With the judgment of November 5th, the Council finally stopped the old matter of necessary requirements to change sex. It decided the law does not force anyone to the surgery in order to change registry office sex.
It is not an expected result. The Council is making a new advanced edition of 1982’s law as a :”landing place of a cultural and judicial evolution. Its aim is to recognize the right of personal identity, which is part of fundamental rights of man.”
(art. 2 Cost. Art. 8 of ECHR).
Our association International LGBTI Support – Human Rights, wants to put in evidence transgender people problems, because it’s time to change! We ask for a law allowing to transgender people to change personal data without surgery obligation.
We’d like you to read this article in order to understand the real question of identity of gender in Italy. Sometimes it is very neglected. Everybody knows transgenders exist, but just few people know their problems about the recognition of their body and their identity.
They must face a long way to change their sex and documents. Because of this we’d like you to know the importance of a law protecting transgender people during their way, we cannot leave it all to chance.
How do we change sex in Italy?
When we are in front of a transgender person, we only see the “final result”, but we don’t know how that man or that woman became like this. There are a lot of troubled phases to obtain a body denied for a long time. Every year in Italy there are changing sex people who find a lot of problems first of all in personal data changing.
What’s GID: Gender Identity Disorder, or gender dysphoria?
The Gender Identity Disorder (GID), also called gender dysphoria, is a condition in which a person feels a strong identification on the opposite sex. The term gender dysphoria was introduced in 1971. GID is not sexual orientation and we must not confuse them. GID is classified into mental disorders of DSM-IV (Diagnostic and Statistical Manual of Mental Disorders). To change his own sex, a person may be defined transsexual only if he has not mental disorders.
Transsexual subject constantly identifies himself with other subjects of his opposite biological sex. This is not only a simple wish, there is a persistent discomfort and non-involvement within his own biological sex.
Moreover, the subject must not be intersexual, his discomfort must compromise his social, working or scholastic integration.
When his disorder is identified, the subject, before the hormone therapy, must be sure about his transsexual condition. He can be sure only after some talks with a psychologist, a sexologist and a psychiatrist. There are two ways to make it possible: the private one or the National Health System. In Italy there are a lot of clinics offering help to transgender people during this first phase of their way.
The second step is the hormone therapy together with the psychological one. The aim is to change sexual features in a visible way , to let the beard or the breast growing or to change muscles’ shape.
After changing their look, transgender people had to face an invasive surgery. In order to do it, they must go through the Tribunal because they need very expansive psychological and endocrinological examinations. There are two problems: price and long times. When they have got all the documents, they must show them to the Tribunal. The Tribunal certifies the gender dysphoria and will allow the surgery intervention.
We have to underline that some transgender people don’t want to modify his own sexual features, but until now it was indispensable.
Now, after the Court of Cassation’s judgment of 2015, it is possible to change sex without “surgical demolition”. It doesn’t mean that every transgender person may obtain new documents but they have the opportunity to do it.
In 1982, when the low was approved, some lawyers thought that transgender people want to modify their bodies according to their wishes. So they put together registry and sexual change and also chemical sterilization.
But, as we saw, this is a very long way, and it needs some years before doing a gender dysphoria psychological diagnosis (often after a very long psychotherapy), an hormone therapy, a request to the Tribunal to allow the surgery and, finally, the change of documents.
Today a lot of people have doubts about this way. “They think this is a very personal choice, it deals with their own bodies so they must not be influenced by a judge”.
Nowadays in Italy there is a very stiff way, full of obligations and duties. The transgender person is first of all a “consumer” of Government structures with psychologists, endocrinologists and lawyers to start their transition way. Then, he becomes a “beneficiary”: his lawyer will carry him to several hearings to allow the surgery, and then to change the documents.
If someone works, someone else must pay! They must pay a psychologist for psychological examinations and the psychotherapy for six months. They must pay the endocrinologist’s visits, the hormone therapy and also future examinations, without caring about the subject’s possibilities. They have also to pay the surgery interventions after a 4 or 5 months waiting list. Obviously they have also to pay lawyers, and also a doctor who has to write a technical document for the judge about the subject’s way (a professional report of the doctor should be enough). It may cost thousands of euros.
Time goes by and they are still different from their documents. The result is: expulsion, mobbing, layoff, work problems. There are no lists to understand how many unemployed transgender people there are in Italy, but it is not a surprise because, by the way, there are no lists of transgender people in Italy at all! More or less they may be 30/50 thousand. The most recent data about transgenders working situation, is called “I am, I work” from Arcigay in 2011. It takes as a sample LGBT population in which transgenders are just 51. 45% declares they are subjected to discriminations on working place. 25% claims they lost their job after “coming out”.
29% is verbally offended (38% six years ago). 19% changed his job. 8,5% cannot go on with his career. 18% is left out the job. This study also underlines that defense measures are not enough.
Who are transgender people to the employer?
Transgender, homosexual and heterosexual people, are subjected to a judgment because they cause several homosexual and transsexual preconceptions into the employer’s mind. People don’t care about sexual orientation or gender identity, but the expectations about that gender. The problem is it doesn’t correspond with their own conventional idea of “man” or “woman”. During a job interview a “normal looking” transsexual person may be less discriminated than an effeminate man. A woman who made a surgery intervention but has still got some male features, may be more discriminated than a woman who didn’t make surgery but is more recognizable. In this way, the employers have got a big alley making impossible the declaration of one’s own sexual identity: the Government. Today it is impossible to change documents or just one’s name without a sexual change. That is to say, according to waiting lists, juridical and medical times, it needs from 4 to 6 years.
We want to avoid expulsions, working discriminations, public offices difficulties, travelling problems. Because of this we need a clear law to protect them giving them the opportunity to make their documents like their aspect.
We also want to remind that Universal Declaration of Human Rights involves the right to work, the right to maintenance and it denies every kind of degrading treatment.
Because of this, International LGBTI Support – Human Rights, asks for a law upgrade. It must be clear and non-misleading. All transgender people in Italy must be protected and must be owner of their rights.
In Italy, after 2015, to transgender people is easier to ask for a Tribunal permit to change the documents, but 164/82 law is still in force. So we ask for the “irreversibility of subject status”.
Although, the registry data change is a judge’s choice. We’d like everybody has got the same rights.
Transsexual situation in Europe.
After our introduction, we’d like to underline another important thing: sometimes people having a Gender Identity Disorder (GID) are very unhappy, sometimes they may fall into depression until suicide. They want to run away from their body and to live into the real one they belong to. Doctors often think the only way to make them living better is “change of sex”. It involves hormone therapy and surgery intervention giving them the physical features they need.
Transgender people may have the possibility to exhibit their own identity documents, as a birth certificate, showing their new gender without causing embarrassment or shame. Some of them would like to get married and to be recognized for their own dignity.
Europe started to change its attitude in 1970. In 1978 German Constitutional Court made an important turn on changing transgender documents and certificates. In 1982 also Italy introduced its law about gender change and confirmed it in 1985. In the following years other European countries joined to them.
In 1986 European Court of Human Rights analyzed the first transgender case in United Kingdom. A transgender woman became a man but he was unable to change his documents so it was impossible to him to marry a woman. The Strasbourg European Court of Human Rights noticed a violation according to law and declared to be “aware about the seriousness” of transgender people problems and the distress they have to face, but in Europe there was no agreement, so every country was able to operate as it believed. By the way, the European Court underlined the “requirement to adapt the laws in order to protect and control this situation”.
In 2017, Europe didn’t improve the situation of transgender people rights: they are still living on society edges. Some of them must prostitute themselves in order to live.
Without clear laws, transgender people’s human rights are not guaranteed. A lot of people cannot have documents and are living with a generic identity. All European countries must solve this problem as soon as possible.
On April 7th 2017, European Court of Human Rights noticed that sterilization requirement to recognize sexual gender, violates human rights. Because of this, Europe is going to force the other 22 countries using infertility obligation, to change their laws.
Nowadays, 22 European countries still need a sterilization to have a sexual identity. But this judgment imposes to these countries to change the law. European Court of Human Rights noticed that sterilization requirement violates human rights but it declared medical examinations and mental health diagnosis are in compliance with the European Convention on Human Rights.
We can find this historical decision in three French juridical cases. In France there is a lack of determination among transgender people. There are three boys asking for art. 8 of European Constitution of Human Rights: the right to respect one’s own private life. These French juridical cases made use of European Constitution art. 8 “the right to respect one’s private and familiar life”, art. 3 “ban of torture” and art. 14 “ban of discrimination”.
In last years, European countries are improving their legislation. Since October 2016, France has no longer the obligation of sterilization to recognize gender identity. Sweden left this obligation in 2013. Swedish Government claimed that every Swedish transgender citizen forced to the sterilization from 1972 to 2013, may have a reimbursement of 225.000 sek (25,000$).
Obviously, money cannot compensate for sterilization, but it means that sterilization is really a violation of Human Rights.
Norway, Ireland, Malta and Denmark have got gender recognition policies based on self-determination without medical attention.
Below some data from a report of FRA (Fundamental Rights Agency). They made it some years ago, but it is still current.
This is a very extended subject, so we will focus only on work problems.
Into FRA’s poll, in Europe one transsexual out of three suffers a work discrimination, above all searching a job. Because of this, the number of transgender people looking for a job is less than it should be. They are discouraged. 16% of transgender people are laid off, they fear a discrimination.
International LGBTI Support – Human Rights is going to report what happens in some Italian Tribunals, in order to have a concrete and exemplary change for transsexual people rights.
Transsexual people unemployment is troubling, it needs to be changed as soon as possible. 25% of transsexual people are unemployed, above all women (38%).
A person without surgery intervention risks to be out of EU laws about work discriminations. It shows there are a lot of things to do to improve equality and legislation. We must be sure future laws will assure the same rights to everybody.
A non-regular document is another trouble to a transgender person looking for a job.
Work mobbing in Italy.
Law 216/2003 is against sexual orientation discriminations, it is extended also to transgender people. It is for work discriminated people: they may go to the Tribunal to stop the discriminating behavior. The employer must prove the opposite. If the judge recognizes a gender discrimination of a LGBT person, he will order first of all to stop it, then the effects removal. The judge may also condemn the employer to a non-patrimonial reimbursement. A mobbed person must sustain a very hard life because Italian laws may be applied only after six mobbing months. We must remind that transgender people are always under pressure because their family must accept their situation and because to live peacefully into a new body, it needs 2 or 3 hormone treatment years, so they have got an androgynous look and they may be subjected to discriminations more and more. It deals with a very emotional stressing period, and they have to face a mobbing pressure too.
To change the law means also to stop oppressions, social discriminations, fear of non-acceptance, daily difficulties, even if to take a letter to the post office.
To be recognized into one’s own gender, must be a right for everyone.
Recognition right of a person.
I’d like to underline something else. Human Rights Watch association made known some data saying they represent just a little part of several violent actions and discriminations they have to face when their rights are violated, because of a lack of juridical identification in everyday life.
The right to be recognized in front of the law is guaranteed in several human rights agreements.
It is very important to affirm one’s own dignity and value. However, also those countries in which they may be recognized into their own gender, procedures sometimes submit transgender people to dangerous and inhuman treatments.
For example the psychological evaluation to diagnose gender dysphoria and heavy medical tests, often need a lot of time and money and also very long juridical procedures as surgery request to change sex. These methods don’t guarantee people’s health and sometimes transgender people must be submitted to illegal treatments. But everything is tolerated.
Legal gender recognition is a fundamental element like other rights as privacy, freedom of speech, justice and free moving. Human Rights Watch data show that 64% of transgender people have been discriminated during job interview, compared to 52% who changed their documents data. Transgender people without regular documents, have a problem also in renting a flat.
People having irregular documents can face very bad experiences during the trip from one country to another, passing by the customhouse . Above all during international trips, they may be charged with fraud and exposed to humiliating controls.
In some countries, if a transgender person has not regular documents, he cannot access the appeal for committed crimes. It is very dangerous for a population submitted to several crimes. The lack of regular documents may be an abuse getting worse when it is reported to the authorities.
Ignoring all this situation, we feed a Government system producing economic gains and benefits. In Italy it needs 1.800€ just to produce evidences, and the result is neither guaranteed. Furthermore, the request to the Court to change sex by surgery has an obligatory cost. If a person decides to have surgery abroad, he still has to pay 2.500€ to change documents. Anyone gaining about my rights is inhumane. If a Government refuses to recognize a person within his own gender is violating privacy.
In April 2015 the Europe Council adopted a solution calling on Governments to facilitate gender recognition procedures and make self-determination more transparent.
Laws have not to force people to put a wrong brand on their own identity. Reaching the right to the recognition of legal gender is fundamental to forget a life of marginalization and, finally, living a dignified life.
We hope this document makes you to understand the difficult situation of transgender people in Europe. We also hope it can be useful to a small change towards the correct path to the rights we all wish for.
International LGBTI Support – Human Rights
Translation by Rita Emili (firstname.lastname@example.org)