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Puerto Rico’s Civil Code and its impact to the LGBT Community

Puerto Rico’s Civil Code was established in 1930; 32 years since the Hispano-American War ended with the signing of the Treaty of Paris; 32 years since the island changed from being controlled by Spain to being dominated by the United States. This document was influenced by Spain’s Civil Code of 1889 (which was influenced by the Napolitan Code), the Louisiana Civil Code and the United State’s Common Law. Before the Civil Code of 1930, Puerto Rico had various other legal documents applied, which were a confusing mix of the new legal regime from the United States and the old Spanish Civil Rights. You could say that this still remains true, with these two colonial cultures poisoning us to constantly question our identity as Puerto Ricans. 

The Civil Code is defined in its words as: “more than a regulation or a series of norms, it’s a reflection of the characteristics of what constitutes us as a society and of the values that as a collective are estimated and accepted as fundamental in the course of our lives as a community.” 

In any case, the Civil Code of 1930 has had many amendments to reflect our modern society. They’ve added numerous books and articles, but these amendments were done slowly throughout the years, followed by public hearings and detailed verification. The biggest problem with the 2020’s rewriting of the Civil Code is that (even though they’ve been talked about since 1997) it was done without these public hearings due to the COVID-19 pandemic. It is noticeable that this document was rushed, with grammatical errors, words without accents, articles that contradict each other or temporal mistakes (“The social and judicial reality of Puerto Rico, as well as familial, personal, social and economic relationships in 1930, are very different from the year 2019 that we live in.”

Even though these mistakes can be fixed later on when the new Civil Code is passed, that’s not the point. The point is informing the public before the most important document in Puerto Rico is confirmed as law. The point is treating this important document with care, given that it affects every single citizen. The people do not trust its government. And while these legal and political processes are being done behind closed doors, the people will never trust their government. 

The Civil Code is an extensive document, with 435 pages, and it is not easy to understand. Because of this, my investigation will be divided in three articles: its impact to the LGBT community, its impact on women, and the ambiguity of its words. 

Before and during the process of changing the Civil Code, there was talk about updating it to include the LGBT community. But with a homophobic government in control, many members of the community were nervous about what this could mean. The representative María Milagros “Tata” Charbonier and the President of the Senate Thomas Rivera Schatz, two figures that are openly homophobic/Anti-LGBT, were very vocal in their support for the new Civil Code. Social media went wild with rumors, listing all the rights the Code would eliminate for the LGBT community. The fear, the lack of clarity about the document and the homophobic people supporting it are all elements that added to the disinformation that exists now. 

A lot of confusion exists about the versions of the Civil Code and its differences, but the only valid one is the one passed by the Senate and approved by the governor

Marriage

Article 376 of the Puerto Rican Civil Code defines marriage as:

“Marriage is a civil institution that comes from a civil contract under which two natural persons mutually commit to be a married couple, and to fulfill each other the duties that the law dictates. It will only be valid when it is celebrated and commemorated according to its requirements and can only be cancelled or dissolved before the death of either one of the married couple, according to the expressly provided fundamentals that were seen in this Code. 

Natural persons have the right to marry with full legal equality.”

While Spain’s Civil Code defines marriage in its Article 44 as:

“The man and woman have the right to marry according to the provisions of this Code. Marriage will have the same requirement and effects when both persons are the same or differing sex.”

What’s worrying about Article 376 is that it doesn’t specify same-sex couples anywhere. Marriage for Puerto Rico is a civil union between two natural persons. Article 67 talks about the different types of persons and defines them as “naturals or judicials. Every human being is a natural person.” The concept of “natural person” is one frequently used in law, but not in our every-day lives. Because of that, the use of ‘natural person’ is a confusing one for someone who hasn’t studied the law. Plus the fact that the LGBT community is not mentioned once in the 435 pages of the Civil Code, leaves the reader with a bitter taste. Given all this, the term ‘natural person’ can lead to easy misunderstandings depending on the intention and interpretation. With a corrupt government and the absence of Church-State separation, this is more than cause for concern. 

The Administrative Boletin OE-2015-021 that established marriage equality in Puerto Rico after the Obergefell v. Hogdes decision of the United States Supreme Court, says that: “Instrumentalities, agencies, departments and public corporations of the Executive Branch are instructed to take all necessary measures immediately to guarantee that marriage between people with the same sex receive equal treatment before the law and not be discriminated against by their sexual orientation.” It is understood that this document is still valid and because it’s a decision by the United States Supreme Court, it goes above the Civil Code. But if the government wanted to adapt the Civil Code to be more modern, why not define marriage this same way? Why not mention same-sex couples and be specific in their intolerance for discrimantion by sexual orientation? 

Even though it is mentioned that all natural persons have equal treatment before the law, this is not enough. The law does not work if there is ambiguity. The Civil Code is full of ambiguity, especially when it comes to the LGBT community. The fact is simple: They do not mention us once. They use all possible, vague words instead of mentioning us and our community specifically. Silence can be felt, and this document screams with its silence.  

Change of Name and Gender

The most controversial and confusing change to the Civil Code is the process to change a person’s name and gender in official documents. The Article 694’s explanatory statement, says:

“In addition, this Book provides the process for modification of name and sex in the original birth certificate. Nothing described here undermines the already established process in the cases for a request to reflect a change in gender in the birth certificate. According to the actual state of law, these requests will be accompanied by a passport, driving licence or a certificate by a medical professional with a doctor-patient relationship with the gender-accrediting applicant. In this case the Registry must issue the certification, safeguarding the rights to privacy.”

Before reading the article itself, here we can see three things: the document makes a difference between the original birth certificate and the birth certificate, specifying that these two documents have separate processes; that there is no change in process to changing gender in the birth certificate; and that the Registry will issue the certification, keeping in mind the right to privacy.  

To apply for a change of gender in the birth certificate, according to the Demographic Registry of Puerto Rico’s Circular Letter Num. 3-18, is: You have to complete the department’s application, have one of the following: driving licence or passport with the ‘desired’ gender or certification from a doctor that you have a doctor-patient relationship with that identifies gender dysphoria; and pay $20 to cancel internal revenue stamps. 

The full Article 694 of “Modification of name and sex in the original birth certificate” says that: 

“The modification of the name constitutes an admissible, volunteered amendment which only can be effective in the cases and with the formalities which the special law establishes. 

Amendments on the sex of a person in the moment of their birth cannot be authrorized in the original birth certificate. The court can, through sentencing, authorize the registrar to do an annotation in the margins of the original inscription of the person’s sex when an ammendment is ordered due to a previous change or modification of the sex in birth. 

In these cases, however, there will be no authorization of the substitution of the historic, vital fact of the sex in birth. Only in the cases where medical experts determine the ambiguity of the sex during the moment of birth and this fact is registered in the births certificate of the Demographic Registry will the judicial authority be able to order the substitution of the sex in the moment of birth in the original birth certificate of the Demographic Registry. 

Nothing instituted here diminishes the established process in the cases of a request to see a change of gender reflected in the birth certificate. These requests will be accompanied by the passport, driver’s license, or a certification issued by a health professional who has an established doctor-patient relationship with the gender-accrediting applicant. In these cases, the Registry must issue the certification, safeguarding the right to privacy.”

Various elements make this article one of the most difficult to understand in all of the Civil Code. As previously stated, the original birth certificate (the Spanish name being “Acta de Nacimiento”) and the birth certificate are two separate documents. This article is called specifically “modification of the name and sex in the original birth certificate,” so why even mention the birth certificate then? Wouldn’t it be easier to add a separate article explaining the steps to change the birth certificate? 

“It’s confusing because the Acta de Nacimiento refers to the book in which vital events are registered in Puerto Rico, in this case, births,” Omayra Toledo, secretary and treasurer of True Self Foundation, said. “The birth certificate is, however, the official document that you give when requested by an interested party and after fee payments where you find birth information.” 

In addition, the document indicates that there cannot be a complete change of sex in the original birth certificate unless “medical experts determine the ambiguity of the sex during the moment of birth.” What does this mean? It is referring to intersex people? If that’s the case, why not mention them specifically? What’s the point of so much ambiguity? The term intersex is well-known and utilized in other countries’ laws.

Spain’s law 3/2007 about the “registry correction of the relative mention of a person’s sex” indicates that the correction requites that “there is a diagnosis of gender dysphoria” and that “there is medical treatment of at least two years to treat their physical characteristics that correspond to the claimed sex” with a medical report. But these treatments “will not be a necessary requirement for a concession of the registry correction when there are health reasons or age that make it impossible, and there is medical certification of that circumstance.” There is no difference between the original birth certificate or the copy. There is no annotation either. 

The United States has different laws and processes for changing the gender and name in official documents that depend on the state, but an example that is similar to Puerto Rico’s is New Jersey. The 2018 amendments for the Babs Siperstein law’s section 1 of P.L 1984, c.191 (C.26:8-40.12) says that the new birth certificate will hold the same meaning as the old one, and it won’t be marked as amended. Also, the state Registry will hold the original birth certificate and all documents relating to the change under seal, which will not be opened unless under court order or by the owner. 

There’s several articles and laws from other countries — ones that Puerto Rico obsessively wants to resemble because of its colonial past (and present) — that protect the Trans community. They say the words ‘gender dysphoria.’ They directly mention the Trans and Intersex communities. They add the option of a third non-binary gender

Photo by cottonbro from Pexels

“For the trans community, this represents a lot of fear because the writing is very confusing. It looks like it’s indicating that there can be no change (but it says ‘acta’) and later, it seems like it’s saying the opposite. It refers to the certification, not the certificate,” Toledo says. “It’s like at the last minute, there was an effort to correct what was already solved through virtue of federal jurisprudence (Arroyo v. Rosselló). The discussion would be: Is the first sentence that refers to the “acta” related to the last, which refers to a certification?” 

The purpose of the Civil Code was to reflect the modern-day Puerto Rican society, but the reality is that the LGBT+ community is not part of that vision. It’s not normal to spend a month trying to understand a legal document which impacts me directly. It’s not normal to ask for help in order to decipher a law article. I shouldn’t need a law degree in order to understand a single law. That’s how misinformation and fear spreads on social media. 

“The Code’s defenders say that these are separate issues, but the reality is that it’s confusing because of the article’s bad writing. Especially, when we see that the other articles in the Code don’t protect the LGBTTIQ+ community when they should. The only thing to do is wait for them to publish explanatory memorials for each article — if they’ll do that and if they exist — to see what they’re referring to,” Toledo explains.

For more information about how to get equality for the Trans community, you can visit the True Self Foundation’s website. You can also follow them on facebook, instagram and twitter.