Gender, Headlines, Human Rights, Latin America & the Caribbean

MEXICO: Supreme Court Debates Transsexual’s Right to Privacy

Diego Cevallos

MEXICO CITY, Dec 10 2008 (IPS) - When transsexuals or transgender persons in the Mexican capital have their birth certificates altered to reflect their change in identity, is it legal to include a notation on the new document indicating that Ms Y used to be Mr X?

That is the question raised by a Mexican transsexual through an appeal under consideration by the Supreme Court, which brings up the issue of the right of transsexuals to privacy and non-discrimination.

The 11 Supreme Court justices are expected to issue a final ruling on the appeal in the first few weeks of 2009, in a case that is the first of its kind to be brought before the country’s highest judicial body with jurisdiction over constitutional matters.

“The decision the judges have in their hands involves our right to live without the shadow of discrimination hanging over us,” Gloria Davenport, a transsexual who works as an adviser to the government’s National HIV-AIDS Prevention and Control Centre (CENSIDA), told IPS.

Studies show that transsexuals are especially vulnerable to violence, discrimination and humiliation, all of which are exacerbated by the length of time it takes for them to legally change their identity in Mexico City, the only place in the country where they can do so, thanks to a municipal law approved in August.

According to estimates by the governmental Human Rights Commission of Mexico City, at least 148 lesbians, gays, transvestites and transsexuals were killed from 1995 to 2006 in homophobic attacks.

The Supreme Court took on the case of a transsexual who filed an application for a writ of amparo (an action brought to enforce constitutional rights) against what the petitioner considered to be an unjust ruling by a lower court. The magistrates admitted the case on the basis that the issue involves the broader question of social inclusion of individuals.

Following a two-year proceeding, a first instance judge in Mexico City granted the petition to issue a new birth certificate reflecting the change of identity, but denied the request not to list the original name and gender on the new document.

The petitioner, who goes by the initials MBAR, argues that her change of gender should be kept confidential in order to protect her right to privacy and non-discrimination.

On Nov. 25, the Supreme Court issued a preliminary decision, with five of the justices upholding the lower court’s decision, arguing that it was legal to expressly indicate the change of sex and name on the altered certificate on the grounds that maintaining a record of the original identity of individuals is necessary to prevent transgressions and protect others against fraud.

They also rejected the petitioner’s claim that a Mexico City Civil Code provision stipulating such express indication is discriminatory. The judges found that the provision establishes a general procedure that applies to any individual who requests an amendment of their birth certificate.

Five other justices, however, found that listing the change in gender identity on the birth certificate could expose the transsexual to discrimination, and thus ruled in favour of the petitioner.

But the final ruling was postponed because one of the 11 magistrates was not present at the Nov. 25 session. A spokesperson for the Supreme Court communications department told IPS that the justices would hand down the final ruling on the case next year.

Diana Guerrero, an activist with Mexico’s Citizen Front in Favour of Transsexual and Transgender Rights, told IPS that “the Court verdict will determine future amendments to federal laws concerning the right to identity of all individuals.”

Several draft laws addressing the issue of the change of gender identity have been introduced in Congress, but they lack majority support and no dates have been set for the debates and votes.

Under the Mexico City law passed in August, the new birth certificate requested by a person who has changed their gender identity, with or without sex reassignment surgery, will not indicate whether the individual was formerly a man or a woman, although there will be an official record of the change.

The case under consideration by the Supreme Court involves a Mexico City male-to-female transsexual who changed her gender identity when the old law was still in force. Prior to the new legislation, Mexico City required that any alteration of a birth certificate be recorded in the document itself, as is still mandatory in the rest of the country.

Davenport and Guerrero concur that the Mexico City law represents a definite but limited step forward. They both believe that a national law is necessary to guarantee a proceeding that will allow individuals to change their identity quickly and without incurring great expenses.

“The Court’s ruling could chart the way for the rest of the country,” said Guerrero, who due to a lack of funds and legal representation has been unable to alter her own identity documents.

Davenport complains that the only law – that of Mexico City – that expressly contemplates the situation of transsexuals requires that the applicant submit to an expert evaluation process that can cost more than 800 dollars. This amount is added to the expenses already incurred in psychotherapy, hormone treatment and medical expenses, in the case of those who go in for surgery.

“As transsexuals, we face all sorts of problems, but discrimination is by far the worst,” she said.

Many transsexuals are forced to turn to prostitution to make a living “because there are no other job options open to them,” Davenport pointed out. She admits to having had to resort to prostitution in the past when she lost her job as a journalist in a news agency where she suffered discrimination.

A 2005 survey conducted by the Ministry of Social Development and the National Council for the Prevention of Discrimination among members of “sexual minorities” revealed that 94.7 percent of respondents felt they were discriminated against in Mexico.

José Luis Álvarez-Gayou, Director of the Mexican Institute of Sexology, explained that, “contrary to popular opinion, transsexuals are not people who decide to change their gender identity on a whim, but rather men who were born in a woman’s body or women who were born in a man’s body, and because of that suffer great anxiety and uncertainty.”

Davenport and Guerrero recalled how they realised early on in life that the male body they were born into was at odds with their gender identity.

Now they have both fully assumed their female identity and hope that the Supreme Court resolution will open the door to legislative reforms that will force the State to support and finance identity change for transsexuals.