GENDER IDENTITY AND THE RIGHT TO THE PURSUIT OF HAPPINESS IN THE BRAZILIAN LEGAL SYSTEM: BETWEEN CONSTITUTIONAL PROTECTION AND GAPS IN IMPLEMENTATION

Abstract

This article examines gender identity as a fundamental right and an essential attribute of personality within the Brazilian legal system, exploring the profound intersections between Civil Law, Constitutional Law, and Human Rights. The study proceeds from the dogmatic premise that strict binary biological categorization is manifestly insufficient to encompass the complexity of human existential identity. It investigates how the principle of human dignity, the right to self-determination, the protection of personality rights, and the implicit constitutional postulate of the pursuit of happiness underpin legal protection for the free expression and recognition of gender. Utilizing a deductive method alongside rigorous dogmatic, doctrinal, and jurisprudential analysis — focusing on landmark Supreme Court precedents (ADI 4.275/DF, ADPF 132/RJ, ADI 4.277/DF, and MI 4.733/DF) —, the research demonstrates that despite emancipatory hermeneutic advances, severe gaps and institutional barriers persist in practical application. These obstacles appear prominently in civil registry rectifications for transgender and non-binary individuals, administrative bureaucracies, and the realization of the right to comprehensive healthcare. The study concludes that achieving material equity and full citizenship requires harmonization between infraconstitutional legislation and constitutional principles, the reinterpretation of existential private autonomy, and the implementation of cross-cutting public policies that transcend formal tolerance to consolidate Law as an effective instrument of human dignity and social inclusion.