Parliamentary Group

DRAFT LAW NO. 319 /XI

ALTERS THE CODE OF THE CIVIL REGISTRY, ALLOWING FOR PEOPLE

TRANSSEXUALS THE CHANGE OF THE SEX RECORD IN THE SEAT OF

BIRTH

Exhibition of reasons

Articles 25º and 26º of the Constitution of the Portuguese Republic establish the rights to

inviolability of moral and physical integrity, the right to personal identity and to the

development of personality. However, in our country, and despite the enunciated

our Fundamental Law, continues to impose a long process that obliges citizens

transsexuals to demand a court sentence to change their sex record and to

adjust in the Civil Register your name to the identity in which they live.

The right to identity and a name corresponding to that identity are elements

fundamental of the dignity of people. In addition, the dignity of all and all is a

fundamental requirement of a democratic society, which is more decent because

inclusive.

The transsexual population is, therefore, one of the most discriminated groups in our

societies. One of the most important factors of the absolute social marginalization to which

are subject to these citizens lies precisely in the difficulty in making matching

the official identity to the identity in which people live. This difficulty is a reason

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determinant of denial of employment, condition of subsistence and social integration,

but also from access to housing or humiliation in access to the right to health or

other fundamental rights.

It is notorious for non-existence in Portugal of a legal device that provides for the conditions

necessary for the change of the sex register, in the seat of Civil Register, of the persons

transsexual. This reality requires a response from the legislator in the sense of ensuring the

free development of the personality and dignity of those and those whose

true identity of gender does not correspond to the inscriptions present in the records

officers.

At present, and in the face of the absence of legislation on this matter, those and transsexuals

are required to interact with action against the State so as to see changed the

sex record and the constant name of your seat of birth and too much

documents. This type of processes can prolong itself for several years, without it being

any guarantee with respect to the disclosing of them.

Today, the non-existence of a law that establishes a clear procedure on this matter

makes both the and the transsexuals they want and can do the operation of

gender reasignments have to go through periods of several years of evaluation

medical, of treatments aimed at adjusting their physical characteristics to

corresponding to the sex now claimed, wait after that for an opinion from the

Order of Doctors, which arrives, in some cases, to take three years to be issued,

to then prosecute the state with a view to an eventual, and never certain, amendment

of your documents. The legal proceedings themselves extend by two to

three years. In the first instance it is common for the rejection of the applicants ' claims,

while in the Courts of Relation the assessments are made on a case-by-case.

The whole process, medical and legal set, comes in for this to take eight to nine years

in our country. One of the particularly ruthless aspects of this process is the

mandatory for the transsexual person to have to live several years in the desired social gender,

not having, however, during that period any possibility to do

correspond to the genus in which you live the documents you present yourself with. This

disconformity manifests itself in such basic areas as access to the care of

health, the application for employment, access to tenancy agreements or purchase of

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housing, among other circumstances that are part of the everyday and the life of

any citizen.

In Spanish State, for example, the maximum that can last the process assembly is

of two years. Indeed, the extension of a process in which it drags on

discrepancy between the social sex in which the person lives and his / her documents is one of the

most important factors of social exclusion, marginalization and deprivation of the

exercise of fundamental rights. This discrepancy reinforces the discrimination itself

existing social, relegating many transsexual people to situations of humiliation that

would be avoidable with the changes that the present diploma intends to introduce.

Analyzed the existing case-law in this matter, this is quite clear and taxing. The

Court of Lisbon's Relation concludes, for several times, that it does not exist in law

Portuguese some concrete provision providing for the change in the sex register,

by checking for this the existence of a gap in the law. Thus, the solution adopted by the

Court of Lisbon's Relation to integrate that gap has been the recourse to the

" standard that the interpreter himself would create, if there was to be legislated within the spirit of the

system ", as provided for in Article 10 (3) of the Civil Code.

In this way, what the Tribunal does is, for each concrete case, to decide in accordance with the

hypothetical standard that would make sense to exist in the Portuguese legal planning for

regulate this issue.

What the Left Bloc intends, in the present draft law, is precisely

positivate this standard. It aims to create a detailed legal framework that reguls this type of

situations. It is thus intended, too, to confer uniformity on decisions, through the

application of a general and abstract law.

The present draft law welcomes and agrees with many of the elements contained in the

judgments of the Court of the relation of Lisbon.

The civil registry has " for the purpose of giving publicity to certain facts that the Legal Order

considered to be relevant to the healthy social coexistence ", being that" law erigiated as

special requirement (...) the indication of sex " (Court of Relation of Lisbon, Ac. 22 of

June 2004, Ref. 3607/2004). This Court considers that " the record, as a form

of giving publicity to certain facts, from them by constying certain characteristics, considered

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relevant, it only has value and interest to the Society in General, its primary addresseback,

if that same record is in line with reality. If the record is on record something that does not

has correspondence with reality, it becomes, rather than a factor of stability

social, an element of conflict, because deceptive " (ditto).

Analyzing the issue " from the perspective of the person ", the Tribunal concludes that" what's releva

socially it is their behavior, the way it is seen in front of the other human beings,

particularly in the realm of the relationship in the role of sex, and the way it is

seen by the others " (Court of Relation of Lisbon, Ac. June 22, 2004, Ref.

3607/2004).

A further important jurisprudential reference is the Judgment of the Court of the Relation of

Lisbon, November 9, 1993 (Ref. 11989/1993). Citing the doctrine, it is referred to

that " has to recognize that the right to personal identity behaves the identity

sexual, which requires not only the respect of the personal sphere and the protection against the interference of

others, as also the guarantee of the free and conscious choice of that identity and, with it,

given way to live in society and in the family (cfr. M. Fortino, Sesso, E.D. XLII, p. 420 and sec.;

Patti-Will, ob. cit., p. 118/19) ".

It adds further that " The Portuguese Republic is based on the dignity of the person

human and, therefore, recognizes fundamental rights, of universal vocation, that if

translate into directly applicable subjective rights and link public entities and

private ones; they are fundamental constitutionally guaranteed personality rights, the

rights to moral and physical integrity, to personal identity, to the intimacy of private life and

family, family constitution and marriage-arts. 1º, 16º, 17º, 18º, 25º, 26º and 36º of the

C.R.P. " (ditto).

The Court goes further and concludes that " As in the decision of the Constitutional Court

german of 10/11/2078, (...) it will be dir that here there is no gap "iuris" given the presence of

constitutional principles, donde results that the principle of sexual immutability is not

absolute in the absence of express law that allows to overcome it. " The Tribunal further points out that

such fundamental principles are present not only in the Constitution of the Republic

Portuguese, but also in the international texts to which Portugal is found

bound, such as the Universal Declaration of Human Rights, the Convention

European Human Rights Policy and the International Covenant on Civil and Political Rights.

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Recently, the European Commissioner for Human Rights, Thomas Hammarberg,

in a letter addressed in November 2009 to the Portuguese Secretary of State for Justice,

Jose Magalhães, made note of the " lack of an expeed and uniform procedure for the

alteration of the name and sex of transsexual persons in the birth certificates and

identification documents " . The situation of transsexual persons in Portugal, as well as

the absence of a legal response that allows to respond to the most basic of rights, which

is the possibility of changing the civil registry, raises already the alert and critique of several

international enforcers of Human Rights advocacy organizations.

For all this, it is pressing for the introduction of legal mechanisms regulating the amendment of the

gender and the name of citizens, in the seat of Civil Register, the similarity of what comes

happening in other countries. From among these we stress the advances made in England

and in Spain, with solutions that go in the same direction of the proposal that now

we present, allowing for the change of the sex record and name in the civil register,

adept at registration to the gender identity.

In Spain, the publication of Ley 3/2007, of March 15, took a determining step

for the recognition of citizenship and the right to the identity of transsexual persons.

It is pointed out that this law has brought together from rest a broad political and social consensus, from the left

on the right, having been voted on unanimously in the Senate, which results from understanding

that it is unacceptable to continue to condemn the and the transsexuals to lengthy processes and

highly stigmatizing and subjecting them to the discretion of judges.

The Left-Wing Bloc intends to respond to this problem by taking a first step in the

sense of guaranteeing some fundamental rights for and transsexuals in our country.

The draft law that now sets out to define the conditions of access to the change of the

registration of sex and name in the civil registry. In this way, it intends to withdraw this process

of the judicial sphere and relocate it in the sphere of the Civil Register. Determines the change of the

registration of sex in registered office of civil registration upon submission of documents

physicians through which to prove the absence of any disorder of

personality in the applicant who could incapacitate him from taking free and

consciously decisions about your person, if it proves that the transsexual person lives

there are at least two years in the desired social gender and have been, or are there by

less one year, in hormonal treatments with a view to the adjustment of characteristics

physical to the gender identity in which it lives.

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Thus, in the applicable constitutional and regimental terms, the Deputies and Deputies

of the Left Bloc, present the following Draft Law:

Article 1.

Subject

The present diploma changes the Code of the Civil Register, approved by the Decree-Law n.

131/95 of June 6, in its current wording, providing for the amendment of the sex register and

of the name in registered office of civil registration.

Article 2.

Amendment to the Code of Civil Register

Articles 69, 104 and 123 of the Code of Civil Register, approved by the Decree-Law n.

131/95, of June 6, in its current wording, shall be replaced by the following:

" Article 69.

(...)

1-(...):

a) (...);

b) (...);

c) (...);

d) (...);

e) (...);

f) (...);

g) (...);

h) (...);

i) (...);

j) (...);

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l) (...);

m) (...);

n) (...);

o) the change in the sex register;

p) [ Previous point (o) ];

q) [ Previous paragraph (p) ];

r) [ Previous point (q) ].

2-(...).

3-(...).

4-The facts referred to in points (n) and (o) of paragraph 1 which occur as a result of a

process of changing the sex register may, the application of the person concerned, give

origin to a new birth seat, pursuant to Rule 123.

Article 104.

(...)

1-(...).

2-(...):

a) (...);

b) (...);

c) (...);

d) (...);

e) (...);

f) (...);

g) The change resulting from the change in the sex register, so as to respect the

provisions of the final part of Article 103 (2) (a).

3-(...).

4-(...).

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5-(...).

6-(...).

7-(...).

8-(...).

Article 123º

(...)

1-The establishment of the affiliation, the consequent name change, the name of the grandparents, the

full adoption, the marriage of the parents, the change of the sex register and change of name

to which this der place, can be integrated into the text of the birth seat to which

have been averaged, the verbal application of those concerned or their

legal representatives, upon realisation of new birth seat.

2-(...).

3-(...).

4-(...).

Article 3.

Addition to the Code of Civil Register

They are deferred to the Code of the Civil Register, approved by the Decree-Law No. 131/95, of 6 of

June, in its current wording, Articles 104-and 104-B, with the following wording:

" Article 104.

Change in the sex register

1-legally capable people can request the change of the constant sex in their

seat of birth.

2-A change in the registration of the constant sex in the seat of birth depends on the

compliance with the following requirements, cumulatively:

a) that the applicant has been, or has been for at least one year, in treatment

hormonal intended to adjust their physical characteristics to the corresponding

sex now claimed;

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b) That the applicant live for at least two years, in the social sex claimed;

c) That is proven the absence of any personality disorder in the

applicant who prevents you from taking free and conscientious decisions about your

person.

3-Compliance with the requirements set out in paragraph (a) of the preceding paragraph shall be

confirmed upon declaration by the doctor under whose direction the

treatments or, in the absence of this one, through clinical report issued by a physician

specialized.

4-Compliance with the requirement set out in paragraph 2 (b) is confirmed by

statement from the psychologist, clinical psychologist or psychiatrist who accompanies the applicant.

5-Compliance with the requirement set out in paragraph 2 (c) is confirmed by

statement by doctor specializing in the area of psychiatry or clinical psychology.

6-The requirement set out in paragraph 2 (a) is waived when reasons arise that

make it impossible to follow up, duly certified by the medical declaration

referred to in n. º3.

Article 104-B

Assessment of the application

1-The application for a change in the sex register is accompanied by the change of the name,

except where the applicant wants to conserve their original names and these do not

are contrary to the legally established requirements.

2-For the purposes of the preceding paragraph the applicant shall state, in the same application,

the own names to be adopted.

3-It is up to the Conservative of the Central Records the reception and appreciation of the request for

change in the registration of sex and the name as well as the respective documentation.

4-A The assessment of the application for changing sex and the name is made within the maximum period

of 60 days, being the birth seat averaged within a maximum of 90 days, the

count of the date of the application submission.

5-A change in the sex and name registration provided for in the previous figures occurs

excluding the publication of any advertisements or edials.

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Article 4.

Transitional provisions

1-Should the applicant have performed genital surgery prior to the entry into force of the

present law, in Portugal or abroad, the requirement for the change of the registration of the

sex in registered office of civil registration is the demonstrative of the realisation of the surgery, upon

medical statement issued by the surgeon who performed it, or by specialized physician.

2-A This Law applies to all requests for change of the sex record made

from its entry into force, regardless of the existence of prosecutions

ongoing or there has been a judicial decision on the matter at a date prior to the effective

of this Law.

Article 5.

Final provisions

1-The deferring of the application for change in sex produces effects from the date on which

is carried out the new birth seat.

2-A The change in the registration of sex and name does not change the title of rights and of the

obligations prior to the change in registration.

3-A The change in the name and registration of the sex obliges the holder of the new record to request the

issuance of new identification documents, which retain the same numbers

of the original documents.

4-A dispatch of the documents issued on a date prior to the change in the registration of the

sex and the name is carried out at the request of the applicant, their legal representative or person

authorized.

Article 6.

Regulation

1-The Government regulates, within 60 days, the form of notification of all the

competent authorities and bodies, regarding the amendment of the name and registration

of the sex of the holder.

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2-The Government regulates, within 60 days, the recognition by Portugal, of the

change of registration of sex carried out by Portuguese citizens with another

nationality before national authorities of that State.

Article 7.

Entry into force

This Law shall come into force 90 days after its publication.

Assembly of the Republic, June 17, 2010.

The Deputies and Deputies of the Left Bloc,