Third gender markers are essential to protect the rights of all

INCLO presented a legal expert opinion on third gender markers at the Spanish Civil Court to counter rigid and discriminatory binary norms that are still in place in many countries.

INCLO was approached by Transgender Europe (TGEU) to submit an expert opinion on the legal developments in North and South America regarding third gender markers before the Spanish Civil Court. The applicant in this case is Darko Decimavilla Garcia, a prominent Spanish non-binary rights activist. In 2023, Darko approached the Madrid Civil Registry to obtain an ‘X’ (or other third gender marker option) to reflect on their official documents, and affirm their gender identity. However, Darko’s request was denied for two reasons:  

1. Spain’s Civil Registry Regulations only allow for registration if the person, at birth, is “male or female.”
2. The Civil Registry Law does not provide for the possibility of giving, at least in registry entries, more sexes than female and male.”

Darko argues that the denial violates their rights to identity, dignity and free development of personality, and right to private life, which are rights protected by the European Charter on Human Rights and the Spanish Constitution.

To support Darko’s case, INCLO’s expert opinion highlighted that some people do not identify as either male or female, or they identify as both, or they identify as neither. We highlighted numerous examples in North and South America in which judges and parliamentarians have granted third gender options for official documents due to the violence and discrimination that these individuals face when their documents do not align with their gender identity.

INCLO’s Equality and Equity pillar has developed extensive work on understanding and responding to the diverse and complex ways in which discrimination, marginalization, and inequality impede or hinder the enjoyment of human rights. This is why we believe it is essential to offer expert opinions that contribute to the development of jurisprudence and a shift in mentalities. Another example is the case Savinovskikh and Others v  Russia, where we intervened, again in coordination with Transgender Europe (TGEU), before the European Court of Human Rights to argue for the rights of transgender parents.

We are confident that the expert opinion’s perspective will be seriously considered by the Spanish Civil Court in determining Darko’s right (and need) for a third gender option. We also hope that a favourable judgment in this case will have an impact in other countries where third gender marker options are still unavailable and that Spain will soon join the list of countries that recognize and affirm the gender identity of non-binary individuals on official documentation.