Crianças e adolescentes trans no Brasil: retificação do registro civil à luz dos direitos humanos

Abstract

Brazilian legislation allows the rectification of the first name and gender in the civil registry of transgender people, through administrative means, only for those over 18 years of age, remaining silent regarding the possibility of modification by trans children and adolescents. Consequently, some minors resort to the Judiciary for such a change, although there is no guarantee as to the merits of the request. In this context, considering that the theme of this work must be linked to line of research no. 3, referring to “International Law and the Realization of Rights”, as well as the project “Law and gender”, this research aims to verify how to guarantee rectification of civil registration of transgender children and adolescents in Brazil, in light of human rights. It will be assumed that such a change is possible based on the Global System and the Inter-American System for the Protection of Human Rights (ISPHR). To do so, it will be necessary to examine the concepts of sex, gender, sexual orientation and gender identity related to the topic, relying mainly on the concepts of Judith Butler and Berenice Bento; identify international human rights legal instruments for the protection of transgender children and adolescents, with emphasis on the American Convention on Human Rights (1969), Convention on the Rights of the Child (1989), Yogyakarta Principles (2006) and Advisory Opinion no. 24/2017, of the Inter-American Court of Human Rights (IDH Court); analyze the Brazilian protection of human rights regarding trans children and adolescents, considering the provisions of the Federal Constitution and the Child and Adolescent Statute (ECA); and understand the medical and psychological perspective regarding the gender identity of trans children and adolescents in Brazil. The hypothetical-deductive approach method will be adopted, as well as historical, functionalist and structuralist procedural methods. As research techniques, documentary and bibliographical research will be used, with analysis of jurisprudence from the IHR Court (cases Atala Riffo y niñas vs. Chile, Duque vs. Colombia, Vicky Hernández y otras vs. Honduras), DAU 4275, the Supreme Federal Court (STF) and specific cases from the courts of the states of Mato Grosso, Rio de Janeiro, Santa Catarina and Ceará. It is concluded that the first name and gender can be changed in the civil registry of trans children and adolescents in Brazil, through a civil registry rectification action, with the child or adolescent represented or assisted by their parents or legal representatives, and there are also the intervention of the Public Prosecutor's Office.