Transgender rights in Brazil

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Transgender rights in Brazil include the right to change one's legal name and sex without the need of surgery or professional evaluation, and the right to sex reassignment surgery provided by Brazil's public health service, the Sistema Único de Saúde.

Before 2009

In 1993, the first Brazilian national meeting was held among transgender individuals.^[1] This meeting was known as the National Meeting of Transvestites and Liberated People.^[1] By 1995, gay and lesbian national meetings were being attended by transgender activist groups.^[1] Then, in 1996, the National Meeting of Transvestites and Liberated People Fighting Against AIDS was held.^[1]

Brazil participated in the drafting of the Statement on Human Rights, Sexual Orientation and Gender Identity. This document was presented in December 2008.^[2] Brazil helped organize the launch of the Yogyakarta Principles in 2007.^[2]

Changing legal gender assignment in Brazil is legal according to the Superior Court of Justice of Brazil, as stated in a decision rendered on 17 October 2009.^[3]

Unanimously, the 3rd Class of the Superior Court of Justice approved allowing the option of name and gender change on the birth certificate of a transgender person who has undergone sex reassignment surgery.

The understanding of the ministers was that it made no sense to allow people to have such surgery performed in the free federal health system and not allow them to change their name and gender in the civil registry.^[4]

The ministers followed the vote of the rapporteur, Nancy Andrighi, who argued that "if Brazil consents to the possibility of surgery, it should also provide the means for the individual to have a decent life in society". In the opinion of the rapporteur, preventing the record change for a transgender person who has gone through sex reassignment surgery could constitute a new form of social prejudice, and cause more psychological instability.^[5] She explained:

"The issue is delicate. At the beginning of compulsory civil registry, distinction between the two sexes was determined according to the genitalia. Today there are other influential factors, and that identification can no longer be limited to the apparent sex. There is a set of social, psychological problems that must be considered. Vetoing this exchange would be putting the person in an untenable position, subject to anxieties, uncertainty, and more conflict."^[6]

According to Minister João Otávio de Noronha [pt] of the Superior Court of Justice, transgender people should have their social integration ensured with respect to their dignity, autonomy, intimacy and privacy, which must therefore incorporate their civil registry.^[7]

The Supreme Federal Court ruled on 1 March 2018, that a transgender person has the right to change their official name and sex without the need of surgery or professional evaluation, just by self-declaration of their psychosocial identity. On 29 June, the Corregedoria Nacional de Justiça, a body of the National Justice Council published the rules to be followed by registry offices concerning the subject.^[8]

In 2020, a study was conducted to understand the quality of life of Brazilian transgender children.^[9] 32 participants were involved in the study, and they were either interviewed or placed into focus groups to gather their perspective.^[9]

The term social name is the designation by which someone identifies and is socially recognized, replacing the name given at birth or civil registry.^[10] At the federal level, the main law that guarantees the use of the corporate name is from April 2016. This decree regulated the use of the social name by bodies and entities of the direct, autonomous, and foundational federal public administration. This includes bodies such as the INSS, Receita Federal (CPF), hospitals and universities. Since then, the social name has been recognized in various contexts, including the SUS, banks, and education systems.^[11]

This section is an excerpt from Legal recognition of non-binary gender § Brazil.[edit]

There is no recognition of a third gender option nationwide, but since 2020 non-binary and intersex people have been getting court authorizations to register their sex as "unspecified", "non-identified", "intersex",^[12] or "non-binary" in the civil registry.^{[13][14][15][16]} For the purpose of filling out and printing the Identity Card, the gender field must follow the ICAO standardization, with 1 character, M, F or X (for non-binary people). Since January 11, 2024, issuing bodies in the States and the Federal District have been obliged to adopt these Identity Card standards established by the Federal Government. The information in the gender field can be self-determined and self-declared by the person when filling in the data, at the Identification Institutes. In the current context, of the 3,502,816 IDs issued, there are 192 National Identity Cards, that is, 0.01% defined in the gender field as "X".^[17][18]

While requesting a new passport, Brazilians are able to select an unspecified sex. According to the Federal Police, the body responsible for issuing Brazilian passports, in response to the requirement for access to registered information, the "not specified" option, in these terms, was implemented in the application form passport application in 2007, with the advent of the "New Passport", popularly known as the "blue cape model". Before that, however, the option already existed, and was declared on printed and typed forms in the old "cover model" notebooks green". Following the international standard, the "unspecified" option is represented in the passport with the letter X, instead of the letters M or F, for male or female, respectively. The gender option contained in the passport must reflect the information expressed in the birth certificate or other official identification document. I.e, whenever the information expressed on the certificate is different from "male" or "female", the alternative will be used. The use of option X, or "not specified", comes from the international standard ICAO (International Civil Aviation Organization), which specifies the printing of the "Gender of the holder" by "use of the initial letter commonly used in the country of origin", being "capital letter F for feminine, M for masculine, or X for unspecified". Following ICAO standards, among others, is precisely what confers recognition of a passport by other countries.^[19][20]

Since 12 September 2021, by decision of the National Justice Council, notaries must register intersex children with the sex ignored on birth certificates.^{[21][22][23][24]}

The state of Rio de Janeiro, thanks to the work of the State Public Defender's Office, has been allowing non-binary people to register their birth certificates and identity cards with the "non-binary" gender in gender-neutral language.^[25][26]

On April 22, 2022, Rio Grande do Sul Justice assured non-binary people to change their first name and sex in their birth record, according to their self-perceived identity, regardless of judicial authorization, allowing include the expression "non-binary" in the sex field upon a request made by the interested party to a notary's office.^[27][28]

On May 9, 2022, Bahia Justice publishes provision allowing the inclusion of “non-binary” gender in the Civil Registry.^[29][30]

In 2023, Paraíba, Paraná, Tocantins, and Federal District recognized non-binary gender markers.^{[31][32][33][34]} However, in October 2023, the National Justice Council, at the request of the TJES, issued a document precluding "non-binary" as a gender marker. The document quotes Luiz Fux, who claimed that “(…) There is no third gender, nor is this the claim”.^[35][36] In November 2023, TJPR revoked non-binary recognition, establishing that the right to administrative replacement of first name and sex in civil registration does not cover the possibility of expanding genders, limited to “male” and “female”.^[37] TJRS, in December 2023, also revoked the provision that recognized non-binary rectification in the state of Rio Grande do Sul.^[38]

In January 2024, a public civil action by the Federal Court of Paraná determined that the Federal Revenue must include the options "unspecified", "non-binary" and "intersex" in the sex field of the CPF, guaranteeing the right to rectification to those who interest.^[39]

Sistema Único de Saúde (SUS), the public health system in Brazil, provides processo transexualizador (PrTr or PT-SUS, English: transsexualizing process).^[40] This includes psychological counseling, hormone therapy, and sex reassignment surgeries.^[41]

Since 2008, the SUS has offered sex reassignment surgeries free of charge, in accordance with a court ruling that recognizes the importance of these procedures for the health and well-being of trans people.^[42] In addition, Ordinance No. 2,803 of 2013 redefined and expanded the Transsexualization Process,^[43][44] ensuring a more comprehensive and inclusive approach. And it made adjustments in 2023.^[45][46]

The first male-to-female gender-affirming surgery in Brazil was Performed by Dr. Roberto Farina in the 1970s. He was prosecuted for his actions but was eventually acquitted of all charges in 1979.^[47]

In 2008, Brazil's public health system started providing free sex reassignment surgery in compliance with a court order. Federal prosecutors had argued that gender reassignment surgery was covered under a constitutional clause guaranteeing medical care as a basic right.^[48]

The Regional Federal Court agreed, saying in its ruling:

"from the biomedical perspective, transsexuality can be described as a sexual identity disturbance where individuals need to change their sexual designation or face serious consequences in their lives, including intense suffering, mutilation and suicide."

Patients must be at least 18 years old and diagnosed as transgender with no personality disorders, and must undergo psychological evaluation with a multidisciplinary team for at least two years, begins with 16 years old. The national average is of 100 surgeries per year, according to the Ministry of Health of Brazil.^[49]

There were about 200 homicides of transgender individuals in Brazil in 2017, according to the Brazilian National Transgender Association.^[50] Additionally, Brazil made up 40% of all murders of transgender individuals since 2008, according to Transgender Europe.^[50] More recently, the number of transgender women murdered in Brazil went up 45% in 2020.^[51]

São Paulo city council member Erika Hilton, the first transgender woman to be elected to the city council, received death threats and, as a result, had to change her habits for safety reasons.^[51]