Documents That Matter More Than Rights

The aim of this paper is to understand how bodies in Brazil are legally subjectivated by the biological and legal notions of “sex”. Butler, Fausto-Sterling, and transfeminists (Spade, Jesus, Vergueiro, Namaste) have been challenging the dichotomy sex/gender. Even though sex has biological properties, it is also socially constructed. The main consequences of the construction of sex/gender by the Law are seen in trans people. In order to understand it, it was conducted an interdisciplinary literature review and a discourse analysis of fifty decisions of Sao Paulo’s Court about the civil registry alteration of trans people. The main results were: education, health and work are denied to trans people because of the incoherence between their documents and their gender expression; Brazil is the country with the highest trans murder rate; there are several institutional obstacles to change the civil registry; there are limits of intelligibility in those judicial decisions, which constitute transsexuals and exclude transvestites by creating non-positive criteria of recognition. Sex is designated mainly considering the genitals, so “sex” is created legally at one administrative act (birth certificate). After that act, genitals are not taken into account by Law, but when trans people struggle for recognition, their sex is questioned and legal procedures are used to fit people in solid and coherent “sexes” (genders). The naturalization of fixing identities is a power effect and it has not been seen legally as exclusion. The hegemonic legal discourse is limited and it has been an ally of the exclusion process of trans people as they still must struggle for basic human rights in Brazil, such as using a restroom. Some of the challenges are: gender neutral documents and overcoming the precarity of trans people in Brazil. Law should not continue to marginalize it - it ought to be used to fight inequality.