Procedural Posture

The plaintiff filed a petition before the Family Tribunal, to have the sex and name on his birth certificate amended to match his acquired gender identity, and to obtain new identity documents.

Facts

The plaintiff was born biologically female but identified with the male gender. He underwent numerous surgeries, the first of which, a double mastectomy, was performed when the plaintiff was fifteen years old. He subsequently underwent irreversible genital reconstruction surgery to create male genitalia. Because changes in identity documents were not automatically granted in Argentina, the plaintiff sought judicial permission.

Issue

Whether the plaintiff’s request to change the sex on his birth certificate and receive a new identification card should be granted.

Domestic Law

Anti-Discrimination Law No. 23.592.

Constitution of Argentina, Section 19 (“The private actions of men which in no way offend public order or morality, nor injure a third party, are only reserved to God and are exempted from the authority of judges. No inhabitant of the Nation shall be obliged to perform what the law does not demand nor deprived of what it does not prohibit”).

Comparative Law

American Convention on Human Rights, Article 5(1) (Every person has the right to have his physical, mental, and moral integrity respected).

American Declaration of the Rights and Duties of Man, Articles I (right to life, liberty and personal security), II (right to equality before the law), V (right to protection of private and family life), XVII (right to residence and movement), and XVIII (right to a fair trial).

French Declaration of the Rights of Man and of the Citizen (French Declaration of the Rights of Man), Articles 4 (“Liberty consists in being able to do all things that do not harm others”), and 5 (“Law can only prohibit such actions as are hurtful to society”).

International Law

B v. France, ECtHR, 1992 (finding a violation of Article 8 of the European Convention where the law refused to recognise the change of sex of a transgender woman in her civil status register and on her official identity documents).

Reasoning of the Court

The Court’s analysis depended on its interpretation of the right to privacy, which it linked to the principle of personal autonomy and the harm principle of John Stuart Mill. The Court cited Section 19 of the Constitution, which protected the right to personal freedom and personal autonomy. It also referred to Articles 4 and 5 of the French Declaration of the Rights of Man and Articles I, II, V, XVII, and XVIII of the American Declaration of the Rights and Duties of Man, which upheld the legality of acts that do not harm others. According to the Court, individuals, including minorities, had the right to define their own identity as part of their personal freedom. In a democracy, the government did not have the power to prescribe how minorities lived their lives. Minorities had the right to define their own personal identity even when they did not conform to the majority’s sense of morality. As a transgender man, the plaintiff had expressed his desire to belong to his acquired sex as part of his constitutional right to define his own personal identity. As an expression of free choice, the decision to change sexes must be respected.

The Court stated that Section 19 of the Constitution guaranteed intimacy. Referring to B v. France, the Court held that this right should be interpreted to include the right to sexual identity. Furthermore, Article 5 of Law 23.054, incorporating the American Convention on Human Rights, guaranteed the right of every person “to have his physical, mental, and moral integrity respected”. Psychological sex was part of that integrity and it was not necessarily defined by the person’s sex at birth. Relying on medical testimony, the Court noted that transgender people feel that they belong to a sex other than their genital, anatomical, and legal sex at birth. Their psychological sex was part of their personality and superseded their biological sex; it was an integral part of identity. By having irreversible genital reconstruction surgery, the plaintiff took this identification even further. His psychological and morphological sex now corresponded. Even if he was genetically female, in all other aspects he was his new sex. His right to personal integrity included his right to recognition of his new sexual identity.

The Court held that because the Constitution guaranteed the right to personal integrity and a transgender man or woman’s personal identity included his or her acquired sex, a transgender man or woman had the right to be issued new identification documents reflecting the changed sex. The Court also pointed out that the laws of Sweden, Germany, Italy, Holland, Turkey, Spain, and several States in the USA allowed changes of sex in identification documents.

The Court found that Sections 37 and 75 of the Constitution implied the right to equality through legal action, but also through access to real equality of opportunity. The government was constitutionally responsible for removing obstacles to the effective realisation of this equality. Furthermore, the Anti-Discrimination Law made restriction or obstruction of the enjoyment of constitutional rights on the basis of sex illegal.

The Court accorded weight to the government’s argument, that preservation of the “biological truth at birth” in the original document protected third parties and prevented fraud. Prior decisions were particularly adamant about this when personal identity and family relations were involved. Since the birth at sex was related to identity and to family, the birth sex ought to remain in the birth certificate. Additionally, preserving evidence of the individual’s birth sex protected laws preserving marriage, as only between a man and a woman. For these reasons, a new birth certificate with changed sex could not be issued.

To protect the constitutional rights of transgender people as well as the constitutionally protected interest in maintaining historically accurate interpretations of the law, the Court ordered that a note should be placed in the margin of the original birth certificate noting the change of sex.

With regard to identity documents other than the birth certificate, the Court concluded that the change of sex should be granted. As requested, the plaintiff would be issued a new identification card with the masculine version of his original name at birth.

In re KFB, Family Tribunal No 1 of Quilmes, Argentina (full text of judgment in Spanish, PDF)