MEDICAL-LAW ASPECTS OF TRANSSEXUALITY -TOWARDS THE RECOGNITION OF LEGAL CONSEQUENCES OF THE CHANGE OF SEX IN SERBIA -
Abstract
Over the past 30 years the social and legislative environment in which trans persons live has changed considerably. This development is reflected in the fact that a growing number of states has put in place procedures, regulated by law, for recognising the change of status of trans persons.
When it comes to recognising the legal status of trans persons, differentiation is made between the changes related to the change of name and those related to the “change of sex”. Both these processes are initiated once certain medical requirements are fulfilled. The author argues that set medical requirements, such as mandatory sterilization or removal of sexual organs, which are, in a number of countries, the only way towards the change of status, often constitute an unsurpassable obstacle for the trans person, at the same time violating such persons’ right to respect private and family life and the right to physical integrity.
The author goes on to argue that, in the light of the recent initiatives on the depathologization of transsexuality, having regard to human rights and appropriate medical help, the diagnosis of a mental disorder must not be a precondition for providing trans person adequate medical help, which will be fully or partially covered by health insurance.
The paper emphasises that the current case law of European Courts, and of the European Court of Human Rights in particular leads to a conclusion that states have the obligation to enable paid medical treatment of transsexuality and also the continuity of the sex change process by ensuring fast and transparent resolution of the legal status of trans persons.
This article also analyses the latest legal developments in Serbia when it comes to statutory regulation of the change of status of trans persons, and proposes possible solutions.
Key words: trans-gender, transsexuality, “sex change”, gender integrity, European Court of Human Rights, discrimination, surgical intervention, physical integrity.
References
Agius, S.,et al., 2011, Human Rights & Gender Identity: Best Practice Catalogue, Brussels, ILGA Europe.
Agius, S., Tobler, C., 2011, Trans and intersex people – Discrimination on the grounds of sex, gender identity and gender expression, Brussels, European Network of Legal Experts in the non-discrimination field.
Andrije, B., Boeč, Ž., 2010, Rečnik tela, Beograd, Službeni glasnik.
Gajin, S., ur., 2012, Model zakona o priznavanju pravnih posledica promene pola i utvrđivanja transeksualizma, Beograd, CUPS.
Homophobia and Discrimination on Grounds of Sexual Orientation in the EU Member States Part I – Legal Analysis, 2009, European Union and Agency for Fundamental Rights (FRA).
Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity in the EU Member States, Part II The Social Situation, 2009, The Danish Institute for Human Rights.
Human Rights and Gender Identity, Issue paper, 2009, Commissioner for Human Rights, Council of Europe.
Mrščević, Z., 2012, Presude Evropskog suda za ljudska prava u Strazburu u korist transseksualnih osoba, Strani pravni život, 2.
Radišić, J., 2008, Medicinsko pravo, II prerađeno i dopunjeno izdanje, Beograd, Nomos.
Standards Of Care For Gender Identity Disorders, Sixth Version, 2006, The Harry Benjamin International Gender Dysphoria Association’s.
Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People, Seventh Version, 2011, Georgia, The World Professional Association for Transgender Health.
Šarčević, E., ur., 2009, Izabrane odluke nemačkog Saveznog ustavnog suda, jubilarno izdanje, Skoplje, Konrad Adenauer Stiftung.
Vodinelić, V.V., 2012, Građansko pravo, Uvod u građansko pravo i Opšti deo građanskog prava, Beograd, Pravni fakultet Univerziteta Union i Službeni glasnik.
Whittle,S., Turner, L., Combs, R., Rhodes, S., 2008, Transgender EuroStudy: Legal Survey and Focus on Transgender Experience on Health Care, Brussels.
