In response to the many and varied categories that exist today and the debates ongoing in certain areas, the IACHR’s Unit for the Rights of Lesbian, Gay, Trans, Bisexual and Intersex Persons (LGBTI) has adopted this easily recognizable name as a practical way of synthesizing some of the principal discussions still underway on the issue of categories of sexual orientation, gender identity and gender expression. In this way, the Commission is acknowledging the terminology; however, as a guiding principle, it is also embracing the notion of each person’s self-identification; consequently, it is possible that the persons who are the focus of the Unit’s work may not identify themselves as belonging to these or other categories.
Sexual orientation has been defined as each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender (Yogyakarta Principles).
Heterosexuality is a term that refers to a person’s capacity for profound emotional, affectional and sexual attraction to a person of a different gender and to the capacity to maintain intimate and sexual relations with that other person.
Homosexuality is a term used to make reference to a person’s capacity for profound emotional, affectional and sexual attraction to a person of the same gender and to the capacity to maintain intimate and sexual relations with that other person. It is preferred to use the term lesbian to make reference to female homosexuality and gay [or gai in Spanish] to make reference to male or female homosexuality.
Bisexuality is a term that refers to a person’s capacity for profound emotional, affectional and sexual attraction to a person of a different gender and of the same gender, and to that person’s capacity to maintain intimate and sexual relations with these persons.
Gender Identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms (Yogyakarta Principles)
Transgenderism (trans persons) is an umbrella term –which includes the subcategory of transexuality and other variations- is used to describe the different variants of gender identity, whose common denominator is that the person’s biological sex and the gender identity traditionally assigned to that sex do not match. A trans person can construct his/her identity regardless of surgical interventions or medical treatment. There is a certain degree of consensus concerning the referents and self-referents used for and by transgender persons: a trans women is when the biological sex is male and the gender identity is female; a trans man is when the biological sex is female and the gender identity is male; a trans person or trans iswhen the person’s conviction is to self-identify outside the male/female classification.
Transsexual persons (transsexualism) feel and perceive themselves as belonging to a gender that is not the one socially or culturally associated with their biological sex and who opt to have medical treatment –hormonal, surgical or both- to adapt their physical-biological appearance to their mental, spiritual and social sense of self.
Other subcategories that do not necessarily imply body alterations: in this category we find persons who are travesties (South America) or transvestites (North America). In general terms, it could be said that travesties are persons who express their gender identity –either on a permanent or temporary basis- by wearing articles of clothing and adopting the deportment and mannerisms of the gender opposite to the one socially and culturally associated with their biological sex. This may or may not include body modifications. Other terms have also been included under the category transgender, such as: cross-dressers (persons who occasionally wear clothing of the opposite sex); drag queens (men who dress as women, exaggerating feminine traits, generally on festive occasions); drag kings (women who dress as men, exaggerating male traits, generally on festive occasions); and transformistas [sometimes referred to as transgender performers] (men or women who play characters of the opposite sex in shows).
Gender expression has been defined as “the outward manifestations of the cultural traits that enable a person to identify himself/herself as male or female, according to the patterns that, at a particular moment in history, a given society defines as gender appropriate.” (Rodolfo y Abril Alcaraz, 2008) The International Commission of Jurists (ICJ) has indicated with respect to gender expression that “[t]he notion of what properly constitutes male or female norms has been a source of human rights abuses against individuals who do not fit or conform to the stereotypical models of masculine or feminine. Personal deportment, mode of dress, mannerisms, speech pattern, social behavior and interactions, economic independence of women and the absence of an opposite-sex partner are all features that may subvert gender expectations.” (ICJ, 2009)
The term Intersex refers to “all those situations in which an individual’s sexual anatomy does not physically conform to the culturally defined standard for the female and male body” (Mauro Cabral, 2005) The understanding of this specific biological identity has historically been identified with the mythological figure of Hermaphroditus, a person born with “both sexes; in other words, with a penis and a vagina” (Mauro Cabral, 2005). At the present time, the term intersex is considered more technically correct both by the LGTBI movement and in the medical and legal literature.
The IACHR understands that discrimination based on sexual orientation, gender identity or gender expression constitutes any distinction, exclusion, restriction or preference made against a person on these grounds, which has the effect or the purpose –whether de jure or de facto- of impairing or nullifying the recognition, enjoyment or exercise, on the basis of equality, of human rights and fundamental freedoms, taking into account the social and cultural attributes that have been associated with those categories.
Sexual orientation, gender identity and gender expression are fundamental components of people’s private life or privacy. The Inter-American Commission has highlighted that the right to private life guarantees spheres of privacy in which the State or anyone cannot intrude, such as the ability to pursue the development of one’s personality and aspirations and determining one’s identity, as well as those spheres of everyone´s own and autonomous activities.