State has the state obligation to materialize the exercise of the right to identity through the correct registration of data as in the case of the rectification of biological sex and pre -bodies in person’s DNI who was assigned an erroneous sex at birth at birth [Exp. 02563-2021-PA/TC, ff. jj. 13, 22, 23, 27]

Highlighted fundamentals: 13. In this sense, it is clear that the correct record of the identity of the person, in addition to being a basic element for the exercise of their fundamental rights, also constitutes the state obligation of materialize the full exercise of these rights, in accordance with the provisions of article 1 of the American Convention on Human Rights.

[…]

22. Finally, the representatives of the university of San Martín de Porres indicate the following: “The demanding person Syhm was assigned to birth with female sex. However, he has the sexual chromosomes XY, he refers to the presence of male organ (immature) male as prostate and testicles within the abdominal cavity. The aforementioned behavior of the plaintiff, from childhood to the present, corresponds to a male identity. It is concluded that the person is a male who had problems of sexual development before birth and that before the presentation of a peniscrotal hypospadia, the midwife interpreted a vagina, and mistakenly assigned the female sex ”35.

23. This error in the registration of sex has not only had important legal consequences in the right to identity of the plaintiff, but also in its right to Health.

27. In the present case, due to the error in the registration of the biological sex of the recurring part, it corresponds to estimate the demand, and order the Reniec to rectify that data in its ID. Likewise, this Court also considers it pertinent to provide the rectification of the predaters of the plaintiff in accordance with those who have chosen.

EXP. N.° 02563-2021-PA/TC
LIMA
S. Y. H. M.

Judgment of the Constitutional Court

In Limim, on the 23rd of September 2024, in session of full jurisdiction, magistrates Pacheco Zerga (president), Domínguez Haro (vice president), Morales Saravia, Gutiérrez Ticse, Monteagudo Valdez, based on vote that is added, Ochoa Cardich, based on vote that is added, and Hernández Chávez This sentence. The intervening magistrates sign digitally in accordance with the voting.

AFFAIR

Constitutional grievance appeal filed by SYHM, against Resolution 6, dated August 17, 2020[1] issued by the Holiday Chamber of the Superior Court of Justice of Lima, which declared the demand for cars inadmissible.

BACKGROUND

On October 2, 2019, Syhm files amparo demand[2] Against the national Registry of Identification and Civil Status (RENIEC), the District Municipality of Sillaopata – Huánuco, the San Miguel Health Network (Decentralized Organ of the Regional Directorate of Health of Ayacucho), the National University of San Marcos (UNMSM), the National Superintendence of Higher University Education (SUENEDU), the Social Security of Health of Peru (ESSALUD) and the Ministry of Labor and Promotion respective public attorneys. Request the following:

Main claim to: In response to the violation of their rights to identity, to the recognition of legal personality, private life, education and work in relation to the right to equality and non-discrimination, requests that the RENIEC be ordered and the District Municipality of Sillapata-Huánuco that proceed to perform the change of sex and prenombres consigned in their national identity documents, such as the birth certificate and national identity document (DNI) It must be as follows: a) In the section corresponding to the prenombres: Eidan Kaletb, b) in the section corresponding to sex: male. Modifications and causes should not record as annotations in modified documents.

– Accessory claim 1: Executing Unit 407-San Miguel Health Network, Decentralized Body of the Regional Health Directorate of Ayacucho, which modifies the plaintiff’s data in the Directive Resolution 212-2017-GRA/GRDSDIRESA-ERESSAMI-DE[3] dated November 28, 2017, through which it becomes personal appointed in the position of Obstetra for the PS Mollebamba establishment, as well as in all records of its competence, so that the data consigned there are concordance with the changes made. Modifications and causes should not record as annotations in modified documents.

– Accessory claim 2: The UNMSM is ordered to correct the data in the university degree of the Obstetrics career, dated March 25, 2010 (authorized by RR 01327-R-10[4] dated March 23, 2010), in the title that grants the degree of Bachelor, as well as in all the records of their competence, where their prenombres and/or sex are consigned, so that the data collected there keep concordance with the changes made. Likewise, the SUENEDU must be ordered to correct the data in all records of its competence. Modifications and causes should not record as annotations in modified documents. Main pretense B: The unconstitutional state of things is declared in the case of the right to identity, psychological integrity and private life of intersex people, by virtue of the arbitrary legal and social allocation of the sex that are early being carried out, that is, at the time of birth and registration of the same, the previous rights must be understood in the framework of the protection of the right to equality and non -discrimination.

[Continúa]

Download the resolution here

[1] Pages 204.
[2] Pages 23.
[3] Pages 20.
[4] Pages 22.