My ID, my identity? The impact of ID systems on transgender people in Argentina, France and the Philippines
We spoke to trans-right activists in three country: the Philippines, France and Argentina to understand how ID systems in their countries are impacting their lives and how certain legal frameworks may help them.
- From accessing healthcare to picking a parcel or going to university, ID systems can get in the way of the most simple things when your ID doesn't reflect who you are.
- `Some legal systems are in theory facilitating the correction of ID cards but in some countries, administrative difficulties remain in practice.
- Argentina has set a high standard when it comes to gender identity recognition and facilitating the correction of ID cards but societal issues remain.
- Removing gender altogether from ID systems could become a key next step.
Este informe está disponible en español.
Most national ID or identifying documents include a gender marker. This is often known as a 'sex marker,' even though the term is inaccurate. The presence of such markers, especially on birth certificates, contribute to our society’s emphasis on gender as a criterion for assigning identities, roles and responsibilities within society. With gender being such a determining and dominant identifier, it puts it at the centre of so many arrays of our lives and societal norms and standards. Importantly this categorisation creates a basis for discrimination, and inequality.
The emphasis of gender as an identifier is harmful to all persons who do not identify with the gender they were assigned at birth. Intersex people are also heavily impacted, as babies across the world are facing unnecessary and brutal surgeries just for the sake of them having genitals that will match whatever gender is ticked on a birth certificate.
The lack of fluidity and flexibility in current registration systems and identification systems means that people all over the world face barriers to enjoy their rights to self-determination by not being allowed to be recognised by the gender they self-identify with versus the gender assigned to them (at birth).
These gender/sex markers can be difficult, to impossible, to change and can be a site of harassment and create a significant risk surface for trans people whose gender expression doesn't match the gender on their ID to access services and enjoy their rights securely, safely and equality because of legal barriers, stigma, violence and discriminatory policies and practices.
Definitions and premises
Feminist discourses have given rise to debates and diverging views on gender and its implications. In our effort to promote privacy as the right to establish one’s own boundaries, we align ourselves with a feminist tradition that understands gender as a socially- and culturally-constructed interpretation of biological sex. As Judith Butler wrote in Gender Trouble: “Gender is the repeated stylization of the body, a set of repeated acts within a highly rigid regulatory frame that congeal over time to produce the appearance of substance, of a natural sort of being.”
Gender norms, as imposed by societies, limit space, freedoms, opportunities, possibilities and rights of persons in general, but in particular of persons that do not “fit” established binary and cis gender norms. Drawing on our understanding that gender identity falls under the realm of privacy – where privacy is understood as the right to self-define or the right to choose how to present segments of one’s identity – we believe individuals should be free to define their own gender.
This piece will make references to trans women (women who were assigned a “male” gender-marker at birth), trans men (men who were assigned a “female” gender-marker at birth) but also non-binary and gender-fluid people: people whose gender expression does not fit within the strict male/female binary division.
What happens when your ID does not match who you really are?
Whilst we’ve been exploring the impact of identity systems on people on issue that Privacy International has been working on relates to exclusion. For example, what happens to migrant groups when they can’t get access to ID? How does not being able to access identity systems affect historically marginalised groups? Yet exclusion emerges not only from those who can’t get their birth registered, or get an ID card: also excluded are people who have these documents but cannot make use of them.
While there are still many who are not registered at birth, for those who do receive a birth certificate then in most parts of the world it will show whether we’ve been assigned ‘male’ or ‘female’. These are often the ‘breeder documents’ that lead to the issuing of other forms of ID, like national ID cards in those places where these are present. The use of an ID card spreads across a broad sweep of people’s lives in many countries: people for example have to be ready to show it when they open a bank account, for any administrative procedures, including access to welfare services or sometimes even to access healthcare where there is not universal access to such a service.
There are risks and consequences when your birth certificates and ID documents do not reflect the identity you present as. This is the reality that many transgender people are facing across the world. Ensuring that your birth certificate and ID reflect the name you are using and your gender becomes a key part of transitioning. In this context, the avenue for resolution the state can offer you end up becoming life changing.
But even when, on paper, a state may have a positive approach to gender recognition – one that would allow trans people to rectify their gender on their ID without having to endure any invasive administrative or medical procedures in order to prove they are who they say they are – the reality can differ in practice and prove more of a struggle than expected.
In this piece we will initially provide an overview of the main legal systems currently in place across the world, before looking more closely at three case studies: the Philippines, France and Argentina. For each of those countries we have spoken to representatives of trans organisations to hear what their experience of gender recognition has been like and what changes they would like to see.
The four common legal frameworks
When it comes to gender recognition rights and in particular the right for transgender people to correct their ID and birth certificates for them to match the gender they identify with, the world is currently divided between four main legal frameworks: 1) the countries where gender recognition simply does not exist, 2) the countries where trans gender people can correct their ID but are required to undergo surgery for that to happen, 3) gender recognition exists without requiring surgery but requires judicial and/or lengthy administrative procedures, and 4) gender recognition exists without requiring surgery and with minimal administrative procedure.
1) Gender recognition does not exist
In many countries in the world – including the Philippines and other parts of South East Asia, all of North and East Africa, most of the Middle East and Central America, and three states in the US – there is still no avenue to allow trans gender people to correct their birth certificate. This means that they cannot have an ID that matches their true identity. Even as they may live a life under the gender they identify with and be known under a name that fits this identity, their ID will still only refer to their deadname (the name given to them at birth) and the sex marker they were assigned at birth. As we will explain below with the case studies of the Philippines, such a situation exposes trans people to serious risks: being outed as trans, with potential consequences including police violence or violence from border control officers and being prevented access to adequate healthcare. Having an ID that does not reflect their actual identity can also have a serious negative impact on trans people’s mental health as it constitutes a constant trigger.
2) Gender recognition exists but requires trans people to undergo surgery
In some countries – including China, India, parts of Central Asia, parts of South East Asia, South Africa, parts of Australia and many states in the United States – trans people can only have their birth certificate and ID corrected if they undergo genital surgery.
This requirement is hugely problematic and bears serious consequences not just for trans people themselves but for society as a whole and our understanding of gender construction. There are many kinds of therapy, treatments and confirmation surgery that trans people may choose to undergo as part of their transition. They may include facial reconstruction, breast surgery, genital surgery, voice training, hormone therapy, hair removal… None of them is required or expected for people to be valid as the gender they identify with. In fact, many trans people – and trans men in particular – choose not to ever undergo genital surgery.
Expecting people to undergo genital surgery in order for them to have their gender and name recognised equates to a de facto forced sterilisation, as this type of surgery will prevent them from having their own biological children.
Moreover, states that impose surgery as a condition for being able to correct a birth certificate and ID act as if one specific type of genital surgery “makes” someone a woman or a man and thus perpetuate a vision of gender based on an extremely narrow understanding of both gender and biological sex.
As Lisa Jean Moore and Paisley Currah explain in their paper “Legally Sexed – Birth Certificates and Transgender Citizens” (Feminist Surveillance Studies, 2015), which looked at the history of birth certificate correction in the City of New York, requiring surgery also creates inequalities, as the type of surgery required is often the most expensive one, thus resulting in a situation where only trans people who can afford to transition are allowed to have their birth certificate/ID documents corrected.
All those reasons make requiring surgery a dangerous, privacy invasive and potentially traumatic requirement for trans people who should not have to be forced into a surgery they may not want to have – or be forced to prove that they indeed had such a surgery – in order to have identity credentials which match their gender identity.
Beyond the trans community, this requirement perpetuates a belief that gender is a binary that can be reduced to the shape of a person’s genitals. This requirement also roots itself in the transphobic argument that if changing ones’ gender marker on an ID is available too easily people would use exploit it to commit fraud (Moore and Currah, 2015). This argument leads to a discourse that trans people are lying about their identity until they prove otherwise and that they should have to endure a long and painful process in order for their gender to be recognised.
3) Gender recognition exists without requiring surgery but requires judicial and/or lengthy administrative procedures
In most of South America, Western Europe, many states of the Unites States and in Canada, trans people are allowed to correct their gender on their ID without having to undergo surgery. However, while there is no requirement for surgery, there can still be lengthy and stressful medical, administrative or judicial requirements.
Indeed, in some places correcting your ID may involve having to sit through a committee of psychologists who assess the “authenticity” of one’s claims or may require lengthy administrative procedures to obtain the correction of one’s ID. In France, for instance, trans people still have to obtain the authorisation of a judge to have their gender corrected.
4) Gender recognition exists without requiring surgery and with minimal administrative procedure
In countries like Argentina and Uruguay, recent laws have been passed to facilitate transitioning processes. Trans people just need to request the correction of their gender and provide the name they wish to use to the relevant administrative body and their birth certificate and IDs will be automatically corrected.
In this piece we will look at the case of two countries that both allow gender recognition without requiring surgery – Argentina and France – to understand the contrasting experience and nuances within similar legal framework.
Is gender even needed?
Having sex, or gender, on identification documents is something that can seem so ubiquitous that it is never questioned. However, this is beginning to change.
Some countries are now making efforts towards recognising a third gender. India, for instance, legislated in 2014 to recognise a third gender and a person’s right to self-identify. In Canada, following a campaign from the Gender Free ID coalition, Kori Doty’s child, Searyl, was the first to be born with “U” (unspecified or unknown) on their health card. In Germany, since January 2019, people now have the option to choose “other” on their driving licence, birth certificate and other official documents.
However, other countries are also exploring the possibility of removing gender altogether from identification documents altogether. In 2012, New Zealand made a proposal to the International Civil Aviation Organization, suggesting gender should be removed from travel documents. While the change for travel documents may take a long time due to the need for international regulations and its associated costs, other countries are working on developing gender-free national initiatives. In France, driving licences no longer feature a gender marker. In July 2020, in a letter written by the Education Minister to parliament, the Dutch government announced their plan to remove gender from ID cards in five years from now when other changes to ID card will be made.
Exploring the reality on the ground
In this section, we present three case-studies to illustrate how the legal frameworks outlined in a previous section play out in practice. For each of the three countries studies, we spoke to representatives of trans organisations to hear what their experience of gender recognition had been like and what changes they would like to see. We take the opportunity to thank these individuals and organisations for taking the time to share their knowledge and expertise, and for enabling us to showcase the extraordinary work they are undertaking to advocate for the rights of trans people.
Case study 1. The Philippines: “Discrimination against trans people begins with their ID” – Naomi Fontanos
In 2018, the Philippines passed a law to establish a new ID system. Entitled The Philippine Identification System Act – or PhilSys Act – the law allowed the creation of a “super ID” that would replace the multiple forms of identification cards Filipinos have been using. This national ID is meant to feature the owner’s full name, sex, blood type, date and place of birth, marital status, and photo. While the PhilSys registry is meant to collect additional information including phone number, email address and biometrics data (10 fingerprints and iris scan).
As of October 2020, however, the ID still has not been rolled out. The government announced at the end of 2019 that Filipinos would all be enrolled by 2022.
Back in 2018, PI spoke to Naomi Fontanos, a trans woman and trans rights activist, co-founder and Executive Director of the organisation Ganda Filipinas, about this very law. You can listen to the recording of the interview here.
Ganda Filipinas has long been campaigning for gender recognition, the right for trans people to be able to correct their ID and birth certificate.
“It is very important in order to access other civil, political economic and cultural rights in our country. I have always maintained, as a trans activist, that discrimination against trans people begins with their ID because it creates a domino effect in trans people’s lives. For example, if a trans person applies for a job and the gender and name on their ID do not match their gender presentation they will most likely be denied that job. And everything will go downhill from there because if a trans person doesn’t have a job they will join the statistics of poor people in this country. And if you’re poor you can’t have healthcare. And if you don’t have healthcare, you get sick.”
At the time Naomi expressed serious concerns about the new law, especially as trans organisations had been excluded from this debate. “Without legal gender recognition for us, the national ID system traps us into this identity we no longer identify with.”
When we spoke to Naomi again this year, she stressed that while the national ID systems has yet to be implemented, trans people remain impacted anyway by the current system where the multiple IDs they carry fail to reflect who they are.
Indeed, while having an ID that does not reflect your identity can aggravate feelings of gender dysphoria and negatively impact the mental health of trans people, there are other consequences too for trans Filipinos.
“Even without a national ID, our experience is that when trans people attempt to access services or establishments where they are required to show an official document to ascertain our gender, we almost always end up being discriminated against. For example, if a trans woman applies for a gym membership, in spite of her female appearance or feminine gender presentation, she might be asked to use the male toilet, male changing room or male sauna or other facilities based on the gender indicated in a legal document such as a national ID. And we have seen this happen. There are also establishments that bar entry to trans women because of stereotypes or misconceptions about being trans and the ordeal usually begins by checking a trans woman's bona fide information facilitated by asking her to present an ID. And of course, we all know that when data like these are collected, marginalized communities are always the first to be put under stricter surveillance methods by the state. We know from experience elsewhere that when data are weaponized to crackdown on citizens suspected of crime or illegal behavior, the most vulnerable are the first ones to be victimized by the police state including the poor, trans people, or other populations deemed 'unacceptable' or 'undesirable' or 'unwanted’ in society.”
Naomi, points as an example the “Oplan X men” scandal, that the Filipino Commission on Human Rights is currently investigating. The city of Makati, in the Manila region, was targeting trans women and arresting them in the streets. The profiling and arrests were allegedly conducted to “save them from exploitation and human trafficking.”
“Having a national ID that will contain our legal name and gender that do not match our gender presentation will make us more vulnerable to abuses like this because it confirms our trans status under forced surveillance by the police,”
The gap between someone’s identity and someone’s ID also affects their ability to receive healthcare. “When a trans woman is admitted to a hospital and the doctor realises she has a male gender marker and male name on her ID, she will be automatically assigned to a male ward. So instead of enabling well-being, they end up experiencing more grief and misery when exposed to the healthcare system,” explains Naomi.
Case Study 2. France “When your ID does not match your identity, you end up at the mercy of everyone you interact you with: your employer, your professors, your landlord…”
In 2016, France passed a law allowing trans people to change their gender without having to provide any medical documents to certify that they are indeed transgender. Until 2016, a person wishing to correct their birth certificate and ID had to provide a certificate from a psychiatrist and prove that they had undergone irreversible medical procedures, i.e. sterilisation, in order to be able to correct their ID.
While this change in the law is unquestionably a step in the right direction and a major improvement compared to the previous context, in practice the legal procedure to correct an ID remains an obstacle course for many. Moreover, the ambiguous wording in the legal texts leave trans people at the mercy of the goodwill of the civil servants in charge of their case.
We spoke to two trans activists from France: the first is Anaïs, who is on the board of trustees of the organisation OUTrans, a Paris-based feminist organisation that offers support to trans people and also engages in advocacy at a national level. The other activist we spoke to is also a French trans activist working as part of a different organisation. He wishes to remain anonymous, so we will call him Joe.
While both Anaïs and Joe appreciate that the 2016 law has changed the lives of many trans people in France they also both acknowledge its limitations. Anaïs says:
“The 2016 law liberated many things. Many people did not think they would one day be able to live their trans identity socially and legally. They would be discouraged by what they saw as the obstacle course from those that were pioneering and attempting to correct their ID. Now it’s definitely much easier and it has become possible to do. The mere fact that we now have a chapter in the Civil Code about sex change – even if the term is not right – means that trans people have become real from a legal perspective while before they could only be found in court rulings. The problem is that the 2016 law made things easier but it did not go all the way.”
Joe and Anaïs both consider that one of the key issues with the current situation is that there are two separate procedures that trans people need to do in order to correct their ID. The first is the change of name. This is a procedure that is not specific to trans people. They have to follow the same process as any person that wishes to change their first name would. This is done at the town hall.
Already at this stage, the wording of the law is problematic. As Joe explained to us, people have to demonstrate a “prolonged and constant use of the name”. This very request implies that people have to live for an extended period of times with ID documents that do not match their name. The other problem is that there is no clear definition of what prolonged means. Nor a list of documents they are expected to provide to prove that they indeed go by this name. Joe says:
“There is a real lack of uniformity across France. When you change your name, you are expected to provide all sorts of documents proving that you have been using your name for a prolonged period and in different spheres of your life (professional, family, hobbies, friends). Yet those documents are not listed anywhere and so the treatment of those requests hugely differ from one town hall to another. In Paris, it is generally OK, because people received specific trainings and it often works out well. Although even in Paris I have heard of people being requested a sworn statement from their friends that they indeed use the requested name.”
Anaïs highlights a different issue that trans people are confronted to when changing their name:
“The person who is making the request has to prove the “legitimate interest” of their request and this is where things get complicated. While French law prohibits judging someone on their appearance, at the same time according to the law pertaining to the change of name part of proving the legitimate interest involves proving that the name you are choosing matches the gender of your appearance. So, on the one hand people cannot be judged on their appearance but on the other hand we ask employees from the civil registrar to assess the appearance of trans people. So, we see people feeling obliged to act as an archetype of their gender in order to make sure their request will go through.”
Anaïs also stresses that the lack of visibility of trans people in France contribute to the difficulty trans people are facing when going through this procedure that is not specific to trans people.
“In France you do not have a strong visibility of trans people. It is not like in the US, where you have a Caitlyn Jenner that everyone knows and who has transitioned. There is no trans celebrity that everyone knows. So, when we speak about trans identity people do not always know what it is. And so if you are an employee from the civil registrar of a town hall and you spend your days issuing passports and one day you see a person coming in to change their name, it might very well be the first trans person you see in your life. You will have no idea what trans identity is, or what it implies and so your assumptions might be absurd or based on stereotypes, or your reaction might just be “I had no idea you could do this.
When a person comes to the decision to transition, they have spent enormous amount of time reflecting about themselves and when the procedures start they end up feeling like the whole world is against them. So you have on the one hand someone who feels that society is putting a spoke in their wheel and on the other hand someone who does not even know what trans identity is and who is unknowingly hampering the whole process. It is making life harder for both trans people and for civil registrar employees.”
Once the change of name has been approved, the birth certificate is automatically updated but for everything else (ID card, social security, taxes, diplomas…) it is up to the individual to request the change for each document.
When this is completed, a trans person can then request their sex marker to be corrected on their ID documents. This time it requires a judiciary procedure that involves filing a request at a tribunal and potentially attending a court hearing. The procedure – which involves providing similar documents to the one requested for the name change – can take from six months to a year. While requesting any medical document is illegal, both Joe and Anaïs say their organisations have witnessed some tribunals with dubious practices, like in the city of Orleans, where only requests where people including medical documents have been accepted.
For both the name change and the correction of the sex marker there is a major risk. If the request is denied, appealing the decision implies the start of a legal battle, with legal fees to pay. Joe says this reality discourages trans people from trying to correct their ID and birth certificate early on in their transition for fear that their request could be rejected.
This reality means that trans people in France spend months to years with ID documents that do not reflect who they are.
Both Anaïs and Joe would like to see a system where the process is reduced to a single procedure done directly with a local authority, whereby trans people could change the details on their identity documents upon request – both the name and sex marker – all at once without having to go to court. Anaïs stresses that the court system in France is already overwhelmed and there is no need for the involvement of judges on this matter.
Joe points to Argentina as a model for how things should be done. He also highlights the absence of options for migrants in France who would like to have their name and ID recognised when their country of origin does not allow them to do so.
While France has normalised a system where trans people are expected to live months to years with an ID that does not match their identity, the consequences for trans people are very real. Joe points us to the example of someone whose change of name had been accepted but whose ID had not yet been updated; requesting a new ID is a procedure that can be lengthy in itself. The person tried to change their name on their Carte Vitale, the state social security card allowing immediate reimbursement for healthcare services. But the lack of an ID led to a situation in which the social security services suspected fraud and withdrew the person’s ability to access their services altogether, thereby de facto banning them from accessing affordable health care.
Joe generally describes a life that leaves trans people at the mercy of any person they interact with.
“At university, I had a friend who completely passed as a man. Every time they would read student’s names out loud at the start of every class to take the register, he would not respond to the call, in order to not out himself as trans. So, he would be marked as an absentee and he had to speak to every professor at the end of the class to explain the situation. You find yourself at the mercy of the good will of everyone you interact with: your professors, your employers…
You are exposed to discrimination in every field where you will be asked to present an ID. It’s a source of discrimination in access to housing. Landlords may not want to rent a flat to a trans person. It can be a problem in recruitment because an employer might think it will be an issue they will have to handle, and they do not want to have to deal with this. You can be faced with transphobic doctors and risk receiving poor treatment. In the context of an ID check by the police you might be exposed to police violence or at the very least a longer ID check.
Even to pick up a parcel from a post office, things are more difficult, unless you receive everything under your legal name – and that is assuming that everyone even knows what your legal name is. It happened to me once: I had to negotiate for thirty minutes with a post office employee who was refusing to give me my parcel arguing that the name on my ID did not match the name on the parcel despite the fact that my last name was identical and I had the tracking number.”
When it comes to accessing healthcare, there are still issues awaiting trans people even after they have an ID that matches the gender they identify with. Indeed, the Carte Vitale features people gender through a code number (‘1’ for men and ‘2’ for women). While the number can be changed once the sex marker on a person’s ID has been changed, this bears consequences for trans people as well. For instance, trans men are no longer allowed to turn to gynaecologists even though they may still require their expertise. Likewise, trans women will no longer be entitled to a prostate exam even though they still have one.
This situation not only highlights the need for state services across every sector to be better informed and trained in responding to the specific needs of trans people but also the limitations and issues necessarily arise from a strictly binary system.
Case Study 3. Argentina “The right to have identity documents modified did not end institutional violence, but it sends a message against that violence.”
As the interview we conducted with Joe illustrates, Argentina is often held as a model when it comes to the right for trans people to correct their civil registry and identity documents. In May 2012, the Senate approved the Gender Identity Law. Article 1 of the law claims that everyone has the right:
a) To the recognition of their gender identity;
b) To the free development of their person according to their gender identity;
c) To be treated according to their gender identity and, particularly, to be identified in that way in the documents proving their identity in terms of the first name/s, image and sex recorded there.
According to this law, in order to amend their ID, a person only needs to submit a request to the National Bureau of Vital Statistics and requesting the amendment of their birth certificate and new identity card with the same number as their already existing one. There is no additional procedure or requirement beyond the simple request.
We spoke to Maria Rachid, head of the Institute against Discrimination at the Office of the Buenos Aires Ombudsman and a former member of parliament in Argentina who drafted the Gender Identity Law. Rachid has long been an activist in LGBT circle and founded Federación Argentina LGBT, an umbrella organisation that brings together 150 Argentinian LGBTIQ organisations.
When she started drafting the law, Rachid first looked at the laws in other countries and noticed the worrying limitations of various legal frameworks.
“Those laws required a medical diagnosis before a person could apply for a modification of their identity documents or undergo sex reassignment treatments or surgeries. One of the reasons for this was the medicalization of transgender identities. Those laws regarded transgender identities as some sort of pathology in which people are born in the wrong body, and which must therefore be corrected by means of a modification of their identity documents, surgeries and medical treatments.
As an organization [Federación Argentina LGBT], we believe that a person’s identity is in no way the result of a pathology or a medical condition, and that people can define their identities themselves, without the need for any medical, legal, psychological or other authorization. We do not believe transgender people are sick, but rather that there is some sort of social phenomenon by which society assigns someone a specific sex and gender, and this defines many aspects of that person’s life.
Thus, we believed that the modification of one’s identity and the access to treatments and surgeries had to be based on a personal decision.”
Rachid worked on ensuring that the law would be there to facilitate people’s procedures and prevent obstacles. They worked to draft the law in a way that would ensure that the process would happen through an administrative office – not a court, where the individual could face a rejection or legal fee – moreover they also included a “Human Treatment Clause” that states that even if a person does not wish to correct their name and gender on their ID they can still expect from any institution that they refer to them by their preferred name and gender upon request.
The law also takes into account the reality of migrants by stating that even in instances where a person’s country of origin does not recognise their gender identity this is not an excuse for the Argentinian State to deny them the enjoyment of their fundamental rights. Therefore, migrants can apply to the National Immigration Office to correct any identity paper issued by the state of Argentina.
While Rachid acknowledges that the law did not solve all the risks that trans people are confronted with she is nonetheless confident that the law has helped trans people deal with specific institutional situations because the law sent a very clear and strong messages to all Argentinian institutions: everyone gets to define their gender identity and their identity is valid.
“The risks that transgender people were exposed to had to do with the institutional violence to which transgender people were permanently exposed. Now, the right to have identity documents modified did not end that violence, but it did help a lot in overcoming this situation. This is still a problem to this day, because the only means of survival available to many transgender persons is sex work, and this exposes them to permanent institutional violence. Nevertheless, the issue with their identity documents was a perfect excuse to direct institutional violence specifically at transgender people. There were even local statutes which penalized transgender identity in some Argentine provinces, all of which were of course repealed after the enactment of the Gender Identity Law.
Now, there were other types of institutional violence that originated in other institutions: hospitals, schools, etc. There was a permanent violence which was based on and originated in the failure to acknowledge transgender people’s identity. When the right to have one’s identity acknowledged in identity documents was recognized, it was not only the modification of those documents that was important, but also the message that the State sent through that modification. The message that identity is acknowledged has an effect which is much more powerful than the concrete change in an ID, as the fact that one’s identity is respected by public or private institutions impacts our access to all types of rights: the right to health, the right to work, the right to justice.
The fact that institutions respect people’s right to their own identity is a tool that can be used to eradicate violence from everyday life. At the very least, this sends a message against that violence, even if it still exists in society and we still have to work to eliminate it. The fact that institutions recognize people’s identities is a message against the violence transgender people endure to this very day, and that message is a very important tool for transgender people.”
Maria mentions in particular the case of hospitals where trans people could face mistreatment for having an ID that did not match their identity and led many trans people to not seek healthcare, with very real consequences over their lives “All of this violence and negation of rights resulted in transgender people having an average lifespan of 35 to 40 years, which is half the average lifespan of the general population,” she says.
Maria says the law has not faced any serious barriers when it comes to its implementation. The main issue has been that in some provinces, the process can be longer than in others.
There is more to be done for trans people to ensure their protection is comprehensive:
“We are working on the bill for an “Integral Transgender Law” which establishes a series of public policies in various areas: health, education, housing, labour, etc. We believe this to be the next step: recognizing rights and adopting public policies to guarantee access to those rights. We are talking about a population that was expressly excluded for many years, so the State and society must make a major effort to revert that exclusion, and this requires very strong public policies which are ultimately temporary, of course, such as affirmative actions.
Our bill provides for a quota of transgender people in the public administration and incentives for companies that hire transgender people, as well as a grant for transgender persons over 40. Keep in mind that the average lifespan of a transgender person is 35 to 40 years, so those over 40 are truly survivors. They reach that age in very poor health and in most cases they have no formal education or work experience other than as sex workers, and at that age and in those conditions, in bad health, with no formal education and no work experience, it is very hard to make them a part of an active workforce, and that is why we believe they must be given a grant as compensation and to ensure their subsistence, given the conditions in which they were forced to live for so long. So, we believe transgender persons over 40 should be given a monthly grant.”
When asked what advice she would give to people and organisations lobbying for trans rights, she said she would advise them to follow the path of Uruguay. “Uruguay has enacted a Comprehensive Transgender Law, which encompasses both our Gender Identity Law and the integral law we have been working on, which has not yet been enacted in Argentina.”
Uruguay: In October 2018, Uruguay passed the Comprehensive Law for Transgender Persons. The law not only facilitate the right for transgender people to have their ID corrected but also offer them a package of additional rights. For instance, various government and state authorities are required to allocate 1% of their job opportunities to trans people. The law also allows children to correct their ID and receive hormonal treatment without the consent of their parents.
She also reminds that there is more to gender than the male/female binary and that future laws should take this into consideration:
“Under the Argentine law the State is required to acknowledge a person’s self-perceived gender. At the beginning all changes were towards the ‘male’ or ‘female’ category, but now people are requesting other categories: ‘non-binary’, ‘genderfluid’, etc., and even though the law requires the State to record their self-perceived gender, there is still some resistance from some institutions. I believe the new administration will change this, but up until a couple of months ago, with the precious administration, there were some national institutions which resisted using any category other than ‘male’ or ‘female’, even though the law in no way limits the potential categories. So, one suggestion might be that the law clearly state that there may be multiple categories and not only ‘male’ and ‘female’.”
Finally, she insists that coordination across the state administration is key to facilitating the procedures of trans people:
“I would advise them to make sure that the applicant is allowed to request that the office or agency which receives the application for a modification of identity documents automatically notify other institutions, so that they do not have to file for the same modification with their bank, the register of motor vehicles, the register of real property, etc. It would be great if the office or agency with which the application is first filed were able to directly notify all these other institutions, should the applicant request it.”
When asked about her opinion on ID documents that do not feature any gender or sex marker, as is now the case in the Netherlands, Maria says she sees it as a future to strive towards. However, she warns about the need to ensure affirmative action can be preserved in the short term, so that trans people can receive preferential benefits to compensate for the inequalities they are enduring.
“Maybe it is necessary to have a gender identity law in place first, but the best scenario for us would be for identity documents and official forms not to include a person’s sex. This does however pose a problem when it comes to affirmative actions, which we are trying to address in our bill. Even though, in our opinion, these categories were created by an oppressive system to ensure some people have more rights than others, and even though no legal distinction remains today, there are still some social distinctions and people in some of those original categories still face some disadvantages, wherefore the legal system should provide them with certain benefits to ensure equality.”
Conclusion – The laws that transform our society
As we argued in our report From Oppression to Liberation Reclaiming the Right to Privacy, we can effectively say that the state enforce patriarchal perceptions of unchanging binary gender divisions through ID systems.
In order to be able to live their lives with dignity and access basic services, including healthcare, it is this very system that trans people have to battle and fight against.
While better laws do not “fix” societies and deep-rooted issues like transphobia which remain even in countries with the most progressive legal frameworks, as Maria Rachid of Argentina explained in her interview, they can send a very strong signal to institutions and society at large. Thus, a legal framework that allows trans people to correct their ID with very limited administrative procedure and with the certainty that their request will be granted not only protects trans people and their right to have an ID that matches their actual identity. It also sends a message to society at large that exclusion and intolerance towards trans people will not be tolerated by the state, and therefore it should not be tolerated within our societies.
Considering the discrimination and exclusion trans people face, it is essential to have a legal framework allowing and facilitation gender recognition, as well as laws that are there to specifically provide extra support to trans people. But further, we also need as a society to ask ourselves what we want our civil registration documents like birth certificates, as well as IDs, to be like. If we accept that these documents and systems contribute to shaping the gender binary and gender norms, we need to think about the kind of society we want and how our systems and documents will contribute to shaping it.
And while this report focused on the experience of trans people who identified within traditional gender binaries, many others would benefit from gender-free ID. For Anaïs, such a change would also provide recognition for non-binary people:
“We talk about binary trans people, but we are not discussing the whole question of non-binary trans people. It is very clear that if the gender mention was to disappear from anything administrative, we would solve a lot of issues. My gender belongs to me. It does not belong to the state, the state has nothing to do with my gender. We are 100% in favour of removing gender altogether and France is starting to go in that direction. Driving licenses, for instance, no longer have a sex marker.
Until recently the legal history of France was going in the direction of removing gender in every law that distinguished between men and women. The only thing that has changed this direction are laws encouraging gender equality because when you have laws guaranteeing equal access to men and women to run in certain elections, or equal access to public jobs or to managerial positions you force the state to identify gender in order to guaranty equality. Gender is now used for affirmative action while for us trans people it would be easier to see it disappear altogether.”
Issues of discrimination and inequality cannot be ignored, and we, as an organisation, understand the importance of having data that accurately relays that, as well as mechanism of affirmative action to offer a form of redress. But we are confident that affirmative action can be promoted and perpetuated without relying on a sex marker on one’s IDs.
Yet, as we work on shaping the future of ID systems and the future of society at large, we need to make sure gender stays in its rightful place. Gender is a societal construct. It is something we should get to define for ourselves, it is fluid for some of us and may change over the course of our lives or be multiple all at once. As such it is not something for the states to impose on us and it is certainly not a relevant marker to identify someone for any state-related purpose. In other words, gender is for our personal and self-defined identity, not our IDs.
And with gender marker removed from our identification documents, we open the door to a world that will be freer for all: there will be less pressure on parents to assign a gender to their child at birth, less pressure on all of us to define ourselves or match certain expectations, or to comply with norms and roles historically associated with the gender we have been assigned to by society.
This is an essential development as we strive for a world where we are all equal. We believe this is what a world where we are free to be human would look like.
Este informe está disponible en español.