The new constitutional right to gender identity: Adding choice, categories or turning contents subjective and fluid. a constitutional and comparative enquiry

Abstract

The article provides a constitutional analysis of the emerging constitutional right to gender recognition of trans people. It shows that the right to gender recognition has been shaped by the balancing of opposing rights and principles inscribed in modern constitutionalism. Focusing on four jurisdictions (Italy, India, Colombia and Belgium) in which constitutional case law has significantly shaped the battle for legal recognition, the article shows the variety of its reach and establishes a taxonomy of classificatory regimes that differentiates between ascriptive and elective; binary/ non-binary and fluid versus non-fluid models of categorization. The article shows how, the process of creating and policing gender boundaries continues to play a central role even in those jurisdictions that have accepted sex reassignment.