Mexico: Barriers for Trans People in Guanajuato State

June 21, 2022 1:00AM EDT

Create Legal Gender Recognition Procedure; Uphold Mexican and International Law

(León) – Trans people in the Mexican state of Guanajuato experience discrimination in work and education and onerous legal impediments due to the state’s lack of legal gender recognition, Human Rights Watch and Amicus DH said today. Guanajuato should comply with Mexican and international law and create an administrative procedure to allow trans people to accurately reflect their self-declared gender identity on official documents.

Each of Mexico’s 32 states has the authority to determine its laws and policies in civil, family, and registration matters in accordance with the constitution. So it is up to the state legislature or administration to pass a law or enact an administrative decree that enables legal gender recognition through a simple administrative procedure at a state-level civil registry. Twenty Mexican states already have such a procedure. Guanajuato does not.

“Trans people in Guanajuato are disadvantaged in work and education and weighed down with legal proceedings due to state authorities’ undue delay in recognizing the right to gender identity,” said Cristian González Cabrera, LGBT rights researcher at Human Rights Watch. “Guanajuato should align its laws with national and regional jurisprudence and establish a legal gender recognition procedure, which would reduce discrimination against transgender people in work, education, and other areas of their lives.” 

In October 2021, state lawmaker Dessire Ángel Rocha introduced a legal gender recognition bill, but it has not been discussed in the current legislature. In the past, the state congress has not been willing to consider bills relating to the rights of LGBT people, including previous gender recognition bills presented in February 2019October 2019, and April 2021.

Human Rights Watch and Amicus DH, together with the Trans Youth Network and Colmena 41, interviewed 31 trans people from Guanajuato state in April 2022 in León, Irapuato, and Guanajuato city, as well as remotely, to understand and document the harms related to a lack of legal gender recognition in the state. They found human rights violations in various sectors.

In 2017, the Inter-American Court of Human Rights issued an advisory opinion in which it found that to avoid such violations states must establish simple and efficient legal gender recognition procedures based on self-identification, without invasive and pathologizing requirements. Mexico is party to both the court and the convention.

In 2019, the Mexican Supreme Court issued a landmark ruling with clear guidelines on legal gender recognition. The court said that this must be an administrative process that “meets the standards of privacy, simplicity, expeditiousness, and adequate protection of gender identity” set by the Inter-American Court.

This 2019 ruling was in part the result of cases litigated by Amicus DH – a Guanajuato-based LGBT rights organization, part of the Identitrans consortium with the Trans Youth Network and Colmena 41 – from 2016 to 2018, which resulted in federal circuit courts in Guanajuato contesting the 2017 Inter-American standards on legal gender recognition. Meanwhile, the plenary of the federal circuit courts in the state of Chihuahua ruled in opposite terms, resulting in a circuit split and compelling the Supreme Court to clarify which standard should stand as national jurisprudence.

The Supreme Court ruling binds all lower federal courts. In 2022, the court expanded the right to legal gender recognition to include children and adolescents. Under the constitution, states have a duty to harmonize their internal legislation and policies accordingly, but Guanajuato has yet to make its laws consistent with these Supreme Court rulings.

In interviews with trans people, Human Rights Watch and Amicus DH found that the absence of a legal gender recognition procedure in Guanajuato leads to serious economic, legal, health, and other ramifications for trans people. Nineteen people interviewed said that because their documents did not match their gender identity, they were discriminated against or humiliated during the recruitment process or mocked at work, if they were fortunate enough to secure a job. Six said they opted for informal or freelance work, or did not pursue certain opportunities, to avoid running the gauntlet of the formal job market without accurate identity documents.    

In educational settings, 13 trans people said they had experienced humiliating situations because of a discrepancy between their documents and gender identity. Twelve people also had trouble getting academic diplomas with their correct gender marker. For some, this delayed their entry into the labor market.  

Fifteen trans people also reported challenges in healthcare settings, with 11 opting for costly private care to avoid potential humiliation in the public sector, based on a mismatch between their documents and gender identity. Everyday transactions, such as routine banking, also became an obstacle course for at least six trans people, due to the challenge of proving their identity with inaccurate documents.

In the 12 Mexican states, including Guanajuato, that do not already have procedures for legal gender recognition, transgender people have to initiate an onerous injunction proceeding, a juicio de amparo, to enjoin the state to recognize their gender identity on the basis of the Supreme Court rulings and international law. Federal judges generally grant the injunction unless there are complications with the case, but it can be a lengthy and expensive process, which requires hiring an experienced lawyer.

In a successful amparo case, the judge orders the civil registry to permanently seal a trans person’s original birth certificate – meaning it is no longer readily accessible in its information systems – and to issue a corrected certificate. This new state birth certificate is necessary to request new nationally valid identification documents like a voter’s registration card, a tax number, or a passport.

Virtually everyone interviewed had experienced these proceedings as onerous and emotionally taxing, with some almost giving up due to legal complications.

“Requiring trans people from Guanajuato to litigate their identities is a waste of all parties’ time, energy, and resources,” said Juan Pablo Delgado, executive director of Amicus DH. “It would be a simple and human rights-based solution to create an administrative procedure for gender recognition in the state.”

For detailed accounts and findings, please see below.

Employment 

Eleven trans people interviewed said that they felt discriminated against when applying for a job because their legal gender in their documents did not match their physical appearance. Sometimes this led to uncomfortable questioning or humiliation from potential employers. 

Eleven said that when they have been employed, superiors or fellow employees disrespected or mocked them by using their legal name or gender, rather than the ones that matched their gender identity.

Six said that that they preferred to pursue informal or freelance employment, or not pursue certain opportunities at all, so that they did not have to expose themselves to potential humiliation due to a discrepancy between their gender identity and their official identification documents.

Education

Thirteen trans people said that teachers, professors, or classmates did not call them by their chosen name or preferred pronoun because that information was not reflected in their identification document. They experienced this as humiliating.

Twelve said that, despite asking the educational institution, they had trouble getting their academic diplomas issued under their preferred name and gender. This can – and has – caused problems with potential employers who do not understand why the gender on their academic transcripts does not match their physical appearance, thereby limiting their post-educational opportunities.

Three trans people said that they have deferred their university studies or their graduation date until their legal name and gender can be recognized in their diplomas. They have taken this step to avoid discrimination in the job market, even though it delays their entry into the labor market.

Birth Certificates

Human Rights Watch and Amicus DH interviewed 15 people who had received a second birth certificate in another state, most commonly in Mexico City or Jalisco. They found that getting an injunction to change a person’s name on their birth certificate in Guanajuato is made more complex when a transgender person living in Guanajuato has obtained legal gender recognition in another state. Because each state has its own civil registry system, when a trans person from Guanajuato gets legal gender recognition in another state, that state creates a new birth certificate for them. But that does not automatically permanently seal their original birth certificate in Guanajuato, meaning that until that person requests and obtains an injunction from a federal judge in Guanajuato to seal the original certificate, they possess two birth certificates.

This can create administrative barriers when requesting nationally valid identification documents, and other official documents. If the person has left Guanajuato and lives elsewhere, they have to travel back to Guanajuato, often multiple times, to participate in the legal process, which can be costly and time-consuming.

Between 2015 and 2022, Amicus DH has litigated some 50 pro bono injunction cases before the federal judiciary in Guanajuato and has provided legal advice to an even greater number of trans people seeking legal gender recognition. Each case generally costs the organization an estimated US$450 to litigate and can currently take from 3 to 14 months to process. An estimated 45 percent of the cases are for people who have obtained a new birth certificate in another state and then need to seal their original one in Guanajuato.

The organization has limited capacity to take cases immediately. It is unclear how many people in the state litigate their cases through private attorneys, how much they pay, and how long it takes, although some have told the organization that they have spent over $1,500.

Health Care

Fifteen trans people said that staff at public hospitals exposed their gender identity in front of other staff or patients when they called them by their legal name, rather than their chosen name. Eleven people said that they prefer to get costly private medical treatment because they experience less discrimination there. 

Banking Transactions

Six trans people said that they had difficulty completing financial transactions due to inaccurate identification, such as withdrawing or depositing money at banks, opening or closing bank accounts, receiving remittances, or securing loans.