Interventions

International Journal of Postcolonial Studies

ISSN: 1369-801X (Print) 1469-929X (Online) Journal homepage: https://www.tandfonline.com/loi/riij20

The Self-Perceived Gender Identity

Emmanuel Theumer

To cite this article: Emmanuel Theumer (2020): The Self-Perceived Gender Identity, Interventions,
DOI: 10.1080/1369801X.2020.1749708

To link to this article: https://doi.org/10.1080/1369801X.2020.1749708

Published online: 13 Apr 2020.

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 THE SELF-PERCEIVED GENDER IDENTITY

Emmanuel Theumer*
Consejo Nacional de Investigaciones Científicas y Técnicas, Universidad
Nacional del Litoral, Santa Fe, Argentina

..................In 2012 Argentina became the first country to apply the Yogyakarta
Principles concerning the legal recognition of gender identity. This essay
Argentina
will analyze public demonstrations in support of gender identity recognition
decolonizing from a socio-historical point of view, taking into account semantic moves
practice in these public claims and the progressive constitution of a social
movement. I then focus on the previous regulatory framework, as well as
gender identity
law on tactics and debates around some bills which fed into the gender identity
recognition legislation after several disputes. In other words, this juridico-
LGBT political dispute can be read as the renegotiation for decisional autonomy
organizations
more generally vis-à-vis the State. Lastly, I will consider the significance
transgender and scope of the Gender Identity Law for transgender people and how it is
related to the epistemic crisis and legal inconsistency that the law itself
Yogyakarta launched. I argue disputes over the recognition of gender identity can be
Principles
situated in a broader context of historical transformations and mutation of
................. the ways of understanding gender and sexuality.

.......................................................................................................
interventions, 2020
https://doi.org/10.1080/1369801X.2020.1749708
Emmanuel Theumer etheumer@unl.edu.ar
*In memory of Lohana Berkins

© 2020 Informa UK Limited, trading as Taylor & Francis Group

............................
in ter v enti ons – 0 :0 2

Introduction

Why do we need our genitals to get gender identity? What would happen if
the “sex assignation” sustained by the State was disassembled? Should we
introduce a “third gender” or should we erase “sex” as a biomedical and
juridical category? Are we recognizing a sovereign subject that now owns
“a gender”? Could gender identity recognition create a simpler contact
zone between the bright/visible and the dark/hidden sides of the “colonial/
1 Lugones (2007, modern gender system”?1 Although all these questions appear in this essay,
2010) understands I have no doubt that they demand collective answers. These questions also
gender as a “colonial/
modern gender concern human rights on the grounds of sexual orientation, gender identity,
system” that gender expression and sex characteristics established by the Yogyakarta Prin-
instituted sexual ciples and adopted by some states, among them – groundbreaking in its
difference woven
together with race as
context – Argentina in 2012. This enquiry into the adoption of this legislation
a whole with visible in Argentina is placed at a crossroads between decolonial, feminist, queer, and
and dark sides. This trans studies.
definition illustrates
In May 2012 the Argentinian Senate passed Gender Identity Law
how productive the
gender issue is for Number 26.743. This law was groundbreaking in the international legal
analyses of the context due to its recognition of gender identity according to each
decolonial option: the person’s perception, allowing not only for the change of name and/or sex
task of understanding
how coloniality
in civil registration, but also for access to comprehensive health care, for
spreads and also the example, hormones and surgeries to affirm self-perceived gender identity.
ways in which we can The law established that health provision related to the affirmation of
broaden shared
knowledge, maintain
gender identity must be free in the public health system. It also added
inter-epistemic them to the “Plan Médico Nacional” (National Health Policy) to guarantee
dialogues and live the right to beneficiaries of private health insurance. As the law sustains
with differences
informed consent of the person and fosters the free development of
loaded with power
relationships gender identity expression, it can be considered decriminalizing, depatholo-
(Mignolo 2008; gizing, and dejudicialyzing of transgender bodies. Besides, this particular
Castro-Gómez and law also considers extending the gender identity right to children and ado-
Ramón 2007;
Espinosa Miñoso, lescents as well as migrant people with legal residence in the country. In
Gómez, and Muñoz recent years, the law was extremely useful in helping people to undergo
2014). the transition from one sex to the other (in a framework where only two
sexes exist), as well as in neutralizing the necessity of sex registration in
identification documents. The process of writing and passing the law
deserves a detailed analysis. At the beginning of the twenty-first century,
transgender community based organizations decisively reoriented their
claims and their repertoire of actions in public demonstrations, progress-
ively including the gender identity category in a new socio-historical
grammar: the psychopathological root of gender identity was replaced by
2 Protest is its status as a human right.2
understood here as Considering the groundbreaking status of the Argentinian Gender Iden-
contentious and
tity Law, this essay will analyze public demonstrations in support of
THE SELF-PERCEIVED GENDER IDENTITY
Emmanuel Theumer
............................3

public actions gender identity’s recognition from a socio-historical point of view, taking
oriented to the
into account semantic moves in these public claims and the progressive
construction of the
common good. There constitution of a social movement. In this sense, I argue that, in Argen-
are different kinds of tina, activism focused on claims for the recognition of gender identity
protests; those who can be traced as far back as the 1980s. The conjuncture for the recog-
are presented here are
related with the fight nition of gay and lesbian marriage provided a favourable context and a
for a sexual political opportunity for a public discussion and the approval of this
recognition matrix, legislation. I then focus on the previous regulatory framework, as well
so we could call them
“sexual protests”.
as on tactics and debates around some bills which fed into the gender
Theoretical frames of identity recognition legislation after several disputes. In other words,
reference here are these juridico-political disputes can be read as the renegotiation for deci-
Tarrow (1994) and
sional autonomy more generally vis-à-vis the State. Lastly, I will consider
Schuster (2005), but
also the political the significance and scope of the Gender Identity Law for transgender
philosophy of Laclau people and how it is related to the epistemic crisis and legal inconsis-
(1996) and Mouffe tency that the law itself launched. I argue disputes over the recognition
(2011). As I would
like to show, protests of gender identity can be situated in a broader context of historical
about gender identity transformations and mutation of the ways of understanding gender and
recognition imply sexuality. In this transformation, the impact of protest, understood as
signifying practices
on sexual citizenship,
a concerted effort between situated collective actors, has had a central
political community, role.
and the common As a way to situate this analysis, it should be noted that I was directly
good.
involved in these developments and in 2011–12 participated as an activist,
with trans and LGBT organizations inside and outside academia, within the
social mobilization for the recognition of gender identity in Santa Fe, the
main city in the Argentine Litoral. I am not a transgender person, though I
have a gender identity, as I elaborate in more detail below. In this essay I
do not directly refer to an analysis of trans experience; rather, my focus is
on the protest sustained by different actors which come together, not exclu-
sively trans. I analyze social mobilization, its local actors and the protests
which activate “trans community” and “LGBT collectives”. They are not
objects of analysis as such; rather, they are discursive units invoked for
those situated collective actors.

The protest for gender identity recognition finds its political opportunity

During the second half of the 1980s, as a clear expression of the democratic
transition which was taking place in Argentina, activist Karina Urbina –
who was later the founder of Transexuales por el Derecho a la Vida (TRANS-
DEVI) – organized brief public demonstrations in front of the building of the
Argentinian Congress. She carried a banner that read “Cambio de sexo en
Argentina. Señores jueces nos marginan” (“Sex Change in Argentina.
............................
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3 Photographic Judges marginalize us”).3 Her dissident stance in a public space claimed a
records of the protest right. At the same time, it was possibly and paradoxically agreeing to the psy-
are available at the
Archivo de la
chopathologizing discourse according to which there are two distinguishable
Memoria Trans. I and incommensurable sexes. In this period the transgender experience was
wish to express my understood through the expressions “being in the wrong body” and “desire
thanks to its director,
María Belén Correa,
for mutilation”, as judicial authorizations for “sex change” of the time
for making me aware show (Bento 2014; Farji Neer 2017). Urbina was using available historical
of this. semantics, a field of normativity where resistance could still happen.4 Soon,
4 In the field of important writings from abroad (e.g. Stone 1992; Stryker 1994) would
psychopathology,
Robert Stoller pave the way for a new basis for political positions.
developed the I highlight the singularity of Urbina’s public demonstrations because they
concept of gender condense a discourse that the Gender Identity Law (GIL) radically trans-
identity conceiving a
split between biology
formed in 2012. In fact, public demonstrations about gender identity recog-
and culture: sex was nition were not new. Before the social movement that started in 2010, the
related to biology topic coexisted with other highly disputed political claims that allowed for
(hormones, genes,
the formation of a collectivity of protest: travestis, transsexuals, and trans-
nerve system,
morphology, etc.) gender people had been undertaking collective action since the 1990s.5
and gender with Their claims focused on decriminalization, such as the derogation of
culture (psychology, “Edictos policiales” (local ordinances issued by the police), which perse-
sociology). Stoller,
Harry Benjamin, and cuted people because of gender expression, sexual orientation, and their
John Money offering of sexual services.6 It was a dispute about the legitimate right to
developed a use public space in a democratic context and about a sense of belonging.
functionalist mix of
biological and social
The claims during the first years of this century were focused on decent
causes managed by housing and access to legal working conditions, among others. During
the medical gaze 2003, two years after the financial crisis and popular insurgency widely
(Haraway 1991;
known as the “crisis del 2001”, transgender community based organiz-
Spade 2006).
5 Transexual and ations continued to be marginalized and minoritized, but they had an
travesti are categories incredible power to make their claims visible, albeit without receiving the
but also a means of required awareness. In this context, transgender activists progressively
positive identification
and collective
took part in LGBT organizations denouncing the underrepresentation of
organized action. At transgender people, in comparison with gays and lesbians. At the same
first, community time, in some towns in Argentina, transgender people and feminists were
based organizations
strengthening bonds. In relation to the State – the main actor responsible
in Argentina used
these categories: for the precarious conditions for trans people – previous years showed a
Travestis Unidas, progressive institutionalization of the trans public agenda. These were
Asociación de crucial factors for a strategy aimed at obtaining legal gender identity recog-
Travestis Argentinas
(ATA), and nition: the shaping of a bill with federal significance and the strategic gen-
Transexuales por el eration of legal precedents (suing the State to obtain access to gender-
derecho a la vida affirming technologies).
(TRANSDEVI). In
1995 the ATA split
Following the sociology of social movements, 2010 represented a shift in
into the Organización what we could call “political opportunity” (Tarrow 1994). The openness of
de Travestis y the executive and legislative powers, mostly dominated by the ruling party,
Transexuales de
fostered the activation of a new claim: the right to “egalitarian marriage”
THE SELF-PERCEIVED GENDER IDENTITY
Emmanuel Theumer
............................5

Argentina (OTTRA), (gay marriage). Previously unsuccessful strategies managed by LGBT organiz-
led by Nadia Echazú,
ations to reform civil unions changed the semantics to “egalitarian marriage”
and the Asociación de
Lucha por la in a short time. They started to demand “the same names, with the same
Identidad Travesti rights”. This turn – inspired by the previous Spanish political experience –
Transexual (ALITT), increased social conflict due to the claiming of a marriage contract, an insti-
led by Lohana
Berkins. As for the tution that is imbued with a confrontation between secularism and religious-
ATA, it added ness, as well as inherent to the modern State. This claim was successful: in July
transsexual identity 2010 Congress passed “Egalitarian Marriage” Law Number 26.118. The
in 1996 and
transgender identity
antagonistic context around egalitarian marriage’ – referred to by Cardinal
in 2001, becoming Bergoglio as “an evil plan against God” – involved mobilizations in large
the Asociación de cities. Although it is not possible to expand on this topic here, I want to
Travestis,
emphasize that this confrontation started a new cycle of contention led by
Transexuales y
Transgénero de sex-political organizations. Older and new complaints, which were using
Argentina (Berkins the language of rights with and against the State, got mixed up in a short
2003; Cutuli 2011). time. The protest for the right to gender identity recognition found its political
6 From the 1930s,
under the
opportunity.
dictatorship of Nonetheless, it would be inaccurate to understand the GIL as an inevita-
General Uriburu, the ble effect of the “Egalitarian Marriage” Law. Rather, in this particular
police had the power
socio-historical context, the movement was victorious and brought a struc-
to persecute persons
for their sexual ture of political opportunities for later protests. As a pending issue, gender
orientation and identity recognition exceeded the framework “conquista de derechos” (con-
gender identity. These quest of rights) and “progresismo sexual” (sexual progressiveness) with
various “edicts” and
“contraventions” which the reformation of heterosexual conjugality was understood.7 This
existed in the framework was limited, in the first place, because egalitarian marriage
different provinces was a right and a recognition only for gay and lesbian couples and, in
across Argentina.
They have been
the second place, because gender identity recognition was a claim in itself
removed over the past but also the main name of some other claims sustained by trans activism.
ten years. The recognition and reparation of damages were the chief points of
7 Between egalitarian
action after the GIL was passed, when protests started over. These new
marriage and the
GIL, President claims included those for medical attention and trans-inclusive education,
Cristina Fernández curricular development focused on sexual diversity, specific laws and
was reelected with 54 reparation of damages for victims of institutional violence, recognition of
per cent of votes.
During her election independent sex work and access to work (defined as “formal” or
campaign, Fernández decent) programmes.
defended egalitarian The triumphalist context around egalitarian marriage helps us understand
marriage as one of
her administration’s
both the treatment and passing of the GIL, which was approved with near-
achievements and as unanimity by Parliament in a matter of months, as well as the appeasement
an example of “the of social mobilizations that had started two years before. Maybe the contrast
force of equality”.
between mobilizations in favour of egalitarian marriage and in favour of the
Maybe the great
victory persuaded GIL is a sign of conflicts within sex-political organizations, but it is mainly a
political elites of the sign of the social numbness towards trans people’s precarity. The law was
social acceptance of passed swiftly, but the particularity of the Argentinian GIL and its
sexual rights and its
............................
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strategic value. That groundbreaking status in the international legal context needs to be examined
could explain why the
further.
GIL was passed faster
than the Egalitarian With respect to the groundbreaking status of the GIL, it is not the aim of
Marriage Law. this essay to make a comparison of civilizing developments among States.
What matters is the applicability through the State of a legislation corpus
oriented to the recognition and restitution of rights for trans people. Argen-
tina is only a leading case and I hope to explain why.

The body before the state: renegotiating self-government

In Argentina and other contexts, the legal framework prior to the reforms
fully centralized in a judge’s verdict the possibility of accessing gender legal
transition. This legal framework included Ley de Ejercicio de la Medicina
Number 17.132, Ley de Identificación de las Personas Number 24.540, and
Ley del Nombre Number 18.248. These laws explicitly delegated authority
over the decision whether to undergo gender transition in legal terms to a
judge. All of them were entangled with the biopolitcs of sexual difference,
understood as the implantation of sex and maximization of the living (Fou-
cault 2011; Haraway 1991): the first one prohibited “sex modification” sur-
geries unless the claimant had judicial approval, while the second and third
ones compelled assigning (only) one sex and name to the newborn. This
sex-disciplinary regulation enabled illicit medical practices, trafficking of sur-
gical materials, and clandestine gender affirming practices that put trans
people’s health at risk.
According to anthropologist Anahí Farji Neer (2017), from 1989 to 2012
there were eighteen verdicts on sex registration change and name and sex reas-
signment surgery delivered by civil courts. According to her analysis, such liti-
gants’ pleas were returned considering the fundamental right to identity
(derecho personalísimo), but the judges argued in a way that, following
Didier Fassin (2003), could be framed as “biolegitimacy”. The plea was legit-
imate only when the litigant could relate its affliction, as well as once they had
proven with their bodies that they had a gender expression that fulfilled social
expectations of femininity or masculinity. Trans and intersex historian Mauro
Cabral (2012) maintained that the judiciary, at best, expressed in paternalistic
terms its capacity to understand claimants’ “afflictions”. Such a compassio-
nate and acquiescent attitude confirmed a relation of subordination and
subalternity that can also be found among activist-scholars engaged with
8 See “wounded trans issues.8 From 1995 to 2010 at least five bills on sex and name regis-
whiteness” (Posocco
2016) and tration change and access to “sexual assignation” surgeries were presented
“benevolent to Congress. All of them included a third person as a paternalistic authorizer
violence” (di Pietro (Farji Neer 2017). None of them became law, but as I have argued, the
THE SELF-PERCEIVED GENDER IDENTITY
Emmanuel Theumer
............................7

2019). Both situation was different since Law Number 26.618 was passed. This time there
dispositions keep me
were also the guiding Yogyakarta Principles that are behind the draft bill that
advised on the risks
of writing about self- was finally passed.9
perceived gender In 2012, five draft bills on gender identity recognition’s right had been pre-
identity. sented to Congress.10 Among sex-politics organizations that were involved in
9 See the Yogyakarta
Principles (2007) and
that issue, it is important to mention two grand coalitions: the Federación Argen-
the Yogyakarta tina de Lesbianas, Gays, Bisexuales y Transexuales (FALGBT) and the Frente
Principles plus 10 Nacional por la Ley de Identidad de Género.11 Engaged in heated debates,
(2017) at http://www.
these organizations unified the draft bill which was discussed by Congress.
yogyakartaprinciples.
org/principles-en/ All these bills coincided with a dejudicializing strategy. The topics discussed
yp10/. These in the previously mentioned unifying process were the sovereignty of the State,
principles (advisory the guarantee of self-government and the importance of considering gender
and non-binding for
States) inspired the identity rights as a matter of public health and human rights. Some of the
Argentinian GIL. bills, such as 1736-D-2009, outlined an Oficina de Identidad de Género to
10 1. 1736-D-2009 which there were objections, principally because of its responsibility as stan-
(revitalized by bill
1879-D-2011);
dard-setter on name registration change and access to surgeries. Bills 7643-
2. 7643-D-2010; D-2010 and 7644–D-2010 split gender identity rights into two: name regis-
3. 7644-D-2010; tration change and health care. This split was rejected by sex-politics organiz-
4. 7243-D2010;
ations due to its rights’ hierarchization and a limited understanding of identity
5. 8126-D-2010.
11 FALGBT is a non- and personal experience of the body as clearly discernible things. Furthermore,
profit organization these bills requested a sworn statement signed by the requestor that made an
that increased its administrative process inevitable. This request and the resemblance of the bill
popularity during the
egalitarian marriage
to ICD-10 and DSM-IV manuals for requesting explicitly psychological assist-
debate and presented ance (something already contained in comprehensive health care) were the
bills together with the cause of rejection. Furthermore, the bills required “estabilidad y permanencia
Asociación Travestis,
en el género”, that is, “the stability and permanence of gender”. On what cri-
Transexuales y
Transgénero de teria could that be required? This requirement ratified the State’s paternalism,
Argentina (ATTTA). owing to a kind of “administrative audit” to get gender assignment. In the
The Frente por la Ley same way, bill 7243-D-2010 did not consider a comprehensive health service
de Identidad de
Género was a self- and allowed the enforcement authority to set up bioethical committees (Encuen-
funding coalition tro por la Diversidad de Córdoba 2011; Litardo 2013). Differences in criteria
with less territorial display the diverse ways of making sense of gender identity recognition as
scope and sustained
by non-hierarchical
well as knowledge related with trans bodies, not to mention the substantial dis-
bonds. The bill agreements about the concrete fulfilment of the law.
proposed by this The night the GIL passed, sex-politics organizations awaited the outcome
front influenced the
outside the Congress building where Karina Urbina used to protest over the
framework of the
GIL. “sex change” right. When the favourable result was announced, travesti-acti-
vist Lohana Berkins (one of the chief promoters of the GIL) recommended
marching to Plaza de Mayo in order to guarantee the GIL’s implementation
12 The speech through executive order.12 This square is a historical and symbolic space
delivered by Lohana associated with resistance ever since Madres and Abuelas de Plaza de Mayo
Berkins is available at
https://www. processed in circles to protest against the reign of terror by the last civic
and military dictatorship in Argentina (1976–83). Berkins’ symbolic
............................
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youtube.com/watch? gesture placed gender identity as a right restitution and at the same time it
v=5Fyqfze35Oc.
linked the battle with that led by Madres and Abuelas de Plaza de Mayo
for identity restitution for sons and grandsons detained or disappeared by
the last dictatorship. The linkage implicated a double move: since then
these two political battles are considered as a debt of democracy or,
rather, as a condition for life in democracy; simultaneously, it draws a
parallel between State terrorism and the violation of rights of trans
people in a democracy.
The GIL implements the Yogyakarta Principles on humanitarian inter-
national rights about sexual orientation and gender identity:

Article 1 – Right to gender identity. All persons have the right, a) To the rec-
ognition of their gender identity; b) To the free development of their person
according to their gender identity; c) To be treated according to their
gender identity and, particularly, to be identified in that way in the documents
proving their identity in terms of the first name/s, image and sex recorded
there.
Article 2 – Definition. Gender identity is understood as the internal and individual
way in which gender is perceived by persons, that can correspond or not to the
gender assigned at birth, including the personal experience of the body. This can
involve modifying bodily appearance or functions through pharmacological, surgi-
cal or other means, provided it is freely chosen. It also includes other expressions of
gender such as dress, ways of speaking and gestures.
Article 3 – Exercise. All persons can request that the recorded sex be amended, along
with the changes in first name and image, whenever they do not agree with the self-
13 Global Action for perceived gender identity.13
Trans Equality,
English Translation
of Argentina’s Considering “the internal and individual way in which gender is perceived
Gender Identity Law, by persons”, the legal text authorizes personal data rectification when
2012. http://www. there is no correspondence between them and one’s self-perceived gender
servicios.infoleg.gob.
ar/infolegInternet/
identity. It also guarantees comprehensive health care, including hormones,
anexos/195000- surgical and pharmacological interventions, and others required for gender
199999/197860/ affirmation. Unlike the Spanish and Bolivian laws, the Argentinian law
norma.htm.
does not require medical diagnoses, reports from bioethical committees,
or sworn statements. The Argentinian law also does not require steriliza-
tion as a precondition for a sex registration change, which is the case in
some countries, such as Japan. On the contrary, the Argentinian law
understands administrative obstacles as discriminatory practices. In Argen-
tina the law only demands a formal request in case of sex and/or name
registration change and informed consent to gain access to surgeries. In
this way the GIL eliminates the paternalistic laws previously mentioned.
It also puts a legal stop to non-consented surgeries to children diagnosed
as intersex, because now it is possible to register one sex without surgical
THE SELF-PERCEIVED GENDER IDENTITY
Emmanuel Theumer
............................9

14 Intersexuality – as intervention.14 Furthermore, as the law sustains the right to the “free
a condition of development” of each person’s gender identity, from then on it makes
physical non-
conformity with a
possible a multiplicity of living modes and identifications (woman, man,
standard body transsexual, transgender, gender non-conforming, travesti, marica, and
culturally defined so on). In short: to obtain a sex and/or name registration change, it is
(Cabral 2014) – does
not bring about a
not necessary to make body modifications; neither is it necessary to
gender identity or make a sex and/or name registration change to obtain gender affirming
sexual orientation. In technologies. Under no circumstances is it necessary to give credit to
that way, the option
medical, judicial or psy- (psychological, psychiatric, or psychoanalytic)
of “third gender”
offered to intersex experts’ reports.
people by some Before moving to the understanding of the implications of gender identity, I
nations’ laws is would like to highlight two conflicts that started after the GIL was passed: the
harmful. I will return
to this point.
article on health care and the article on trans children and adolescents.
Article 11 of the GIL orders to include in the Plan Médico Obligatorio regu-
lated by the State all health practices related to gender affirmation: hormone
therapy and surgeries such as mammoplasty, buttock enhancement, hyster-
ectomy, depilation, liposuction, mastectomy, phalloplasty, vaginoplasty, etc.
This right was contested not only for the State’s own limits (infrastructure,
human resources, and budgets), but also for, ideally, putting a stop to
illegal health practices and increasing expenditures to private health services.
Such is the case that the implementation through an executive order was done
three years after the GIL was passed by means of Decree 903/2015. From then
on, each person had the right to access health practices considered necessary
to undergo gender transition. At the same time, the GIL stated that all health
care providers (state agency, private or belonging to a union’s medical insur-
ance) must guarantee the continuity of the service provided by law. Some
researchers have pointed out the limits to health access because of chronic
underfunding of the public health system. They have also stated that access
to hormone therapy is easier than access to surgeries that are only undertaken
in public hospitals located in big cities (Berredo et al. 2018).
The GIL clearly sets out that self-perceived gender identity recognition
comes into effect for those who are aged eighteen years or older, but the
law also covers different effects for children and adolescents (5th article).
This point was a sensitive issue due to disagreements about setting the
limits to the power of the State, parental authority and the evolving capacities
and progressive autonomy of the child. In this way the law stated that regis-
tration change could be done from the age of thirteen, while hormone therapy
and surgeries could be done from the age of sixteen. For those who are under
thirteen, it is stated that the child or adolescent together with their legal repre-
15 See administrative sentative should make an explicit request.15 According to the Convention on
resolution Ner. 65- the Rights of the Child, which has constitutional status in Argentina, children
2015, Ministerio de
have the right to identity, including gender identity. In this way, the GIL
anticipates possible conflicts between the child’s bodily autonomy and the
............................
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Salud de la Nación legal guardian by including a “child lawyer” (abogado del niño) in order to
Argentina.
guarantee the principle of the best interest of the child. Some exegetes have
objected to article 5 of the GIL because they consider that the fundamental
right (derecho personalísimo) to identity is non-transferable to third parties
(Fernández 2012; Medina 2012).
In 2013 the spotlight was on “Luana’s case”, a trans girl who was six years
old. Given the refusal of state agencies to make her name and sex registration
change, Luana brought a lawsuit against the Civil Registry. The “child
lawyer” was key in this litigation (Burgués Marisol 2016; Menajovsky
2016). The sentence was clear when it stated that the legal representative
16 See administrative cannot take the place of the right holder’s will.16 The public impact of this liti-
decision made by gation increased the level of understanding on rights for trans children
Secretaría de Niñez,
Adolescencia y
although, concurrently, new biomedical figures were imported, such as psy-
Familia de la chodiagnostic categories comprised in ICD-11.17 The relationship between
Provincia de Buenos gender identity and trans childhood is still troubled by the delimitation of
Aires, recorded as
AE-SENAF, 196-
age range. That would not be a problem if medical and psychiatric metalan-
2013. guage (cf. ICD-11) were not replacing trans children’s personal experiences
17 See International (Guerrero Mc Manus and Muñoz 2018). It is precisely in this context that
Classification of Luana’s case constitutes an international legal precedent on progressive
Diseases 11th
Revision. HA61 autonomy of children relating to gender identity recognition.
Gender incongruence As previously stated, the GIL is groundbreaking because it addressed four
of childhood. https:// common problems: pathologization, judicialization, stigmatization, and crim-
www.icd.who.int.
inalization. Moreover, it is unusual due to the importance that it gives to
health care. In keeping with statistics, five years after the GIL was passed
there were six thousand requests for registration changes and, according to
18 Statistics private research, there was an increase in health access.18 The fact that the col-
published by Registro lective claims on gender identity recognition have produced a number of other
Nacional de las
Personas requests which are still unanswered (an employment quota for trans people,
(RENAPER) and work and educational access, reparation of damages to victims of institutional
Fundación Huesped- violence, criminalization of discrimination on the grounds of sexual orien-
ATTTA- ONU Sida.
From 2012 to 2017,
tation and gender identity, etc.) shows that the GIL did not solve all of the pro-
5,703 name and sex blems related to the vulnerability of trans people. Rather, the GIL “entails a
registration changes transformation of the State towards the legal and political recognition of
were recorded over
trans* identities and embodiments” (Litardo 2013, 247, my translation). In
an estimation of ten
thousand people. addition, the symbolic efficacy of the right to gender identity motivated an
Even though we do affirmative sense of self whose socio-historical consequences were disputed
not have systematic by trans organizations and were also a motive of self-reflexivity (Theumer
samples, a recent
survey on health 2014; di Pietro 2016).19
access carried out on The law rests on a conceptualization of the liberal subject – progressively
202 trans persons in autonomous and volitional – that is sovereign over its gender identity. This
Buenos Aires City
shows an increase of
understanding of gender identity is not necessarily related with male/female
life expectancy. Both as identity categories not even with transsexuals, travestis, transgender; in
reports agree on life this way, the law opens up legal recognition to many possibilities. Having
THE SELF-PERCEIVED GENDER IDENTITY
Emmanuel Theumer
............................
11

expectancy for trans said that, it would be a mistake to consider that only trans people assume or
people in Argentina:
“own” gender identity; likewise, years before, it was a widespread misunder-
35–41 years in
contrast to 75 years standing that cis-women “own” gender. Under these terms, there are as many
for cisgender people. gender identities as people.
19 Gender identity, as In her pioneering research on the dilemmas of sex work recognition, Leticia
a category introduced
by LGTB
Sabsay (2011, 2012, 2018) insisted that before each sexual democratization
organizations, works we should ask ourselves which rules and sexual liberties reconstruct sexual
as an umbrella citizenship and its constitutive otherness. Her point is of interest to ask
signifier with the
about the relationships among different disputes that question self-govern-
capacity to subsume
or reframe previous ment before the State – that is, disputes in which what matters is the sovereign
identities like travesti, subject. For example, in 2012 the GIL ran parallel with an abolitionist refor-
transexual, mation of the Ley de Prevención y Sanción de la Trata de Personas y Asisten-
transgénero, marica,
homosexual, cia a sus Víctimas Nre. 26.842. This law set aside consent in sexual services
invertido, and puto. for adults. Moreover, the Argentinian State reaffirmed a set of juridical fic-
A series of qualitative tions that make pregnant people (cis or trans) live in a state of legal uncer-
interviews carried out
years after the GIL
tainty (losing the status of citizen and individual) because of the recurrent
was passed shows denial of the possibility of decriminalization and legalization of abortion by
that trans people law. These examples show the complexity of the relationship between the
recounted their life
liberal sovereign subject and the human condition. In other words, the
stories taking into
account gender relationship is settled on a contingent basis.
identity as a new Some critical remarks set out by local thinkers like Marlene Wayar (2012)
narrative device. highlighted the exclusion of travesti as a choice in registration change and the
Some trans activists
also spoke about strengthening of the man/woman categories promoted by the GIL. These
debates and obstacles remarks, which can be expected in a region where travesti is an identity cat-
that appeared when egory with historical and political weight and which refers to persons who
they talked about the
topic with non-
don’t identify as either men or women, are correct and wrong at the same
activist fellows. On time. It is correct when it points out that man/woman is the unique framework
this topic, see www. legally established by the State to choose from at birth registration. It is also
memori
correct when it highlights that administrative procedures erase identity traces
assexodiside
ntes.com.ar. of each gender transition (travesti in the case of Wayar). Nonetheless, it is
incorrect in saying that the GIL makes the registration compulsory in such
a framework because the legal text relates legal gender transition to each
person’s self-government. It is not compulsory. Then the question is: Is a
legal gender identity recognition that seeks the elimination of sex as a juridical
category possible? In November 2018 an administrative resolution was pub-
lished related with the GIL that allowed the requestor to fill out with a line the
blank space assigned to sex in the birth certificate. The requestor maintained
not being identified with the sex assigned at birth, not even with man or
20 The case is woman as possibilities.20
documented in file As it has been analyzed in depth by jurist Eleonora Lamm (2018), after the
Ner. 5595/E/18 from
Dirección General del GIL was passed, in Argentina it is compulsory to register the newborn’s sex,
Registro Civil y but people who want to be registered with an X or a hyphen can do so if that
Capacidad de las defines them. In Argentina the juridical apparatus concurrently holds and
............................
in ter v enti ons – 0 :0 12

personas de la dismantles a part of “primal violence” through which we enter the world
Provincia de
being recognizable, that is, the founding interpellation of sex assignation.
Mendoza. The
administrative How is that possible? It could be argued we are living through an epistemic
decision on this case crisis and a legal inconsistency.
considered the advice The epistemic crisis shows the limits of biomedicine when it dismantles its
of the Comisión
Interamericana de sexual difference’s apparatus of verification. This apparatus that assigns a sex
Derechos Humanos using normative patterns that match genital organs associated with procrea-
(CIDH) which has tion to sexual identity by means of a scopic mechanism appeals to gender
constitutional
support in Argentina.
by metalepsis.21 It is an epistemic crisis that shows the limits of a techno-ima-
See Opinión ginative production of gender with material consequences. In short: the legal
Consultiva Number inconsistency shines when the state forces to register one sex (man or woman)
24/17 of CIDH on
to the newborn but, at the same time, a particular law refuses to grant medical
gender identity,
equality and non- verification authority and allows to register the self-perceived gender identity.
discrimination to The operation that exhibits the limits of sex ontology does not have its
same sex couples counterpart in a way that could be in detriment of the Yogyakarta Principles.
requested by Costa
Rica. The latter is the case of the regulations in Germany, Australia, France, India,
21 Based on the and some states of the United States, where certain corporealities or embodi-
understanding of ments are deemed to correspond to certain identities.22 All of them allow the
gender as a technology
registration of a “third gender” or “other”, facing the impossibility to classify
as stated by de
Lauretis (1987), the all bodies with only two sexes. This decision goes against the Yogyakarta
difference between Principles because it assumes that some “failed” or “unclassifiable” corpore-
performance and alities fall under a differentiating registration. Moreover, when it recognizes
performativity
proposed by Butler the existence of a third gender/se, it presumes the previous existence of two
(1993) and the sexes. German disposition on optional registration as “diverse” for intersex
analysis made by people keeps being biased because it is only available for intersex people
Dorlin (2009)
regarding the scientific
and due to the presumption of a biological determination of identity. In the
approaches of sexes Argentinian legislation, the category of “gender identity” seems to undermine
and intersexuality the possibility of invoking sexual difference in jurisprudence.
from a historical and
epistemic point of
view.

About “the end of sex” as a juridical category

22 See recent
regulations from Even when the GIL disrupts substantial sex–gender correspondence, or any
India (Supreme Court necessary correspondence between corporeality and gender identity, it does
of India: National
Legal Services
so by hinging, to some extent, on a ontological category of the liberal
Authority v. Union of subject with sexual citizenship, that is, a subject whose choices would be
India and others on expressions of its (politically created) inner self. A subject that could be
15.4.2014), France
called “sovereign of its gender”.
(Tribunal de Grande
Instance de Tours, In order to avoid being captured by the net of juridical power, we should
Deuxieme Chambre remember that subjectivity exceeds the interpellation of the liberal subject
Civile, 20 August and that the temporality of gender rules has paved the way for subversive
2015 and also Arrêt
mechanisms. Sexual contentious movements – with their own paradoxes
THE SELF-PERCEIVED GENDER IDENTITY
Emmanuel Theumer
............................
13

Number 531, 4 May and reappropriations – have historically detached from normative fields.
2017 (16-17.189),
Gender identity, understood as an inner experience, depends entirely upon the
Germany (German
Federal body – a precarious body, always in relation to open and indefinite multiple sig-
Constitutional Court: nifying practices. Under these terms, the claims for gender identity recognition
1BvR 2019/16) and could be interpreted as decolonizing practices. I am using the concept “decolo-
Australia (NSW
Register of births, nizing practice” in the sense given to the expression by Silvia Rivera Cusicanqui
deaths and marriages (2014). It is a practice of dissent common in heteropatriachal societies. Cusican-
v. Norrie-HCA 11./ qui focuses on the heteronomy of being and not being at the same time, through
2.4.2014). On these
topics, I am informed
the category “ch´ixi” from the Aymara language. The word “ch´ixi”, in agree-
by Global Action for ment with Andean epistemology, means correspondence, conciliation,
Trans Equality, harmony and duality. In that way, in a sense that is a bit contrary to antagonism,
Brújula Intersexual,
the irreducibility and plurality that I ascribe to self-perceived gender identity is
International
Campaign Stop Trans here. Does the right to gender identity actualize a colonial logic in the operations
Pathologization, of juridical power? This is a relevant question which can only be partially
Sexuality Policy addressed here. Nevertheless, resistances to the gender order prior to the
Watch, and
Transrespect versus reforms can be understood as a decolonizing practice not so much in view of
Transphobia their efforts to bring forth and realize a new decolonized exteriority, but
Worldwide project. rather, in the light of their insistence on interfering with and reappropriating
colonial sediments of gender.
In this context, the right to gender identity involves a significant rearticula-
tion of the normative frame with which we think ourselves through as commu-
nity. In this sense, the effectiveness of the legal recognition of gender identity
should ask itself where that right could be lived out. This issue mounts a chal-
lenge to create political coalitions instead of pleasing ourselves with some sort
23 The identity’s of anarchic-liberal hyper-identity state, or dispersion multiculturalism.23
indeterminacy and The turning and twisting from the “colonial/modern gender system” to
the intrinsic limits of
political gender as a universal feature that belongs to each individual (that is to
representation are the say, the turn from the naturalness of sex and the vastness of two sexes to
kickoff (and not the the self-perception of gender) is opening new fields for recognition. The
conclusion) to
recognition’s debates
restorers of the hetero-patriarchal order understood it quickly: while I
that we have while we write this essay, in Argentina and other parts of the world, thousands of
are dreaming people protest “against gender ideology” (Vaggione 2016). This inter-
common languages
national movement has two sides: a religious and a secular one. It asserts
(maybe gender
identity as a human both the undeniable truth of a divine creation to which the subject is
right is one of them), subdued as biological truth, as “scientific evidence” that would inform the
the touching feelings, existence of two sexes.24
the coalition or, even
better, the
“acuerpamiento”, as
feminists from
Final considerations
Abya Yala argue
(Cabnal 2010; Cumes This essay has focused on an analysis of protests and activist mobilization for
2012).
the legal recognition of gender identity in Argentina. The Argentinian case is
............................
in ter v enti ons – 0 :0 14

24 Their protests tend distinctive for being the first in concretely applying the Yogyakarta Principles,
to use formal
notably the recognition of gender identity as experiences by each person.
channels to intensify
and concurrently The analysis has tackled the changes in the discursive strategies of trans
undermine the organizations, changes that have gone from demands for “sex change” to
political and sexual “the end of sex” as a legal category. The practices of resistance, I have
conflict, usually by
means of academic argued, can be read as decolonizing practices for their turning and twisting
research that is of the modern colonial apparatus of gender. In turn, we have explored some
overrated as “The of the tensions that have emerged from these legal reforms in relation to the
Science”. If we label
them as “against-
juridical framing in Argentina. In this respect, the Argentinian Gender Iden-
gender” as it is usual tity Law, and some others such as the Maltese law, made it possible to refer
in Europe, we favor to a right whose “articulatory tension” (Cabral 2014) facilitates the under-
their discursive
standing of a new form of gender governmentality directed to communities,
artifact in detriment
of their ideological as well as the possibility of opening a new space in which the most auto-
operation. The chthonous, autonomous and libertarian community can make some forms
movement is not of liveable life.
against but in favor of
the restoration of a The mobilization for the recognition of gender identity is part of a larger
certain gender order. transformation of modes of understanding of gender. The elimination of
sex and the recognition of the existence of as many persons as there are
25 In accordance gender identities is part of a broader social change.25 Is gender identity a
with Laqueur (1994), great empty signifier able to articulate multiple ways of living and experien-
at some point in the
eighteenth century cing gender? Will it facilitate protection mechanisms and legal recognition
western societies for the Balkan “sworn virgins”, the Mexican muxes, butch lesbians,
started to accept a maricas, people who would prefer to answer to new pronouns or to none
model of sexual
difference understood
at all, intersex people, the guevedoche in the Dominican Republic, the
as an anatomical and kwolu-aatmwol from New Guinea, Native American berdache or two-
irreducible difference. spirit, travesties from South America, hijras from India, mahu from Hawai,
The historical turn
bichas from Brazil, Oman xanith, gender non-conforming, African “female
from a one-sex/flesh
model to a two-sex/ husbands”, transgender people, transsexuals?
flesh model pales in In the fight for a pluriversal ontology – as many people as possible gender
comparison with identities – the open struggles for gender identity recognition demand the
feminist, trans and
queer appropriations construction of a less oppressive “we”. We are in the context of a current
of gender as a crisis and uprising against western sexual epistemology. The historic
category. colonial implantation of a bio-anatomic version of sex is now in agonizing
mutation.

Acknowledgments

The author wishes to thank Silvia Posocco, Sandeep Bakshi, Suhraiya Jivraj
and Marco Chivalan for their assistance in developing this essay, as well as
the anonymous referees for their suggestions and comments.
THE SELF-PERCEIVED GENDER IDENTITY
Emmanuel Theumer
............................
15

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