Procedural Posture

The applicant filed a request before the Tribunal of Rome to have her sex marker and name changed in all civil records. The Tribunal granted authorisation for surgical gender reassignment in an interlocutory judgment (n. 466/2007). At the next hearing the applicant requested a change of name and sex marker without requiring a surgical intervention.

Facts

The applicant was identified male at birth but manifested since childhood a typically feminine psychological nature and behaviour. Over the years, the applicant adopted a female physical appearance. A physical and psychological examination diagnosed gender identity disorder and she began the required judicial procedure for gender reassignment. An interlocutory judgment (n. 466/2007) authorised gender reassignment surgery on the basis of the report of a certified gender reassignment department of a hospital. The applicant underwent breast augmentation and hormone therapy. Awaiting the development of further interventions, the applicant requested the rectification of the civil registries without further surgery.

Issue

Whether the applicant’s request to change name and sex marker in all civil records could be granted without having gender reassignment surgery.

Domestic Law

Law no. 164/82, Articles 2 and 3 (authorizing gender reassignment surgery and adjustment of the civil status in the registry).

Sentenza 18-10-1997, Tribunal of Rome, 1997 (holding that a request to rectify civil records of transsexual persons could be granted even if there had not been any gender reassignment surgery).

Sentenza 161/1985, Constitutional Court of Italy, 1985 (finding constitutional Law no. 164/82).

Reasoning of the Court

The Court followed the approach of Sentenza 18-10-1997 holding that a request to rectify civil records of transsexual persons could be granted even if there had not been surgery.

The Court reasoned that Law no. 164/82 did not foresee the surgical gender reassignment as an indispensable prerequisite for a change of sex markers. When the transsexual nature had been confirmed, a medico-surgical treatment as determined in the law would only be required when this surgery was needed to safeguard a stable psychophysical balance for the transsexual person, i.e. when there existed a discrepancy between the anatomic sex and the psychosexuality, which would entail a hostile attitude towards the sexual organs. In the applicant’s case there was no such conflict, and therefore there was no need for surgery before allowing the adjustment of the civil records.

The interpretation of the Court was in accordance with the judgment of the Constitutional Court No. 161/1985 that confirmed a concept of gender identity that takes into account the external sexual characteristics, as well as the psychological and social elements. The Constitutional Court noted that the concept of sex was a complex set of personality characteristics, determined by several factors, amongst which a balance must be sought, favouring one or more the dominant factors.

In casu it was clear from the documentation – and in particular from the psychological report – that a level of satisfaction had been achieved both in her sexual and emotional life after the first surgical intervention was made. The psychological report noted that any further intervention would therefore be inappropriate and risky.  The court underlined that the report clearly stated, “A level of integration of the genitals with her body [was reached] so that she can live in a satisfactory way both personally and in relations to others.” The report also showed that the possibility that the applicant would have to compromise her current psychological well being caused her fear and anxiety. Nevertheless the applicant faced serious trouble in everyday life because of official documents that recorded her sex as male. Other evidence made clear that reproductive capacity had been strongly reduced as a consequence of the feminizing hormone therapy.

In the light of the above, the Court ordered the requested correction from male to female and a name change in the civil registry, without further surgery. Sterilization was not a mandatory requirement for gender reassignment.

Sentenza 5896/2011, Tribunal of Rome, Italy (11 March 2011) (Full text of judgment in Italian, PDF)