Law and gender identity: a comparative study between Quebec and Brazil

Author(s)

Maria Luiza Moura de Carvalho

• Document type: Doctoral Thesis
• Press: São Paulo.
• Institution: Universidade de São Paulo (USP). Faculdade de Direito (FD/SBD)
• Defense date: 2021-11-03

Examining board members

Guilherme Assis de Almeida; Catarina Isabel Tomaz Santos Botelho; Miriam Cohen; Bibiana Graeff Chagas Pinto Fabre; Jean François Gaudreault Desbiens

• Advisor: Guilherme Assis de Almeida

Abstract

This Ph.D. research joins a context of substantial changes on trans peoples rights in the American continent, where an increasing number of jurisdictions now authorizes the rectification of trans peoples gender on their birth records and official documents through a self-declarative basis. The study explores the disparity between these legal improvements and the continued marginalization of trans people by analyzing the legal reforms on this topic recently approved in Brazil and Quebec. Its first part presents a last four-decade retrospective on trans people rights (Chapter 1), as well as the legal debates on both jurisdictions regarding the withdrawal of pathologizing requirements for name and sex mention rectification (Chapter 2). The second part analyzes these legal changes from a critical perspective, problematizing the fact that, despite the achievements, the medicalization continues to operate as a basis for an inequal standard on gender identity credibility for trans and non-trans subjects (Chapter 3), partly explained by the democratic deficit seen in those reforms (Chapter 4). Itsought to demonstrate that the paradigm of justice on which such reforms are based is inadequate to overcome trans people social subordination, requiring a grammar of rights to be supplemented by one of recognition, particularly on the conditions for participatory parity. The research shows the role of Law in upkeeping social inequalities while also revealing its potential as an instrument of social emancipation when reviewed its foundations in the light of new scientific knowledge. It also establishes that such a review is not only necessary to make domestic law compatible with the ethical-moral paradigms of our existing pluralist societies, but it is also crucial to preserve the prominent role of civil registry both in Brazil and Quebec. The comparative analysis also approaches areas that remain unsettled in both jurisdictions, such as the legal rectification by trans children and youth and the very appropriateness of sex mention for identification purposes, supporting the legal field with a critical analysis that can guide actions and strategies aimed at overcoming mechanisms that block social emancipation for subordinated groups. (AU)

• FAPESP's process: 17/19385-0 - Legislative policies on gender identity in comparative perspective: Quebec and Brazil
• Grantee: Maria Luiza Moura de Carvalho
• Support Opportunities: Scholarships in Brazil - Doctorate