PRESIDENCY OF THE COUNCIL OF MINISTERS

Bill number 75/XIII

Exposition of Motives

The program of the XXI Constitutional Government establishes the necessity of

improving the regime of gender identity, notably in what concerns the provision of civil
recognition of intersex people, as well as the legislative framework regarding transsexual
and transgender people, suppressing the discriminations subsistent in the law, as a form
of protection and promotion of fundamental rights, positioning Portugal, one more time,
at the frontline of the countries committed to equality.

The regime consecrated in the Bill number 7/2011, from the 15th of March, a diploma
which creates the procedure of sex and name change in the civil registry and proceeds to
the seventeenth alteration to the Civil Registry Code, has altered the juridical regime,
allowing the people who received a diagnosis of gender identity perturbation, also
designated as transsexuality, that is to say, who manifested a gender identity not
synchronized with the sex that they were attributed at birth, could proceed to the alteration
of the sex and name in the civil registry, through the possibility of presentation of a report
which substantiates that perturbation, elaborated by a multidisciplinary clinical sexology
team, but without the necessity of commencing a judicial process.

Notwithstanding, from the date of entry into force of Bill number 7/2011, from the 15th of
March, significant changes have occurred at an international level in regards to language,
concepts and definitions in the areas of transsexuality and transgenderism and the
understanding of their clinical framework. Such alterations conduced inclusively to the
consensus that the existent diagnostic categories regarding this matter are an obstacle to
the plain fruition of the human rights of the people who manifest a gender identity not
synchronized with the sex that was attributed to them at birth.

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The Resolution of the European Parliament, from the 28th of September 2011, regarding
human rights, sexual orientation and gender identity in the United Nations, has come to
emphasize the necessity on the part of the World Health Organization to “remove gender
identity disorders from the list of mental and behavioral disorders and to veil for a non-
pathologizing reclassification in the negotiations on the 11th Revision of the International
Classification of Diseases (ICD)”.

Also the Resolution number 2048 (2015) of the Parliamentary Assembly of the European
Council, on discrimination against transgender people in Europe, recommends to the
member-states the juridical recognition of gender identity through procedures of rapid,
transparent and accessible change of sex mentioning and alteration of first name based on
self-determination, as well as the abolition of sterilization and other medical treatments,
including the presentation of a mental health diagnosis, as legal requisites for such
recognition, as a consequence of the already foreseen in the Thematic Report by Thomas
Hammaberg, former Commissary of Human Rights of the European Council, on Human
Rights and Gender Identity, when he recommends the member-states of the European
Council to “abolish the sterilization and other demanded medical treatments as a legal
requisite necessary for the recognition of the gender identity of a person in the laws which
regulate the process of name and sex change”.

Effectively, the paradigm until now oriented toward a perspective of mental pathologizing
of people deviated from the sex or gender binary marker conceived as natural
(masculine/feminine or man/woman), promoting social stigmatization, has now centered
its attention on the social and legal situation of these people, as members of a society
with rights equal to the other members and in the context of a universality of human rights,
affirming gender self-determination of each person as a fundamental human right and an
indispensable part of the right to the free development of personality.

In this context, the solution found through Bill number 7/2011, from the 15th of March,
has become not only contrary to the model that has been defined of mental depathologizing

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of people whose sex attributed at birth is incongruent with their gender identity but, also,
reductive in face of the current social reality, which has been pointing to a larger inclusion
of gender diversity and diversity of sexual characteristics of people, in order to convert
the treatment of that diversity into a question of human rights, with the practical necessity
of guaranteeing that the process of juridical recognition of gender identity doesn’t exclude
any person that needs it.

The present Bill establishes the right to gender identity and gender expression self-
determination, eliminating some requisites present in the current procedure of juridical
recognition of gender identity, namely in respect to the demand of presentation of a report
which substantiates the diagnosis of gender identity perturbation and that renders the
decisions of sex and name change in the civil registry, correspondent to the gender identity
of a person, dependent on a third party.

The present Bill establishes, as well, the right to the protection of primary and secondary
sexual characteristics of people, rendering it dependent on the expressed and informed
consent, any treatment and surgical or pharmacological intervention or of any other nature
which implies modifications at the level of the body or its sexual characteristics.

In the case of underaged people, except in situations of proven health risk, the treatments
and surgical and pharmacological interventions or of any other nature, must only be
performed from the moment in which the gender identity is manifested, by the expressed
and informed consent through their legal representatives, in observation of the principle
of progressive autonomy, that is to say, in the sense of guaranteeing to the underaged with
discerning capacity the right to freely express their opinion and for it to be taken into
consideration in accordance with their age and maturity, and the principle of the superior
interest of the child, both present in the Convention on the Rights of the Child, approved
by the Resolution of Assembly of the Republic number 20/90, from the 12th of September,
and rectified by the Decree of the President of the Republic number 49/90, from the same
date.

Concerning the provision of the civil recognition of intersex people, whose sexual

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characteristics incorporate both or certain aspects of masculine and feminine physiology,

notwithstanding the recognition as indispensable that the registered sex be easily corrected
through simple administrative procedures, the present Bill does not aim at defining a third
option to the registered sex – blank sex or neutral sex. It is considered that this option may
reinforce the pressure to undergo treatments or surgical interventions to normalize the
genital organs of intersex children and babies and to submit them, until the moment where
a gender identity is manifested, to an undesirable exposition, promoting even further the
stigma and discrimination of these people.

In particular, the present Bill looks to clarify some concepts like “sex”, “gender”, “gender
identity”, “gender expression” and “sexual characteristics”, regulating the procedure of
alteration of sex mention in the civil registry and of the consequent alteration of first name,
taking into consideration what is foreseen in the principles of Yogyakarta regarding the
application of international legislation of human rights in relation to sexual orientation and
gender identity.

There are, also, defined measures of protection within the scope of health for people who
in face of the manifested gender identity and expression and their sexual characteristics
seek reference services or specialized units in the National Health Service; within the
scope of the educational system, at all levels of education and study cycles, which promote
the inclusion and prohibit any forms of discrimination and stigmatization of these people
in fundamental sectors of the State, remitting, within the scope of labor and employment,
to what is foreseen in the Labor Code, in the General Law of Labor in Public Functions,
approved by the Bill number 35/2014, from the 20th of June, and in the Bill number 3/2011,
from the 15th of February, in regards to access and exercise of independent work.

In conclusion, the present Bill turns Portugal into a country more respectful of the human
rights of transsexual and transgender people, as well as intersex people, establishing
procedures which guarantee a better quality of life and more inclusion to a social group
which is frequently the target of discrimination, stigma and violence.

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Thus:

In the terms of point d) of the number 1 of the article 197 of the Constitution, the
Government presents to the Assembly of the Republic the following Bill:

CHAPTER I

General Dispositions

Article 1

Object

The present Bill establishes the right to gender identity and expression self-determination
and the right to the protection of sexual characteristics of each person.

Article 2

Definitions

For the purpose of the present Bill, it is understood as:

a) “Sex”, the set of biological and physiological characteristics which distinguish men
from women;
b) “Gender”, the social attributes, roles, activities responsibilities, powers and
necessities derived from the social understanding of masculinity and femininity,
which determine the way people are perceived and how they are expected to think
and behave, learned or acquired during socialization as members of a specific
community inside a society.
c) “Gender identity”, the internal and individual perception of each person relatively
to her gender, independently of the sex attributed at birth, which includes the
personal relation with the body and gender expression, namely through the way of
dressing, speaking and being, involving or not the modification of the appearance
or bodily functions through surgical, pharmacological means or of any other nature,
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being it possible for transgender and intersex peoples;

d) “Gender expression”, the way by which each person expresses and communicates
her gender or the form by which she is perceived by other people;
e) “Sexual characteristics”, the set of attributes of anatomical nature of a person,
including the primary sexual characteristics, like the internal and external genitals,
and the secondary sexual characteristics, which include, but are not limited to,
muscular mass, capillary distribution, chest and stature;
f) “Transgender”, the people who have a gender identity or expression different from
the sex which was attributed to them at birth;
g) “Intersex”, the people whose sexual characteristics incorporate both or certain
aspects of masculine or feminine physiology;
h) “Direct discrimination”, all the situations in which, in function of the gender
identity, gender expression or sexual characteristics, a person is subject to a less
favorable treatment than the one which is, has been or may be given to a person in
a comparable situation;
i) “Indirect discrimination”, every time a disposition, criterion or practice, apparently
neutral, put people with a certain gender identity, gender expression or sexual
characteristics in a situation of disadvantage in comparison with other people, unless
that disposition, criterion or practice is objectively justifiable by a legitimate end
and that the means to achieve it are adequate and necessary.

Article 3

Prohibition of discrimination

1 – Every people are free and equal in dignity and rights, being prohibited any
discrimination, direct or indirect, in function of the exercise of the right to gender
identity and expression and the exercise of the right to the protection of sexual
characteristics.

2 – The private entities comply with the present Bill and the public entities guarantee their
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compliance and promote, within the scope of their competences, the necessary
conditions for the effective exercise of the right to gender identity and expression self-
determination and the right to the protection of the sexual characteristics of each
person.

Article 4

Gender identity and expression self-determination

1 – The exercise of the right to gender identity and expression self-determination of a

person is secured, namely by the free development of personality in accordance to her
gender identity and expression.
2 – When, from the practice of a certain act or procedure, it becomes necessary to provide
data from an identitication document which does not correspond to the gender identity
of a person, she or her legal representatives can solicit for this provision to be done by
the inscription of the initials of the first name which is presented in the identity
document, preceded by the name adopted in face of the manifested gender identity,
followed by the complete surname and the number of the identification document.

Article 5
Protection of sexual characteristics
Every person has the right to maintain her primary and secondary sexual characteristics.

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Article 6

Modifications at the level of the body or sexual characteristics of the adult person

The treatment and the surgical and pharmacological interventions or of any other
nature, which imply modifications at level of the body or sexual characteristics of the
adult person, can only be performed with her expressed and informed consent.

Article 7

Modifications at the level of the body or sexual characteristics of the underaged

person

1 – Except in situations of confirmed risk to the health, the treatments and surgical and
pharmacological interventions or of any other nature which imply modifications at the
level of the body or sexual characteristics of the underaged person, must not be
performed until the moment in which the gender identity is manifested.
2 – The practice of treatments and surgical and pharmacological interventions or of any
other nature which imply modifications at the level of the body or sexual characteristics
of the underaged person from the moment in which the gender identity is manifested,
is performed by the expressed and informed consent through her legal representatives,
taking into consideration the principles of progressive autonomy and the superior
interest of the child included in the Convention on the Rights of the Child.

CHAPTER II

Juridical recognition of gender identity

Article 8

Procedure

1 – The juridical recognition of gender identity presupposes the initiation of a procedure

of alteration of the mention of sex in the civil registry and the consequent alteration of
first name, by application.
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2 – The procedure referred to in the previous number has a confidential nature, except by
request by the person herself, of her heirs, the judicial or police authorities for the
purpose of investigation or criminal instruction, or by means of judicial decision.
3 – The alteration of the mention of sex in the civil registry and the consequent alteration
of first name performed under the terms of the present Bill can only be the object of
application a second time by means of judicial authorization.
4 – The final decision on the gender identity of a person proffered by a foreign authority
or tribunal in accordance with the legislation of that country is recognized under the
terms of the present Bill.

Article 9

Legitimacy

1 – It is conferred legitimacy for the requirement of the procedure of alteration of the

mention of sex in the civil registry and the consequent alteration of first name to all the
people of Portuguese nationality who are of legal age and who are not interdicted or
incapacitated by a psychic anomaly, whose gender identity does not correspond to the
sex attributed at birth.
2 – The people of Portuguese nationality and of age comprehended between 16 and 18
years can require the procedure of alteration of the mention of sex in the civil registry
and the consequent alteration of first name through their legal representatives, and the
registrar must proceed to the respective presential audition of the person whose gender
identity does not correspond to the sex attributed at birth, in order to ascertain their
expressed and informed consent, taking into consideration the principles of progressive
autonomy and the superior interest of the child included in the Convention on the
Rights of the Child.

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Article 10

Application

The procedure of alteration of the mention of sex in the civil registry and the consequent
alteration of first name initiates by means of an application presented at any registry office,
with indication of the number of civil identification and the first name by which the person
pretends to be identified, and it can be, immediately after, solicited the creation of a new
birth certificate, in which it cannot be made any mention to the alteration of the registry.

Article 11

Decision

1 – Within eight days of the presentation of the application, the registrar must,
according to the cases:
a) Decide favorably and perform the respective endorsement, under the terms of
article 73 of the Civil Registry Code and, if necessary, create a new birth
certificate, under the terms of the number 1 of article 123 of the same Code;
b) Solicit the improvement of the application when from its analysis result errors
or imperfections and also when it is incomplete;
c) Decide unfavorably, namely when from the performed analysis results that it
does not respect the requisites foreseen in article 7 of the present Bill.
2 – In case it has been solicited the improvement of the application under the terms of point
b) of the previous number, the registrar must emit a decision within eight days
counting from the presentation of additional elements.
3 – No person can be obliged to prove that she was submitted to medical procedures,
including sex reassignment surgery, sterilization or hormonal therapy, as well as
psychological or psychiatric treatments, as a requisite that serves as a basis for the
decision of the registrar.
4 - From an unfavorable decision regarding the alteration of the mention of sex in the civil
registry and the consequent alteration of first name or the non-compliance with the
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deadlines established in the present article it must result a hierarchical appeal to the
president of the Registry and Notary, under the terms of the Civil Registry Code.

Article 12

Effects

1 – The alteration of the mention of sex in the civil registry and the consequent alteration
of the first name effected under the terms of the present Bill do not affect nor alter the
constituted rights and juridical obligations that existed before the juridical recognition
of gender identity.
2 – The people who have proceeded to the alteration of the mention of sex in the civil
registry and the consequent alteration of first name must then be recognized in the
official Portuguese identification documents concerning elements like the name and
sex presented in them.
3 – Within 30 days from the endorsement, the person who has proceeded to the alteration
of the mention of sex in the civil registry and the consequent alteration of first name
must begin the necessary alterations to the updating of her identification documents.

CHAPTER III

Protection measures

Article 13

Health

1 – The State must guarantee the right of access and protection of physical and mental
health of all the people who, in face of the manifested gender identity and expression
and their sexual characteristics, look for reference services or specialized units in the
National Health Service, namely for treatments and surgical and pharmacological
interventions or of any other nature, destined to matching their body with their gender
identity.

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2 – For the purpose of the performance of treatments and surgical and pharmacological
interventions or of any other nature referred to in the previous number, it must be
conducted a previous evaluation by a specialist in psychiatry who attests the absence
of perturbation, of mental disease or personality disorder, susceptible to impede the
free and informed exercise of the right to gender identity and expression self-
determination and the right to the protection of the sexual characteristics.
3 – The people to whom the present Bill applies have the right to obtain the results of the
exams and reports of the treatments and the performed surgical interventions and,
every time that they require so, have access to the clinical file, through a physician,
with respect for the disposed in the Bill number 12/2005, from the 26th of January,
independently of the public or private nature of the health establishment or unit.
4 – The General Directorate of Health must define, within 270 days, a model of
intervention by means of orientations and technical norms, to be implemented by the
health professionals within the scope of the questions related to gender identity, gender
expression and the sexual characteristics of the people.

Article 14

Education and teaching

1 – The State must guarantee the adoption of measures in the Education system, at all levels
of teaching and study cycles, which promote the exercise of the right to gender identity
and expression self-determination and the right to the protection of the sexual
characteristics of the people, namely through the development of:
a) Preventive and combative measures against the discrimination in function of
gender identity, gender expression and sexual characteristics;
b) Mechanisms of detection and intervention in risk situations which put in danger
the healthy development of children and young people who manifest a gender
identity or expression which does not conform with the sex attributed at birth;
c) Conditions to an adequate protection of gender identity, gender expression and
sexual characteristics, against all forms of social exclusion and violence within

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the school context, assuring the respect for the autonomy, privacy and self-
determination of children and young people who undergo social transitions of
gender identity and expression;
d) Adequate training directed at professors and all other professionals of the
Education system within the scope of questions related to the problem of
gender identity, gender expression and the diversity of sexual characteristics of
children and young people, bearing in mind their inclusion as a process of
socio-educational integration.

2 – All Education establishments, independently of their public or private nature, must

guarantee the necessary conditions for the children and young people to feel respected
in accordance with the manifested gender identity and expression and their sexual
characteristics.

3 – The members of the Government responsible for the areas of gender equality and
education adopt, within 180 days, the necessary administrative measures for the
implementation of the disposed in the number 1.

Article 15

Labor, employment and professional training

The exercise of the right to gender identity and expression self-determination and the right
to the protection of the sexual characteristics of the people in labor and employment is
guaranteed under the terms of the Labor Code, of the General Law of Labor in Public
Functions, approved by the Bill number 35/2014, from the 20th of June, and the Bill number
3/2011, from the 15th of February, in what concerns the access and exercise of independent
work.

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CHAPTER IV

Means of defense

Article 16

Alternative resolution of litigations

Without prejudice to the appeal to the judicial route, the parts can submit the resolution
of litigations emergent from the present Bill to structures of alternative resolution of
litigations, under the terms of the law.

Article 17

Responsibility

1 - The practice of any discriminatory act, by means of action or omission, confers to the
injured person the right to a monetary compensation, for patrimonial or non-
patrimonial damage, in the form of extracontractual civil responsibility, under the
terms of the Civil Code.
2 – On the fixation of the monetary compensation, the tribunal must attend to the degree of
violation of the interests in question, to the economic power of the authors of the
litigation and to the conditions of the target of the discriminatory practice.

Article 18

Protection against retaliation acts

It is considered invalid the act of retaliation which corresponds to an illicit and painful
treatment which is harmful or unfavorable to any person by reason of complaint,
reclamation, denunciation or action against the author of the act, in defense of the right to
gender identity and expression self-determination and the right to the protection of the
sexual characteristics of each person, under the terms of the current Bill.

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Article 19

Procedural rights of the associations and non-governmental organizations

1 - It is recognized to the associations and non-governmental organizations whose statutory

object is essentially destined to the protection and promotion of the right to gender
identity and expression self-determination and the right to the protection of the sexual
characteristics of each person procedural legitimacy for the protection of the rights and
collective interests and for the collective protection of the rights and individual interests
legally protected of the associated people, as well as the protection of the protected
values of the present Bill.
2 – The collective protection of the legally protected rights and individual interests foreseen
in the previous number cannot implicate the limitation to the individual autonomy of
the associated people.

CHAPTER V

Transitory and final dispositions

Article 20

Transitory norm

The present Bill applies to the procedures of alteration of the mention of sex in the civil
registry and the consequent alteration of first name which are taking place at the time of
its entry into force.

Article 21

Norm of revocation

It is revoked the Bill number 7/2011, from the 15th of March, with the exception of the
article 5.

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Article 22

Entry into force

The present Bill entries into force on the business day following its publication.

Seen and approved by the Council of Ministers of the 6th of April 2017

The Prime Minister

The Adjunct Minister

The Secretary of State of Parliamentary Affairs

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