CONTINUED EXISTENCE OF “GATEKEEPER” REQUIREMENTS
The laws regarding legal recognition of gender identity, which have been adopted in Latin America, are not, however, immune from critique. Despite the increasingly progressive sentiments embraced by policy makers, a number of worrying gaps do still remain.
First, although governments in Chile and Brazil are now required to subsidize sex reassignment surgery for qualifying individuals, they both retain a discretionary power to determine the conditions which trans* persons must meet in order to be eligible for the treatment. The fear is that both governments will set the bar, particularly the indigence test, at a level which trans* people, although disproportionately excluded from economic activity (REDLACTRANS 2012), will not be able to meet. Although, the Chilean Minister for Health stated that publicly funded medical transition services would be available to trans* individuals in that country from 2013, there has since been no reported discussion of the form which that assistance will take, and perhaps even more instructive, there is, as yet, no reported case of an individual being accepted for treatment.
Second, the policy reforms in both Uruguay and Cuba require that individuals live as their preferred gender for a period of at least two years before they are entitled to have their gender identity legally recognised by the state. In Cuba this time period has been termed “real life experience” and mirrors the legal requirements in numerous European countries, such as the United Kingdom. Forcing people to prove that they have lived in their preferred gender is problematic in a number of ways. It suggests a suspicion on behalf of authorities that an individual’s desire to transition is really just a passing phase, not something to be immediately engaged with, and that trans* individuals should have to earn the right to be taken seriously. It is in some ways akin to asking a young lawyer or accountant to complete a period of training before they are entitled to a full professional licence, as if to say that there is a rigid set of criteria for being a man or woman and that trans* people must prove that they meet that criteria before society grants them recognition.
Finally, the new policy measures in Latin America, while moving away from the requirement of surgery, still place the ultimate determination of an individual’s gender identity in the hands of medical professionals and do not fully respect the agency of trans* people themselves. In Uruguay, the 2009 law establishes an interdisciplinary medical panel to consider applications for gender recognition. This panel’s primary responsibility is to assess whether a medical professional has attested to the applicant’s stable and persistent gender dysphoria (Tobin 2009). Similarly, in Cuba, persons seeking official recognition of their gender identity must first submit to a two year diagnostic evaluation, at the end of which it is the National Commission and not the individual him or herself, who determines whether the person is trans* (Gorry 2010). Dr Alberto Roque, a member of the National Commission, has stated that “our job is to help transgender people, or people who are not clear about their gender identity, define that identity.” (Gorry 2010) In Chile, where there currently exists no specific law permitting a change of name and sex on official documents, access to facilities for transitioning is entirely conditional upon medical and legal agreement. The decision as to whether a person should be entitled to access such medical facilities ultimately rests within the sole discretion of the Courts (Garcia 2012).
The continued pathologization3 of trans* individuals is deeply troubling in all contexts, but it is particularly disheartening in Latin America where policy makers have otherwise shown themselves to be sensitive to the issue of legally recognizing gender identity. The requirement that individuals be diagnosed with gender dysphoria is not only inconsistent with the lived experiences of many trans* people, it is also deeply offensive. Within the trans* communities of Latin America, as in communities across the world, there are those who strongly object to the suggestion that their gender identity is a mental illness. The requirement of medical treatment therefore creates a situation where, in order to have their preferred gender recognized on their identity documentation, many trans* individuals in Latin America will have to claim to suffer from a mental illness that they do not even believe exists. Requiring a diagnosis of gender dysphoria also ignores the fact that, for reasons including social isolation, fear of prejudice, and a lack of resources, trans* individuals in Latin America are significantly less likely to have access to even the most basic healthcare resources (REDLACTRANS 2012). How can trans* persons be expected to attain a certified diagnosis of gender dysphoria when many cannot even go to their local medical clinic?
“THE MOST PROGRESSIVE GENDER IDENTITY LAW IN HISTORY”
It was in the context of the advancement on the legal recognition of gender identity by Latin American states, but also in the face of continuing discrimination against trans* communities across the region, that the Congress of Argentina came to pass the Gender Identity and Health Comprehensive Care for Transgender People Act on May 9th, 2012 (Nasif Salum 2012). The law, which may potentially affect as many as twenty two thousand trans* people across Argentina (Quinn 2012), has been described by advocates as the “most progressive gender identity law in history” (Transitioning Africa 2012). By its Art. 4, the new Act permits individuals to amend the gender marker on all their official documents by simply submitting an affidavit which confirms their desire for the change. Unlike the reforms in neighbouring Uruguay and in Cuba, the Argentine law does not mandate the intervention of a medical officer nor does it require that an individual be first diagnosed with gender dysphoria. All that matters is the express self-identification of the trans* person involved (Schmall 2012). Commenting on the new law, Alejandro Nasif Salum, Secretary of International Relations for the Federación Argentina LGBT (FALBGT), concluded that one “could say that the Argentine State depathologized trans identities” (Nasif Salum 2012). Indeed, the Argentine law is the first legal regime which recognizes a person’s true gender identity not because of what a doctor has said but rather solely because the regime respects the agency of trans* individuals themselves.
The new law requires public and private healthcare providers to offer full cover for sex reassignment surgery and hormone treatment. Healthcare for trans* persons is now included in Argentina’s overall national health care policy, the Obligatory Medical Plan. Although Argentina operates a provincial-based medical system, so that each province is ultimately responsible for implementing the terms of the new law, regional policy makers must respect their obligation to provide free care and all providers operating within a given province, whether public or private, will not be able to charge extra fees on individuals who chose to undergo physical transition (Warren 2012). Unlike the plans in both Chile and Brazil, the obligation to provide subsidized healthcare is not conditional on a means test. Argentina has established a general right to medical services for transitioning which hopefully will guarantee access to treatment for all trans* persons who wish to avail thereof.
One of the major criticisms directed at previous gender recognition laws, both in Latin America and in Europe, is that they have largely excluded the voices of trans* youth. This most frequently manifests itself in strict requirements that individuals be at least eighteen years old before they are entitled to benefit from the legal recognition of their self-identified gender. Such restrictions fail to acknowledge both the existence of trans* young people and the extremely high levels of prejudice which these individuals face because of their gender identity. Trans* youth are not only frequently rejected by family members but are also excluded from vital services, such as education, either because of direct discrimination or because the service providers refuse to respect the young people’s gender identification. The Argentine law, however, expressly permits individuals under the age of eighteen years to change their legal gender with the approval of their guardians (Warren 2012). Where a guardian desires to change a minor’s legal gender without the latter’s consent or refuses to agree to a minor’s legal gender recognition, a judicial officer may intervene to protect the rights of the young person (Warren 2012).
On 2nd July, 2012, the Argentine President, Cristina Fernandez de Kirchner, invited a number of leading trans* activists to the Government Palace in Buenos Aires and personally handed them their new identity cards. Speaking to the audience, President Fernandez de Kirchner stated that the new law is not about tolerance but rather about extending basic equality to trans* individuals (Duque 2012). By late December, 2012, one thousand seven hundred and twenty trans* individuals had already processed changes to their official identification records. Trans* persons across Argentina have sought to avail themselves of the new law’s provisions. In a bulletin published on 1st January, 2013, the Department of Immigration and the Argentine Civil Registry announced that qualifying foreign residents living in Argentina would now be able to request a change of identity on their national ID cards. In order to be eligible, an individual must first possess permanent residency in Argentina, a national ID card and a consular note confirming that the foreign resident’s new gender identity is not recognized in his or her country of origin (BAL 2013).
Nasif Salum sums up the Argentine law by observing that while some of the features in the new statute are present in other legislation around the world, “the law in Argentina is really the only one with all these advances at the same time and in a single act that deals comprehensively with the rights of trans people” (Nasif Salum 2012). In the wake of the law’s passing, trans* rights activists around the world, especially those in Europe, have held out Argentina as a model of best practice when dealing with gender recognition. This is particularly so for activists in both Ireland and the Netherlands, who are currently seeking to pass comprehensive and rights observant legislation, but who have thus far been frustrated by governments determined to further enshrine outdated gatekeeper checks, such as authorization panels and divorce requirements.
While generally accepted by advocates as the “gold standard”, the Argentine law has also been subject to certain critiques. In a recent interview, Esteban Paulón, President of FALGBT, noted that those who drafted the law had provided scant detail on how the health coverage provisions should operate at the provincial level. Advocates have been obliged to work with each provincial government individually, creating multiple different services to carry out and enforce the terms of the law (Zapata 2012). In December, 2012, the newspaper, La Nación, reported that there were still only two hospitals in all of Argentina accredited to carry out sex-reassignment surgery, with a consequence that, individuals who had applied for medical transition services, under the terms of the new law, now faced months-long waiting lists to receive treatment (Massa 2012). Advocates also note that while the new law has gone some way to challenging rigid conceptions of gender binary, it still presents trans* persons with a flat choice between a masculine or feminine identity. For those persons who see their gender as fluid rather than fixed, the legislation is therefore of limited relevance. Some within Argentina’s trans* community view their movement’s next project as educating and persuading authorities on the importance of removing gender from personal identification documents or introducing an “other” marker, similar to that currently envisaged by activists in Nepal (Dot429 2013).
HOW WAS REFORM ACHIEVED? : LESSONS FOR TRANS* ACTIVISTS WORLDWIDE
The current progress on trans* rights in Argentina and across Latin America pose important questions, not only for individuals on the ground but also for activists around the world who are seeking to accomplish similar advances in their own countries. How have advocates in Latin America, facing a history of extreme violence and discrimination against trans* communities, been able to achieve such significant legislative and court victories, and can the strategies employed, and lessons learned, in this region be used to further trans* equality more generally around the globe.
The first point to note is that the advances on the legal recognition of gender identity in Latin America have not arisen within a vacuum, but rather form part of a much wider movement across the region recognising the notion of “LGBT rights”.4 In 2008 and 2009, Ecuador (AWID 2013) and Bolivia (Hurtado 2010) both enshrined equality on the basis of sexual orientation and gender identity within their national constitutions. The superior courts in Mexico (McCormick 2012) and Brazil (Barnes 2011) have cast doubt upon the validity of gay marriage bans and in Colombia the Constitutional Court has given Parliament until June 2013 to legislate for the status of same-sex unions (St Amand 2013). In July 2012, following the horrific murder of Daniel Zamudio, a young gay man who was fatally wounded during a homophobic attack in Santiago, the President of Chile, Sebastian Pinera, signed a landmark anti-discrimination statute into law, granting legal protection to individuals on the basis of sexual orientation and gender identity (NYT 2012). The ban on gay men donating blood, still enforced in the United States and much of Europe, has recently been repealed in both Mexico (Duque Mexico 20120) and Colombia (Zapata Colombia 2012). At the pan-regional level, the Inter-American Commission on Human Rights (IACHR) created a specialized unit for lesbian, gay, bisexual, trans*, and intersex (LGBTI) people in January 2012 (OAS 2011).Furthermore, in the case of Atala Riffo and Daughters v Chile, the Inter-American Court of Human Rights ruled that Chile had violated the privacy and non-discrimination rights of a lesbian mother by awarding custody of her children to her former husband on the sole basis of the mother’s sexual orientation (IActHR 2012).
Advances on issues of sexual orientation, or progress achieved under the umbrella term “LGBT rights”, do not always (or even often) result in identifiable benefits for trans* communities. It has long been a criticism made by trans* activists around the world that using the phrase “LGBT” has often allowed gay rights advocates to pursue a gay-centric, trans* exclusionary agenda, while claiming to promote equality for all and to speak with a community-wide voice. The general movement towards LGBT rights in Latin America cannot be taken, ipso facto, as a reason for the more specific progress experienced in legally recognizing gender identity. However, there does appear to be evidence that the recent victories won by trans* people across the region do share certain origins, and are in some ways intertwined, with the general LGBT rights movement. A prime example of this inter-connectivity can be seen in Cuba, where CENESEX, and its head, Mariela Castro, interpret the notion of “sexuality” in its widest form (encompassing what English-language advocates would term “gender”), and attempt to educate society both on the role which sexuality/gender plays in all individuals’ lives (whether straight, gay or trans*) and how lack of knowledge or misunderstanding can give rise to prejudice and discrimination (CENESEX 2013).
Perhaps the most prominently publicized victory for LGBT rights in Latin America over the past five years has been the passage of Argentina’s same-sex marriage law in July, 2010. In analysing that country’s new gender identity law, Alejandro Nasif Salum has stated that one should not underestimate how important the earlier marriage law was in establishing the ground work and setting the tone for the later debate on gender recognition (Nasif Salum 2012). Introducing the marriage bill in Congress and allowing the deputies to debate not only the specific law in question but also the wider concepts of LGBT equality, created a very clear public space for individuals to discuss issues surrounding sexual orientation and gender identity. While, as in many countries previously, this debate was not always favourable to sexual minorities, it did challenge Argentines, at all levels of society, to consider these issues, often for the first time, and was central to breaking down commonly held misconceptions about the LGBT community.
The fact that the marriage equality struggle was eventually won in Argentina had the effect of implanting into the general public’s consciousness an acceptance that people are entitled to equality irrespective of whether they identify as gay or trans* (Nasif Salum 2012). One possible reason for this might be that in Argentina, as in countries such the United States and Great Britain, the marriage equality debate has transcended the simple notion of recognizing same-sex relations and come to symbolise the wider concept of LGBT equality. In accepting gay marriage, Argentines were perhaps, therefore, whether consciously or not, reconciling themselves with the more basic idea that nobody should be discriminated against on the basis of sexual orientation or gender identity.5 Certainly, Nasif Salum suggests that without the earlier marriage law, those proposing the gender recognition bill would most likely have had to argue over every minute detail, with a result that any final legislation passed would ultimately have been considerably less progressive than the actual statute eventually signed into law. The marriage law changed the landscape of sexual politics in Argentina, embedding the idea not only that LGBT rights are something which society must accept but also which the institutions of state have a positive responsibility to protect (Nasif Salum 2012).
The Argentine example is important for all advocates around the world seeking the legal recognition of gender identity, but particularly those in countries which are currently debating related notions of LGBT equality. In the United States, for example, trans* advocates may be able to capitalise on a growing public awareness of LGBT issues, driven in large part by the marriage equality fight, in order to press, at the state level, for more rights- observant gender identity recognition laws and, at the federal level, for a trans* inclusive Employment Non-Discrimination Act (ENDA).
The implementation of both government and civil society-led public awareness and sensitization campaigns has been a central feature of recent advances on trans* issues in Latin America. Speaking about earlier, unsuccessful attempts to enact trans* equality measures in Cuba, Mariela Castro recalls that shortly after the first surgical interventions in that country during the late 1980s, sex reassignment surgery was suspended as a result of “inadequate media coverage”, reporting which was both ill-informed and hostile to the rights of trans* people, and the subsequent “virulent public reaction”. “[We learned that this type of initiative] requires an unflagging educational process and a lot of explanation so society better understands transsexuality; we are the ones who are limited, not transsexual people.” (Gorry 2010)
In February 2012, the Brazilian State of São Paulo, in partnership with the São Paulo City Metro, launched a campaign to combat homophobia and transphobia, entitled “See beyond prejudice. Respect differences.” (Littauer 2012) The first stage of this project specifically aims to combat discrimination and prejudice directed towards the State’s trans* community. In Mexico, the trans* rights group, Fortaleciendo la Diversidad, was honoured with the 2008 Red Ribbon award at the International AIDS Conference in recognition of its ground breaking community outreach work in San Luis (Alliance 2009), including running trans* awareness workshops for members of the police (Alliance 2009). In Argentina, in the months before Congress’s vote on the new law, trans* activists launched a highly praised campaign of advertisements, highlighting popular misconceptions about the trans* community and the discrimination which trans* persons face on a daily basis (Duque Chile 2012). In addition, FALGBT issued a “Guide for Communicators on Gender Identity”, educating journalists on how to use appropriate terminology in their coverage of trans* issues (Nasif Salum 2012).
The measures adopted in Latin America can serve as a simple, yet highly effective model for trans* activists around the world. The invisibility of trans* identities only serves to reinforce public ignorance of trans* experiences. By raising awareness of trans* lives – free from stereotyping or hyperbole – activists in countries, such as Mexico and Argentina, have allowed members of the public, perhaps for the first time in their lives, to see and engage with gender identity and to appreciate the negative impact which refusing legal recognition can have upon one’s ability to meaningfully participate in society. In Chile, the Organización de Transexuales por la Dignidad de la Diversidad has now sought to replicate Argentina’s advertisement campaign, creating its own project which invites trans* rights advocates and allies to upload videos on YouTube answering a simple question: Why do you want a gender identity law ? (Duque Chile 2012) Sensitization training for the media, such as FALGBT’s terminology guide, also has the potential to radically improve press coverage of trans* identities worldwide. In the United Kingdom, Suzanne Moore’s recent flippant reference to women wanting the body or a Brazilian transsexual in the New Statesman (Moore 2013) and Richard Littlejohn’s tragic outing of trans* teacher, Lucy Meadows, who later committed suicide, in the Daily Mail (Lees 2013), illustrate the continuing dangerous consequences of uninformed discussion within the media. It seems unlikely that policy makers in the United Kingdom will ever be able to enact much needed reforms to that country’s gender identity recognition laws while writers in the Guardian newspaper can still refer to trans* women, as Julie Burchill recently did, as “a bunch of bed-wetters in bad wigs” (Young 2013).
Latin America remains an extremely dangerous and discriminatory place for trans* individuals to live. According to Transgender Europe’s Trans* Murder Monitoring Project, approximately eighty per cent of all reported trans* murders worldwide in the past five years have taken place in Central and South America (Trans Europe 2012). Trans* people across the region continue to face discrimination and prejudice simply for being who they are and going about their lives. In such circumstances, the progressive legal developments discussed in this article can and will have only limited effect without further measures to end trans* human rights violations. It has not been the purpose of this article to suggest that the legal recognition of gender will ameliorate the myriad problems experienced by trans* persons across the region. Rather, the article merely seeks to show that, in certain countries across Latin America, policy makers have begun to adopt rules on the recognition of gender identity which, unlike similar measures in North America and Europe, reject harmful notions of a rigid gender binary and are beginning, for the first time, to prioritize the self-identification of trans* communities.
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