Eduardo Perazza, Antonia Quintella de Azambuja, Lucas Souza Passos, Savio Pereira de Andrade and Marina Rocha dos Santos

Over the past few years, discussions on the rights of LGBTQ+ people have gained legal relevance, worldwide and in Brazil, due to the urgent need to recognize this population’s status as full-fledged citizens and equal members of society. One of these rights that has been much discussed and that is fundamental to transgender people is the right to legally be referred to by the name with which the person identifies and by which they are known.

On the international stage, one of the main standards in this debate is the Universal Declaration of Human Rights (UDHR), adopted by the United Nations (UN) General Assembly in 1948, when Brazil was already a member state. The UDHR is the source of every subsequent legal standard that guarantees the protection of human dignity. In Article 2, the UDHR denounces any kind of discrimination on the grounds of “race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. In addition to the UDHR, the American Convention on Human Rights (ACHR), or the Pact of San José, of which Brazil is a signatory, is another important landmark in the international human rights legislative framework that contributes to the protection of the right to a name as an expression of human dignity (especially Article 18 of the ACHR).

Among the international debates that contributed to the consolidation of respect for the right to a name, Advisory Opinion No. 24/2017 issued by the Inter-American Court of Human Rights in response to a request made by the Republic of Costa Rica is worth mentioning. In that Advisory Opinion, which sought clarifications on obligations under the ACHR relating to gender identity, equality and non-discrimination of same-sex couples,[1] the Court interpreted several rights and guarantees mentioned in the ACHR and how they would apply specifically to the LGBTQ+ community.

In particular, the Court was urged to speak on the recognition of each person’s right to a name according to their gender identity. On that point, Advisory Opinion No. 24/2017 recommended that changes in name and birth-assigned gender should depend only on the manifestation of the applicant’s will in  making such changes, according to their self-perception (which logically stems from the rights to privacy and intimacy). In addition, the applicant should not be made to undergo any form reassignment therapy or any form of body modification, which is not always in the interest of transgender people, as recognized by the Yogyakarta Principles.

These principles are the result of an international meeting of human rights groups held in 2006 in the city of Yogyakarta, Indonesia. They were supplemented in 2017 by additional principles and obligations derived from the application of international human rights laws to combat violations suffered by LGBTQ+ people. Here we refer to principle No. 32, which recognizes the universal rights to autonomy, integrity and self-determination, regardless of one’s gender identity. In full, Principle No. 32 states: "[e]veryone has the right to bodily and mental integrity, autonomy and self-determination irrespective of sexual orientation, gender identity, gender expression or sex characteristics. Everyone has the right to be free from torture and cruel, inhuman and degrading treatment or punishment on the basis of sexual orientation, gender identity, gender expression and sex characteristics. No one shall be subjected to invasive or irreversible medical procedures that modify sex characteristics without their free, prior and informed consent, unless necessary to avoid serious, urgent and irreparable harm to the concerned person."[2]

The Inter-American Court of Human Rights also emphasized the need for each State to support those who wish to change their names, ensuring that the process can be done out of court and that it occurs as simply and quickly as possible, without the interested party having to make any disproportionate efforts.

In Brazil, the Federal Constitution establishes the rights to dignity, intimacy, private life, honor, image and equality as fundamental rights. The principle of the human dignity expressed in item III of article 1 of the Constitution is considered a basic foundation of the Republic. Respect for the identities of transgender people and their chosen names is extracted as a necessary corollary of these principles and rights.

In recent years, the Brazilian Supreme Court (STF) was urged to interpret Article 58 of the Public Records Act (Law No. 6,015/1973) in accordance with the Federal Constitution and the applicable international legislation, and to settle any diverging case law on the possibility of changing a person’s given name – the first part of the individual's name, which serves to individualize them – and their gender marker – a term used to designate gender in official records, which, in Brazilian public offices, is only binary (female/male) – before a civil registry, without the need for prior judicial authorization, a surgical sexual reassignment procedure, or any other type of body modification.

In March of 2018, when ruling on Direct Action of Unconstitutionality (ADI) No. 4,275, the Supreme Court finally recognized that the procedure for rectification of name and gender marker by transgender people could be done administratively, before the competent civil registry offices, regardless of any body modification. In his vote, Justice Marco Aurelio acknowledged that "the change in the records with the public register depends only on the free expression of the will of the person who aims to express their gender identity" and that "[t]he person should not have to prove who they are, and the State should not condition the expression of identity to any type of standard, even if it is merely procedural". the Justice also stated that "[i]t is the duty of the Public Authorities, in the Democratic State of Law, to promote peaceful coexistence, in the field of pluralism, without admitting the imposition of the will of the majority based on exclusively moral choices, especially when it comes to a person’s inalienable somatic constitution.”

The decision was confirmed en banc by the Supreme Court in subsequent judgments, as in the case of Extraordinary Appeal (RE) No. 670,422. In this case, the reporting judge, Justice Dias Toffoli, confirmed the position adopted in the leading case and expanded the Court's previous understanding to "recognize the intended right not only for transsexuals, but for all transgender people" and established the following rule with general repercussion:

"1 – Transgender people have a fundamental subjective right to change their first name and gender classification in the civil registry, requiring nothing other than the manifestation of the individual's will, and may exercise such right both in court and out of court through administrative means.

2 – This change must be recorded on the margin of the birth certificate, with the inclusion of the term 'transgender'.

3 – On the birth certificates there will be no comment as to the origin of such change, and issuance of the full birth certificate will not be allowed except at the request of the interested party themselves or by judicial order.

4 –If the procedure is carried out by judicial means, it will be up to the judge to order, sua sponte or at the request of the interested person, the issuance of specific instructions for the amendment of other records before the relevant public or private entities, who shall the preserve confidentiality of such acts."

To regulate the administrative procedure for rectification of transgender peoples’ names, the National Council of Justice (CNJ) issued Provision No. 73/2018,[3] which regulates the process of registering the change in the name and gender marker on the birth and marriage certificates of a transgender person and provides, in Paragraph 6 of Article 4, a list of the documents that must accompany the application for such a change:

  • a birth certificate that has been issued within no more than 90 days;
  • a marriage certificate that has been issued within no more than 90 days (if applicable);
  • copy of ID;
  • copy of national civil identification document (ICN) (if applicable);
  • copy of Brazilian passport (if applicable);
  • copy of individual tax identification number (CPF) issued by the Ministry of Economy;
  • copy of voter ID;
  • copy of social identity card (if applicable);
  • proof of residence; and
  • certificates of civil, criminal and criminal enforcement proceedings issued by the competent judiciary branches (state and federal), protest certificates and certificates issued by the electoral court of the place of residence for the last five years, all issued within no more than 30 days.

This provision must be observed by all registry offices in Brazil, and requests to change names may be made with any registry (not necessarily the same registry where the birth was recorded). It will be up to the notary who receives the application to forward the request to the registry in which the birth was registered, if it is not the same.

In practice, however, the extensive list of documents provided for in Provision No. 73/2018 creates problems that end up becoming real obstacles to fulfilling the main purpose of the procedure.

It is well known that one of the major challenges faced by the transgender population in Brazil is their entry into the labor market. This means that, for the most part, they are citizens who are unable to afford the costs of obtaining the more than ten certificates required according under Provision No. 73/2018. Therefore, the gateway to a procedure that was created to facilitate the exercise of the right to human dignity is, in fact, an obstacle.

This becomes even worse for transgender people living on the street or in shelters. For these people, in addition to the problem of the cost of the required certificates, there is also the difficulty in presenting adequate proof of residence. The provision, in fact, did not address this issue and unfortunately ends up creating rules that perpetuate this population’s difficulty in accessing a dignified existence, which would allow them, in the future, to have proof of residence.

There are also various reports of notary officers making unreasonable demands for documents, requesting, for example, presentation of medical or psychological reports that, although no longer mandatory, are listed as optional documents that may be enclosed in the application for change of name, pursuant to Paragraph 7 of Article 4 of Provision No. 73/2018 – or even denying requests for gratuity in the process of issuance of the necessary certificates, thereby effectively making the process impossible.

In this sense, although the attempt to advance transgender rights undertaken with the enactment of Provision No. 73/2018 is undeniably, its effectiveness and scope need to be addressed. Only in this way will it be possible to continue to advance and put into practice the legislative framework that guarantees the transgender population the right to their dignity and to their chosen name.

Therefore, it is essential that the competent entities, such as National Judicial Review Board (Corregedoria Nacional de Justiça) and the Association of Notaries and Registrars of Brazil (Anoreg), act to investigate irregularities in these services and non-compliance with the process established in Provision No. 73/2018, with the fundamental cooperation of the Judiciary. Similarly, it is necessary that entities such as the Brazilian Bar Association, the Public Defender's Office and even the Civil Police intervene when called upon to combat cases of discrimination against transgender people based on their gender identity.

 

[1] Available in Spanish at: https://www.corteidh.or.cr/docs/opiniones/seriea_24_esp.pdf [Accessed on 04.13. 2021]

[2] Available at: https://www.refworld.org/docid/5c5d4e2e4.html [Accessed on 04.13. 2021]

[3] Available in Portuguese at: https://www.cnj.jus.br/wp-content/uploads/2018/06/434a36c27d599882610e933b8505d0f0.pdf [Accessed on 13.04.2021]