In Chile, the proposed gender recognition bill continues to be at a standstill. Proposed in 2013, the bill continues to be the subject of debate and amendment, particularly concerning its scope of the protection to guarantee the rights of trans children. OutRight’s briefing paper “Mapping Trans Rights in Chile” recognizes that trans children are among the most vulnerable sector of the population and should have the right to access the gender recognition bill.
Discrimination in the Education System
Trans children face a multitude of barriers in education, where discrimination manifests itself through institutional and peer bullying, as well as in the constant demands to conform to gender stereotypes and behaviors: the obligation to wear male or female uniforms and to undertake male or female activities. Trans children are often prevented from, or face obstacles while, registering for schools. OutRight’s briefing paper highlights that even when trans children are able to register, school authorities are insensitive or unknowledgeable about trans issues, preventing them from ensuring the well-being and safety of trans students. This fuels cases of arbitrary discrimination, a legal protection guaranteed by Chile’s anti-discrimination law, which articulates that no individual should be subject to discrimination due to their gender, or for any other social or personal condition. Parents of trans children have reported schools for arbitrary discrimination for failing to respect the rights and gender identity of their trans child. In February 2016, an educational establishment was fined for the first time in Chile for not recognizing a student’s gender identity.
Trans children also face barriers in healthcare. Healthcare professionals are not sensitized to the needs of trans children and often perpetuate disrespectful practices towards patients, including the failure to call trans individuals by their prefered names. The failure to recognize the identities of trans children impacts each child when they need to go to the school infirmary, use the bathroom, get admitted into the hospital, or receive any other public service.
Divergent Policies for Trans Children and Trans Adults
In the legal system, trans children face different obstacles than trans adults. The originally proposed gender recognition bill did not regulate the possibility of children to claim their right to gender identity; since the conception of the bill, articles have been added with intent to address the possibility of amending the birth certificates of children and minors through a special procedure in family court.
Unlike trans children, adults seeking to claim their right to gender identity, by rectifying their sex and name in the Civil Registry and identification documents, are able to do so through an administrative process, where the will of the petitioner is sufficient claim. However children and minors must undergo a judicial process in family court. This is a much more complicated and lengthy process. The process is as follows: within two weeks of a petition being filed, a judge summons the child or teenager to a hearing and designates a guardian ad litem to represent the minor during the procedures. During the hearing, the child or teenager ratifies the facts and grounds on which the petition is made, after which the judge makes a decision.
Lack of Agency Given to Trans Children
By placing the decision in the hands of a family judge, the process does not recognize the agency of the child nor the capacity of children to exercise their rights. In essence, this policy does not respect the principle of progressive autonomy, which recognizes that a child or teenager can exercise their rights, including the right to decide their gender identity, for themselves. Aligning policies so that trans children can also access gender identity recognition through an administrative process is one of the recommendations OutRight makes in its briefing paper.
The Chilean government should enact a gender identity bill that provides equal and accessible policies to trans children and teenagers with those afforded to trans adults.
OutRight’s briefing paper highlights the following recommendations:
- Depathologize gender identity, and eliminate pathologization as a requirement to access transition and gender reassignment medical procedures;
- Amend the Anti-Discrimination Law to bring it in line with Chile’s international human rights obligations, removing the hierarchy of rights;
- Provide explicit legal protection against discrimination on grounds of gender identity and expression in all areas;
- The Ministry of Education should create a Sexual Diversity Unit, in charge of protocols, policies, training, follow-up and monitoring on respect for gender identity in educational institutions;
- Develop Learning Resource Centers to enhance teachers’ understanding of gender identity issues and to respect the rights and dignity of trans students.
Published on November 23, 2016 | OutRight Action International an LGBT human rights organization