Gender Identity Law and children under 14 years old: history of a misunderstanding

Abstract

On December 10, 2018, Law N°. 21.120 that recognizes and pro-tects the right to gender identity was published. Despite the initial affirmation contained in that norm alluding to the fact that “every person” has the right to be recognized and identified according to their gender identity, the law exclu-des children under 14 years of age, makes them invisible and does not consider them capable, as far as the ownership of this right is concerned, in open contradiction to the provisions of the Convention on the Rights of the Child. In this way, what a priori should have meant a definitive advance, a decisive step to finally recognize the reality of trans people, regardless of their age, now should become a wake-up call to the Chilean legislator to rectify its position and adapt its regulations to the new current of thought that understands that there is nothing negative, strange or pathological in the decision of a child under the age of fourteen who freely decides to move towards a different gender identity from that established by the prevailing binary or dichotomous stereotypes in our social context. This is a brief legal dogmatic research, and the case method in those parts that include analysis of jurisprudence. The research question to be resolved is closely related to what were the motivations that led the legislator to leave out of the normative provisions the reality of trans girls and boys, as well as the practical consequences that the aforementioned decision has caused in their lives. To answer such questions, the structure of this article is divided into two large sections. The first addresses the treatment of the right to gender identity of girls and boys the Chilean legal system has been carrying out; the second, analyzes the effects caused by the absence in the Gender Iden-tity Law, of the possibility of instigating the modification of the registration mention related to the sex of people who have not yet reached the age of four-teen. Finally, and as a conclusion, it is included a lege ferenda proposal that comes to reformulate the provisions contained in Law N°. 21,120, in the sense of incorporating all minors in the regulatory provisions, thereby guaranteeing respect and protection of their right to identity.