Transsexuality: law and health-related aspects in the Spanish legal

system
La transexualidad: aspectos jurdico-sanitarios en el ordenamiento
espaol
Atienza Macas, Elena1; Armaza Armaza, Emilio Jos2
1

Doctor in Law. Researcher, Interuniversity Chair of Law and the Human Genome, Universidad de
Deusto and Universidad del Pas Vasco (UPV/EHU), Bilbao, Spain. elena.atienza@deusto.es
2
Doctor in Law. Researcher, Interuniversity Chair of Law and the Human Genome, Universidad de
Deusto and Universidad del Pas Vasco (UPV/EHU), Bilbao, Spain. emilio.armaza@deusto.es

ABSTRACT
The social weight of transsexual groups has been and continues to be crucial in many aspects
regarding transsexuality, from the progressive elimination of discrimination to influence in the
legislative branch. This paper especially discusses a classic demand of these groups, comprehensive
medical treatment of transsexual people within the National Health System. Thus, progress in the
development of an adequate healthcare system for these groups, their treatment in the legal systems
of Spain in general and of some of its autonomous communities with more noteworthy laws
(especially in Andalusia, an autonomous community that has been pioneering in this regard, as well
as the Basque Country and Navarre) and remaining challenges will be observed in this work. The
article will also take particular note of the substantial developments that the publication of the Fifth
Edition of the Diagnostic and Statistical Manual of Mental Disorders has established in this area.
KEY WORDS Transsexualism; Gender Identity; Health System; Human Rights; Discrimination; Spain.
RESUMEN
El fenmeno de la transexualidad es un asunto en el que el peso social, en concreto de los colectivos
transexuales, ha sido y sigue siendo crucial en muchos aspectos, desde la progresiva eliminacin de
la discriminacin hasta la influencia para que el poder legislativo se pronuncie. En este artculo de
investigacin se tratar especialmente una de las reivindicaciones clsicas del colectivo, esto es, el
tratamiento sanitario integral de la persona transexual dentro del Sistema Nacional de Salud. En este
sentido, se observarn los avances en el desarrollo de un sistema sanitario adecuado para este
colectivo, su tratamiento por parte de los distintos ordenamientos jurdicos en Espaa, en general, y
en alguna de sus comunidades autnomas con legislaciones ms destacables (en especial Andaluca
como comunidad autnoma pionera, el Pas Vasco y la Comunidad Foral de Navarra) y los retos
pendientes, haciendo una especial investigacin en torno a las sustanciales novedades que ha
implantado en este mbito la publicacin de la quinta edicin del Manual diagnstico y estadstico de
los trastornos mentales.
PALABRAS CLAVES Transexualidad; Identidad de Gnero; Sistema de Salud; Derechos Humanos;
Discriminacin; Espaa.

STATUS OF THE ISSUE

An accurate study of the transsexuality phenomenon unavoidably requires an
interdisciplinary approach (1) which does not only involve the legal aspect of the

case in a very real sense as in the case of human rights (2-4) and, specifically, the
legal-medical aspect of the case, which is the object of this text (a), but it needs to be
provided with information from other disciplines, such as Medicine, Psychology,
Sociology, Ethics, Philosophy (5), also taking into account that this has been a topic
of political discussion, which caused the legal fluctuations experimented by the
subject (6).
Hence, the passing of the Act 3/2007, on March, 15th, which regulates the register
rectification concerning peoples sex (7) (hereinafter referred to as Act 3/2007) has
become a milestone, especially considering the inclusion of this subject in Section
10.1 of the Spanish Constitution, which proclaims the dignity and the development of
personality and, therefore, implies acknowledging a controversial right to sexual
identity (8) Concerning this analysis, the elimination of the sex reassignment
surgery as an unavoidable requirement for the register rectification, which was
demanded by means of case-law, is very significant.
Between the pros of this Act are the fact that register rectification is no longer a legal
procedure, but an administrative one, which does not require surgery for the name to
be changed; it presents, however, some disadvantages, according to critics, given
that it forces the applicant to undergo a two-year long hormone therapy (with a
subsequent risk of sterilization), and that it requires a psychiatric diagnose (gender
dysphoria), in order for the Act to be applied. It is, besides, an essentially civil act,
directed only to the register sphere, and it does not answer to the requests of the
concerned groups, which currently lead to an integral or multidisciplinary gender
identity act that regulates (as done by Autonomous Communities such as Navarre
and, more recently, the Basque Country) transsexuality in all of its aspects and,
among them, the one concerning health care.
CONCEPTUAL DELIMITATION
Origins and terminological clarification
Transsexuality is not a recent reality, what is fairly recent is its surgical treatment
thanks to the medical progress (b). Transsexuality has existed since Ancient times
and in different cultures; however, it has acquired social and scientific importance in
our times. In 1953, Harry Benjamin (c) coined its first definition:
True transsexuals feel that they belong to the other sex, they want to be and function as members of
the opposite sex, not only to appear as such. For them, their sex organs, the primary (testes) as well
as the secondary (penis and others) are disgusting deformities that must be changed by the surgeons
knife. (9)

The terminology used to refer to this phenomenon is not univocal at all, and it can be
seen in the text of the Act 3/2007: the Preamble talks about transsexuality and
gender identity change; Article 4, about diagnosis of gender dysphoria, and medical
treatments to adjust the physical characteristics to the ones belonging to the required
sex, or about sex reassignment surgery; and Final Provision 2 talks about cases of
gender dysphoria. In this paper, the term transsexuality was chosen given that it is
the most widespread one and, because it is the term that the psychologists and the
transsexual community itself have chosen; besides, this term is the one currently
listed in the International Classification of Diseases 10th Revision, published by the
World Health Organization (7 p. 136).

The underlying idea behind all this defines the transsexual as a person whose sexual
or gender identity is the opposite to his or her biological sex; that is to say, his or her
sexual identity is in conflict with his or her anatomy. This could be the psycho-sexual
syndrome suffered by someone who psychologically feels that they belong to one
sex, but they anatomically, and according to their vital records, belong to the
opposite one, which is the sex they belong to as regards their organs. In order to
correct this difference, they rely on a surgical treatment, and later try to reflect their
new identity at the Civil Registry (10 p. 200).
Contrast between similar concepts
Transsexuality vs. homosexuality, transvestism, intersexuality
As happens in other fields, in the legal sphere has commonly existed confusion
between sex, gender and sexual orientation. Thus, transsexuality was not legally
acknowledged, and was compared to homosexuality: however, the homosexual is
well settled on their gender and does not doubt about their sexual identity. Precisely,
due to its decriminalization in 1979, it is possible to talk about the legalization of
issues concerning transsexuality independently. On the contrary, transvestites do not
loathe their own anatomic sex, but the person finds a means to satisfy their libido by
cross-dressing, without there being the slightest doubt of their sexual identity.
Likewise, the differential diagnosis must be done with the physical intersexuality,
which is characterized by the sex ambiguity, that is to say, it is anatomically and
hormonally indefinite. That would suggest the assimilation of an imperfect
personality, but not of a change, as happens to the transsexual (11).
Transsexuality and sex reassignment surgery
Habitually, the concepts of transsexuality and sex reassignment surgery (SRS) are
related. The SRS is a surgical treatment on which the transsexual relies in order to
adjust their anatomical or biological sex to the one they really live or feel, that is to
say, their psycho-social sex. Therefore, from a medical point of view, the sex
reassignment surgery may consist of surgical procedures carried out in men and
women in order for their anatomical sex and their sexual identity to be in harmony. It
may focus on the genitals called genital reconstruction or reassignment surgery ,
among which the vaginoplasty, metoidioplasty, or the phalloplasty can be found.
There are also feminizing or masculinizing operations, such as mastectomy or facial
surgery (7, 10).
The first surgery of this type known by the media in 1930 similar interventions had
been carried out in the USA was the one made in Copenhagen to George (later
Christine) Jorgensen, on December 3rd, 1952 (11 p. 610). This event generated an
intense and polemic legal debate regarding the admissibility or criminalization of this
medical practice. In Spain, the year 1983 is considered a key year, given that in that
year the legislature expressly decriminalized this surgery, which was, until then,
subsumed within the criminal injuries (these operations, which modified the
anatomical sex, were included within what was called castration). Thus, the Reform
of the old Criminal Code through the Organic Law 8/1983, enacted on June 25th,
included, in its Section 428, 2nd paragraph, the so-called transsexual surgery as one
of the assumptions by which the adult and competent patient exempted the
professional from any criminal responsibility on injuries (Sections 418, 419, 420 and

428). The new Criminal Code amended by Constitutional Act 10/1995, on

November 23th keeps the same decriminalizing tone (Section 156), and, in this
way, the applicants consent gains especial potentiality (d).
Medical approach
Transsexuality as a mental illness, considerations about its possible
depathologization
It is important to point out that transsexuality is considered a mental disorder since
1980, and that it currently appears in the most far reaching international manuals of
mental disorders, such as The ICD-10 Classification of Mental and Behavioral
Disorders: Diagnostic Criteria for Research, by the World Health Organization
(WHO), whereas in the fourth edition of the Diagnostic and Statistical Manual of
Mental Disorders (DSM-IV-R), published by the American Psychiatric Organization
(APA), transsexuality appears as gender identity disorder. Nonetheless, this term
has been eliminated as will be explained in detail below after the same prestigious
organization published the fifth edition of the Diagnostic and Statistical Manual of
Mental Disorders (DSM-V), which is the current edition.
As a consequence of such categorization, there is a medical diagnosis related to the
dissociation between the biological sex and the socially assigned gender called
gender dysphoria and which, in broad strokes, refers to the anxiety created by the
conflict between the sexual identity and the assigned sex. The Act 3/2007 talks about
this and, as one of its premises, it precisely demands a gender dysphoria diagnosis.
Despite the fact that the main international diagnostic classifications of diseases
include transsexuality as a mental disorder or disease, there are progressively more
prestigious experts and researchers who seriously think of removing this type of
pathological label, that is to say, that they stand up for uncatalogging transsexuality
as mental disease. Among the reasons behind promoting its depathologization (14)
which is not the same as demedicalization, because, as will be discussed below,
the integral health care is one of the historical concessions of this group, not based
on it as an illness, but as a so-called significant clinical discomfort (15) there is the
suggestion that this fact may help abolish the stigmatization suffered by the
transsexual population when they are treated as ill, premise that increases social
rejection and generalized transphobia (16). On the other side, this declassification
would replace the current authorization method, which implies complying with some
therapy protocols (such as the above mentioned diagnosis and medical therapy) for
a regime of patients autonomy and informed consent.
News brought by the DSM-V: conceptualization of transsexuality as gender
dysphoria
On May 18th, 2013, the American Psychiatric Organization (APA) as part of its
annual congress, which took place between May 18th and May 22nd, and was held
in San Francisco, USA published the fifth edition of the Diagnostic and Statistical
Manual of Mental Disorders, DSM-5 (17). This new edition replaced the fourth
version of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-R),
published in 1994 (e).

It is important to point out that the DSM is based on empiric information and has a
descriptive methodology, and both aim to improve communication between
practitioners of various orientations, and between general practitioners with different
researchers. In this sense, this manual does not aim to explain the different
pathologies and/or suggest pharmacological or psychotherapeutic treatments, or to
hold on to a specific theory or current within psychology or psychiatry. A very
frequent misconception is thinking that the classification of mental disorders
classifies people, when what it really does classify is the disorder that people suffer.
It is important to clarify that this manual must always be used by people with a
clinical experience, because it is used as a guide that should be accompanied with a
clinical judgment, besides the professional knowledge and the unavoidable ethic
criteria.
As regards the former version (DSM-IV-R), the DSM-5 (18) includes changes
concerning the organization of disorders in the manual, and bases their explanations
on their appearance in the life cycle, that is to say, developmental disorders first, and
neurocognitive disorders at the end. Throughout the whole manual, disorders are
classified according to the patients age, sex, and developmental characteristics, and
the multiaxial evaluation system was eliminated, given that it generated artificial
distinctions.
In effect, between the amendments on this prestigious manual, which the APA has
revised after twenty years, with the purpose of including the most recent scientific
breakthroughs, what precisely stands out is the exclusion of transsexuality from the
list of mental disorders (or gender identity disorder, as it was called on the former
edition, DSM-IV-R) (19).
Therefore, there is a great change, which is that the term gender identity disorder
has been replaced by gender dysphoria in the last edition of the manual. This
change on the nomenclature has been very controversial, and has generated diverse
points of view. On one side, some sectors support the replacement of this term,
especially the ones who stand for a total depathologization, such as the activists of
the campaign Stop Trans Pathologization, because they think of the former
classification as denigrating and damaging, given that it increased the stigma
around transsexuality. Some opinions on this topic argue that this change
represents significant conceptual and therapeutic differences, which depathologize
the transsexual identity. Dysphoria, antonym of euphoria and synonym of discomfort,
appears as the main symptom of the diagnosis, distancing from the inherence of the
term identity, that was present in the former classification. This means that
experiencing or not some type of discomfort related to the assigned gender is a
possible but not determining element of the transsexual experience. Other
perspectives point out that this new classification represents a change of scenery
but not of situation, because psychiatrists and psychologists were already using the
discomfort generated by the sex-gender discordance as main diagnosis element. In
conclusion, this term does not satisfy the affected groups, because they understand
that, even though, the negative connotation of transsexuality is reduced (the word
disorder is no longer in use), there is still a pathologizing connotation (f). This
edition does not meet the expectative of different associations and groups of
transsexual people who remained hopeful that transsexuality would disappear from
the diagnostic classifications, as happened with homosexuality in the 1970s.

LEGAL TRASCENDENCE
The starting point is placed on the European Parliament Resolution, enacted on
September 12th, 1989, about discrimination towards transsexuals and, specifically,
on the Recommendation to the transsexual condition, which was passed on the
same year by the Parliamentary Assembly of the Council of Europe. Through that
Recommendation, the Assembly urged the Committee of Ministers to create a
document inviting the member States to legislatively rule the cases of irreversible
transsexualism. In connection with that, the legal solutions provided by the member
States of the European Union have been dissimilar: some have offered a legal
answer to transsexuality (g), whereas others have moved within the merely
administrative aspect or the case law. In Spain, passing the Act3/2007 fills the
loophole where transsexuality remained transsexuality kept saving itself through
case law, in a certainly controversial and oscillating provision , deleting uncertainties
and providing more legal security.
Case-law position: European Court of Human Rights and Supreme Court
The European Court of Human Rights (ECHR) has pronounced significant
judgments regarding this problem, establishing that the quid of the question is in
Sections 8, 12 and 14 of the European Convention of Human Rights (ECHR), which
talk about the right to private and familiar life, right to marry and prohibition of
discrimination (20), respectively. Despite the fact that its tendency was, at first, not
very inclined to the legal consequences of transsexuality, the panorama changed
since the emblematic sentence passed on March 25th, 1992 (Sentence Lyne Botella
v. France), in which the French state was sentenced for not acknowledging the
psycho-social sex of the plaintiff, denial that was considered an affront to Section 8
to the ECHR. Nevertheless, the Sentences I. v. United Kingdom and Christine v.
United Kingdom, passed on July 11th, 2002, were significant enough to talk about a
judgment change. In both, the United Kingdom was condemned because of violating
the transsexuals right to a private life, to form a family, and to marry according to
their sexual identity (Sections 8 and 12 of the ECHR), given that a surgery had been
carried out.
Discussing the case law coming from the ECHR, the Supreme Court kept a firm
position regarding the demand of the sex reassignment surgery conditio sine qua
non for the change in order to change the sex and, consequently, the name (h).
This position, after the passing of the Act 3 /2007, is amended in a key sentence, the
sentence passed by the Supreme Court (STS) on September 17th, 2007, which,
according to such act, exempts transsexuals from the requirement of such surgery.
Answer given by the Spanish Legislature
Regulation of transsexuality at a State level
a) Main purpose and object
The Spanish legal answer to transsexuality relies on the Constitutional Rights
acknowledged in Section 10 of the Spanish Constitution, where the Preamble
establishes that:

 it is about a social reality that demands an answer from the legislator, in order for the first record
designation of sex and the proper named to be modified, with the purpose of guaranteeing the free
development of personality and the dignity of the persons whose gender identity differs from the sex
with which they were formerly registered. (23)

This point is crucial. For a long time there have been groups demanding their right to
sexual identity, and this act seems to acknowledge, although implicitly, a right to
sexual identity or a right to gender identity (24). Before this regulations, and precisely
because there was no legal premises, the direct application of the Constitution had
been suggested, especially after the constitutional acknowledgement of the free
personality development (25). Of course, this was the path followed by the Supreme
Court in sentences passed before the act (STS on July 15th, 1988, March 3rd, 1989,
April 19th, 1991, and September 6th, 2002, as discussed before), as premises of the
change in the focus. However, the first sentence passed after the enactment of the
Act STS on November 17th, 2007, previously mentioned , makes an explicit
declaration, as it establishes that such a right:
implies, given the prevalence of psycho-social factors in determining sex that should take
precedence in the assumptions of gender dysphoria, a right to hold sexual identity as an expression of
personal identity, which is a benefit of personality. (26 p. 10) [italics added]

The aim of the Act 3/2007 is regulate the requirements needed by a person to have
their recorded sex changed in the Civil Registry, when such record differs from their
real gender identity; it considers, as well, the change of the persons proper name, in
order for it not to discord with the demanded sex. The record rectification of sex and
the change of name are aimed to validate the change that was already made in the
gender identity as a true fact, for the legal security and the public interest demands
to be guaranteed. To that effect, said change of identity must be duly confirmed, and
the record rectification will be carried out according to the governmental documents
of the Office of Vital Records (i) (27).
b) Requirements to change the sex designation in the registry
1. Gender dysphoria diagnosis: The compliance with this requirement can be
confirmed by means of a report written by a general practitioner or psychologist, in
which report he can prove the existence of a discordance between the morphological
sex or physiological gender that initially appeared in the record and the gender
identity that the applicant feels, which the Act defines as psychosocial sex (j), as well
as the stability and persistency of this discordance and the absence of any
personality disorder that could decisively have an influence on the existence of such
discordance. The act does not require that gender dysphoria be diagnosed by two
specialists in a simultaneous or consecutive way, but it states it can be in an
alternative way: a general practitioner or psychologist.
2. Medical treatment for at least two years: Such treatment is aimed at adjusting the
physical features of the subject in question to the ones typical of the requested sex.
The compliance with this requirement shall be confirmed by means of a report that
the Act prefers to be prepared by the doctor that has conducted the treatment or,
otherwise, by a specialized forensic doctor. The legal expression "that (the person)
has received medical treatment" refers to the hormone therapy, if we pay attention to
the medical context - such treatment offers a temporal continuity that a surgery lacks
- and a normative context of the precept. Said therapy, in accordance with Act

3/2007, has to be provided for at least two years in order to adjust the physical
features to the ones that belong to the requested sex (k).
Article 4.2 of Act 3/2007 is fundamental, since it explicitly states that " in order for a
person to change the sex they were assigned in the registry, it will not be necessary
that said person has undergone a sex reassignment surgery as part of the medical
treatment" (30). The fact that a sex reassignment surgery is not required represents
one of the most significant aspects of this Spanish act -and a change of focus
regarding the criterion that the Supreme Court applies (31) - that responds to one of
the historical claims of the transsexual collective. However, even though it is not
required by law, some transsexual persons decide to undergo this kind of surgery,
and in order to do that they need a positive diagnosis report, a time period to have
elapsed from the beginning of the hormone therapy (previous), legal age, and the
express and signed request of the applicant. In this context - hormone therapy and
surgery - the right to receive information and to give informed consent in an
adequate way, for both treatments, and in an express and individual way, gains
greater prominence, in accordance with what is set forth in Article 8 of Act 41/2002,
passed on November 14th, which acts as the sole regulating entity of the patient's
autonomy, rights and obligations in the area of clinical information and documents.
In addition, the medical reassignment treatment can be excepted from a general
content when health or age reasons render impossible its monitoring and when
medical certificates are provided unavoidably to confirm that (23). It can be
emphasized that, as the act, besides eliminating the precedent requirement that is
the sex reassignment surgery, it also permits to except it as a requirement for the
physical reassignment (l).
c) Method
The process to change the registry has to follow the governmental procedure (Article
2.1) set forth in the Act passed on June 8th, 1957, of the Civil Registry, in particular
articles 93 to 97, a set of regulations that will be abrogated as from June 22nd, 2014,
by the enforcement of Act 20/2011 of the Civil Registry, passed on June 21st. The
second final provision of Act 3/2007, in its fourth section, precisely amends Article 93
in order to expressly include gender dysphoria, which shows a clear difference
regarding the wrong designation of sex:
The wrong designation of sex when theres no doubt about the identity of the
person by any other circumstance, as well as the designation in the registry
regarding the sex of persons in the cases of gender dysphoria. (23 p.4) [Italics
added].
A significant change was produced regarding the previous situation in which the
court proceeding for the ordinary declaratory judgement for the change in the registry
had been consolidated. In this respect, both the General Administration of Registries
and Notaries and the Supreme Court had considered the court decision as the
suitable procedural course to change the sex designation of the transsexual person
in the registry. In relation to that, Act 3/2007 refers to the governmental file that
permits the change without the need to have a final court decision (30).

The recognition of the judicial effects of such change gains special interest in the civil
level. The second paragraph of Article 5 of the Act provides that the change in the
registry will permit the person to exercise all the rights inherent to his new condition
(23). In that way, the Act, despite keeping the issue of transsexuality in the sphere of
the Civil Registry, provides full non-criminal consequences to the change, which as a
result puts the person in the same level with the new sex (m).
To summarize, the work of the legislative branch is praiseworthy, because it
addresses the principal vindication of the groups that are directly affected, that is to
say, the legal recognition of the change of the sex designation and the name of the
transsexual person in the registry. It is also significant that it does not need the
gender reassignment surgery to be a requirement and that it resorts to the
governmental file, in that way taking the process out of Court.
Comprehensive transsexuality act: de lege ferenda proposals
As a premise, it is important to establish that from the beginning, the Spanish
legislative branch rejected the legislative option of creating a comprehensive act
concerning gender identity, since it is essentially a civil act. In that way, transsexual
associations (n) had claimed the passing of a comprehensive act for the right to a
sexual or gender identity that takes into account not only the change in the registry,
but also that includes actions aimed at the health sphere, the penalization of
transphobia, the right of asylum, the penitentiary and labor sphere, among other
aspects (o).
As for health aspects, Article 43.2 of the Spanish Constitution, which recognizes the
right to health protection, is taken as a starting point. It is understood that health is
not only defined as the absence of a disease, but in a more general way, it is the
enjoyment of a general well-being, be it psychological, mental, and social, that helps
to achieve a full personal development. Within this context, we have to include the
need that transsexual people have for a medical treatment. Otherwise, we will fall
into a paradox, in that, on the one hand, the affected groups request a
comprehensive health care (especially, the inclusion of the gender reassignment
surgery within the National Health System) but, on the other hand, they advocate for
the de-pathologizing of transsexuality (it is a common characteristic among
transsexual people, as regards patients, their refusal to be treated as ill people).
Therefore, the most reasonable argument would be to frame transsexuality into
health in a broad sense, as the wish to achieve the comprehensive well-being.
In fact, currently, the National Health System does not include in its health coverage
the comprehensive treatment for the sex reassignment (p), although some
Autonomous Communities have decided to cover costs on their own. In this respect,
Andalusia was the Autonomous Community that paved the way: in 1999, its
parliament passed the provision of health services to transsexual people within the
Andalusian Public Health System (36). It is important to emphasize the fact that on
that same year, the Health Ministry of the Regional Government of Andalusia created
a Gender Identity Disorder Unit at the Carlos Haya University Hospital in Malaga,
which is a reference center at a national level, since it provides transsexual patients
from other Autonomous Communities with care. Also in that year, Madrid and
Catalonia started to provide specialized care in the areas of mental health and
endocrinology, although it did not included surgeries and official recognition until

2007 and 2008 respectively. It is worth noting that, at the same time, the Community
of Madrid created the Multidisciplinary Unit for the Assistance to the Gender Identity
Disorders in 2007. For its part, the Basque Country incorporated the genitoplasty
surgery in 2008. Other autonomous communities (such as Aragon, Asturias,
Valencian Community, Canary Islands, Navarre) have a health care protocol for the
gender identity disorders but do not incorporate sex reassignment surgery in a
comprehensive way (37).
In conclusion, this is a complex and highly controversial issue. One of the main
obstacles is the high cost that clinical sex reassignment treatments represent. For
that reason, comprehensive health care in the public sphere is one of the historical
claims of the transsexual community. At first, they claimed for its inclusion through a
gender identity comprehensive act that dealt not only with civil matters, but also with
social and health policy in the parliamentary process of Act 3/2007. Once we dismiss
the idea of a comprehensive act that addresses this health issues, among others,
current efforts are focused on the inclusion of benefits in the National Health System
common services portfolio.
Regulation of transsexuality in the autonomous sphere: The cases of the
Chartered Community of Navarre and the Basque Country
Charter Act 12/2009, passed on November 19th, against discrimination for reasons
of gender identity and the rights of transsexual people, was a pioneer as regards the
addressing of gender identity and transsexuality in a comprehensive and related-tohuman-rights way, and its Statement of Reasons uses as arguments Article 14 of the
Spanish Constitution, the European Parliament Resolution from September 12,
1989 on discrimination against transsexual people, the judicial legislation of the
ECHR, and the Yogyakarta Principles. In that way, a multidisciplinary act was
chosen, which meets health needs along with psychological and social needs of
the transsexual collective and that, for such purpose, provides a wide and direct
health coverage within the public health system of Navarre, which includes the
training of professionals in health care, the publication of a clinical guide, and the
promotion of investigation on transsexuality. Specifically, regarding the sex
reassignment surgery, it sets forth that certain treatments and surgeries can be
referred to public or private hospitals that have a specialized service in sex
reassignment surgery and meet the appropriate health standards. It also states that
the Navarre Health Service (Osasunbidea) will afford the costs originated from trips,
accommodation, and the medical-surgical treatment of the transsexual person in
question.
This initiative (q) was followed by the Autonomous Community of the Basque
Country, which has recently passed Act 14/2012, on June 28th, against
discrimination for reasons of gender identity and for the recognition of the rights of
transsexual people. By following its predecessors trail, it plans like Navarre to
create a reference unit in the field of transsexuality within the Basque Health Service
(Osakidetza) that will include professional staff specialized in medical, nursing,
psychological, psychotherapeutic and sexological care. At the same time, it should
be noted that a clinical guide for the treatment of transsexual people was created,
and its aim is to assemble the necessary professional agreement in the fields
concerned. It is worth emphasizing that the Basque Health Service (38) is expected

to provide within the limits of free public health services diagnoses, hormone
treatments, and also plastic surgical procedures.
FINAL NOTES
a. This research is part of the Program for the Training of Research Staff for the
years 2012-2015, that depends on the Agency for the Promotion and Management
of Research-DEIKER from the University of Deusto. This article originated from a
larger research that appeared at the Convention on the Right to Health, published in
Spain by the legal publishing house Aranzadi in 2012, and was titled The legal
treatment of surgeries to the human reproductive system: Sterilization, chemical
castration, and sex reassignment surgery. As it can be deduced from the title, the
authors paid special attention to sterilization and chemical castration, and left the
issue of sex reassignment surgery (SRS) on a second level. Therefore, this is an
independent piece of work since, on the one hand, the authors put extra effort in
placing the focus exclusively on the issue of transsexuality, and adapting it to the
typical demands of a research article whereas, on the other hand, its studies have
broadened, developed, and updated, since it included the relevant and substantial
news that appeared in this period of time, introduced upon the publication of the fifth
edition of the Diagnostic and Statistical Manual of Mental Disorders on May 18th,
2013.
b. The first surgery was recorded in 1952, as we will detail in the related section.
c. With his work The Transsexual Phenomenon, in 1966 he starts medical research
in this area and, as a result, it appears the syndrome known as Harry Benjamin
Syndrome, which is related to transsexuality, and the Harry Benjamin International
Gender Dysphoria Association (HBIGDA) is created.
d. It is about a valid, free, conscious, and express consent given by the owner of the
legally protected interest that has not been obtained by means of defects such as
price, reward or that its grantor is underage or incapable (13).
e. It is necessary to explain that it was subsequently revised and that the edition that
was in effect up to 2013 was the DSM-IV-TR, which dates back to the year 2000.
f. Stop Trans Pathologization understands that regarding the category of Gender
Dysphoria [] we notice a certain influence of the critical debates that arose in the
last few years. In this respect, we can highlight the fact that they tried to reduce the
stigmatizing burden that this category imposes by changing the title (from Gender
Identity Disorder to Gender Dysphoria), and also the intention to achieve
recognition of gender diversity beyond a binary model through the introduction of the
phrase or some alternative gender different from ones assigned gender [] in
diagnosis criteria (21 p.6).
g. Sweden paved the way by means of an Act passed on April 21st, 1972 on the
designation of sex in established cases. Germany followed it with an Act passed on
September 10th, 1980 on the changing of the name and on the designation of sex
belonging in specific cases; then, the Italian Act 164, from April 14th, 1982, Norme in
mateia di rettificazione di attribuzione di sesso and the Dutch Act from April 24th,
1985. Later, several successive acts were passed in countries such as Turkey (Act

from May 12th, 1988), Denmark (Act from October 1st, 1989), and Norway (Act from
August 1st, 1993).
h. Among the most significant Supreme Court decisions we highlight: decisions from
July 2nd, 1987, July 15th, 1988, March 3rd, 1989, and April 19th, 1991 (22).
i. For such purpose, it was amended by this Act Article 54 of the Civil Registration Act
from June 8th, 1957.
j. A review about it was written by ngela Aparisi Miralles (28), who observes that the
Spanish act is based on an exclusively socioeconomic point of view that reduces
gender identity to personal and social self-consciousness (situation in which the
United Kingdom is in since the Gender Recognition Act was passed and enforced on
April 4th, 2005) that ignores the biological element that, along with the socioeconomical factor, composes two of the factors that are essential for the creation and
development of human gender identity.
k. The international scientific and medical community seems to agree with a period
of time like this. In that way, specialists in this field affirm that the first effects related
to hormone treatment start being noticed between the sixth and eighth week, and the
change is completed approximately within six and twenty-four months (7 p.151-152).
l. Rubio Torrano (29) notices that this position, that is wide and permissive when
facilitating the sex change in the registry can lead to an extreme situation in which, in
the event there is no sex reassignment surgery or hormone treatment, it could be the
case that the morphological changes in which the registry correction would be
based, may not be evident.
m. For that reason, there would be no limitations related to the right to get married,
as it was held by the Supreme Court (decision of April 19th, 1991) and was
discussed by the doctrine, which debate is nowadays trivial because of Act 13/2005
from June 1st, by which the Civil Code was modified in what respects to the right to
get married, which now allows the marriage between same gender persons (32).
n. It has been especially active the labor of, among others, the Spanish Association
of Transsexual People SATP Transexualia, LGTB collectives (gays, lesbians,
bisexuals, and transsexuals) or, at a supranational level, The World Professional
Association for Transgender Health (WPATH) (34). Refer to the book Undoing
Gender by Judith Butler (35).
o. Although, it is true that Spain has made decisions that affect some of these fields.
In that way, they could solve the issue of admission to prisons, allowing the
admission to prisons for men or women in accordance with the gender identity they
express, which has to agree with the mandatory medical and psychological
assessment reports and the recognition of the gender psychosocial identity
(Provision 17/2006, passed by the General Direction Of Penitentiaries, on
penitentiary integration of transsexual people). In the same way, the Organic Law
3/2007, passed on March 22nd, for the effective equality of men and women,
regulates the right of asylum and the condition of the refugee, and in that way makes
possible the granting of the right of asylum to those foreign women that ran away

from their home countries because of the justified fear of being harassed because of
their gender.
p. It implies that nowadays transsexual people have to resort to private medicine in
order to have the necessary medical or surgical treatment. In accordance with the
abovementioned Resolution from September 12th, 1989, passed by the European
Parliament, in which member countries were urged to provide transsexual people
with access to a comprehensive health care, some of the countries that provide this
coverage are the Netherlands, Sweden, Norway, and the United Kingdom, while
other countries provide a partial coverage for the treatment, such as Switzerland,
France, or Germany.
q. Along this same line, Andalusia plans on passing soon a similar act, while the
proposal for a comprehensive transsexuality act Bill against discrimination for
reasons of gender identity and in favor of the recognition of the rights of transsexual
people was published on February 13th, 2013 in the Official Bulletin of the Parliament
of Andalusia and then sent to the Council of the State. And when this piece of work
was finished, the full Parliament of Andalusia on April 11th, 2014, gave its unanimous
approval to the taking into consideration of the comprehensive bill for the rights of
transsexual people from Andalusia. In this future text will be included measures to
guarantee educational, social, familiar, and health care to transsexual people. In fact,
in the health field, the Andalusian Health Service is expected to apply a
comprehensive procedure of gender reassignment and safe and high-quality
multidisciplinary health care. Its services portfolio will provide treatments and
surgeries, in that way reducing unnecessary trips. In addition, the Comprehensive
Plan of Training of the public health system will develop training actions specific to
this field of studies. In addition, minors will be fully entitled to receive the necessary
health care in order to ensure the balanced and healthy development of his gender
identity, paying special attention to puberty. Health care provided within this sphere,
shall comply with what is set forth in the autonomic acts of minors and of rights in
connection with clinical information and documentation.
ACKNOWLEDGEMENTS
This paper was written thanks to the Universidad de Deusto through its Grants
programs for the Training of Investigation Staff in its 2012-2015 call (Program to
which Elena Atienza Macas is assigned). Likewise, the authors thank the Help
received from the Education, Universities, and Research Department of the Basque
Government to support the activities carried by research teams (Interuniversity Chair
Regional Council of Biscay of Law and the Human Genome), Universidad de Deusto
and Universidad del Pas Vasco (UPV/EHU) of the Basque university system with
reference IT581-13.
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