Legal aspects of transsexualism: the italian scenario in comparison with other european countries

Abstract

Background: at the time of the birth, a sex is assigned based on the examination of the external genitalia so that this sex is made to coincide with the biological sex. However, there are cases where the legal sex does not match with the real one or or does not match at a later time. Sometimes the psychological component differs from the biological one; in this case the multiple components of human sexuality (the phenotypic, genetic, psychological, social and cultural components) clearly emerge. If the chromosomal or phenotypic elements are privileged, there may be realities such as those associated with transsexualism likely to be denied and ignored. The issues relating to the rights of transsexuals have traditionally drawn the attention of scholars from various cultural backgrounds (physicians, psychologists, lawyers). The national and supranational measures aimed at protecting their rights have witnessed historical changes which have ended by depriving them of medical content to the detriment of a regulatory framework aimed at removing the discriminating factors. Objectives: the authors illustrate the actual innovations brought at a national and supranational level in the field of gender rectification by taking a quick look at the situation in Europe and in particular at the Italian, English and Spanish situations. Methods: the authors have analyzed Law no. 164 of April 14th 1982, and Legislative Decree No. 150 of September 1st, 2011, capturing their main points of innovation and focusing on the legal relevance of psychosocial conditions. They have also analyzed how transsexualism is configured in the European Parliament Resolution no. 1117, 12th September 1989, in the European Parliament Resolution of 28th September 2011 and in English and Spanish laws. Results/Discussion and Conclusions: the analysis shows that there are important differences in the European legislations as concerns the change of name following sex rectification, the institution of marriage, the need for a review by a panel of experts and whether or not to undergo surgery in order to obtain sex rectification. The Spanish and English laws do not require surgery; Italian law affirms the need for the presence of “modifications of sexual characteristics”: a general indication that could be considered as limited to secondary sexual characteristics and therefore sufficient to suggest a hormonal treatment in the absence of surgery. European legislations still have further important steps to take to meet the supranational demands and to protect the transsexual subjects in their entirety in view of empowering them to express their gender identity, which is an integral part of their personality, freedom and dignity, without the need to undergo medical or surgical treatments.