The Right to Gender Identity

Not all States provide equal legal solutions to the recognition of the right to gender identity. This is partly because each State adopts a specific definition of gender, which shapes its legislation and public policies. How gender is defined thus exerts a vital influence on the process of drafting or implementing gender identity laws. In Argentina, the Gender Identity Law was adopted in line with a critical reading of gender that was connected to a particular sector of the feminist movement of the 1980s. Specifically, its theoretical approach could be described as poststructuralist. It was also heavily influenced by the trans movement, the theoretical output of this, and the impact of the movement’s judicial and political initiatives amplifying this theoretical framework. These circumstances led to the country promoting and supporting a different perspective on the right to gender identity.

Law No. 26743 on Gender Identity, which has been in force since 2012, provides a legal regime for the recognition of the right to gender identity based on four standards: (1) depsychopathologization (no gender identity or expression constitutes a disorder or illness in the field of mental health); (2) dejudicialization (access to rights is primarily administrative in nature and judicialization operates only as a defensive strategy for effective access to recognition of the gender that the individual states they belong to); (3) destigmatization (access to rights is guaranteed without discrimination and always in favor of the petitioning party); and (4) decriminalization (no gender identity or expression and no demand for official recognition of this identity merits social, legal, or institutional sanctions of any sort).

This document is the first in the Informed Identity series of fact sheets on access to rights for the trans, transvestite, and nonbinary population. It seeks to provide content on matters relating to the implementation of the Gender Identity Law, the achievements of this law, and gaps in its application. The second document reflects on the meaning of “dignified treatment,” which is set forth as a right in the Gender Identity Law. The third analyzes the right to access identity documents that reflect gender identity; while the most recent document in the series addresses the importance of statistical representation of the transvestite, trans, and nonbinary population, and discusses how the National Statistical System needs to be transformed to achieve this.

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