Three cases have come to light in recent weeks of transgender children having requested, with the consent of their parents and in accordance with the Gender Identity Law of 2012, a change in gender identity to be reflected in their national ID and birth certificates.
What is striking is that for the first time since the law passed, the response of the Buenos Aires provincial Civil Registry has been to deny the requested changes.
The Gender Identity Law (26,743) that passed in May, 2012 gives all people the right to have their gender identity recognised in their ID documents.
In the cases of minors, a legal representative (mother, father or caregiver) must approve of the change as per Article 5 of the law. There are have been 35 cases of minors having obtained a change of identity since 2012.
However, for a seven-year-old transgender girl from Quilmes and two trans boys from La Plata and Punta Indio, the Civil Registry considered that a “multidisciplinary body must (first) be formed" to determine if the youths of "have the sufficient maturity to give valid consent”.
In light of the decisions, the Buenos Aires provincial Ombusdman’s Office has lodged a formal complaint before the Civil Registry, requesting it provide its “rationale behind the denial of the requests” in question.
“There is no greater damage that can be done than to not recognise a child’s identity”, Ombudsman Walter Martello told this journalist, explaining that in each of the cases “the parents had provided their consent”.
Following news of the decision on social media, the national central registry office RENAPER confirmed that a request had been made to the Buenos Aires provincial office to provide further information about the cases. “The lawyers are waiting for a response”, RENAPER said.
Lawyer Carolina Von Opiela, who specialises in gender identity legislation and who forms part of the advisory team at RENAPER, noted that the “wording of the law does not mention the possibility of any intervention on the part of interdisciplinary bodies”.
According to Von Opiela, the concept of progressive capacity as per Article 5 should be applied to the three cases. Progressive capacity concept implies that the actions of a child according to the evolution of their faculties determine that they are subject to rights.
Such a concept forms part of a new paradigm surrounding infancy and adolescence based on three principles: a child's progressive autonomy, his or her higher interest and the right to be heard — concepts which were enshrined in the Convention on the Rights of of the Child, which has constitucional status in Argentina since 1994, and in Law 26,061 which covers the integral protection of girls, boys and adolescents.
The Ombusdman’s Office has confirmed that if the measure is ratified then “we will offer to provide the families with legal representation”.
“It’s a totally arbitrary interpretation”, Alejandro Mamani, representative of the association AboSex, told this journalist.
“Any child that understands that he or she can access the law is able to request a change of gender identity in his or her ID document no matter the age. This battle was already fought and won. Argentina is one of the few countries with a fair and complete gender identity law”, he said.
The decision, Mamani added, was made “in a context in which all of Latin America is struggling to fight for the rights of transgender children. In Chile, they have just removed a restriction on gender identity changes for children”.
This article originally appeared in Spanish on Perfil.com