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In Brazil there is no special legislation for transsexual persons, although there has
been a recent effort to pass a Bill (Projeto de Lei) on this matter. Until now this
problem has been governed by general laws, in particular the Civil Registration Act of
1973.
Name change
The name change is an important legal consequence of medical interventions toward sex
reassignment. In Brazil, the principle of unchangeability of the forename (Art. 58 Civil
Registration Act) prevails. It is possible to change the forename only in four cases:
1) in the case of adoption of child;
2) in the naturalization process, when the person wants to change or translate his
name;
3) in the case of an orthographic error; and
4) if the name exposes the person to ridicule.
This last possibility is freuquently used in cases of transsexual persons, because
after the medical intervention their previous name (male or female) does not conform with
the new physical situation and could expose these persons to ridicule. The State Attorneys
(Ministério Público) used to reject this interpretation stating that the
previous male or female names per se were not "ridiculous" or
"negative" and also that the medical intervention in itself was not sufficient
to determine a "legal sex and name change".
The actual Brazilian legal rule at first view seems to be applicable in these cases. A
male or a female forename of a person with external appearance and characteristics of the
opposite sex exposes this person to ridicule in society and Art. 58 and Art. 55 of the
Civil Registration Act of 1973 authorize the name change. As a matter of fact the name
change is only an accessory problem, but it still requires the same solution.
Two tendencies in recent case law can be noted: on the one hand the person who wants to
change his/her data on the birth register, usually proposes both changes (name and
sex), which makes the application of the current legislation difficult; on the other hand,
the tendency of some single judges is to accept the name change, while the superior courts
don't.
Sex determination
There is no special legislation about sex determination in Brazil. The Civil
Registration Act of 1973 requires information on the sex of the child in the birth
register. This information is given directly by the parents, without any necessary medical
confirmation. Problems appear in cases of "intersexuality", which according to
the Brazilian doctrine are errors in the determination of the sex and can be corrected
later with a judicial decree. In these cases the birth register is changed, because the
persons sexual "status" has changed. The only legal basis of such a decision
however is an analogy (analogia) with the civil status change of the adopted child
after the adoption decree. Through this analogia, this lack of special legislation
has been overcome in practice in cases of intersexuals.
On the other hand, in case of transsexualism this lack of legislation is mostly used as
a limit to the change of the birth register. In fact there is a conviction in Brazilian
case law and doctrine about the important difference between transsexual and intersexual
cases. In the cases of intersexuality (physical defects) the question of a legal error in
the birth register arises, because there really has been a sex reassignment. The solution
would be a special legislation on transsexualism, with a clear authorization of gender
change. One interesting decision holds that the birth register should be changed after the
medical intervention, not as male or as female, but a quasi third gender, namely
"transsexual", in order to avoid misunderstandings within society.
Marriage
In Brazil, the civil rights of lesbians and gays have not up until now become a
prominent issue on the public agenda. At the present time, there is no scientific debate
on the possibility of a legal status or registration of same-sex relationships.
Nevertheless there is a long history in Brazil of legal recognition of cohabitation and
concubinate.
Persons of the same sex who wish to "marry" can unofficially enter into gay
or lesbian cohabitation, but they have no other legal option. They cannot get married
because "marriage" has been doctrinally and judicially defined as a voluntary
union for life of one man and one woman. Legal cohabitation was defined in the new Federal
Constitution as "a stable union between man and woman" (Art. 226, § 3 Constituição
Federal 1988). Therefore in Brazil at the moment, marriage or a cohabitation with
legal status is defined as only involving members of the opposite sex.
A male person, who underwent transsexual surgery, cannot marry another man unless he
had his birth register changed. According to legal writing and case law, this
"marriage" is legally impossible (non-existent), on the ground of an essential
inability to consummate the marriage with a person of the same sex. This relationship
therefore will not be recognized or registered (Art. 29, II and Art. 69 Civil Registration
Act of 1973).
Adoption of children
According to the new Children's Act of 1990 child adoption is possible for married and
divorced people or those in a legal cohabitation (união estável) and single
unmarried persons without discrimination. So it is legally possible for a single
transsexual person to adopt a child. However the policy of the Children's Court, which
decides on the basis of social and psychological expertises and "home studies"
on the adoption decree, has in most cases been to refuse child adoption by homosexuals and
transsexuals. This court and experts claim that these adoptions are against the best
interests of the child and therefore against Art. 43 of the Children's Act of 1990.
Nevertheless there have been many cases, where a single homosexual has been allowed to
adopt an abandoned child. In such cases the court allowed the adoption for other reasons
(e.g. family ties, previous contacts with the child, medical treatment of the child, etc.)
without taking the lesbian or gay inclinations of this single person into consideration.
Homosexual couples have more difficulties in escaping the general policy and normally a
homosexual can only adopt a child as a single person.
Although there is no reference in legal writing to child adoption by a transsexual
person, it is not actually forbidden or impossible under the current Brazilian laws on
adoption. The literature up to now does not mention any such cases.
New tendencies in the
question of transsexualism
Bills (Projetos de Lei)
The first attempt to create special legislation on transsexualism was made 17 years
ago, with the Draft nr. 1.909/79, from the Chamber of Deputies (Câmara dos Deputados).
According to this draft, which intended to introduce a new section into Art. 129 of the
Brazilian Criminal Code, medical interventions that cause the ablation of organs or parts
of a human body would no longer be considered a crime (bodily injury). This project was
created especially to regulate the medical interventions for sex change. The project was
passed by Parliament only in 1984. The problem of civil effects, in particular the name
and sex change in the birth register after the medical intervention, were also discussed,
but it was not included in the original draft approved by Parliament, because the deputies
were more interested in the discriminalization than in the legal effects after the sex
reassignment. The President of Brazil rejected that project (presidential veto), based on
the polemic and doubtful nature of transsexualism. The legal issues concerning the sex and
name change in the birth register and the criminal effects of medical intervention still
call for a legal solution.
Perhaps a legal solution will come through with Draft nr. 70/1995, also submitted by
the Chamber of Deputies. This new project is intended to regulate medical interventions
for sex change by introducing a new section into Art. 129 of the Brazilian Criminal Code
and Art. 58 of the Civil Registration Act. According to this Draft, the medical
intervention would no longer be considered a crime, and after sex reassignment the
transsexual could change his/her name in the birth register. Concerning the change of sex
in the birth register, the Draft had at first proposed that in the birth register and
identity card be written the word "transsexual" in stead of male or female. The
author of this project intended to prevent misunderstandings within society. The
Commission of Constitution and Justice of the Chamber of Deputies (Comissão de
Constituição e Justiça) presented however two addenda to this draft, on the analogy
of the Children's Adoption Act and made it possible to register the transsexual as female
or as male.
This new Bill was passed by the Chamber of Deputies only on 10 May1995. The
decriminalization of the medical intervention and the possibility to change the forename
and sex in the birth register have to wait until the Brazilian Parliament approves the
Bill and the President ratifies it.
Reaction of the Medical Profession
The medical intervention for sex change could have other implications according to
current Brazilian legislation: the criminal responsibility of the surgeon. The Medical
Association (Ordem dos Médicos) of São Paulo conceded the necessity of sex
reassignment for the transsexual, but the Brazilian Federal Medical Association (Ordem
dos Médicos do Brasil) has declined medical intervention, based on the uncertainty of
criminal effects and an interpretation of Art. 32 of the Medical Code of Ethics. As a
matter of fact, this Medical Code does not prohibit any necessary medical intervention in
Brazil. However, the question of whether the transsexual medical intervention is necessary
remains doubtful.
The lack of special legislation on these questions creates a situation of uncertainty
for doctors and transsexual persons. The transsexuals in Brazil, seeking sex-change
operation, either travel to other countries in which such operations are legal, or have
the operations done secretly in private clinics somewhere in Brazil.
Conclusion
Sex change operations of transsexual persons can nowadays be considered to be a normal
and regular medical treatment in many countries. In Brazil, however, the lack of special
legislation creates a difficult situation for transsexuals. This legal uncertainty should
be resolved, not by a judicial interpretation de lege ferenda or by analogy, as
some single judges have done in Brazil, but by new legislation dealing particularly with
this matter. This legislation should be as clear and as wide as possible so as to regulate
all legal conditions and effects of sex change. Through this new concept, Brazilian
legislation would no longer hinder sex changes, provided that it is medically prescribed
and performed with all due medical care.
References
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(1992) 228-235.
Carvalho, Hilário Veiga de, Transexualismo.
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289-304.
Chaves, Antônio, Direitos à vida, ao próprio corpo e
às partes do mesmo (transplantes). Esterilização e operações cirúrgicas para
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Correspondence and requests for materials to:
Lima Marques, Claudia, J.C.D
University Rio Grande do Sul,
Porto Alegre, Brazil |
