Last Wednesday June 14, after 4 years of processing, the Gender Identity Recognition and Protection Bill was finally passed by the Senate and submitted to the House of Representatives for its consideration. Behind this important step forward there are also four years of intensive effort by trans activists who worked to improve the Bill and lobbied with a lot of people about the importance of introducing legislation on gender identity issues. While we welcome this progress, we are also appalled to see such prejudice against trans people among the Senators who denied people under 18 years old their right to identity, and pathologized the Bill by making it a requirement to undergo mandatory medical examinations.
The Bill – submitted in 2013 to the Senate for its consideration – defines gender identity and details the procedure to follow in order for a person to change their name and gender marker in their identity documents to match their true gender and not the one imposed to them in their birth registry. Previously to this Bill, an anti-discrimination Law N°20.609 had already been passed. For the first time in the history of Chile, gender identity and sexual orientation were explicitly recognized by law as items under which a person cannot be arbitrarily discriminated against. At the same time, the Ministry of Health was already issuing official publications that allowed a person to be registered and treated in the public health services under their chosen gender identity, even if they had not officially changed their legal name and gender marker. This was an administrative and affirming measure specifically intended to facilitate the access of transgender people to health centers.
The procedure currently available in Chile for individuals to officially change their name and gender marker is based on the already existing Law N° 17.344, which authorizes individuals to change their name. This Law defines the voluntary legal proceedings for this change, where two witnesses must state that the solicitant has been using their new name of choice for the last 5 years, at least; or, if their name registered at birth were ludicrous and offensive to their dignity. Specific requirements are then added to this process for those who also wish to change their gender marker, including: to undergo psychological and psychiatric evaluations that confirm the diagnosis of Gender Dysphoria or Gender Identity Disorder. It is also required that the Legal Medical Services perform a medical sexological examination and assessment. Some courts have even required DNA tests and that the solicitant undergo sterilization and genital modification surgeries.
Case law for and against this kind of court proceedings started back in the 70s, and has increased constantly throughout the years until today. According to data provided by the National Registry and Identification Department (Registro Civil e Identificación), between 1990 and 2017 there have been 345 gender reassignments. Nonetheless, these numbers do not reflect those people whose request for a change of gender was denied by the court.
With respect to individuals under 18 years old, there was a recent ruling in favor of a 5-year-old whose gender identity was recognized by the court prior to the process that requires the medical evaluations and diagnoses previously described.
Pathologization and psychiatrization of the individuals who express gender identities that differ from the ones assigned to them by the State when they were born are commonplace and normalized practices in many countries that lack relevant legislation or that maintain outdated laws. In Chile, the courts making specific requests to transgender people or to people with gender identities not legally recognized are clear acts of discrimination. Some of them, like the request for sterilization, are even almost illegal. Nonetheless, this type of proceedings have been replicated for decades under the same rationale that insists that we are in front of a “medical” issue and that imposes abusive requirements that authorities will justify and even value.
In this same line of thinking, some Senate members expressed themselves during the recent proceedings around the Gender Identity Recognition and Protection Bill. Senator Ignacio Walker, representing the Democratic Christian Party (Partido Demócrata Cristiano), strongly insisted that any adult who requests a legal change of sex must compulsorily undertake “examination by a medical practitioner expert in these matters.” In the light of this statement, one can only wonder, what does Senator Walker mean by “these matters”? And how is he to guarantee the expertise of such medical practitioner in them? Other Senators were quick in their reprimands to Senator Walker and informed him that his requirement was discriminatory and based on prejudices against transgender people. He replied, “it’s for their own good” because not everyone knows what they are doing and they could be suffering from a mental disorder. We all know that any person could suffer from a mental disorder regardless of their gender identity, nonetheless, Senator Walker’s prejudice against transgender people is stronger than anything and he wants to check transgender people up, thoroughly, before letting them exercise their right to identity recognition.
The text of the Bill submitted by the Senate to the House of Representatives states that this shall be an administrative process only available to people who are over 18 years old, who are not currently married, and only if they hold a certificate issued by a medical practitioner expert in these matters. Despite the fact that in Chile the legal system recognizes the full capacity of individuals to institute court proceedings, that there is no administrative proceeding whatsoever that requires a medical certificate for individuals to access their rights, that the Human Rights Charter recognizes the right to identity for all people regardless of their age, and in spite of the right to form a family and against the Convention on the Rights of the Child, the ignorance, prejudice and authoritarianism of several members of the Senate continue to prevail when it comes to decide about other people’s lives.
History has witnessed the creation of fabricated illnesses and pseudo scientific theories designed with no other purpose than to control historically oppressed groups. An example of this is the Drapetomania, that was supposed to be a mental illness suffered by black slaves in the 19th Century. Dr. Samuel A. Cartwright described this disease as an “urge to be free” or the expression of feelings against slavery. Another example, the pathologization of homosexuality, that until 1990 was considered a mental disorder by the World Health Organization (WHO). Today, the trans, feminist and human rights movements face the pathologization of the trans identities behind arguments that try to justify the psychiatrization of anybody who disagrees with the gender identity assigned to them by others. This is a clear attack to personal autonomy and to the right to decide about one’s own identity and one’s own body. In Chile, when it comes to individuals under 18 years old, they’re rights are denied twice, since there is no possibility that their gender identity be recognized without the authorization of the parents or legal guardians. This renders them totally defenseless before potential homophobic or transphobic guardians.
With the hope of finding parliamentarians who truly respect human rights and honor their commitments towards the Chilean State in non-discrimination matters, we will continue to advocate for the improvement of the Bill, now in the House of Representatives, and for the elimination of the prejudice-based and pathologizing requirements, and the incorporation of the recognition of the right to gender identity of individuals under 18 years old.