one against and eight abstentions. The other states are Coahuila, Colima, Chihuahua, Hidalgo, Jalisco, Michoacán, Nayarit, Oaxaca, Quintana Roo, San Luis Potosí, Sonora and Tlaxcala.
In countries such as Guatemala, Nicaragua, Panama and the Dominican Republic, there is no legal or administrative framework for trans people to rectify their identity documents, or there is no jurisprudence in this regard; therefore, if a trans person decides to start the process, this is at the discretion of the administrators of justice and it can be a long and costly path economically and emotionally. That is the case of Mística Guerrero, a trans woman from Nicaragua who until May 2021 did not have an identity document. In 2012 she began the process of changing her name before the Supreme Court of Justice and since then there has been no ruling on her case, according to a local media report.
The lack of recognition of the gender identity of trans people is not only determined by the existence or not of processes to change their name, but also by the will and management capacity of State institutions that must implement these regulations in civil registries. And the fact is that, despite the existence of these processes in many countries, activists and LGBTI+ organizations usually experience difficulties for trans people to access them, due to factors such as lack of clarity and transphobic attitudes, which generates delays and people desist from continuing the process.
Added to this is the fact that there are very few trans people who have the support of their families in these processes. The home is configured as the first space in which people with diverse gender expression and identity experience acts of rejection, violence and discrimination, a dynamic that is maintained throughout their lives.
“[…] There are countless barriers that keep trans and gender diverse people from being able to develop their full potential and from accessing basic rights from an early age, which has to do with the rejection and violence they receive since they begin to externalize their gender identity. In that order, there are numerous reports that show a high prevalence of trans and gender diverse adolescents who suffer expulsion from their homes at an early age”, explains the Report on Trans and Gender Diverse People and their economic, social, cultural and environmental rights, published in August 2020 by the Inter-American Commission on Human Rights (IACHR).
Gender identity and economic and social rights
The non-recognition of gender identity has serious implications for the recognition and exercise of human rights, including economic and social rights. It is important to point out that States have an obligation to fulfill and guarantee these rights based on the principle of equality and non-discrimination of the Universal Declaration of Human Rights and the American Convention on Human Rights.
“The lack of guarantee of the right to recognition of gender identity has as a consequence because trans and gender diverse people often carry identification documents that are not consistent with their gender identity,” the IACHR points out in the aforementioned report. In this way, access to rights such as health, education, housing and employment is limited and subject to prejudice. In addition, the possibilities of people suffering situations of violence and discrimination are increased.
Agatha Brooks, a trans woman from the Dominican Republic and a member of the organization Trans Siempre Amigas (TRANSSA), has experienced discrimination when trying to access housing. “We are not allowed to rent a house, because they believe that we are depraved people and that we are bad examples for children or families around us,” she indicates.
Apart from the problem of access to these rights, trans people also face violence and discrimination when they exercise them. Arturo Nicolás, a trans man from Peru and a member of Transmasculine Diversity, says that urgent measures are needed in the educational field to guarantee full access of trans people to this right. “ This does not mean only opening the spaces through quotas or similar measures. The care and containment protocols in case of violence are pillars to support trans or gender diverse people in educational spaces”, he affirms.
While Bruno Pfeil, a trans man from Brazil and coordinator of the Revista Estudios Transviades, shares his experience in access to health: “In the field of health, the (dis)access that weighs me down the most is gynecological health. Whether it’s for testing, or just for a routine checkup; It is always a headache to have to explain that I have a uterus, that I need a certain consultation, and that the regard that should be given to my body cannot be built under the cisgender prerogative.”
In its Report on Trans and Gender Diverse Persons and their economic, social, cultural, and environmental rights, the IACHR gives a comprehensive account of how the impossibility of rectifying personal documentation has been identified as one of the greatest obstacles to the effective enjoyment of other human rights, both civil and political as well as economic, social and cultural, for which it considers it urgent that the States adopt measures to guarantee this right in accordance with inter-American and international standards on the matter.
Although we recognize and celebrate the adoption of judicial and administrative processes for the recognition of the gender identity of trans people in several Latin American countries, we believe that this does not only depend on correcting their name and/or gender in their respective identity documents, but it is also closely related to the implementation of educational processes and public policies to eliminate LGBTIphobia in society and guarantee effective services that are tailored to their needs, respectively.
We also appreciate and thank the role of the United Nations Independent Expert on Gender Orientation and Identity, Víctor Madrigal-Borloz, who, through reports—such as the latest titled Law of Inclusion and Exclusion Practices—and numerous interventions before civil society and States, has positioned the issue of gender identity as a determining experience in people’s lives and, therefore, subject to a framework of rights that States must guarantee.
Along with this, we submit some recommendations to the States, many of which were set out by the IACHR in the aforementioned report and which we consider key steps to guarantee the human rights of trans people in the region:
- Adopt gender identity laws that recognize the right of trans and gender diverse people to correct their name and the sex or gender component on their birth certificates, identity documents, and other legal documents. This is based on Advisory Opinion 24/2017 of the Inter-American Court of Human Rights (IA Court).
- Eliminate from their legislation and public policies any form of criminalization, direct or indirect, of the conduct of people in the exercise of their gender identity or expression.
- Include protections against discrimination based on gender identity, in the public and private spheres.
- Develop and implement policies and programs to promote respect for the rights of trans and gender diverse people and their acceptance and social inclusion. These must be comprehensive, transversal and based on the human rights approach and particularly including the gender perspective.
- Develop and implement informative awareness and awareness campaigns in the public and private media on body and sexual diversity and the gender approach.
- Promote information campaigns for trans and gender diverse people about all their human rights and existing protection mechanisms.
