Law 164 between right and freedom of self-determination

Being visible and recognised for who you are: a right not taken for granted for transgender people who ask for a sex change on their birth certificate. In Italy it is possible to do so under law 164/1982, which authorises the rectification of sex attribution once sexual characteristics have been changed. While allowing a right that was hitherto denied, 'if we compare law 164 today with what happens in many other countries - Spain, Belgium, Malta, Germany - the Italian law still requires the person in affirmation of gender identity to appear before a judge to affirm their gender identity and change their personal data,' comments Angelo Schillaci, professor of comparative public law at Sapienza University.

Recognition of gender identity is tied to 'intervening changes in sexual characteristics' ordered and verified by the court: a crucial node that, in the wake of pathologising definitions of gender dysphoria - removed from the list of mental illnesses by the WHO in 2018 - undermines the right to self-determination. But, Schillaci points out, 'the wording of the law is sufficiently broad to allow jurisprudence, as of 2015, to interpret it in a way that is more favourable to the person'.

Both the Court of Cassation (Sent. 15138/2015) and the Constitutional Court (Sent. 221/2015) have ruled that the correct interpretation of Law 164 excludes the need for surgical treatment for the purpose of registry rectification. "The rulings give space to the individual person's choice," Schillaci continues, "because they recognise that there is no single scheme for affirming gender identity that necessarily includes surgery. In the application of the law, this implies a substantial change: 'The request is no longer divided into two procedures, one conditional on the other, but into a single application in which one asks for registry rectification and, if the person so wishes, also authorisation for surgery'. The steps forward in other countries - in Spain sex rectification is based on the declaration of will - pave the way for untangling the remaining knots.