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A Journal on Forensic Medicine
Minerva Medicolegale 2016 June;136(1-2):1-7
The need for surgery for surgical sex reassignment and constitutionally oriented interpretation of health protection: the wavering trend of substantive jurisprudence
Debora FARINA, Carmelo RAIMONDO, Fabio CASTRICA, Paola MANCARELLA, Vittorio GATTO
Dipartimento di Scienze Anatomiche, Istologiche, Medico Legali e dell’Apparato Locomotore, Università “Sapienza” di Roma, Roma, Italia
Since its original formulation the ambiguity contained by the terms used by the Legislator in the regulations on sex registry reassignment has fostered doubts of interpretation that still feed doctrinal and jurisprudential debates. The issue concerning the compulsoriness or not to proceed to demolitive/reconstructive surgery is of undoubted importance and even the recent guidelines of the JUDGES Trial appear anything but univocal about that. Moreover, not recently, a minority current is making its way: in a constitutionally oriented interpretation of Law no. 164/1982 and following Legislative Decree n. 150/2011 it considers the surgery only necessary in so far as it ensures transsexual subject a stable psychophysical balance. In particular, according to this approach, the sex registry rectification would be possible even only after the survey of psychic belonging to the other sex rather than through forced corporal correction similarly to what happens in other European countries (first of all Germany). The authors, starting from doctrinal ideas, analyze the recent value judgments and different thesis therein endorsed.