Thursday, March 19, 2009

Colombia: Regretting gender change, court allows man to regain birth name

In the past, I've written about legal precedents in Latin America allowing transgender individuals to legally change their name of birth on legal documents to better reflect their assumed gender (including Argentina, Uruguay and Cuba).

Well, a little-noticed October 2008 ruling from Colombia's Constitutional Court, goes a step further.

The case: A man who had undergone hormone-treatment as part of transitioning to being a woman was also able to legally change his name to that of a woman at a local civil registry office in Cali. Regretting his decision to change his gender at a later date, he asked the office to change his name back to his original name, and was denied. He was told that the law only allows a person a one-time change of name for the purpose of correcting legal records or making one's name be more in line with one's identity. He took the case to court in Cali but it was also rejected under similar arguments.

The 26 year-old man, who is not identified in court papers to protect his privacy, challenged the decision before the country's highest court and, in October, the Constitutional Court ruled in his favor by ordering the civil registry office to allow him to regain his birth name.

The ruling: The court weighed the legal limitations which specify that a person can only change his or her name a single time versus constitutional protections safeguarding the right to the free development of one's self. They expressed that this was an "exceptional" case and ruled that to deny someone who identified as a man the right to change his female name would indeed violate his constitutional rights. From the ruling:
...the Court cannot ignore that this is an exceptional case in which the inflexible application of the legal restriction compromises the life plans of a person of only 26 years of age, who, in an intermediate step in the process of determining his personality and sexual identity, took a hasty decision to change his masculine name for a feminine one, which should not tie him indefinitely to a distinctive sign that does not match his sexual identity, defined at a later point, nor condemn him for the rest of his life to the loss of his dignity, liberty, autonomy or equality [italics mine]
It's another instance in which the Colombian Constitutional Court has acted progressively in recognizing the rights of sexual minorities (as reflected in a number of recent rulings granting same-sex couples many of the rights of married heterosexual partners).

Still, there is more to this particular case which troubles me.

For one, while the anonymous plaintiff currently identifies himself as a gay man, the reasons he provides for reversing his transition to a woman doesn't necessarily indicate a true change of heart but, instead, fear of what life would be like as a transgender woman.

He argued that as a result of his "sexual reorientation", he saw himself "doomed" to a life of prostitution and personal degradation which made him reflect on his future and his opportunities to gain worthy employment and raise a family.

He stated that his reflections led him to "leave behind everything and to begin dreaming about having a wife with whom to share the rest of my days and, at the same time, be able to have kids and be able to sustain my home through a worthy job."

This, of course, will sound familiar to many of us who fought against our attraction to the same gender when we were younger thinking that our desires were incompatible with leading a 'respectful' life.

Also troubling to me is that the Court seems to take the plaintiff at his word, not only in confusing gender identity and expression with sexual identity, but also in accepting that these are transitional stages which can easily change from one moment to the next.

Don't get me wrong. In my life I have known men who in their past began transitioning to being women and later reversed their decisions - and currently live happily as men. I also have known people who swear that they made the choice to be gay and I take them at their word since I believe that some people are born gay and others are not. That is, that sexuality is more complex that most people give it credit.

But the facts in this particular case seem to indicate that the reason behind reversing a change of gender was due more to societal pressures and expectations rather than a true change of heart.

So, in many ways, I believe this was the right verdict protecting a constitutional right to the free development of one's self but it was based on wrong assumptions about sexuality and gender.


No comments: