A Mexican Supreme Court ruling on October 17 in a Veracruz case may have broader implications for transgender people who want to change their name and gender on official documents.
The ruling came in response to a petition filed by a transgender person from Veracruz who contended that in refusing to change their name and gender marker on their birth certificate, the municipal Civil Registry had violated their rights. In a ruling that was the first of its kind in Mexico, the court said that the person could change their name and gender marker on an official document through a simple administrative process, based solely on their own declaration of their gender identity.
Veracruz’s civil code requires transgender people to go before a judge to seek such changes. The Supreme Court found that this requirement constituted discrimination on the basis of gender identity, given that Civil Registries were making other substantive changes to identity documents without requiring a court ruling.
The case may seem at first glance to resolve a minor, technical issue, and its reach is limited. The case was filed as a request for an amparo, or injunction, from the Supreme Court, meaning that its outcome only affects the petitioner. The Civil Registry in Veracruz could still turn away the next person who seeks to modify their documents, setting in motion another legal challenge, and the case has no immediate impact at all on other registries throughout the country.
But the ruling sends an encouraging signal that authorities who try to defend these policies in court are likely to be fighting a losing battle. Another case before the Supreme Court has wider-reaching implications. The court will soon rule on contradictory judgments from circuit courts in different states on legal gender recognition.
In repeated cases litigated by the local organization Amicus, the Guanajuato circuit courts had refused to provide an administrative path to gender recognition. On the other hand, a circuit court in Baja California has ruled that people have the right to change their gender markers in Civil Registries. The upcoming ruling, to address the two conflicting sets of jurisprudence, will be binding on all lower courts – and the Veracruz case gives a promising indication of the Supreme Court’s thinking.
The Veracruz ruling emphasizes that the right to legal gender recognition is protected by both the American Convention on Human Rights and the Constitution. Gender recognition creates the conditions to guarantee “the free development of personality, the right to identity, the right to privacy, the recognition of legal personality and the right to name,” the court said. It added that changing one’s gender markers should not require medical or psychological evaluations or evidence of surgery or hormones, the ruling states, and changes should be confidential and expedited.
The ruling cites the groundbreaking January 2018 Inter-American Court of Human Rights advisory opinion, which maintained that states are obligated under the American Convention to establish efficient, inexpensive, and straightforward legal gender recognition procedures based solely on the “the free and autonomous decision of each person” and that forcing transgender people to argue for a change in gender markers before a judge would constitute an “excessive limit” on their rights.
For transgender people, this is no minor technical question. If your gender marker contrasts with your appearance, any juncture in daily life that requires showing your identify card – a traffic stop, a financial transaction, a medical appointment – is laden with the risk of ridicule, interrogation, and even violence.
Going through a lengthy court process to change your documents can be time-consuming, humiliating and overwhelming. Filing a piece of paper at the Civil Registry is much easier. But so far, only Mexico City and two other states, Nayarit and Michoacán, have laws that allow straightforward administrative changes of gender markers.
If the Supreme Court finds that there is a right to an administrative path to legal gender recognition in the contradictory judgments case, all lower courts will be bound to uphold this right – but civil registries might still ignore the ruling, continuing to force individual applicants to go to court. Same-sex partners who apply for marriage licenses have faced similar obstacles at civil registries. Despite a 2015 Supreme Court ruling in support of marriage equality, many registries have turned same-sex couples away until they come back with individual court orders compelling the registries to marry them. Fewer than half of Mexico’s states have passed laws that require civil registries to treat all marriages equally.
In the wake of the Supreme Court ruling on Veracruz, the Inter-American Court opinion, and the pending case, Mexican states should read the writing on the wall, and pass legislation establishing simple, rights-respecting procedures for gender identity changes.