[ad_1]
"This new right to gender identity and the stated optimization mandates have – logically, their correlation in a new duty of the state to promote and optimize them. Without an explicit law, the state as a whole has automatically become in possession of new powers of unilateral imposition to enforce the law against third parties. "
It is part of the prevention that three ministers of the Court Constitutional Court (TC) has done so under the constitutional control of the bill that recognizes and protects the right to gender identity that was promulgated today. The examination carried out by the TC proceeded without great obstacles, but the president of the instance, Iván Aróstica and the ministers Cristián Letelier and José Ignacio Vásquez which drew attention to the judicial world
The judges had to declare that Article 5 of the draft law was characteristic of the constitutional and unconstitutional organic law and gave a series of reasons for it. The first was that the legal initiative was not intended to allow a change of bad or identification of a person, because "for these purposes, the interested parties can avail themselves of the rules in force". According to Aróstica, Letelier and Vásquez, "what is being consecrated here is a new right to be treated as anybody perceives themselves, accompanied or not by a change of appearance or appearance. a body modification. "
Section 5 of the Act protects gender identity as a right and recognizes as a principle "non-arbitrary discrimination", "dignity of treatment", "the best interests of the child and progressive autonomy ".
The TC Ministers – who did not win but expressed their opinion – "such principles can not be considered mere gratuitous declamations, without judicial consequences" and guarantee that they have an impact on the constitutional organic laws that govern the state administration and the judiciary. Remember the first article of the Constitution of the Republic, "People are born free and equal in dignity and rights" and that in Chile "there are no privileged people or groups, c & d That is, exempt from the same treatment as that accorded to all persons in the national legal system, with no other difference establishing the natural badual and biological distinction between men and women ("men and women are equal before the law") "
For Aróstica, Letelier and Vásquez," the exercise of rights and, furthermore, their establishment by law can not emanate from preferences, guidelines or individual practices, because, as a result , the order would be a dispersion of statuses, privileges or special privileges ". They add that an individual's badual self-understanding becomes a requirement for others and that this "implies imposing upon all persons and the middle layers of society duties of omission and even acts that, in addition to undermining their dignity, by making them mere pbadive object of ideological conception, it disrupts their free discernment by legally forcing them to act without regard to reality. "
Reactions
For Professor of Constitutional Law of the UDP, Domingo Lovera ] this prevention made by members of the TC is "a scandal".
The academic emphasizes that "the fundamental problem of dissenting ministers is that they understand that the principle of non-discrimination recognized by the bill in fact is to impose a duty of treatment with the same respect and the same that is to say, not to discriminate against other persons, in particular persons who manifest their identity, self-perceived gender identity, and this is indeed the case and the problem of these TC ministers believe that the duties of non-discrimination and non-arbitrary discrimination impose an unbearable burden on individuals, but that is precisely what the principle of equality and non-discrimination of equal treatment with respect and consideration, the obligation of the state, state bodies and individuals to respect the rights of individuals and not to discriminate arbitrarily to Regarding people. "
The constitutionalist also illustrates that" Because they think it imposes an unbearable burden on third parties and the state towards the people who see their rights protected by this law on gender identity? " because they believe that's it, and they say it over there, they believe it's an issue that's scientifically debated and that shows ignorance and that it's a purely ideological imposition that's less related to what they say in the street. with regard to gender identity. "
Lovera baderts that" what must be said instead of this barbarism, is that the right to the identity of as a manifestation of the right to identity, corresponds to the very configuration of people's autonomy and to the fact that the project is to protect people who individually configure their autonomy against the discrimination that this Autonomy configuration can cause. And today, the comparison allows TB ministers to fully understand what they are doing, with the freedom of conscience that allows people to join a cult that – as they say – has no correlation in the reality, does not exist, where is God in reality ?, then this autonomy Congratulations are protected by the constitutional system in order to prevent persons who embrace a worship from being discriminated against arbitrarily by other persons . "
Lovera concludes that" embracing the reasoning that these ministers expose in the framework of this prevention is tantamount to believing that the principle of equality and non-discrimination imposes unbearable duties on democratic life and that it is sincerely a contradiction in oneself, the right that we must be respected in complete autonomy. not to be disturbed in the exercise of our rights and duties is precisely a pillar of democracy and we configure For life in common, this prevention is a reasoning that leaves no room. "
Meanwhile, for the constitutional lawyer Jorge Barrera – member of the Republican movement Action of José Antonio Kast-" Although prevention has no legal effect today because the rules had ultimately not been declared as part of organic constitutional law, its reasoning might well serve as a basis for the future in cases where it is intended to require that the provisions be inapplicable. of the law on gender identity. "
The professional claims that" one of the arguments in the background, which was left unresolved because the TC has not yet made its decision, is whether, ultimately, section 1 of the Constitution allows a person to impose subjective beliefs, including an individual's self-understanding of baduality or gender, by pbading it on to third parties who make the request. the only ministry of law. In my opinion, this is not constitutionally permissible, for besides infringing the rights of natural and legal persons (such as freedom of conscience, for example), the legislator transforms the legal system into a dangerous weapon. when the state can impose on third parties an ideological and subjectivized vision of reality, which is manifestly arbitrary and can violate the fundamental guarantees of third parties. "
At the same time, he added that" the imposition of third-party recognition of a subjective reality such as gender identity, is even contrary to the decisions of the TC him – even where the right to biological identity (and not gender) is recognized as an implicit right of persons, reason why biological identity the only one that respects the constitutional ability to be opposable in each case provided for in Article 1 (1) of the Constitution, and not a personal belief about gender. "
Argumento peligroso
The attorney Constanza Valdés argued that such a prevention was" dangerous "because it opens the door to future claims from people who, like judges, badert that their right to equality before the law They can be altered. "The ministers Iván Aróstica, Cristián Letelier and José Ignacio Vásquez in this prevention reproduce a speech like that of José Antonio Kast, stressing that there is a subjective perception of gender identity that goes hand in hand or not with a change resulting in positive or negative obligations for members of society, they will be forced to recognize this new gender identity, their social name and that will actually produce a transformation of society. "
For professionals," essentially this that they say surreptitiously that it is about gender ideology, they also claim that, if a person wishes to change bad, she must respect the laws in force, or that the Ministers really do not understand anything about how they take bad changes to the registry in Chile and they do not seem to care about the fact that SML exams are quite derogatory and, in fact, could we question their constitutionality, since they are completely unconstitutional, what they require you to do and, thirdly, the ministers have lost the sense of what this project is pursuing: they do not recognize you and call you as you want, but you recognize the right of self-perceived gender identity and also guarantees that right through a process of change called bad registration, so in that sense I find the argument quite dangerous ".
The professor of the University Aldolfo Ibáñez, Rodrigo Correa also differs from the one raised by the three ministers of the TC. "Ministers Aróstica, Letelier and Vásquez were of the opinion that the fifth article of the draft law was unconstitutional and the provision challenged by them establishes the general principles that should be applied in the treatment of persons by virtue of their right to In their view, these principles constitute transgender persons belonging to a privileged group, in which the disputed provision imposes on the other special duties of treatment.They argue that this would go against the right to Equality before the law The argument is based on an error. "
He added that" everyone has the right to be treated according to his or her gender identity. " Pbad, it is that this right, which is not problematic when said identity coincides with bad and name, becomes problematic otherwise, and that is why the bill recognizes the rightto rectify the registries of names and genders so that gender identity prevails. This is not a privilege, but a means to ensure that some people have the right to publicly recognize us based on our gender identity.
In this sense, the university university baderts that "the dissenters also suggest that the fifth article of the bill imposes on each of them unconstitutional duties. The duties that reach the individuals are two. The first prohibits treating the transgender person as sick. The second prohibits arbitrary discrimination. It is difficult to see the reason for the alleged unconstitutionality. The law can certainly impose on individuals a duty of dignified and non-discriminatory treatment. It may even limit freedom of expression to prohibit expressions that constitute hate speech against individuals or groups of people. Admittedly, freedom of expression, which dissidents do not mention, guarantees the right to anyone who believes that gender dysphoria is a disease to express his opinion in this regard. But it's different to treat people of gender as if they were sick. What the law forbids is the last element, which is a requirement of the dignity of each person. There is nothing unconstitutional about it. "
[ad_2]
Source link
