The Constitutional Chamber agreed with a ‘trans’ woman who filed an appeal for protection before the General Directorate of Migration and Foreigners (DGME), after she was denied the gender change in her passport, alleging that she does not have the system to make the modification and that must be based on the data provided by the Civil Registry.
It is about Katherine Salazar, who explained that last January she approached Migration to get her passport for the first time. “When I was at the window, I asked the official if the sex data was going to be recorded in the passport and she said yes, because it was known to international organizations”, the complainant explained. She then asked the DGME to adjust the information so that she appeared as a woman.
But this entity pointed out that this was not possible because the system they use works automatically with the data provided by the Civil Registry, where she still appears as male.
The Court’s ruling, dated July 30th, obliges the DGME to deliver the passport with the correct gender identity for this case within 4 months. “The Constitutional Chamber ruled in my favor, indicating to Migration that it must give me a passport that matches my identity in the next four months. I would hope that with this all trans and non-binary people can have their passport appropriate to their identity”, Salazar added.
Appealing against the DGME
The woman filed a complaint with the Ombudsman’s Office and an appeal against the DGME. In her complaint, she made it clear that “the situation exposes her to discriminatory treatment abroad, since her physical appearance of a woman corresponds to the gender with which she identifies while her passport does not recognize her sexual identity and gender”.
In the appeal, of which AmeliaRueda.com has a copy, the Director of Migration, Raquel Vargas Jaubert, asked to reject the woman’s appeal, alleging that although the Executive Power issued a decree (No. 41173-MP) where it is obliged to public institutions to adapt the name, image, and reference to the sex or gender of the person in all types of documents, records and procedures generated by the Public Administration, according to their own sexual and gender identity, the Executive valued the capacities operations and techniques of each institution.
Vargas affirmed in her response to the Chamber that there are material and legal problems for the recognition of her gender identity in the passport.
And the DGME carried out an administrative contract for the acquisition of a new system. “This contract was awarded to ‘Grupo de Soluciones Informáticas S.A.’, and to date it is in the delivery stage, for which the company has until the end of September of the current year”, the official said in the appeal.
It was also explained that since November 2020 a meeting was held with the intermediation of the then commissioner for LGTBIQ + matters, Margarita Salas, staff of the Civil Registry, Migration manager, Rosibel Vargas Durán, and Julio Aragón Durán, in his double role of coordinator of the Commission for Equality and Non-Discrimination of LGTBIQ + Persons and institutional liaison for Social Responsibility of the General Directorate of Migration and Foreigners.
“At the mentioned meeting, the requirements that must be followed for the preparation of passports in line with international security standards that provide these documents with elements of legal certainty at the international level were raised. Based on these reasons, the current impossibility of the General Directorate of Migration and Foreigners to be able to modify the gender reference in the passports under the current position of the Supreme Elections Court was concluded”, explained Vargas in the appeal.
Last March, another meeting was held where Salas informed them that in the absence of a response, he had a new conversation with the director of the Civil Registry, who indicated that they have no capacity to vary the gender of people, unless there is a legal modification.
“Given this position of the Supreme Elections Court, we return to the conclusion that, based on current legislation, this General Directorate does not have the legal possibility to vary the sex of the people in the passports”, reiterated the Head of Migration office.
Vargas also rejected Salas’s argument about the discrimination to which she alleges she would be exposed for not having the correct passport on her gender identity.
The Constitutional Chamber agrees with her
As a result of the ruling signed by the constitutional magistrate Paul Rueda, Chamber IV agrees with the woman and reinforces her concern about the danger of being discriminated against due to this circumstance.
“Regarding the human rights of the sexually diverse population, the Chamber considers that the recognition of their self-perceived gender identity is of special importance, since it constitutes a requirement to have full access to other rights. In effect, a disagreement, for example, between the gender displayed by a person in his daily life and that indicated in his identity card, passport or other identification document can lead to private or public subjects discriminating against that person for such disagreement and hinder or prevent the exercise of other rights (health, association, expression, free development of the personality, among others)”, indicates the ruling.
Then, she adds that the argument of women cannot be underestimated and cites a report by the United Nations High Commissioner for Human Rights that reaffirms the episodes of homophobic and transphobic violence experienced by people who “challenge gender norms”.
“The Chamber cannot ignore that the lack of correspondence between the identity document, the passport, and the gender identity self-perceived by the person can lead to discrimination and violence against a Costa Rican abroad. The duty of protection of the State, in relation to its citizens, imposes the documents in order to avoid -as far as possible and according to technological advance- the emergence of this kind of discriminatory situation”, reaffirms the sentence.