La persona transessuale è “ chi, pur essendo dotato di attributi sessuali primari solo maschili o solo femminili, non si considera appartenente al proprio sesso e si identifica nel sesso opposto, tendendo ad assumerne i caratteri fisici e sessuali, anche sottoponendosi a interventi chirurgici che rendano la trasformazione anatomica più completa possibile” (1) .
Nel nostro ordinamento giuridico la possibilità di rettificare l’attribuzione di sesso, da parte di soggetti in condizione transgender , si è avuta con la l. 14 aprile 1982, n. 164 . In precedenza non era permesso nemmeno il trattamento terapeutico volto alla conversione sessuale di un soggetto che non was recognized in her gender, unless they were hermaphrodites (2) .
Subjects transgender were stigmatized and ghettoized by the State, because they wanted to hide an uncomfortable reality, in a legal system where the rule of the forming religious (3) reigned supreme, and in this, do not There was a sharp distinction between morality and law.
Following strong protests from not only the world transgender but also of important cultural figures of certain political parties and especially thanks to power from the continuous stress on doctrine and jurisprudence of the legislature decided to crystallize the l. April 14, 1982, No 164 laying "Rules of rectification of attribution of sex" .
Shortly after the Constitutional Court with Judgement No. 161/1985 , was asked to rule on the constitutionality of Articles . 1 and 5 of that law with respect to Articles . 2, 3, 29 and 32 of the Constitution (4) . The Look considered unfounded the matter, since these articles allowed the full manifestation of human dignity, even in special and unusual. In addition, the Constitutional Court recognized the identity sexual ex art. 2 of the Constitution is not contrary to art. 5 cc .. In fact, the process of gender reassignment should be made on request to the court within the meaning of ' art. 3 of Law 164/1982 , this rule excludes the antigiuridicità and was likely to achieve well-being of transsexual ex art. 32 of the Constitution (5) . Finally, the Court held there is no conflict of l. 164/1982 with art. 29, 30 Constitution, in fact, the family can not be seen cause cell damage by the change of sex of the person who has engaged in medical intervention, because when changes sex of the person concerned takes place ex lege the dissolution of marriage (6) .
First, the correction of sex takes place under court ruling that res judicata attributed to a person other than the sex stated in the birth occurred as a result of changes in their sexual characters ( art. 1, l. 164/1982). The application for rectification of attribution of sex is brought to court with the place where she resides actor ( art. 2, l. 164/1982). The presiding judge shall appoint an investigating magistrate and a decree fixing the date for the discussion of the application and the deadline for notification to the spouse and children ( art. 2, para 2, l. 164/1982). At trial the prosecutor participates within the meaning of ' art. 70 c.pc. , obviously in these circumstances is apparent in the public interest ( art. 2, paragraph 3, l. 164/1982). When necessary, the investigating judge has to order the acquisition consultancy aimed at testing the psycho-sexual concerned ( art. 2, paragraph 4, l. 164/1982). With the ruling granting the request to correct attribution of sex, the court ordered the registrar of the municipality where the document was compiled of birth to make the correction in the appropriate register ( art. 2, paragraph 5, l. 164 / 1982 ).
The sentence of rectification of attribution of sex is not retroactive. It causes the dissolution of marriage or termination of the effects resulting from the civil registration of marriage celebrated with religious ritual ( art. 4, l. 164/1982). The legislature in this article has sought to protect both the spouse of the person transgender transsexual is the same, because since he has successfully completed the treatment aimed at changing the sex, it is presumed not to be more concerned iterating the duties of loyalty and moral support material provided in the interests of the family ex art. 143, comma 2, cc. The certificates of marital status related to the person who has been judicially corrected the attribution of sex are released with the sole indication of the new gender and name ( art. 5, l. 164/1982). This rule is intended to ensure the privacy transgender the person who, having failed to fulfill a long history of the case, is about to begin one, if difficult, new life and should not be seen affected their sexual identity ex Article . 2 of the Constitution. The acceptance of the application for rectification of attribution sex crimes lapses which may have resulted in medical and surgical treatment of the article above ( art. 7, l. 164/1982). The rule that has a function exonerating the doctor's conduct, the principle must be sought in the balancing of interests on the one hand the right to obtain the change of sex of transgender and transsexual the integrity of the other, of course, in accordance with the policy of non-contradiction of the legal system will not be deemed an illegal conduct that the legislature considers himself lawfully.
Article. 1 of l. April 14, 1982, No 164, provides that the correction can take place only after the changes occurred "sexual characteristics" . This raises doubts as to interpretation expression, as one must ask whether it is necessary to change sex in order to have it corrected. The answer is provided directly by art. 3, l. 164/1982, in fact the court, when necessary an adjustment of sexual characteristics to be achieved by medical and surgical treatment , authorizes a court decision. And the second paragraph of Article. 3, l. 164/1982, provides that in that case the court found the conduct of the treatment authorized, the correction has in closed session.
Therefore it is indestructible, the change of sex, obtained upon application to the court in order to arrive at the correct and in accordance with Art. 12 of preleggi. E 'own art. 3, para 2, l. 164/1982 which arouses the greatest contrasts with the transgender community as the legislature requires a person to change inexorably their bodies in order to obtain the allocation of sex rattificazione . However, because of the legal system forgets that there are other subjects transgender that do not require no treatment to enjoy their psycho-physical, but also deserve legal protection. The issue concerns the balance of interests within our society on the one hand there are people who would like to obtain a right that is, as has already been expressed by the Advisory, their sexual identity ex art. 2 of the Constitution, on the other the community behind a mask of respectability hides the fear of difference.
However, you may ask, what difference there might be for the legislature, including a transgender person wishing to make use of treatments aimed at change of sex and another person (who is also transgender) that does not feel the need. I believe that the distinction between the two circumstances do not exist, a legal secular democracy should respect the principle contained personal art. 2 of the Constitution and also remove the obstacles of not only economic but also social, which constrain the freedom and equality of citizens, prevent the full development of the human ex art. 3 of the Constitution.
A distance of twenty-nine years after entry into force of Law April 14, 1982, No 164, facing the back same problems of the legal, philosophical, moral, therefore, in the opinion of the writer, in a society like ours, where the evolution of customs runs at a frenetic pace for reform that will make it more consistent with the law of ' sexual identity of transgender people .
Notes:
(1) Great Italian Dictionary Hoepli http://dizionari.hoepli.it/ Dizionario_Italiano / word / transessuale.aspx? Idd = 1 & Query = & letter = T transsexual
(2) PEZZOLI, Law No 14 April 1982 164. Transsexualism. Theory and practice. , Chrysalis AzioneTrans non-profit organization, Livorno, 2006.
(3) SACCO, Introduction to Comparative Law, UTET, Torino, 1990
(4) Constitutional Court, May 6, 1985, No. 161, in Law Italiana , 1986, I, col. 806 ss in DI GANGI, Le nuove frontiere giuridiche della transessualità: brevi osservazioni comparatistiche. http://www.diritto.it/docs/26546-le-nuove-frontiere-giuridiche-della-transessualit-brevi-osservazioni-comparatistiche
(5) Corte Cost., 6 maggio 1985, n° 161, in Giurisprudenza Italiana , 1986, I, col. 806 ss in DI GANGI, Le nuove frontiere giuridiche della transessualità: brevi osservazioni comparatistiche. http://www.diritto.it/docs/26546-le-nuove-frontiere-giuridiche-della-transessualit-brevi-osservazioni-comparatistiche
(6) Corte Cost., 6 maggio 1985, n° 161, in Giurisprudenza Italiana , 1986, I, col. 806 ss in DI GANGI, Le nuove frontiere giuridiche della transessualità: brevi osservazioni comparatistiche. http://www.diritto.it/docs/26546-le-nuove-frontiere-giuridiche-della-transessualit-brevi-osservazioni-comparatistiche
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