The RIGHT TO BE WHO YOU ARE

DIGNITY, TRANS CITIZENSHIP, AND THE CONSTITUTIONAL TRANSFORMATION OF ADI No. 4275 AND Theme 761 IN BRAZILIAN LAW

Abstract

This article examines, from a broad constitutional perspective, the recognition of the right to gender identity within the Brazilian legal system, with a focus on the decisions made in Direct Action of Unconstitutionality (ADI) No. 4275 and Theme No. 761 of General Repercussion, both ruled by the Federal Supreme Court (STF). The central issue investigated is the historical and hermeneutical tension between the principle of the immutability of the civil name, traditionally upheld by the Public Records Law (Law No. 6.015/1973), and the imperative need to protect the fundamental rights of transgender individuals, particularly the rights to dignity, equality, privacy, and the free development of personality, all enshrined in the 1988 Federal Constitution (CF). Before ADI No. 4275, the restrictive interpretation of Article 58 of the Public Records Law imposed significant obstacles to the correction of first names and gender markers in civil registries, subjecting transgender individuals to a legal limbo that perpetuated incongruence between their lived identity and their formal identification before the state and society, resulting in numerous constraints and rights violations. The significance of this study lies in the undeniable legal and social relevance of ADI No. 4275 – later reaffirmed by Theme 761 of General Repercussion (RE No. 670.422/RS) – which stands as a groundbreaking jurisprudential landmark in the protection of the fundamental human rights of a historically marginalized population. The initial STF decision not only redefined the interpretation of relevant infraconstitutional legislation but also reaffirmed Brazil's commitment to the promotion of human dignity in its most comprehensive sense, recognizing the self-determination of gender identity as an essential component of personality and, consequently, of citizenship. Additionally, the impact of this decision transcends the individual sphere, sparking a broader debate on the counter-majoritarian role of the judiciary in the realization of rights and the overcoming of structural discrimination. The methodology employed in this study involves a legal-normative analysis of the Brazilian legal framework, with an emphasis on the 1988 Federal Constitution and Law No. 6.015/1973. The study will examine the constitutional interpretation technique used by the STF as a hermeneutic tool to align ordinary legislation with constitutional principles, and explore the constitutional grounds that supported the recognition of the right to correct civil records for transgender individuals, independent of invasive medical procedures or pathological reports.