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Parliamentary Group

BILL N.º 242/XIII/1.ª

RECOGNISES THE RIGHT TO GENDER SELF-DETERMINATION

Exposition of Motives

Gender diversity is universally present in every human culture and historical epoch.
Scientific studies coming from different areas teach us that there is a multitude of
manifestations of gender identity and gender expression among human beings, and that
each culture determines its own interpretation of this phenomenon. Several societies
have considered, to a greater or lesser extent, non-binary gender realities, and have
articulated juridical and social mechanisms which promote the effective inclusion of trans
and gender diverse persons. 2014 data from the European Union Agency for Fundamental
Rights (UAFR) related to Portugal, gathered from questionnaires to trans and gender
diverse people, show that more than a half of respondents doesn’t identify themselves, at
least in an exclusive manner, with the gender binary options. This reality is not recognized
by the Portuguese legislation and public policies, which configurates an important
violation of the human rights of these persons.

The definition of gender of a person goes well beyond the visual appreciation of her
external genital organs at the moment of birth and it is not a purely biological concept,
but rather a psychosocial one. The characteristics that configure the personality of each
person must prevail over anatomical considerations. The free self-determination of
gender must be affirmed as a fundamental human right as well as an indispensable part

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of the right to the free development of personality. The concept of gender identity refers
to the individual and internal gender experiences that each person profoundly feels,
including personal experiences of the body and other gender expressions, like clothing,
way of talking and gesticulating. Gender identity is generally accompanied by the desire
to live and to be accepted as a member of the specific gender and, many times, the
inalienable right of modifying the body, via pharmacological methods, surgical methods,
or any other kind, rendering it the most possibly congruent with the gender identity. In
our society, trans and gender diverse people have fought a hard battle in order to be able
to socially develop themselves in the gender they belong to. The difficulties found along
this process are innumerable and the suffering they provoke is considerable. Thus, it is
necessary to produce legislation that facilitates this process and allows for the fully-
fledged development of human potentiality.

Gender identities and expressions different from the binary norm have been
systematically pathologized, but there is an increasing number of voices, in the scientific
as well as in the social domains, that advocate for the definitive depathologization of
gender diversity and for its consideration as one more manifestation of the diversity of
human rights. It is in this sense that the WHO has positioned itself, notably in the beta
version of the CID-11, to be published in 2017, where the diagnostic categories relative to
trans and gender diverse people no longer figure as mental health diagnoses and are
considered, instead, as sexual health conditions of human beings.

The process of recognition of gender diversity has already taken important steps at an
international, European and national level, to convert the treatment of gender diversity
into a question of human rights. The international legislation of human rights consecrates
equality and non-discrimination as basic principles. Article 1 of the Universal Declaration
of Human Rights of the United Nations (UN) establishes the unequivocal affirmation,
“every human being is born free and equal in dignity and rights”. Article 2 of the same
Declaration affirms subsequently that “every human being can invoke the rights and
liberties proclaimed in the present Declaration, without any distinction, notably of race,
color, sex, language, religion, political opinion or other, national or social origin, fortune,
birth or any other situation”, having the UN already declared that this mandate implies the
right to equal treatment before the law and the right to be protected against
discrimination for several motives, including gender identity. In 2006 the Principles of
Yoggyakarta were redacted, about the application of the international right of human
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rights to questions of sexual orientation and gender identity, establishing basic criteria in
order for the UN and its member-states to progress in the assurance of human rights for
the LGBT people. In 2011, the Resolution 17/19 of the Human Rights Council was adopted,
the first UN resolution which explicitly covers equality, non-discrimination and protection
of the rights of all people, regardless of gender identity, and which formally condemns any
act of violence or discrimination in any part of the world.

In regards to the European Council, the article 14 of the European Convention of Human
Rights establishes that “the fruition of rights and liberties recognized in the present
Convention must be assured without distinctions, as the ones founded on sex, race, color,
language, religion, political opinions or other, national or social origin, the belonging to a
national minority, wealth, birth, or any other situation”. The jurisprudence of the European
Tribunal of Human Rights has been dictating, in various sentences, the respect for gender
identity and expression, especially since its first favorable pronouncement in 1996. Also
focusing on this matter, the thematic report of the European Commissary of Human
Rights, published in 2009, that recommends the member-states to “abolish the forced
sterilization and other medical treatments demanded as a necessary juridical requisite for
the recognition of the gender identity of a person”, the recommendation CM/Rec(2010) of
the Committee of Ministers, adopted in 2010, and that recommends to the state members
that “the previous requisites, including the alterations of physical nature for the legal
recognition of a sexual reattribution, must be revised with regularity in order to eliminate
abusive requisites”, and the resolution number 2048 of the Parliamentary Assembly,
adopted in 2015, that recommends to the member-states the creation of procedures for
the recognition of gender identity “based on self-determination” and to “abolish
sterilization and other compulsive medical treatments, including a mental health diagnosis”.
All these recommendations and resolutions also solicit the recognition of free
manifestations of gender identity and expression, the following prohibition of all
discrimination, the clinical support to trans and gender diverse people who might solicit
it, and the establishment of rapid, transparent and accessible juridical procedures that
render this right possible and effective.

Within the scope of the European Union (EU), the Charter of Fundamental Rights
establishes that “the Union is based on indivisible and universal values of human dignity,
liberty, equality and solidarity”. And it prohibits, overtly, in article 21 every form of
discrimination, in particular the type exercised “in reason of, namely, sex, race, color or

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ethnic or social origin, genetic characteristics, language, religion or other convictions,
political opinions or others, belonging to a national minority, wealth, birth, disability, age or
sexual orientation”. On this basis, the EU has been construing a solid body of directives
and resolutions aimed at guaranteeing the free manifestation of identity and gender
expression. Among those normative elements, we can point out the EU legislation which
explicitly protects trans and gender diverse people from discrimination. , notably the
Directive 2004/113/EC from the 13th of December 2004, regarding the access and supply
of goods and services, the Directive 2006/54/EC from the 5th of July 2006, regarding
employment and social security, the Directive 2011/95/EU from the 13th of December
2011, regarding asylum, and the Directive 2012/29/EU from the 25th of October 2012,
regarding victim’s status. We can still mention the systematic work of the European
Parliament, through various resolutions regarding this subject, or the recent action list of
the European Commission for the advancement of LGBTI equality, from December 2015.

In Portugal, article 13 from the Constitution of the Portuguese Republic declares, in its
number 1, that “all citizens have the same social dignity and are equal before the law”,
following, in number 2, that “no one can be privileged, benefited, hampered, deprived of any
right or exempt from any duty in reason of ascendency, sex, race, language, territory of
origin, religion, political or ideological convictions, instruction, economic situation, social
condition or sexual orientation”. On the other hand, article 26, references that “to everyone
are recognized the rights to personal identity, personality development, civil capacity,
citizenry, good name and reputation, image, word, reserve of the intimacy of the private and
familial life and to the legal protection against any forms of discrimination”.

Worth mentioning are the several legislative initiatives aiming at including gender
identity as a category protected from discrimination, notably in the Bill number 27/2008,
from the 30th of June, regarding asylum concession, in the alterations to the Student Status
approved by the Bill number 51/2012, from the 5th of September, in the alterations to the
Penal Code approved by the Bill number 19/2013, from the 21st of February, or in the
alteration to the Work Code approved by the Bill number 28/2015, from the 14th of April.
With the same aim, we emphasize the Bill number 7/2011, from the 15th of March, which
creates the procedure of sex and first name change in the Civil Registry.

Bloco de Esquerda’s Electoral Manifesto for the Legislative Elections of 2015 proposed as
paths the “adoption of European recommendations related to the depathologization of the

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juridical recognition of gender, the recognition of non-binary identities”, as well the
“recognition of personal autonomy to the trans and intersex persons on the decision to
change the sex and name in the civil registry, with guaranteed access to all healthcare
through the NHS”. It also proposed the “promotion of public politics which promote the
inclusion and prohibit the discrimination on the basis of sexual orientation or gender
identity in the fundamental sectors of the State such as Health, Education, Justice and
Security”.

The present Bill tries to respond to the necessities and revindications that have been
manifested by the trans and gender diverse community, notably those that were
expressed in first person in the public audition promoted by Bloco de Esquerda’s
Parliamentary Group on the 5th of May 2015, with the subject “Trans and intersex people:
what recognition and what new rights?”, or in the “Trans Bloco” which spearheaded the
16th March of LGBT Pride in Lisbon in 2015. It also takes into account the opinions
manifested by various activists and organizations for the defense of gender diversity. It
also seeks to answer some of the revindications of the intersex population, including those
which were equally expressed in first person in the referred public audition, as well as
those which have been manifested by the international intersex community, notably by
the participants in the Third Intersex International Forum in Malta (2013) and in the
Intersex European Meetings in Riga (2014) and Athens (2015) and included in the
recommendations of the European Commissariat for Human Rights, in a report from
2015, in regards to the legislation that facilitates the juridical recognition of intersex
people in official documents, respecting their right to self-determination, without any
necessity for the presentation of false diagnoses of “gender identity disorder”.

The bill now presented recognizes the right to gender self-determination, eliminating all
the abusive requisites which constitute an offense to human dignity, present in the
current procedure of juridical recognition of gender, which demands the presentation of
a diagnostic report of mental health, putting in the hands of a third party the decision
about the identity of trans and gender diverse people.

Bloco de Esquerda considers that, beginning at 16-years-old, it must be recognized to any


person the right to gender self-determination. It is equally from that age onwards that a
person can marry and, through that process, emancipate, start to work, pay taxes or even
being criminally liable. The authorization by the legal representatives also opens the

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possibility to the juridical recognition of gender to children and young people. This project
also guarantees the juridical recognition of gender to foreign people who reside in
Portugal and recognizes the changes of registration of name and sex performed in other
States or by foreign judicial sentence. It predicts, in the scope of the National Health
Service, the access to the pharmacological treatments and surgical interventions destined
to establish a concordance between body and the gender the person identifies with,
applying, in the case of impossibility or delay in the HNS to the provision of these services,
the rules already stipulated for scheduled surgeries in regards to deadlines and medical
alternatives through surgery cheques.

It is not limited, however, to the improvement of this administrative procedure, also


promoting measures against genderism and transphobia and guaranteeing the right to
access to health, education and non-discrimination in the work domain. These measures
and, especially, the respect for privacy and the compliance with the dignified treatment of
trans and gender diverse people, can only be effected if the conditions for its applicability
are met. One of those conditions requires that the personal identification document does
not mention the person’s gender. It is important to emphasize that the Identity Card didn’t
mention the citizens’ gender, having this emerged as an integral element of the identity
document, through the Bill nº 7/2007 of the 5th of February, which create the Citizen Card.

In summary, the present project purports turning Portugal into a country that is more
respectful of the human rights of trans and gender diverse people, in accordance with
other countries that have already recognized the right to gender self-determination, like
Argentina, Sweden, Denmark, Malta or Ireland, where there is a prevailment of
procedures which guarantee a better quality of life for many people and a greater
inclusion of a social group that is frequently the target of discrimination, stigma and
violence.

Thus, in the applicable constitutional and regimental terms, the Deputies of Bloco de
Esquerda, present the following Bill:

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Article 1

Object and Nature

1 – The present diploma consecrates the right to gender self-determination, as well as the
terms of its exercise, notably regarding the alteration of the civil registry, and the specific
protection of the access to health, education, work and social protection.

2 – This procedure has a confidential nature, with the exception of a request on the part
of the applicant, his heirs and the judicial or police authorities for investigation or
instruction effects.

Article 2

Definition

1 – Gender identity is recognized as the internal and individual experience of gender, as


each person feels it, which can or cannot correspond to the gender attributed at birth, and
that includes the personal experience of the body, and that might involve the modification
of the physical appearance or body functions by pharmacological, surgical or other means,
if done out of an act of free will, and other gender expressions, like the name with which
one presents oneself to others, clothing, discourse or gestures.

2 – Gender identity is recognized as a personal manifestation of gender identity and/or


the one that is perceived by other.

Article 3

Context

1- Every person has the right to:


a) The recognition of their identity and/or gender expression;
b) The free development of personality in accordance with their gender identity
and/or gender expression;
c) Be treated in accordance with their identity and/or gender expression;
d) Be identified in accordance with their identity and gender expression in the
identification documents, notably concerning the name, photograph and sex
included in these documents.
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2 – No legislative diploma can restrict nor limit the exercise and effectiveness of the right
to gender identity and/or expression.

Article4

Legitimacy and Capacity

1 – The requisition of the alteration of the civil registry can be made by any person who
feels that the first name with which she is registered doesn’t correspond with her gender
identity and/or expression, if the following requisites are met:
a) Sixteen years of age, except in the cases foreseen in the article 5 of the present legal
diploma;
b) Portuguese nationality or a valid proof of residence, including the provisory
authorization of residence attributed to the applicant of international protection;
c) There is no interdiction of psychic disability.

2 – The alteration of the civil registry referred in the previous number obligatorily focus
on the gender, name and photography of the applicant.
3 – To have access to what is disposed in number 1, no person could be obliged to submit
to any pharmacological treatment, medical procedure or psychological exam that limits
her gender self-determination.

Article 5

People under 16 years of

age

1 – The exercise of the right foreseen on article 4 is admitted to people under sixteen years
of age, and, for this effect, the application referred to on article 6 must be made by their
legal representatives, with expressed consent on the part of the underage person.

2 – In case of refusal on the part of the legal representatives to make the application
alluded to in the next article, the underage person, represented on the terms of the
number 2 of the article 1881 of the Civil Code, can take legal action, in which case the

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tribunal should decide in attendance to the progressive autonomy and superior interest
of the child that are part of the Convention on the Rights of the Child.

Article 6

Application and

instruction

1 – The request to alter the civil registry referred to in number 1 of article 4 is done
through an application where the applicant indicates his civil identification number and
the name which he pretends to be identified by.

2 – The application is presented to the Civil Registry and, in the cases foreseen in point b),
of the number 1, of the article 4, in the respective consulates.

3 – The personal identification numbers of the applicant are kept after the alteration of
the civil registry referred to in the number 1 of article 4.

4 – The applicant must, preferably, be identified by the number of his identification


document.

5 – In the new birth ballot it cannot be made any mention to the alteration of the registry.

Article 7

Decision

1 – In the eight days counting from the presentation of the application foreseen on article
6, the conservator, depending on the cases, must:

a) Favorably decide the request and execute the respective endorsement, under the
terms of the article 73 of the Civil Registry Code and, if necessary, a new birth ballot,
under the terms of the number 1 of the article 123 of the same legal diploma;

b) Solicit the perfection of the request if, from its analysis, result errors or imperfections,
and when it presents itself incomplete, as well.

c) Reject the request if, from the analysis of the presented documents, results that it does

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not comply with the requisites foreseen in the number 1 of the article 4, in the number
1 of the article 5, in the case of the number 2 of article 6, there is still not a judicial
decision on the case.

2 – In the hypothesis foreseen on point b) of the last number, the conservator must decide
the request in eight days of time counting from the date of the presentation of the solicited
additional elements.

Article 8

Appeal

From the decision that rejects the request of alteration of the civil registry founded on
point c) of the number 1 of the previous article, as well as in the case of refusal from the
conservator to practice any act with which he is charged under the terms of the present
law, stands the possibility of appeal under the terms of the article 286, and the following
ones, from the Civil Registry Code, with the necessary adaptations.

Article 9

Notifications and rectification of gender information

1 – The government determines by decree the institutions which the Registry and Notary
Institute, with respect to the number 2 of article 1 of the present legal diploma, is obliged
to inform on the effected registry alteration.
2 – The public and private institutions to which these notifications are presented have the
obligation to, by request of the applicant and without additional costs, emit new
documents and diplomas with the new name and sex.

Article 10

Recognition of the alteration of registration effected in a foreign country

1 – The Portuguese State recognizes the alteration of the registration of name and sex
effected by a person of Portuguese nationality who, having an additional nationality, has
modified her sex registration in front of that State’s authorities.

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2 – To the alterations of civil registry admitted under the terms of the present law that
result from judicial decision proffered by a foreign tribunal, it applies the disposed in the
article 978 and the following of the Civil Process Code and in the article 7 of the Civil
Registry Code.

Article 11

Dignified

treatment

1- The gender identity and/or expression adopted by the people who utilize a name
different from the one registered on their identification document must be respected.

2 - If and when the nature of the act of management renders necessary the registration
of data from the identification document that does not correspond to the gender identity
and/or expression of the person in question, the following procedure must be pursued: to
register the initials of the first name which appear on the identification document, the
complete surname, the day and year of birth and the number of the identification document.

3 – Every time the person is called in public it must be employed none other than the
name which respects the adopted gender identity and/or expression.

4 – No one can be discriminated against, penalized or see rejected his access to any kind
of goods or services by reason of the gender identity and/or expression.

5 – There will be adopted all the necessary measures which allow, in any situation which
implies the housing or the utilization of public installations destined to a specified gender,
the access to the equipment which corresponds to the self-determined gender of the person.

Article 12

Access to

health

1 – Every person has the right of access to physical and mental medical care, without
discrimination by reason of gender identity and/or expression.

2 – The National Health Service guarantees the access to surgical interventions and/or

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pharmacological treatments destined to make correspond the body with the gender
identity with which the person identifies, always guaranteeing the informed consent.

3 – The disposed in the number 1 is applicable to sixteen-year-old underaged people


against authorization by their legal representatives, having the underaged the right to, in
the case of refusal by their part, intent a judicial action under the terms foreseen by the
number 2 of article 5.

4 – There will be adopted all the adequate measures to, in strict collaboration with
scientific and educational institutions and associations for the gender diversity rights,
secure the right of the professionals to receive specific formation in these matters.

5 – There will be created indicators relative to the treatments, therapies and


interventions to which the people encompassed by this law are submitted, with detail to
the applied techniques, as well as the registered complications and complaints.

Article 13

Measures against Genderism and Transphobia

The Public Administration, in collaboration with the associations for the promotion of
gender diversity, must try hard to:
a) Systematically conceive, implement and evaluate measures which aim at a better
integration of the people included in the scope of this law;
b) Render special attention to the multiple forms of discrimination, notably the ones
which affect trans women;
c) Develop and implement training and sensitivity programs directed at employees of
public administrations services;
d) Promote sensitivity campaigns, directed at the general public, in order to deconstruct
prejudices and combat discrimination and violence by reason of gender identity and/or
expression, promoting respect for all people.

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Article 14

Non-discrimination in education, science and higher education

The Ministry of Education and the Ministry of Science and Higher Education will adopt the
appropriate measures which aim at preventing and combating discriminatory attitudes
and practices and respecting the right to gender self-determination, notably through:
a) Prevention programs aimed at avoiding discrimination by reason of gender identity
and/or expression.
b) Coordinated mechanisms with the health, educational and social security system, with
the objective of detecting and intervening on risk situations which put at danger the
healthy development of children and young people who manifest a gender identity and/or
expression different from the one which was attributed to them at birth;
c) Implementation of initial and continuous training plans, directed at professors and all
other of the educational system’s professionals, on the subject of gender identity and/or
expression and familial diversity.

Article 15

Professional non-discrimination

1 – In a professional context, no kind of discrimination by reason of gender identity


and/or expression will be allowed, notably in respect to access, promotion and treatment
in the labor context, as well as remuneration, dismissal and disciplinary responsibility.
2 – Professional integration programs and active policies for employment must
contemplate the promotion of the employability of people who socially manifest a gender
identity and/or expression distinct from the one which was attributed at birth.

Article 16

Alteration to the Emolumentary Regulations of Registry and Notary


Procedures

Article 10 of the Emolumentary Regulations of Registry and Notary Procedures, approved


by the decree number 322-A/2001, from the 14th of December, is replaced by the
following:

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“Article 10

(…)

1 - (…):

a) (…);

b) (…);

c) (…);

d) (…);

e) (Revoked by the Decree number 324/2007, from the 28th of

September;

f) (…);

g) (…);

h) (…);

i) (…);

j) (…);

l) (…);

m) (…);

n) (…);

o) (…);

p) (…);

q) (…);

r) (…);

s) (…);

t) (…);

u) (…);

v) (Revoked by the Decree number 324/2007, from the 28th of

September;

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x) (…);

z) (…);

aa) (…);

ab) (…);

ac) (…);

ad) Procedure for the change of sex and correspondent alteration of the first name
effected under the law that recognizes gender self-determination.

2 - (…).

3 - (…).

4 - (…).”

Article 17

Revocatory Norm

Articles 1, 2, 3, 4, and 6 of the Bill number 7/2011, from the 15th of March, as well as the
number 6.12 of the article 18 of the Emolumentary Regulations of Registry and Notary
Procedures, approved by the Decree number 322-A/2001, from the 14th of September,
and the point f), of the number 1, of the article 7 of Bill number 7/2007, from the 5th of
February, will all be revoked.

Article 18

Regulations

It is for the government to regulate the present Bill in the 60 days counting from its date
of entry into force.

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Article 19

Final and transitory

dispositions

1 – The alteration to the civil registry effected under the terms of the present bill does
not dispense the applicant from complying with the preexistent obligations at the date of
that alteration, neither does it affects the fruition and exercise of other already constituted
rights, notably within the scope of family rights relations, in all orders and degrees, which
remain intact.

2 – The present bill applies to all the request of registry alteration starting from its date
of entry into force, independently of the existence of pending procedures related to the
subject in question on a date previous to the validity of the legal diploma.

3 – The revocation of point f), of the number 1, of the article 7 of Bill number 7/2007,
from the 5th of February, does not affect the validity of already emitted citizen cards.

Article 20

Entry into force

The present diploma enters into force on the day following its publication.

Assembly of the Republic, the 17th of May 2016.


The deputies of Bloco de Esquerda,

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