PRAVNI ZAPISI • Year III • No. 2 • pp. 299-322
MEDICAL LAW ASPECTS OF TRANSSEXUALITY: TOWARDS THE RECOGNITION OF LEGAL CONSEQUENCES OF THE CHANGE OF SEX IN SERBIA
Dr Simić Jelena
Asistentkinja, Pravni fakultet Univerziteta Union u Beogradu
email: jelena.simic@pravnifakultet.rs
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Pravni zapisi, No. 2/2012, pp. 299-322
Original Scientific Article
KEY WORDS
trans-gender; transsexuality; ‘sex change’; gender integrity; European Court of Human Rights; discrimination; surgical intervention; physical integrity
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 recognizing the change of status of trans persons. When it comes to recognizing 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 emphasizes 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.