Let's start at the beginning, however redundant and obvious it may seem. In Brazil, we do not have a specific law that deals with changing names and sex for transvestites and transsexuals.. Here we only have one generic law, Law no. 6.015/1973, called the public records law (LRP).
To change their name, transsexuals and transvestites can take legal action (article 57 of the LRP) based on two of its articles.
An alternative is to claim that their social name constitutes a public and notorious nickname, that is, they are no longer known by their given name. Celebrities have already changed their names like this, like Lula and Xuxa. A technical difference is that they only added these “public and notorious nicknames”, without removing the given name, but they are still good examples. This hypothesis appears in article 58 of the aforementioned law.
Another alternative is to claim that their given name exposes them to embarrassment and, therefore, should be suppressed or changed, to reflect a gender identity that protects them from humiliation. In this case, the legal provision is in article 55, sole paragraph, of the LRP.
That's the theory. In practice, the absence of a specific law creates a fragile situation, in which the change of first name depends on the judge's understanding. If he is sensitive to the cause of transvestites and transsexuals, a change of first name is almost certain. Otherwise, it is good to have hired a lawyer who will buy the fight; read: the lawyer will have to file an appeal so that the court of justice changes the sentence that denies the name change request.
In addition to depending on the Judiciary, it is clear that “each case is different”. In general, judges want to make sure that you really are transsexual and that the decision to change your first name is not a temporary thing. Between you and me, anyone who has ever spoken to a transsexual or has even the slightest knowledge of the prejudice they go through knows that no one woke up one day and decided to change their name. We cannot expect that the judge will be one of these people, especially because they tend to have a very conservative profile. Therefore, in the name change action, unfortunately, obtaining a favorable sentence largely depends on being at an advanced stage of the transformation. For most judges, psychological, endocrinological and psychiatric reports are sufficient, but for conservative judges, this is of no use and requires surgery. What do the judges want from this? To speak very clearly in Portuguese, they (the judges), most of the time, want you to be in an irreversible medical stage, harming transsexuals who wait in the SUS queue for surgery and those who don't even want to or don't have the money to do it for the private doctor.
Although, once again, we know that, as a transsexual, you cannot erase your past simply by stopping taking hormones or “undoing” breast surgeries, etc., many judges are unable or unwilling to understand this. By denying the request of non-surgery transsexuals, they deny the fact, already consensual in medicine, that gender identity is in the mind and that the body merely reflects this. In other words, being a woman is not just about having a vagina, which is just the latest in a long series of extremely invasive and inaccessible surgical procedures. The same applies to trans men, of course.
However, there is light at the end of the tunnel. Until August 2013, for example, the São Paulo Court of Justice did not allow transsexuals to change their name without surgery, until a decision by the 5th Chamber of Private Law changed this position. In mid-February, it was time for 4th Chamber of Private Law also changes its position. Look at what an achievement: we already have two bodies at the São Paulo Court of Justice that allow transsexuals to change their names without surgery.
To be clear, when we file a first name change action, the judge will give the sentence. This is the first instance or first degree. Here it is relatively common to achieve a name change without a sex change. But as there is no database to search for first degree sentences, it is not possible to create statistics.
The action only goes to the Court of Justice when the judge denies the request to change the name or when the Public Prosecutor's Office challenges the sentence that authorized this change. Hence, the judge is the one who judges, who works as the judge's boss. He corrects the sentence, according to his conviction. Here are the Private Law Chambers, which will judge appeals on name change sentences. And this is where the news is. More and more judges are sympathetic to the cause of transvestites and transsexuals, to the point of not requiring gender reassignment surgery for the name change to happen. In the words of judge James Siano, “it will not be the surgical procedure itself that will define the person's sexuality, but rather the psychological sex established in an irreversible way”.
Fortunately, today we can answer that, yes, you can change your name without having surgery.
* Thales Coimbra is a specialist in LGBT law; graduated and master's degree in philosophy of law from the Faculty of Law of USP, where he studies homophobic hate speech; he is the founder and coordinator of Geds – Study Group on Law and Sexuality; is a columnist on Rights on the portals A Capa and Gay Brasil. www.rosancoimbra.com.br/direitolgbt
