Keywords

22.1 The Right to Gender Identity

The phenomenon of transsexualism has aroused a growing interest not only from a medical and sociological point of view, but also from a legal point of view, with particular regard to the human rights of trans and intersex people, also in order to avoid any discrimination based on gender identity and sexual characteristics.

Since medical science has made possible a realignment between the body and psyche of a person “affected” by gender dysphoria, there has been a need to legally regulate this process of “harmonization,” providing for its conditions, limits, and effects.

Law no. 164 of 14 April 1982 filled the regulatory gaps in the matter, recognizing a real right to gender identity, as a specific declination, according to the now more consolidated private and public doctrine, of the rights to sexual identity and health, protected by Articles 2 and 32 of the Constitution.

It is not easy to define “gender identity,” as the field of sex and gender has given rise to a proliferation of terms, whose meaning varies not only over time, but also within the same discipline and between one discipline and another.

Therefore, before proceeding to analyze the right to gender identity, it is appropriate to frame and define transsexualism, in order to fully grasp what have been the problems at the center of jurisprudential and doctrinal debates.

The WHO’s International Statistical Classification of Diseases and Related Health Problems (ICD-10)Footnote 1 had included transsexualism within Gender Identity Disorders as “the desire to live and be accepted as a member of the opposite sex, usually accompanied by a feeling of discomfort or inappropriateness related to one’s anatomical sex and a desire to resort to hormonal treatments and surgeries to adapt your body as appropriate as possible to your favorite sex,” and states that “the transsexual identity must have been present persistently for at least two years.”

That definition, however, was reviewed in the context of ICD-11,Footnote 2 which, considering the evidence that trans-related and gender diverse identities are not conditions of mental ill health, and classifying them as such can cause enormous stigma, has replaced diagnostic categories like ICD-10’s “transsexualism” and “gender identity disorder of children” with “gender incongruence of adolescence and adulthood” and “gender incongruence of childhood”, respectively.

Similarly, the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), following amendments aimed at “reducing phenomena of social stigma,” has also qualified transsexualism as gender dysphoria, understood as a “general descriptive term” that “refers to affective/cognitive distress in relation to the assigned gender, but assumes a greater specificity only when it is used as a diagnostic category.” In the case of adults and adolescents, it must be possible to find for the purposes of diagnosis “a marked inconsistency between the gender experienced/expressed by an individual and the assigned gender, lasting at least six months”.Footnote 3

With regard to the notion of gender, we read in the DSM-5 that “the need to introduce the term gender arose from the observation that for individuals with contrasting or ambiguous sexual biological indicators (e.g. intersex) the role experienced by society and/or identification as male or female cannot be associated or predicted tout court by classical biological indicators and, moreover, some individuals develop an identity as male or female in contrast with their uniform set of traditional biological indicators” and that therefore the term gender is used “to indicate the public role lived (and generally recognized from the legal point of view) (…) but, contrary to some socio-constructionist theories, biological factors are considered a contribution, in interaction with social and psychological factors, to the development of gender”.Footnote 4

That said, the “right to gender identity” starts from the need to recognize, on the part of individuals, a right to self-determination that is considered, in the private and family field, absolute and insusceptible of conditions and limits to its exercise, in the sense that it pertains to that field of freedom that the legal system must protect from aggression, and that it itself cannot attack.

Already in 1985, the Constitutional Court, on the occasion of the judgment on the constitutional legitimacy of Article 1, paragraph 1, of Law no. 164 of 14 April 1982, had affirmed the need to recognize and respect gender identity, that is, the right of transsexual persons to live harmoniously their being in relation to others, also through the modification of personal data, as an expression of the right to personal identity, falling within the framework of the fundamental rights of the person, referred to Article 2 of the Constitution.Footnote 5 In fact, according to the Court, “Law 164 of 1982 is therefore part of an evolving juridical civilization, ever more attentive to the values, freedom and dignity of the human person, who seeks and protects even in minority and anomalous situations. It is necessary, according to these incisive indications, that the interpretation of Law 164/82 takes into account the inclusion of the right to the recognition of gender identity in an evolving legal civilization as it is subject to changes in the scientific, cultural and ethical approach to issues inherent, in the present case, to questions of sex change and to the phenomenon of transsexualism and more generally to choices relating to gender and the sphere of sexual identity”.Footnote 6

It is important to understand if the concept of gender identity has been recalled by Italian jurisprudence, primarily the constitutional one, exclusively with a view to balancing the individual’s interest in not undergoing health treatments (surgical or hormonal), extremely invasive and dangerous for health,Footnote 7 on the one hand, and the public interest in the certainty of legal relationships, on the other.

With regard to the interests of the individual, the right to health and the right to personal identity are highlighted, in its component of sexual self-determination and gender identity.

The right to gender identity, often recurrent in Italian jurisprudential rulings without a precise identification of the “content”, at international and supranational (community) level instead finds more references, although for the most part they are acts without normative value.Footnote 8

It was with the judgment Christine Goodwin v United Kingdom of 11 July 2002Footnote 9 that the European Court of Human Rights began to look at the issue of transsexualism from the perspective of the protection of sexual identity, starting from the interpretation of Article 8 ECHR. The judges consider that this rule considers “personal freedom” as an important principle, which grants protection to the “personal sphere of each individual” and which includes “the right of each person to determine the particular characteristics of his identity as a human being.” About the effects that the recognition of the possibility of rectification may have on civil society, the Court “considers that it can reasonably be required of society that it accept certain inconveniences in order to allow persons to live in dignity and respect, in accordance with the sexual identity chosen by them at the price of great suffering.”

The scientific and cultural debate has profoundly changed the relationship between the right to gender identity and therefore to sexual self-determination,Footnote 10 and the right to health, two fundamental rights that, according to the originalist interpretation, had to be the object of choice by the individual in gender transition. The issue discussed concerned the need for surgery to adapt the primary sexual characteristics for transsexuals who want to obtain rectification.

On this point, the Supreme Court underlined how sexual identity lives on three elements: body (soma), self-perception (psyche), and social role (polis)Footnote 11, reflecting the concept of “health,” which in the definition provided by the WHO develops on a trilateral form: “a state of complete physical, mental and social well-being”.Footnote 12

We can therefore grasp a strong parallelism between the three elements of sexual identity and the three elements characterizing the concept of health, such that identity and health are not automatically in conflict, but are included, as the complete psycho-physical-social well-being can only be achieved if there is no suffering regarding the self-perception of one’s gender, one’s body, and one’s social role. There is no doubt, therefore, that “the interest in sexual identity, in so far as it involves the dignity of the human person, his fundamental right to the free development of the personality, the very right to health, understood, also and above all as mental health, is an essential interest of the person and, as such, destined to prevail over any other interest.”Footnote 13

Therefore, in balancing the interests at stake, it is necessary to refer to a rigid principle of “proportionality,” as underlined by the supranational order,Footnote 14 also with specific regard to sexual reassignment.Footnote 15

The European Court of Human Rights has clarified that gender identity is included in the non-exhaustive list of protected characteristics set out in Article 14 of the ECHRFootnote 16 and that States Parties to the European Convention on Human Rights have an obligation to legally recognize the preferred gender.Footnote 17

22.2 The Procedure for Rectification of the Attribution of Sex

Before the entry into force of Law no. 164/1982, published in the Official Gazette no. 106 of 19 April 1982, it was not allowed to perform surgical interventions for the reassignment of sex other than that of birth. In fact, those who wished to access these treatments turned to foreign clinics to perform surgical interventions in the States that admitted this practice, and then returned to Italy and submitted an application for correction of gender data pursuant to articles 165 and 167 of Royal Decree 9 July 1939, n. 1238 (civil status system in force at the time) and art. 454 of the Italian Civil Code.

These provisions, however, were limited to cases of modification of material errors committed at the time of the birth certificate, as in the rare but still possible cases of ambiguity of the external genitalia or of late natural development of the subject towards the opposite sex to that initially ascertained or even of the simultaneous presence in the same individual of the sexual characteristics of both sexes.

The Constitutional Court itself had been referred to the question of the legality of those provisions precisely because the living law did not consider them applicable to cases of voluntary change in the sexual characteristics of the individual, but the question had been rejected.Footnote 18

In Italy, it was time to await the entry into force of Law No 164 of 14 April 1982 laying down rules on the rectification of the attribution of sex, for a complete regulation of the procedural aspects of the relevant procedure. However, there were many critical issues encountered.

Article 1 of Law 164/1982 provides that “rectification shall be made by virtue of a judgment of the Court of First Instance which has the force of res judicata attributing to a person sex other than that set out in the birth certificate following changes in his sexual characteristics.”

In interpreting the norm, a first problem that has been placed is that relating to the identification of what are the modifications of the “sexual characteristics” that legitimize the rectification of sex. It was taken, then, as a reference the third paragraph of the article 31 d.lgs. 150/2011, according to which “where it is necessary to adapt the sexual characteristics to be carried out by means of medical and surgical treatment, the Court of First Instance authorizes it by a judgment which has the rule of res judicata,” although it does not provide a clear definition of “sexual character” nor of “sex.” Thus, in the jurisprudential and doctrinal debate, two different orientations have emerged.

The first orientation, linked to the need, of public policy, to preserve a degree of certainty with respect to the boundaries between the two genders, as well as to the idea of a necessary sterility of the transsexual person who obtains the rectification of sex, affirms the need, for the purposes of sex rectification, for a modification of the “primary” sexual characteristics identified in the genital and reproductive organs.Footnote 19 Therefore, also in accordance with the conclusions of the Court of Justice no. 161/1985, it was considered indispensable, for the transsexual who wanted to obtain the rectification of sex, the convergence “between soma and psyche” obtained with surgery to adapt the primary sexual characteristics.

Another orientation, now endorsed by the rulings of the Constitutional Court and the Court of Cassation but a minority in the 90s, evaluates as sufficient the modification of the “secondary aesthetic-somatic and hormonal sexual characteristics,” considering that a surgical intervention that modifies the genital apparatus becomes necessary only when it ensures “to the transsexual subject a stable psychophysical balance, that is to say when the discrepancy between anatomical sex and psychosexuality cause in the person concerned a conflictual attitude of rejection of his sexual organs”Footnote 20 or, according to other jurisprudence, “only in the case in which it is necessary to ensure the transsexual subject a stable psychophysical balance”.Footnote 21 According to this guideline, however, for the purposes of rectification, it seems that hormonal treatment that adapts “the phenotype to mental sex” seems to remain necessary, thus achieving “psychophysical stability and well-being”.Footnote 22

In the face of these different orientations of the jurisprudence of merit, the Court of Cassation, with judgment of 20 July 2015, no. 15138, interpreted Law no. 164/1982, as amended by Legislative Decree 150/2011, following the second orientation, and therefore considering it possible to rectify sex even in the absence of a surgical treatment modifying the primary sexual characteristics, considering, moreover, that the same judgment of the Constitutional Court of 1985Footnote 23 had defined the law in question as the result of a “juridical civilization in continuous evolution increasingly attentive to the values of freedom and dignity of the human person, which seeks and protects even in minority and anomalous situations” and as such cannot be subjected to a static reading, historically crystallized.Footnote 24 Ultimately, the relevance of the notion of “gender identity” emerges. According to the address expressed by the Supreme Court, the desire to realize “a coincidence between soma and psyche” is “the result of an elaboration (…) of one’s gender identity, realized with the support of necessary medical and psychological treatments” and the path of “adaptation” is a “process of self-determination”. The construction of the “new gender identity” is conceived as the point of arrival of an individual process but, in any case, remains connected to a physical transformation that adapts the body to the “destination sex” according to objectively appreciated criteria. In fact, we read in the ruling that it remains “unavoidable a rigorous assessment of the definitiveness of the choice based on the criteria deducible from the current landings and shared by medical and psychological science”, and it becomes necessary “a subjective path of recognition of this primary profile of personal identity neither short nor devoid of interventions amending the original somatic and hormonal characteristics.” The Court of Cassation seems to affirm the need for an intervention that modifies the body of the trans person; with regard to the adequacy of the amendments, the Judges of Legitimacy attach great importance to judicial control, which must consist in “a rigorous assessment of the completion of this path,” precisely in the face of the need, as anticipated, for a balance between the right to self-determine one’s identity and the public interest in clarity in the identification of sexual genders and legal relationships.

The Constitutional Court, prompted by an order for the remission of the substantive jurisprudence aimed at declaring the unconstitutionality of Article1, paragraph 1, of Law 14 April 1982 no. 164,Footnote 25 with judgment of 5 November 2015, no. 221, followed the interpretation of the Court of Cassation, and therefore excluded the need for surgical intervention for the purpose of rectification, as “corollary of an approach that—in coherence with supreme constitutional values—it refers to the individual the choice of the methods through which to realize, with the assistance of the doctor and other specialists, his own transition path, which must in any case concern the psychological, behavioral and physical aspects that contribute to composing the gender identity.” The profound merit of this judgment is to understand that the right to identity and the right to health are never in opposition if the protection of the self-determination of the subject is put at the center and the protection of public interests is limited only to temperaments punctually enunciated, ensuring that the soma-psyche reunification is desirable only if it corresponds to the personal needs of the subject, but never as an exclusive safeguard of public interests (which are well protected through the irreversibility of the choice and the modification of secondary sexual characteristics). In this way, the doors of a complete transition are opened even to subjects who have not considered it appropriate to modify their primary characters, making the legal boundaries between transsexuals and transgenders fluid from now on.Footnote 26

This approach was recently reconfirmed in two judgments concerning the constitutionality of Article 1 of Law no. 164/1982. In the proceedings in question, the Consulta had the opportunity to return to the subject of transsexualism, confirming the centrality, in the context of the sex change process, of the judicial verification phase and excluding, at the same time, that the pure and simple will be expressed by the subject who intends to change sex is sufficient to “overcome” the essential evaluation step regarding the need for surgical intervention, the latter of exclusive judicial jurisdiction.Footnote 27 Constitutional jurisprudence has therefore shown an “openness” towards the recognition of gender identity, with the consequent positions taken to simplify the individual’s access to the sex change process.

In any case, it will be essential to appeal to the ordinary civil Court, and still following the ritual forms of the ordinary judgment of cognition, if the interested party intends to obtain the rectification of the civil status documents in the part relating to the indication of sex and forename, with an action, called, in fact, “rectification of sex attribution.”

The Italian jurisprudence, first of all the constitutional one, intervened in the matter of rectification of the attribution of sex, has repeatedly reiterated that the aspiration of the individual to the correspondence of the sex resulting in the population registers with that subjectively perceived and lived constitutes an expression of the right to gender identity.

If it is true that public awareness is improving, it is equally true that people suffering from gender dysphoria continue to suffer from strong pressures social and the need for greater legal protection, through the adoption of necessary measures to guarantee the equality and non-discrimination based on gender identity, gender expression, and sexual characteristics, can no longer be overlooked.