Respecting Trans* Identities: Recent Movements for the Legal Recognition of Gender Identity in Latin America


Latin America has historically struggled with the issue of prejudice against trans* individuals and those whose identity or self-expression do not conform to the traditional gender binary. This problem continues to the present day, with widespread reports of violence and discrimination against trans* people across Central and South America.

In recent years, however, policy makers in certain Latin American countries have begun to take progressive steps in one area relating to trans* communities: the legal recognition of gender identity. These steps have culminated in the passage of a landmark statute in Argentina in May 2012, described by activists as “the most progressive gender identity law in history” (Transitioning Africa 2012). What marks out the new policies in Latin America for particular recognition is not simply that they have arisen in the face of widespread societal prejudice. Rather, it is the fact that, in proposing and enacting these changes, politicians across the region have exhibited a sophisticated and nuanced appreciation of gender identity, something which has unfortunately often been lacking in previous debates on trans* issues.
It is clear that in terms of violence and discrimination, Latin America remains one of the most dangerous and deadly places worldwide for trans* people to live. However, on the narrower issue of gender recognition, Latin America’s rejection of outdated “gatekeeper” requirements, as well as its moves towards prioritizing the agency of trans* people, means that policy makers across the region are increasingly placing themselves at the forefront of global action on the legal recognition of trans* identities.

TRANSPHOBIA IN LATIN AMERICA

During the years 2008 to 2012, Transgender Europe’s Trans Murder Monitoring Project documented the killing of eight hundred and seventy two trans* people in Central and South America (Trans Europe 2012). In Brazil alone, at least three hundred and ninety trans* persons have been killed since 2008. According to statistics from the Health Ministry in Argentina, the average life expectancy for trans* individuals in that country is thirty five years (Ministerio de Salud), as compared to seventy four years for cis males and eighty years for cis females (CIA 2012).1
A particularly distressing feature of the murder of trans* individuals in Latin America is the extreme level of violence which frequently accompanies homicides. In his May 2011 report to the Human Rights Council, the United Nations (UN) Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, highlighted the murder of Lorenza Alvarado Hernández, a twenty three year old trans* woman from Comayagüela, Honduras in December, 2010 (Heyns 2011). Alvarado Hernández was found dead in a ditch, her body beaten and burned, with nearby used condoms suggesting she had also been raped before death. News reports indicated that blows to Alvarado Hernández’s face from stoning were of such severity as to render her remains virtually unrecognizable (IGLHRC 2011).
In addition to violence, transphobia in Latin America manifests as long standing and severe restrictions in access to healthcare, employment and education (REDLACTRANS 2012). In its 2012 report, “State Sponsored Homophobia”, the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) notes that there are currently no national laws in existence in Latin America which prohibit employment discrimination based on an individual’s gender identity or expression.2 Diane Rodríguez, Director of the Ecuadorean Transgender rights group, Silueta X, has recounted how she was forced to give up her university studies because of “professors and other officials who, upon seeing my body in transition, retaliated against me and harassed me in every sense of the word” (WCW). Rodriguez states that trans* persons are frequently kicked out of their home at a young age, and with few support networks in place, are forced into informal employment, such as sex work (Green 2011). Indeed, members of the group, Organizacion Trans Reinas de la Noche (OTRANS) write that sex work is frequently “the price they have to pay” in order to be able to live and express their true gender identity (OTRANS 2012). However, participation in the sex trade exposes trans* individuals to significant health risks and communities in Latin America remain disproportionately affected by HIV/AIDS. According to recent statistics, while the HIV incidence rate among the general female population across Latin America is approximately one per cent, trans* women currently experience the virus at a rate of thirty five per cent (Gillette 2013).

A NEW SENSITIVITY: REFORMING GENDER IDENTITY RECOGNITION

Significant and complex barriers have and continue to obstruct the realization of trans* equality in much of Latin America. In recent years, however, policy makers across the region have begun to show greater sensitivity to the abuses faced by trans* persons. This has shown up in numerous legal and policy initiatives, such as public education campaigns and comprehensive anti-discrimination laws. It is in the dual areas of legal recognition of gender identity and assisting those who seek to medically transition, however, that a number of states in Latin America have had a particularly meaningful impact and are at the forefront of global reform.
The recent positive steps towards the legal recognition of gender identity in Latin America have manifested themselves in a number of ways. In 2009, the Parliament in Uruguay passed a landmark statute on the legal recognition of trans* people (BBC 2009). The law, which begins by affirming that “everyone has the right to the free development of their personality according to their own gender identity”, permits individuals to amend their name and gender (either male or female) in the official civil register and on all identity documentation, such as passports and birth certificates (Tobin 2009). The right to affect a legal name change has also won approval in Ecuador, where the Office of the Ombudsman successfully argued that the anti-discrimination protections in Art. 2 of the new Constitution entitled five trans* people to be issued with amended identity cards (Alliance 2010). In Peru, the First Civil Courtroom (“Primera Sala Civil”) of the Superior Court of Lima ruled, in August 2012, that a trans* woman, Fiorella Vincenza Cava Goicochea, was entitled to change the name and sex markers on her identity papers (Hidalgo 2012). The Court ordered the District Municipality of Miraflores to issue Ms. Cava Goicochea with rectified documents. Similarly, in 2010, a court in Chile held that access to genital reconstruction surgery could not be a prerequisite for a trans* man to change the name and sex on his legal documents (ILGA 2010).
In Cuba and Brazil the authorities have gone beyond the legal recognition of gender identity and begun offering free public health services to trans* individuals. In Chile, the authorities are slated to begin providing similar services from 2013. In Cuba, Resolution 126 of 4th June, 2008, issued by the Ministry of Public Health, established a specialized centre in Havana for the provision of integrated care, including counselling, hormone therapy and sex reassignment surgery (Gorry 2010). In addition, CENESEX, the high-profile sex education centre run by Mariela Castro, daughter of the President, Raul Castro, has continued to advance the National Strategy of Care for Transsexuals, bringing together officials from all levels of Government including the education, labour and justice ministries (Acosta 2008). In January 2010, CENESEX, along with the Cuban Multidisciplinary Society for Sexual Studies (SOCUMES) and the National Commission for Comprehensive Attention to Transsexual People (“The National Commission”), issued a joint-declaration supporting the declassification of transsexuality as an illness (Gorry 2010). In Brazil, the Fourth Regional Federal Court in Rio Grande do Sul ruled in 2007 that the Ministry for Health was required to provide free sex reassignment surgery to qualifying individuals or it would face a fine of five thousand dollars per day (AP 2007). The Court agreed with federal prosecutors that the absence of publicly funded surgeries violated the constitutional right to medical care. In Chile, the Health Minister, Jaime Manalich, announced in May 2012 that, starting in 2013 (Harrison 2012), free or subsidized sex reassignment surgery would be available to individuals in that country (Poladian 2012). Entitlement will be determined by a person’s income bracket and may directly benefit up to four thousand people (Poladian 2012).
All of these new measures represent, as Uruguayan activist, Diego Sempol states, an incredible “step forward” for trans* communities in Latin America (BBC 2009). Legally recognizing an individual’s self-identified name and gender is an express acknowledgement on the part of governments across the region that trans* individuals face a real risk of violence and discrimination when they present in a way that does not conform with the gender markers on their personal documents. Similarly, in making hormone treatment and sex reassignment surgery freely available through the public health care system, the authorities in Cuba, Chile and Brazil are removing a financial obstacle which had previously prevented thousands of people from receiving appropriate and much-needed care. However, in addition to the clear, tangible advancements for the rights of trans* people introduced by these new initiatives, there are a number of additional developments which, while perhaps less noticeable, are no less important and which, when compared with prevailing trends in Europe and North America, place Latin American policy makers at the forefront of recognizing gender identity.
A requirement for sex reassignment surgery remains majority practice worldwide in those countries which legally recognise gender identity. changes. It is, however, not best practice if seeking to promote the health and agency  of trans* individuals. In both Uruguay and Cuba, the authorities have stressed that the legal recognition of an individual’s preferred gender identity, and access to state subsidized health care, is not conditional upon that individual submitting to sex reassignment surgery or forced sterilization (Tobin 2009) In discussing Resolution 126, Mariella Casto stated that the policy “establishes all of the aspects of care for transsexuals, including the operation for those who qualify and are interested, because not all transsexuals want the surgery” (Acosta 2008).
Sex reassignment surgery and sterilization are invasive, often irrevocable, procedures. Individuals who seek to legally change their gender identity may reject sex reassignment surgery for numerous reasons, including trauma to one’s body, medical complications and maintaining the option of having children post-transition. The World Professional Association of Transgender Health (WPATH) has stated that “no person should have to undergo surgery or accept sterilization as a condition of identity recognition” (WPATH 2010). Yet, despite this advice and an express statement on the issue by the Council of Europe’s Commissioner for Human Rights (Hammarberg 2009), sex reassignment and sterilization remain a requirement in twenty-nine European countries (Council of Europe 2011), including Italy, France and the Netherlands (ILGA-Europe 2012). In early 2012, Swedish policy makers explicitly declined to remove the requirement of sterilization from their national laws (Gay Voices 2012). Sex reassignment surgery is prohibitively expensive, with reports of treatment costing up to thirty thousand dollars in some Latin American countries (Poladian 2012). While Cuba, Chile and Brazil each now provide, or are planning to provide, differing levels of state subsidy for treatment, they remain a small minority of countries and sex reassignment surgery thus remains out of reach for the vast majority of trans* persons in Latin America. By refusing to require sex reassignment surgery and sterilization for the legal recognition of gender identity, governments in Latin America are helping to end the promotion of outdated and harmful notions of gender binary, and are ensuring that the bar for legal recognition is not set at a financial height that most trans* individuals will never be able to reach.
Latin American policy makers are increasingly sensitive to the dangers of breaking up established families. In Europe, fifteen states currently require trans* individuals to be unmarried or seek a divorce before they are entitled to have their preferred gender identity legally recognized (EU 2010). In many European countries, such as Ireland, the “divorce requirement”, as it has come to be known, is most often couched in terms of avoiding same sex marriages (Ryan 2012) and this unhelpful conflation of two entirely separate issues, sexual orientation and gender identity recognition, has unfortunately been accepted and affirmed by a recent judgment of the European Court of Human Rights (ECtHR 2012). A divorce requirement is extremely harmful to trans* individuals and their loved ones. It leaves committed spouses without legal status and deprives the children of trans* persons of formal recognition of their families. Forcing couples to terminate a marriage is an additional stress and burden on trans* people during what can often already be a physically and emotionally challenging period. The UK Member of Parliament, Hugh Bayley, stated during debates on the United Kingdom’s Gender Recognition Act 2004, that he could think of “no other circumstance in which the State tells a couple who are married and who wish to remain married that they must get divorced.’ (Bayley 2004) It is no doubt for these very reasons that policy makers in Latin America have begun to move away from their European counterparts and are rejecting mandatory divorce provisions. The 2009 law in Uruguay, for example, requires neither that an individual be childless nor unmarried to invoke its provisions (Tobin 2009). Unlike a majority of their European counterparts, Latin American legislatures, particularly the Argentine Congress discussed below, , are showing an ability to separate out issues of gender identity and sexual orientation. They understand that recognizing gender identity has nothing to do with allowing same-sex marriage, and that attempting to conflate the two issues ultimately advances the debate on neither. They also understand, as the German Constitutional Court held in 2008 (Federal Constitutional Court 2008), that divorce requirements violate the basic human rights of trans* people by forcing individuals to choose between two fundamental guarantees: personal integrity and marriage. By rejecting divorce as a requirement for the legal recognition of gender identity, legislatures in Latin America are ensuring that trans* individuals enjoy both stronger legal securities and greater peace of mind.

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