Chapter IV Ending the Cohabitation Partnership Art.20 Termination:
V.4. The Obstacles of Legalized Gender
marriage and gay marriage, equality must be analyzed from a material perspective with a real ulterior effect, and not merely considering who has access to marriage or not.
V.4. The Obstacles of Legalized Gender
As detailed in the previous section of this chapter, the different perspectives on gender are very relevant in their relationship with intimacy. When talking about the legalization of intimacy, what becomes extremely important is the legalization of gender. Some ideas or prejudices around gender lose their impact because they have no legal effect. It is now time to study particular elements of legalized gender and the obstacles they represent in the legalization of intimacy.
V.4.1. Birth certificates and marriage licenses
Regardless of the genitalia one is born with, a newborn becomes male or female at the time of registration. Birth certificates in Mexico must show the sex of the child, “The birth certificate will be registered with two witnesses. It will show the date, the time and the place of birth, the sex of the newborn, the corresponding last names; also, whether it has appeared dead or alive; and the fingerprints of the baby.”35 The civil code has clear indications for the legalization of gender. The options are rather limited, it must be either “male” or “female”; the option to determine “hermaphrodite” or
“intersexual” does not exist. Neither is it possible to choose a “rather not disclose”
alternative. What parents do not realize is that since that very moment onwards, the newborn is predestined to follow a path of gender profiling and gender learning for the rest of their lives. Of course, sometimes this fate begins even before birth, when parents start buying either blue or pink clothes for the baby according to the ultrasound gender forecast. But legally, it all starts with the registration of the birth certificate. Surprisingly, it is at that time as well, that the legalization of that child’s future intimacy is being predetermined. The sex shown on their birth certificate will
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35 Art. 58 FCC. In Spanish: “El acta de nacimiento se levantará con asistencia de dos testigos.
Contendrá el día, la hora y el lugar del nacimiento, el sexo del presentado, el nombre y apellidos que le correspondan; asimismo, la razón de si se ha presentado vivo o muerto; la impresión digital del presentado. Si éste se presenta como hijo de padres desconocidos, el Juez del Registro Civil le pondrá el nombre y apellidos, haciéndose constar esta circunstancia en el acta.”
consequently constrain the options for the legalization of their intimacy in the future.
Most likely, they will only be able to choose partners of the sex their parents did not register. Hence, the declaration of the child’s sex made by parents at the time of registration becomes an obstacle for the eventual decisional privacy of that individual when they reach adulthood. In a similar manner, the binary gender system found in birth certificates is repeated in marriage licenses. The taxonomical dichotomization of spouses forces civil registries to identity a husband and a wife. These roles will arise from the sex indicated on their birth certificates. Thus, marriage licenses contribute to the perpetuity of the legalized gender specified on birth certificates. In order for a civil registry to issue a marriage license, it is necessary to submit “the birth certificates of the applicant, and if required, a medical certificate that determines their age, when it is unclear that the man is more than 16 years old and the woman more than 14 years old.”36 As outlined by the civil code, birth certificates and marriage licenses have an integral and sequential relationship.
V.4.2. Transsexuals and the amendment of their legalized gender
On August 29, 2008, Congresswoman Leticia Quezada, President of the Commission for Equality and Gender at the LAFD, backed up by the Human Rights Commission for the Federal District, submitted a bill to give transsexuals the opportunity to amend their personal civil records in accordance with their gender identity. The bill was approved and published on the Official Gazette on October 10, 2008, entering into force thirty days later.37 This reform changed the wording of three articles and included a new section in the Civil Code for Mexico City only, not at the federal level.
The civil code now recognizes legal capacity in equal terms for men and women, with an anti-discrimination provision, banning unequal treatment based on age, pregnancy, legal status, race, language, religion, ideology, sexual orientation, gender identity, gender role expression, skin color, nationality, origin or social class, job or profession, economic status, physical appearance, disability or health status.38 What used to be a more overarching protection of sexuality is now a more nuanced acknowledgement of
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36 Art. 98 par. 1 FCC. In Spanish: “El acta de nacimiento de los pretendientes y en su defecto un dictamen médico que compruebe su edad, cuando por su aspecto no sea notorio que el varón es mayor de dieciséis años y la mujer mayor de catorce.”
37 OGFD Number 439. October 10, 2008.!
38 Art. 2 CCFD
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minorities. Including different sexualities, different gender identities and different expressive mannerisms of gender roles. It is important that the legal capacity be recognized in all of the above-mentioned cases, so that civil rights claimed by all types of individuals be respected and not merely disregarded by alleged diagnoses of disorders. Transsexuals and transgender individuals could not even claim their equal rights in the past, because they were considered mentally-ill, diagnosed with a sexual identity disorder, and consequently losing their legal capacity. This amendment provides an anti-discrimination provision that allows judges to reissue birth certificates in accordance with the actual gender identity of citizens.39 Now, the judicial procedure for gender redetermination is clear. The process includes specific deadlines and protocols for the new registration of birth certificates, including the amendment of the previous one, the issuance of the new one and the protection of privacy.40 After the new birth certificate has been issued, the original birth certificate is locked and cannot be accessed by the public without a court order. This enhances the protection of individual privacy and the respect for their gender identity.
Individuals who rectify their gender identity, always have the right to change it again if their gender identity changes in the future.41 Transsexuals and transgender individuals can now change the gender shown on birth certificates and subsequently amend their identification documents; but, is this the solution to the problem with the legalization of gender? This research must answer in the negative form. The capacity to amend one’s gender identification exists, but the options are still the same: male or female. That is to say, the root of the problem, the binary systematization of gender persists even after this amendment. Individuals may redefine their gender identity as long as they remain within the dichotomization of gender taxonomies. After an amendment of the birth certificate, the options for the legalization of intimacy will still be the same, and they might be limited to choosing an opposite-sex partner. So, what seems to be a real answer to the question of gender identity is actually just a patch to the fundamental problem with gender: its categorical binary system.
V.4.3. Quintana Roo and the absence of gender obstacles
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39 Art. 35 CCFD
40 Art. 498 Bis 1-8 CCFD
41 Art. 498 Bis 8 CCFD
The Yucatan Peninsula recently became popular for legal analysts, and not precisely for tourism purposes; the State of Quintana Roo (where the Resort City of Cancun is located) faced an unexpected legal battle for the legalization of intimacy. On November 28, 2011, two same-sex couples submitted their applications for matrimony in the municipality of Lázaro Cardenas, Quintana Roo.42 These couples (Patricia Novelo & Areli Castro, Sergio Monje & Manuel Reyes) noticed that the Civil Code in the State of Quintana Roo had a legal void, the wording of the provisions for marriage were and had always been gender-neutral. Therefore, there was in fact no legal impediment for same-sex couples to submit their applications for matrimony. Art. 680 states: “Persons who pretend to engage in matrimony will submit a petition before the civil registry…”43 None of the articles regarding matrimony (Art. 680-797 CCQR) defines it in terms of a man and a woman. In a certain way, heterosexual marriage had been customary law, but the text of the civil code was actually open to any sort of couples. After a detail review of the Civil Code, the local civil registry admitted their applications and the couples got married.
However, on April 13, 2012, they received a notification issued by the Secretary of State, declaring the nullification of their marriage licenses. The argument of the State Government was that matrimony defined in terms of man and woman as spouses was implicit in the Civil Code. Both couples filed an appeal and along with the support of human rights and gay activists, the annulments were revoked. The decision of May 3, 2012 finally ratified the lawfulness of same-sex matrimony in Quintana Roo, confirming the validity of the previously registered marriage licenses and endorsing any future same-sex matrimonies in all municipalities in the state.
This unique case of gay marriage by accident in Mexico did not happen because the local legislators in Quintana Roo were open-minded and wanted to allow same-sex couples to get married in the state. But rather, it happened because nobody paid attention to the wording and they did not use the words man and woman literally to restrict access to this structure of intimacy. As discussed, the existence of legalized gender is an obstacle for the legalization of intimacy. In this case, however, the use of gender-neutral language removes the obstacle of the gender barrier. Chapter IV.3.
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42 Santana, Rosa. Proceso. “Rectifica gobierno de Quintana Roo: valida bodas gay” (Rectification by the government of Quintana Roo: validates gay marriage.) May 3, 2012. Mexico City, Mexico.
43 Art. 680 CCQR. In Spanish: “Las personas que pretendan contraer matrimonio presentarán un escrito al oficial del Registro Civil…”
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detailed the recent amendments to the constitution in 2011, which incorporated a more gender-neutral language that would ease the protection of minorities and the legalization of their intimacy. Quintana Roo had this unbiased language before, but it had not been exercised or even questioned before these two couples submitted their applications for matrimony. In sum, the gender obstacle was absent in this civil code, and in order to legalize same-sex intimacy nothing had to be modified, citizens merely needed to claim their equal access rights.