Procedural Posture

The applicant, a transgender man, filed a request with the court for correction of name and gender in the civil registry. Following a clinical and psychological assessment, the applicant had undergone a mastectomy.

Facts

Gesa was registered as female at birth but identified with the male gender. He underwent treatment for sex reassignment at a university hospital in Rio de Janeiro. The treatment included hormone therapy and a mastectomy.

Issue

Whether the applicant could change his name and gender in all civil records, having had a mastectomy, without further surgical intervention.

Domestic Law

Constitution of Brazil, Article 1 (dignity) and Article 3 (non-discrimination).

Federal Law No 6015 of 31 December 1973 (Public Registries Law), Article 55 (not registering first names that will expose people to embarrassment), Article 58 (procedures for changing first name following hearing before Public Ministry), and Article 109 (procedures for making changes in the public registry through petition and judicial hearing and submission of opinion of public prosecutor).

Federal Council of Medicine Resolution No. 1652 (establishing medical guidelines for authorisation of sex reassignment surgery).

Reasoning of the Court

The Court emphasised the “inadequacy” of the applicant’s birth name and the discrepancy between the first name and gender registered at birth and the applicant’s present gender identity. It noted that the applicant had followed a gender reassignment programme that included non-surgical and surgical interventions, including a mastectomy. The applicant had also been evaluated for a possible neophalloplasty (surgical creation of a penis) which, according to the Brazilian Federal Council of Medicine, was still an experimental form of surgery. The applicant presented all the documentation required to prove that he had undergone the treatment claimed.

The Court found that the applicant’s original first name had the potential to negatively affect his dignity, resulting in pain, embarrassment, or general feelings of social inadequacy due to having a feminine name and a male appearance. No longer possessing breasts and manifesting external signs of maleness (a beard, deep voice and other essentially male attributes), when interacting in society the applicant would have a completely different and male appearance, at odds with the name and female gender recorded in his civil identification documents. Such circumstances would expose him to discrimination on a daily basis. Not granting the changes requested would violate Article 3 of the Constitution.

As support, the Court cited a case from Rio Grande do Sul, which authorised rectification of the civil registry, whether or not sex reassignment surgery had been completed, on the basis of the right to personal identity and dignity.

The Court authorised the rectification of name and gender in the civil registry, without the surgical creation of male genitalia.

In re Gesa Case No. 0162607, Tribunal of Justice of Rio de Janeiro, Brazil – Portuguese (full text of judgment in Portuguese, PDF)