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October 14, 2022, is a historic day for the trans and non-binary community in Chile. The Civil Registry and Identification Service issued the first national identity card that includes the 'X' marker to recognize the gender identity of a person who identifies as neither male nor female. 

Shane Cienfuegos is an activist, social worker, and gender studies specialist. He is also the Social Intervention Coordinator for OTD and identifies as part of the LGBTQ+ community. He embraces an identity that transcends the gender binary. He is making history in a country where, currently, there is no way for official documents to categorize a person as anything other than male or female, unless they resort to legal action. And that is precisely what Shane did. 

"This recognition opens a dialogue to discuss the social inequalities we have faced as a community. It took me years and led to a fight with the justice system that no one should have to face," Shane told Presentes. 

This milestone opens the door for all non-binary people in the country who exist and resist. And for years they have also been fighting for legal recognition that has yet to arrive. For Shane, it's a paradox. 

Their non-binary document comes just over a month after the constitutional plebiscite in which Chile lost the opportunity to have a new Constitution. The proposed text submitted by the Convention not only named sexual diversity and dissidence for the first time in a fundamental charter, but also created the possibility of establishing institutions to safeguard the rights enshrined in the text itself, such as the right to identity. Article 64 stated: “Every person has the right to the free development and full recognition of their identity, in all its dimensions and manifestations, including sexual characteristics, gender identities and expressions, name, and sexual orientations.” 

The ruling that recognized a non-binary person

Shane began their fight for recognition of their identity in 2014. In 2017, they legally changed their name. It wasn't enough. In 2019, when the Gender Identity Law (LIG) was passed, they sought out lawyer and professor Lorena Lorca, an expert in gender issues. They asked for her help in initiating the legal battle for recognition as a non-binary person.

At the Faculty of Law of the University of Chile, Lorca leads the Legal Clinic course. From there, she is achieving historic changes in the country. On May 25, 2022, she obtained the first ruling in the Chilean justice system recognizing an adult as non-binary.

After a legal battle that included a lawsuit against the Chilean state, Shane achieved the same result in July. The Thirteenth Chamber of the Santiago Court of Appeals—comprised of judges Carolina Vásquez Acevedo, Patricio Martínez Benavides, and Claudia Lazen Manzur—ruled in their favor. The court granted their request for a legal gender change and ordered the Civil Registry and Identification Service to amend their birth certificate to recognize them as a non-binary person with the marker “X.”

The road to a non-binary and gender-neutral ID card

By the end of September, there were already other similar rulings in the country, with favorable outcomes for non-binary people, explains Emilia Esperguel, a trans activist, legal advisor for OTD, and a student of Professor Lorca. But the first birth certificate to be rectified in this way was Shane's. Two weeks later, his new identity card arrived.

During the proceedings, Shane and the Legal Clinic course at the University of Chile presented the court with all the evidence they could, including witnesses. “The applicant identifies as gender neutral and does not fall within binary categories,” the ruling states. It also highlights Shane's role as an activist for the recognition and protection of other people who identify similarly, and emphasizes the role she played, along with other activists and organizations, in the passage of the Gender Identity Law. 

“As a non-binary person, Shane emphasizes that the sex designation on their birth certificate is an error, as it is inconsistent with their gender identity, and they require this recognition to be able to develop fully. (…) Thus, since there is an error in the applicant's birth certificate, designating a sex—male—that does not correspond to their gender identity, there is a violation of their human dignity, which contravenes domestic laws and principles enshrined in international instruments,” the resolution states. It also invokes the Gender Identity Law, which recognizes the right to identity for every person as a general principle.

“Gender is a category to be overcome.”

For Shane, the most beautiful part of his journey is that he was able to walk it accompanied. “This fight isn’t just mine, it’s a collective fight. I’m the first person to have their birth certificate corrected and receive a new ID, but before me there were many others who unfortunately weren’t successful, and for all of them this achievement can be of some use,” he says, his voice filled with emotion. 

Professor Lorca, while celebrating the milestone, cannot understand how it is possible that non-binary people have to resort to the courts to obtain legal recognition, even though there is a law that should protect them. “Yes, this is historic. But it is equally unacceptable that the solution continues to be the judicial route,” says the lawyer who has represented trans people since 2009. 

Shane also believes that her case will help begin to dismantle the walls imposed by gender as a social construct. “Gender is a category that must be overcome. It is a means of controlling bodies and sexuality. In that sense, I believe that non-binary identity is a political stance to confront these systems of repression and social exclusion that are based on gender categories, and which we need to abolish.”