(Existential) Freedom and Identity(ies): Limits of Identity Regulation by the Brazilian Legal System

Abstract

The social perception of identity is the result of the structuring of power relations and, therefore, its legal protection has been constructed in order to instrumentalize the “normalization” of bodies (and minds) and to move away from conflicting identities. With the objective of verifying if the theorizing about freedom, especially in its existential aspect, can contribute to the oxygenation of the model adopted by the Brazilian legal system for the protection of personal identity, especially regarding the protection of name, image and body, performed A cross-sectional analysis from the theoretical, legal and jurisprudential perspectives is undertaken to check whether legal protection of personality rights for issues inherent to personal identity (s) promotes the free development of personality or reinforce border demarcation. Using the deductive method and from bibliographic and documentary research, it was observed that even the most avant-garde decisions regarding gender issues, such as the recognition of the name and gender designation in the civil registry and homotransphobia criminalization in analogy to In the crime of racism, the pathologizing perspective of trans identities is present and reinforces the perception of body (and identity) readjustment to the pattern as the only viable alternative, rejecting the possibilities of recognition as a person of those who present ambiguous characteristics. Thus, despite the evolution of the jurisprudential understanding, the massive preponderance of the binary perspective regarding gender / gender is evident, which distances individuals from the realization of their personality, even if on the basis of protecting and respecting it. In this respect, the oxygenation of the notion of freedom is essential for the fulfillment of the social function of civil law, since, in a constitutionalized perspective, the protection of personality rights is not related to an abstract conception of the individual, but to the freedom of the person. concretely considered in its intersubjective relations. It was concluded that the embracing of a plural concept of freedom, related to the existential dimension of the person, is fundamental for the shaping of an identity tutelage that effectively protects the plurality of identities and allows the free development of personality.