International Transgender Day of Visibility: IACHR Calls on States to Guarantee Nonbinary People's Right to Gender Identity

March 31, 2021

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Washington, D.C. — On International Transgender Day of Visibility, which is observed on March 31, the Inter-American Commission on Human Rights (IACHR) called on States in the Americas to guarantee nonbinary people's right to gender identity and expression by implementing simple, expeditious legal mechanisms that make it possible for them to record or change essential components of their identities in public records and identification documents.

The IACHR has noted that gender identity refers to internal and individual experiences of gender as each person feels this inside themselves, which may or may not correspond to the gender they were assigned at birth. In this sense, the term "trans person" is an umbrella concept that is often used by those whose gender identities do not correspond to those that are socially established for the gender that was assigned to them.

Furthermore, the IACHR noted that nonbinary people do not identify solely or completely as women or men—in other words, they are outside of or are not included in the male/female binary logic. Nonbinary identities include identity categories such as people who identify with a single fixed gender position other than man or woman, people who identify partially as either of these, people who flow between genders for periods, people who do not identify with any gender, and people who dissent with the very idea of gender.

The IACHR emphasized that people's gender identity and expression—including those of nonbinary people—are characteristics that are protected against discrimination by inter-American human rights standards. Consequently, no regulation, decision, or practice within domestic law may diminish or restrict the rights of nonbinary people on the basis of their gender identity or expression, regardless of whether such actions are implemented by authorities or individuals.

To this end, Advisory Opinion 24/17 of the Inter-American Court of Human Rights (IA Court) concluded that States must guarantee that people can adjust the image, name, gender or, where appropriate, the sex listed in record systems and legal documents to bring these in line with their gender identity and expression. In the case of nonbinary people, the IACHR has noted that some States in the region have enabled the use of a gender-neutral marker ("X") on personal identification documents.

However, as was expressed in the report on Report on Trans and Gender-Diverse Persons and Their Economic, Social, Cultural, and Environmental Rights, the IACHR underlined that nonbinary people are not able to change such records in most States in the Americas, and thus their right to gender identity/expression is being violated. This has consequences on how they go about their daily lives, including in the spheres of education, work, healthcare, and elections, resulting in a denial of their human rights, including their economic, social, cultural, and environmental rights (ESCERs).

Consequently, the IACHR has recommended that states guarantee trans, nonbinary, and gender-diverse people's rights to gender identity and expression through simple, expeditious domestic mechanisms, preferably of an administrative nature, that allow them to comprehensively rectify all such records. With specific regard to nonbinary people, it is important for States to consult with civil organizations of people with nonbinary, gender-diverse, and non-normative ancestral identities (such as Two-Spirit, Muxhe, and Wigunduguid, among others) to find out more about their perspectives on the inclusion of gender-neutral or nonbinary markers in legal documents.

Likewise, States must guarantee nonbinary children's right to the recognition of their gender identity and expression, taking their emerging autonomy and best interests into account. Finally, the IACHR called on States to implement policies and programs with a focus on diversity, intersectional approaches, and gender to promote respect for the rights, acceptance, and social inclusion of nonbinary people.

The IACHR is a principal and autonomous body of the Organization of American States (OAS), whose mandate derives from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote the observance and defense of human rights in the region and acts as a consultative body to the OAS in this area. The IACHR is composed of seven independent members who are elected by the OAS General Assembly in their personal capacity, and do not represent their countries of origin or residence.

No. 079/21