About the Special Proceeding due to the Issuance of the Certificate to Reassign the Concordance of Sex and Gender
This topic’s sense contains controversial touches that ultimately consolidate family law, derived from the constant transformation, social behavior and ideological processes that generate changes, and the legal rule requires addressing the new social circumstances, which certainly requires its modification and adaptation to the new organizational models.
Therefore, far from the moralistic debate, the new challenge for the jurist is to analyze these transformation phenomena and to elaborate through deep and reflective study the new dimensions or the new concepts of the family and its institutions. Mexico, as well as many other member states of the international community, it seeks to end discrimination, which has led to the development of laws based on respect for diversity and inclusion to all types of ideologies.
Now, let’s start with the concept of gender identity, which we know as the perception we have of belonging to one of the genres. It is the conviction of each person to belong to a certain gender. The Civil Code for Mexico City establishes in article 135 bis that gender identity is the personal conviction of belonging to the male or female gender is unchangeable, involuntary and may be different from the original sex. On the other hand, we have the concept of concordance of sex and gender, better known as the link between a person’s belief to belonging to the desired gender, and the physical state sought. The legislator says that it is a process of professional intervention, which allows the person to get congruence between its corporal aspects and its gender identity.
Likewise, we talk about the legal identity, which is defined as the recognition and verification of a person that is the same that is supposed or sought. On the matter of transsexuals or transgender, when a person with gender dysphoria changes its personal identity and not its legal identity, it gives way to the discrepancy between these two. In this case, the person’s legal reality does not fit with its personal reality, which in fact leaves the shock of the two realities uncovered, since both are simultaneously affected.
Regarding the gender role, the legislator refers to the so-called body expression, that is, move or learn to do so and act like a man or a woman. For him, the behavior is very important and, above all, that they perform in such way before the society, the law also suggests that the subjects must behave as a man or a woman, as the case may be. Janet Shilbey Hyde says that gender role is the set of guidelines or culturally defined expectations that specify the way in which people of a certain gender should behave.
Gender dysphoria is the affectation in the individual, in which a person is in discordance with its body due to the involuntary and unchangeable personal belief of belonging to the opposite gender. It is a difference between the identity or gender role on the one hand and the body’s physical features on the other.
In gender dysphoria, the identity and gender role coexist in the same person, with the primary and secondary features of the other sex, that is, the individual lives permanently feeling that its physical body denies who it is, feeling trapped in its body. They find their true “self” in their gender identity.
Every legal person is regulated in our legal system, recognizing its personality, by being holding rights and obligations, and their corresponding attributes. On the other hand, it is recognized that not every person is considered as that, but on the contrary, it is a legal person because the State itself, through the law, grants this quality to human beings.
In this regard, on October 10, 2008, in the Official Gazette of Mexico City was published the amendments and additions to articles 2, 35, 98 and 135 bis, of the Civil Code of Mexico City and the addition to Chapter IV BIS Seventh Title of the Civil Procedures Code for Mexico City.
In article 35 was added, all related to the interlocutories that order the rectification of the certificate by reassignment for the concordance of sex and gender. A very important amendment is the one made to article 98 of the Civil Code, which refers to the requirements for marriage, and among which we add the demonstration under protest of telling the truth, if one of the parties has made the procedure of reassignment for concordance of sex an gender, in order to give legal certainty to both parties in relation to the person with whom they are going to get married, and avoid, in certain moment the nullity of the marriage by mistake in the person.
They can request the issuance of a new birth certificate due to the reassignment of concordance of sex and gender, with a prior corresponding note in their original birth certificate, the people that require the recognition of their gender identity.
The reassignment for the concordance of sex and gender is the process of professional intervention through which the person gets correspondence between the body aspects and its gender identity, which may include, partially or totally: gender role expression training, hormone administration, psychotherapy, or the surgical interventions that it may have required for the process; and that it will have, as consequence, by means of judicial resolution, a legal identity of man or woman, as it corresponds.
It is important to highlight that the rights and obligations contracted prior to the reassignment of sex and gender do not change or extinguish with the person’s new legal identity. The procedure is ruled by articles 498, 498 Bis of the Code of Civil Procedures that will start with the petition before the Family Court Judge in turn, where it is requested the issuing of a new birth certificate due to the reassignment of sex and gender concordance, with a previous corresponding note in the original birth certificate.
The following requirements must be met:
- Be Mexican;
- Of legal age or acting through whom exercises, over the person, the parental authority or guardianship;
- Attaching to the application the opinion that determines that is a person subject to the process of sex and gender concordance reassignment, with a minimum of five months, issued by two professionals or experts who have clinical experience in the process of reassignment of sex and gender concordance, one of them must be the professional in charge of the applicant’ treatment.
As well as manifesting the following:
- The full name and the petitioner’s original sex, with the corresponding registration data;
- The name without surnames and, where appropriate, the requested sex.
Once the petition has been filed and admitted by the Family Court Judge, a notification will be given to the Civil Registry of Mexico City and to the Mexico City Attorney’s Office, through the Public Prosecutor’s Office attached to the court; so that within the term of five business days they manifest, that what to their rights convene. In addition to pointing out the date and time for the hearing of evidence and allegations, which will take place within fifteen following business days.
The petitioner must appear at the hearing with the experts who have issued the opinions in which the request is based. In case of absence of the experts, the proof will be considered deserted. At said hearing, the Judge may question the experts on the content of the opinions issued and may order the practice and presentation of the expert opinions that it deems necessary, solely and exclusively to determine the way to act; in which case the hearing may be suspended for up to ten business days. It may also question the witnesses, if they have been offered and presented, for the same purposes as the experts. When the Civil Registry has expressed opposition to the petitioner’s request, it must offer the evidence it deems necessary to accredit its statement when it is given a hearing with the application and will attend the hearing for its presentation.
Once all the evidence has been presented, the petitioner and the assigned Public Prosecutor may do their pleadings, once this is done, the Judge shall call for a summon to hear the ruling within a ten working days period. The plaintiff can appeal, as well as the agent of the Public Ministry; this resource will be admitted in both cases.
Once the favorable ruling is enforced, the Judge will order ex officio, within the term of five working days, the corresponding annotation to the original birth certificate and the issuance of a new birth certificate due to the reassignment for concordance of sex and gender.
The original birth certificate will be reserved and will not be published nor will any document be issued, except by a judicial order or ministerial request. The judge of the Civil Registry will send an official letter to the Central Office and to the place where the database is located; as well as send such information, as reserve, to the Ministry of the Interior, Ministry of Foreign Affairs, National Electoral Institute, Attorney General of Mexico City and Attorney General of the Republic, for legal purposes.
When the person has obtained the issuance of a new birth certificate due to reassignment for concordance of sex and gender, and this is not in accordance with his gender identity, it will proceed with its restitution following the same foreseen procedure.
