LGBT and Judicial Interference in Legislation
By Alinne Lopes Gomes
“In Brazil, the change of the family name is only possible under very specific circumstances; the law understands that, whenever possible, the last name must be conserved. The first name, however, is subjected to less restrictions. According to the art. 56 Public Records Law (LPR), a person can legally change their first name in the following year after they reach civil adulthood. Currently, the age is 18.”
There are available in the country a few specific mechanisms with restricted reach that verse on the right of the use of the social name. The right of a name is a basic constitutional principle that guarantees personality and individualization of a person. The denial of the appropriated name based on gender identity can lead to several identity problems; subjecting a transgender person to being referred to by the assigned civil name is an aggression to their perception as a human being.
One of the best-known authors specialized in Civil Law, Professor Caio Mário da Silva Pereira, versed on the name as a personal right and a matter of public interest when compiling the current Civil Code approved in 2002. The former theories, which understood the name as a mere identification and a matter of public obligation, were disregarded in the new legislation. A person’s name assumed the characteristic of a personal right, unexchangeable and inalienable.
The possibility of the first name change is extended to situations in which the person feels embarrassed by the assigned name. The prevision protects people given names that expose them to ridicule. All cases are analyzed singularly and depend on the judge’s subjective understanding of what constitutes ridicule.
The LPR explores other mechanisms to change an individual’s name; it is possible to get judicial permission to correct grammar mistakes and to add a known nickname or another name for which someone is better known. The STJ decided in favor of excluding the paternal surname in favor of the stepfather’s family name. The decision shows a comprehensive evolution on the diverse cores of Brazilian families and supplies legal support for these families’ children.
When it comes to the change of name on official documents, the bureaucracy is another obstacle in the path to accessing rights for transgender people. There is no federal legislation securing or regulating the change; the specific regulations vary through the States and most of the existing policies are administrative. The Decree 8.737/2016 provides guidelines for transgender individuals on the public administration spheres; it guarantees the right to the social name and recognition of gender identity for matters of internal affairs.
The Resolution 108/2015 created internally by the Federal Public Defender's office verses on the use of social name for its employees and the users of the services provided by the organ. It equally cares to establish the access to the correct bathroom aligned with their gender identity, while forbidding any discrimination based on gender manifestations or sexual orientation. It was mentioned previously the Resolution 12/2015 approved by the Human Rights Secretary at a national level. This Resolution shares the same protection to the social name for transsexual and transvestite individual within the superior level of education.
In practice, the actual change of name on federal issued ID is matter of controversy; the courts have been reaching different decisions given the lack of formal legislation to be used as guide. The only option left for transgender individuals is to turn to the Judiciary branch to request the change of the name and gender stated in the official document and hope to be met with a sympathetic judge. The high courts of the country have been consolidating the understanding that the incorrect information should be rectified; being left to discuss whether it should happen upon reassignment surgery or not and whether it should be informed within the certification that the change occurred from judicial intervention.
The organized groups fighting for transgender rights understand that the demand of the surgery for the change to occur is an unconstitutional interference on the individual’s private life. On May 11th of 2017, the STJ judged an appeal in defense of this position; the Court decided that it was not possible to require the gender reassignment before the change of gender in the ID. The decision considered that the Registries could not refer to the biological gender, insert the transsexual or related expressions on the document or refer to the nature of the change.
It is Important to point out that this decision is not a binding summary, meaning it doesn’t obligate the other courts to follow the understanding. However, it shows a progressive step in the transgender rights direction. There are similar cases in process on the STF, the country’s Supreme Court, but the judgement has been delayed temporarily.
This article is extracted from the Research paper titled 'LGBT Policies and Overall Safety in Brazil' in Chapter 4 of the Safety Report by SAFIGI Outreach Foundation 'Safety First for Girls'.
The Safety Report by SAFIGI is a two-fold Open research on 'Core Issues Affecting Safety of Girls in the Developing World.' The first part of the Safety Report is a Research Paper. The second part is a detailed Data Analysis.
The Safety Report Research paper is titled: 'Core Issues Affecting Safety of Girls in the Developing World.' The paper starts with an abstract before focusing on subjects in the key regions of Africa, Asia, and the Americas. A total of 7 Research papers make up the safety Report (sans the introduction and conclusion), including:
- The psychological effect of mass sexual harassment on girls in Egypt (P.24) by Heba Elasiouty.
- Safety concerns in relation to social media: Growing up female in an increasingly digital world (P.45) by Karin Temperley.
- Psychosocial challenges faced by parents raising children with physical disabilities in Oshana region (P.68) by Misumbi Shikaputo.
- Gender-based violence and subsequent safety challenges experienced by Rohingya women (P.119) by Shucheesmita Simonti.
- LGBT policies and overall safety in Brazil (P.141) by Alinne Lopes Gomes.
- Silent voices‘: Violence against the female body as consequence of machismo culture (P.177) by Steffica Warwick.
- America‘s Public Policy on Sexuality: The Repression of Girls in Vulnerable Populations (P.208) by Dr. Christina Sisti.
The Safety Report Data Analysis is titled: 'Core Issues Affecting Safety of Girls. Results and Outcomes based on Zambia, Egypt, USA, Tanzania, South Sudan, and Namibia.'
SAFIGI Outreach Foundation Ltd, a volunteer-based and youth led NGO registered in Zambia, implemented the Safety Report in order to understand the multifaceted concept of safety and how it applies to the female gender in diverse settings. And therefore, further prove safety is intrinsic, and that vices in society stem from an intimate level of the human being before its manifestation. This way, when we create safety solutions, whether it be in a developing nation, conflict zone, refugee camp, or patriarchal society, the problem is resolved from a deeply rooted cause. Such that, we treat the disease itself and not mere symptoms.
This study is as a result of collaborative effort pursued in the spirit of volunteerism via UN Online Volunteers.