The Transgender: Legal Path to Surgery

The right to gender identity starts from the need to recognize to 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. Law no. 164 of 14 April 1982 lays down rules on the rectification of the attribution of sex, for a complete regulation of the procedural aspects of the relevant procedure. According to Court of Cassation 20 July 2015 no. 15138, 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. In light of constitutional jurisprudence, the rectification of the personal data of the attribution of sex is possible, only on the medico-legal confirmation of the so-called gender dysphoria, even, that is, in the absence of a preventive surgical intervention to adapt the primary sexual characteristics to the “psychic sex.” It is left to the free and unquestionable will of the individual, the decision whether or not to precede the request for rectification of the registry from the submission to the surgical reassignment of the sex.