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Italy

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  1. Italy By Prof. Maria Giovanna Cubeddu Wiedemann University of Triest

  2. Specific legal rules • Law no. 164/1982 • No Law on Transexualism/Transgender • No definition of transexualism/transgender • Regard only sex-reassignment procedure and change of the name • Not very clear in many aspects • No provisions for implementation and coordination with other rules on family law and civil status registers • Regional laws • Use the term transgender • National proposal regards to discrimination • Include the term gender identity • Article 3 of the It. Constitution

  3. Prior to the Law no. 164/1982 • Medical-surgical sex change procedures – illegal • Doctor and patient criminally prosecutable • Law no. 164 – a compromise. • Regulating the adjustment of civil status acts and the prerequisites • Change of personal data only after undergoing surgery for sex-change • Criticism: • Favours the public interest for the congruence of social and somatic identity and therefore certainty of legal relations

  4. The national healthinsurance 7 public hospitals specialized in sex-change
 Surgery guaranteed free of cost (by NHS)
 Private healthinsurance

  5. ProtocolfortheMedicalProcedure Demand evaluation and eligibility assessment Sex-Change Procedures Follow Up

  6. A) Demand evaluation & eligibility assessment • Thorough evaluation based on the request & inquiry into the personality and social environment • Motives, expectations and context • Verification of cases of gender dysphoria. • Specialized structures or cooperation of specialized professionals • Planning of an overall and individually integrated procedure • Constant medical-surgical and psychological check up of every step • First priority: Treatment of psychiatric conditions or other psychological or behavioral problems

  7. B) Sex-changeprocedures • Preliminary interview • procedures, treatments and risks (irreversibility) • Written approval form • Integrated parallel psychological treatment • Elaborating identity conflicts • Psychotherapeutic relationship • at least six months (prior to the onset of hormone treatment) • Life experience • at least 1 year (essential) • Sex reassignment surgery • Court order & common agreement (at earliest 2 years after the start of the procedure)

  8. C) Follow up • 3 comprehensive follow-ups • 6 months, 1 year, 2 years after SRS • Other check-ups: specific personal conditions • Assessing social integration and psychophysiological conditions • Hormonal treatment • at least 1 check-up every year for the rest of the patient's life

  9. Legal Procedure Modifications of sexual characteristics Authorization for surgery Procedure by court Court decision Change of the civil status

  10. Introduction • Permission for sex-change and name reassignment has to be asked to the Court • at the end of a psychological and medical procedure • Law no. 164/1982: not very clear in many aspects • Missing: • An exact listing of the requirements • An time span for reflecting • The likelihood of the sex change been definite

  11. A) Modifications of sexual characteristics • The psychological change of identity • not expressively normed • considered a prerequisite • The physical-change • not defined • Jurisprudence generally considered surgical operation necessary • Modification of external sexual characteristics sufficient or internal organs also relevant (Trib. Pavia, 2006)? • ”Destructive" type modifications sufficient or “reconstructive” ones necessary? • Cass. 2013: • Operation not considered "conditio sine qua non” • Change of thenameafteronlyormonaltreatement

  12. B) Authorizationforsurgery • Law no. 164/1982 amended by Law no. 150/2011 • Ordinary jurisdiction • Art. 31, Law no. 150/2011 "Where it is necessary to adapt the sexual characteristics to be achieved by medical and surgical treatment, the court authorizes him with a final judgment (...). In the judgment granting the application for rectification of gender assignment the court orders the Amendment of birth certificate • Notification to spouse and children

  13. C) Procedureby Court • Judgment • attended by the pubblicoministero (representatives of thepublicinterest) • Official Technical Consultancy (OTC) • not obligatory • to ensure the psycho-sexual conditions of the concerned • In practice • documentation of the psychological and endocrinological path given to the judge by the person concerned

  14. D) Court Decision • Generally the surgical operation needs to be authorized by the court • In reality surgery/treatment is often performed without/before authorization • The Court is often only called to afterwards for the change of legal sex and name • The Judgment is considered constitutive • No retroactive effect (ex nunc)

  15. E) Change of the civil status • After the orders to change the civil status registers • applicant may request an amendment of documents • Certificates of civil status only indicate the new name and the new sex • notpossible to trace the original data • If new name completely different from the original: • procedure provided for by the general rules for the change of name (art. 89 D.Pr. no. 396/ 2000).

  16. Requirements: A) Age • Legal gender or sex change is permissible only for those of legal age (18y)
 • With regard to minors, Law no.164 expresses nothing • ExceptspecialpermissionauthorizedbytheLocalChildren's Court. • Case law • Court of Rome, 11 march 2011: parents may be authorized to give the consent to treatment for the adaption of the sexual characteristics of the minor

  17. B) Undergonesurgeryand/or infertile ? Law no. 164/1982: does not indicate the type of surgical sex-change procedure Medical protocols: the person must undergo a gonadectomy (= Transsexual person is sterilized and should follow the path of constant hormonal treatments) Law no. 40/2004 (PMA): opposite-sex couple

  18. Restrictions • Foreign citizens: admitted for the procedure if they are legal residents in Italian territory • The country of origin doesn't regulate the matter or implicitly excludes the possibility of changing sexual characteristics • Modifications of the data is possible in regard to the documents issued by the Italian authorities and also the so-called residence permit • Modification of personal data on the passport is not performed • This would, where possible, require a decision of reception of the Italian Sentence in the legal system 

  19. Consequences: A) Marriages • After sex change and the authorization to change the documents: freedom to marry  • Art. 4, l. 164/1982: A marriage celebrated before the change, in principle, is dissolved • Causes the divorce (Art. 3 l. div.) • The Courtnoted now that if there was an automatic effect, this would result in an unjustified state interference of privacy (Cass., 6 june 2013, n. 14329) • The Costitutional Court will be decide at short


  20. B) Filiation • Children born before legal gender reassignment • transsexual parent still required to respect the obligations from the filiation • Sex change does not implicate loss of parental responsability • Status of a child not in any way touched by the decision of the parent • Prejudice to the minor • serious disturbance of the child's psychological equilibrium • Judge may reduce/deny relationship between parent and child • Adoption • Transsexual persons may freely access the adoption procedure

  21. Sexual Discrimination • Italian laws prohibiting sex discrimination and promoting equal opportunities (also applying to transsexual/transgender people): • Law no. 903/1977 "equal treatment between men and women in matters of employment (Law of national implementation of the European Directive 76/207/EC" Equal Treatment Directive "and 75/117/EC" Equal Pay Directive "; • Law no. 125/1991 "Positive actions for the realization of equality between men and women at work"; • Law no. 300/1970 "Workers' Statute," and in particular article 15, which prohibits discriminatory behaviours; • Law no. 108/1990 "rules of individual dismissals". • Legislative Decree no. 198/2006 “Equal opportunities Code, workers’ welfare and non-discrimination” (coordinated with Legislative Decree No. 5/2010), and in particular art. 27 Cost.

  22. Protection from investigations • Art. 8 of the Workers' Statute • prohibits investigations into facts irrelevant to the assessment of the professional ability of the worker • Investigations into the private life of a candidate or transsexual employee are illegal. • Art. 10 of Legislative Decree No. 276/2003 • prohibits "employment agencies and other public and private entities authorized or accredited to carry out any investigation or otherwise data treating or pre-selection of workers, even with their consent," based, among others, on sex, sexual orientation and health status, and to "treat the personal data of workers who are not closely related to their professional qualifications and their job placement.“

  23. Penalsystem/Prisonregimes • Most transsexual and transgender detainees are in jail for reasons related to drug addiction and prostitution (often to pay for the cost of sex change) • Special parts of the prisons • Special wings: • San Vittore (Milan), • Rebibbia (Rom) • PoggioReale (Naples)

  24. Human conditions/medicalexaminations • Most serious problems: overcrowding & human conditions (for all prisoners) • Problems concerning specialist medical examinations: too few and inadequate for the demands • Immediate effectof the constitutional principle of protection of health and the impact that an eventual compression of the constitutional law has on the rehabilitative purposes of punishment (also subject to the supervision of the Constitution - art. 27) (2011) • Surveillance Judge ordered the Local Health Authority (LHA) to deliver (at its own expense) hormone treatments necessary to protect the health of transsexual prisoners  • First special department to ensure more dignified conditions for transsexual and transgender people • First ad hoc detention facility, entirely dedicated to transsexual and transgender people (2010) • Innovative experience, but transfer to a different location ((2013)

  25. Challenges of theExistingRules • Proposed amendments to the law no. 164/1982 • Highlighting that the psycho-physical balance does not necessarily require genital reconstruction surgery • Elimination of the surgical treatments for an amended birth certificate • Elimination of the appeal to the judicial authority • administrative procedure • Other draft • Law on civil partnerships • Law to protectagainstsexualitymotivatedcrimes • Strong emphasis: • Pharmalogical and therapeutic protocols established by Minister of Health • All the costs covered by the NHS