The government of Costa Rica has made recent strides toward ensuring human rights protections for trans citizens, such as enacting an executive decree in 2015 to eliminate discrimination against the “sexually diverse” population. However the right to legal gender recognition is not yet codified in law, policy, or practice. Recent developments regarding the ability of trans individuals to be photographed as they identify on government identification documents show positive improvements, yet OutRight’s briefing paper “Mapping Trans Rights in Costa Rica” reveals systematic inconsistencies and the conflation of sexual orientation and gender identity in policy.
Some Progressive Legislation to Self-identification
In 2010, the Costa Rican Supreme Electoral Tribunal passed a decree known colloquially as the Photograph Regulation allowing trans people to match the photo on their identification document (ID) with their self-image. For example, trans women are able to be dressed in traditionally feminine clothing and to wear makeup in identification photos. Previously, trans citizens were required to present themselves according to their registered birth sex on government issued IDs. Officials in charge of receiving and entering the data provided by the applicants, and those in charge of reviewing applications, are responsible for ensuring that the photos represent the person’s self-image. Individual biases on the part of authorities and lack of awareness often impedes trans individuals from accessing this right.
The Right to a Name
The Costa Rican Civil Code guarantees every person the right to a name; to name himself or herself, and to be named in accordance to how they self-identify. While it is legal to change one’s name on identification documents, it is a costly and difficult process that most people cannot afford. The process requires hiring a lawyer and presenting medical certificates identifying that the individual has gender dysphoria, a concession that disrespects the lived experiences of trans people and one that many trans people are unwilling to make. Furthermore, on identification documents, the name the person has adopted, their social name, can only appear under the field of “Known as.” The “Known as” field is a space to add a pseudonym when the pseudonym has become as important as the name of the individual.
Conflation of “Sexual Orientation” and “Gender Identity” Leads to Issues in Accessing Rights
OutRight’s briefing paper also highlights conflation of the terms “sexual orientation” and “gender identity” in various policies, with the use of the term “sexual identity.” The Photograph Regulation does not use the categories of “sexual orientation” or “gender identity.” Instead, the Regulation uses the terms “self-portrayal” and “personal portrayal,” which seem to indicate gender expression. The articles of the Regulation however use the wording “sexual identity” to refer to this right, defined as “a sense of belonging to one sex or another.” The wording dangerously conflates the two terms “sex” and “gender” as synonyms. Gender identity is “a person’s deeply felt internal and individual experience of gender,” which may or may not correspond to the sex assigned at birth. It also does not necessarily correspond to a person’s expression of gender such as dress, speech, and mannerisms nor does it necessarily correspond to their personal sense of the body, which could be shown through freely chosen body modifications by medical, surgical, or other means.
Legal confusion between a person’s sexual orientation and his/her/their gender identity, for example referring to a trans person as gay or lesbian, risks excluding certain groups from human rights protections when anti-discrimination laws include one category but not the other.
Based on our research findings, OutRight provides Costa Rican authorities with the following recommendations:
- Enact a gender recognition law that protects the right to change one’s name or gender to coincide with the self-image and gender identity with which one identifies,
- Put in place explicit legal protections against discrimination on the basis of sexual orientation, gender identity, and gender expression.
- Provide all state employees clear guidance and training to understand, recognize, and distinguish between sexual orientation and gender identity in order to end discrimination.
Published on November 23, 2016 | OutRight Action International an LGBT human rights organization