In Italy, sex reassignment and legal gender recognition is granted by Law n. 164 of April 14, 1982: "Rules Concerning the Rectification of Sex-Attribution".
The person who intends to change sex and legal gender, or transgender people in general, may schedule a meeting with any health structure or association offering gender affirmation services, and begin the process. Note that only at the end of the gender affirmation process -of varying duration- will it be possible to apply to the court of jurisdiction to obtain authorization for legal name change and gender update. In the section “Map of services”, Infotrans.it offers a list of facilities throughout Italy that provide this type of service.
Law 164 provides that a person wishing to change gender may file a petition —that is, an application— with the court in their area of residency.
In case the person is Italian but resides abroad, which Court should the application be filed with for the legal update of documents?
If the transgender person is an Italian citizen but resides abroad, they can apply to the court with jurisdiction over their latest residence in Italy.
Example: Before moving to Germany, I used to live and reside in the Province of Milan.
In this case, even if you have gone through the transition abroad, the application to change your legal documents should be made to the Court of Milan that is the court of jurisdiction over your latest place of residence in Italy. This means that, in principle, and according to the rules of private international law, fundamental rights are related to the citizenship of the person. Since the birth certificate of an Italian person is kept in Italy, it is an Italian Court that will have to recognize gender reassignment and authorize the change of legal gender.
If the transgender person who lives abroad is an Italian citizen and has gone through the whole process of gender affirmation abroad, they can still produce the medical documentation obtained thereby to certify their path. The correct procedure to get a certified translation of the foreign documentation into Italian (i.e., to have it stamped at any Italian Court or at the competent Italian consulate in the foreign country of residence, to certify its accuracy).
Get a trusted lawyer to take care of these procedures. It is important to know that a transgender person with Italian citizenship residing abroad will have to apply for legal gender recognition at an Italian Court, and that the documents issued abroad are also valid for this purpose.
What is the timeline of the Court?
It is not possible to establish with certainty what the timeline of the Court will be because this depends mostly on its size, the workload of the individual Judges, how the application has been filed —in some cases, for example, the Court may require the integration of some documents, which will result in a slight delay.
Law 164/1982 was modified by Legislative Decree 150/2011 which may entail a longer time frame and an increase in costs. According to this amendment, legal gender recognition cases follow an ordinary procedure (i.e., like any other civil case), and the Public Prosecutor participates in the judgment. If the party has children or a spouse and children, the act that initiates the proceedings must be notified to the Public Prosecutor and to the spouse and children. If there is no spouse or children, the Public Prosecutor must be notified in any case.
It is possible to ask for the authorization for sex reassignment surgery and/or for legal name change and gender marker update.
In fact, if the transgender person cannot, does not want to or intend to, undergo surgery to change their sexual characteristics, they can still request the change of their legal name and a gender marker update.
In short, there are two options:
The second option has become possible owing to two important rulings, one of the Court of Cassation, the other of the Constitutional Court, establishing that sex reassignment surgery is neither necessary nor mandatory for legal name change and gender marker update. This is because Law 164 expressly provides that the judge shall authorize the procedure «when» and «only if» it is necessary. This means that, if the person has reached their psycho-physical well-being and demonstrates to fully identify with the gender they perceive and experience as “irreversible”, it is not mandatory that they undergo any surgical procedure, and they may obtain the change of name and gender marker update regardless.
The Constitutional Court in its ruling 221/2015 stated that the judge may ascertain the “completion of transition” where the person concerned has already exercised “their right to gender identity in a definitive manner (for example, by expressing their chosen gender identity in the family, in their network of affections, in the workplace, in political and social participation groups), even without undergoing any pharmacological treatment or surgical procedure on their secondary sexual characteristics.”
The Court does not require an explicit list of documents, but the documentation provided must prove the person’s gender dysphoria, their irreversible identification with the perceived gender, and any bodily transformation process the person has already undergone, if any. Therefore, it is not possible to specify what documentation is needed because the list of documents to be attached varies from Court to Court and from path to path.
It is certain, though, that the application must include a psychological diagnosis and medical documentation certifying the path of gender affirmation, the irreversible will to change one's own gender, the definitive and irreversible identification with the gender experienced and perceived as one's own, and the willingness to undergo surgery for sex reassignment if that be the case.
It is not mandatory that the medical documentation come from a public health facility. Do keep in mind, however, that the Court may ask that the documentation be issued by competent, third-party medical facilities. The birth certificate that you intend to modify as well as documentation attesting to any free legal aid are usually submitted as well.
The time required for the legal proceeding varies according to several factors: the size of the Court, the workload of the Judge in charge of the case, the accuracy of the attached documents, the possible appointment of a Technical Consultant or CTU in Italian (see specific section).
At the hearing of appearance (the first hearing) the Judge may consider it useful to listen directly to the person, and ask questions about their transition path, any obstacles encountered, the relationship with their family and the outside world, life experiences in the gender role congruent with their gender identity. The proceedings may require one or more hearings and – at times – the appointment of a CTU (Technical Consultant).
The appointment of a CTU depends on the will of the Judge, for example, to confirm or study the documents produced by the person, or because the Judge needs assistance in reading them. In any case, since it involves an increase in time and costs, it must be noted that the appointment of a CTU is only a possibility –usually an exception–, and that the Consultant appointed, according to article 61 of the Code of Civil Procedure, must be a person with “proven experience” in the matter.
The legal proceeding may result in:
Basically, the outcome of the proceedings depends on the type of application submitted. When it requests the authorization for both the surgical procedure, and legal name change and gender marker update, the ensuing court order could authorize both. If it only requests legal name change and gender marker update, the court order could authorize just that.
Can the Court not authorize surgery and/or legal name change and gender marker update?
In principle, it could happen that the Court does not authorize the request for surgery and/or legal name change and gender marker update. However, if the correct procedure has been followed, with accurate documentation attached to the application, and the help of a legal expert in the field, this possibility is quite remote.
Before becoming effective, the court order must become res judicata, i.e., it may not be further pursued by the same parties.
Res judicata occurs in two ways:
Once it has become res judicata, the Court will deliver the order to the Civil Registry Office of the Municipality where the person was born, and only afterwards will it be possible to apply to the Municipality of residence for the issuing of a new identity card. Please note that only the Court can deliver the order to the Civil Registry Officer of the Municipality of birth.
Finally, if the judgment has also authorized sex reassignment surgery, the person will be able to apply to the chosen hospital facility and be included on the list for surgery. In the section “Map of services”, Infotrans.it offers a list of facilities throughout Italy that provide this type of service.
Keep in mind that upon the outcome of the legal proceedings, the Revenue Office may demand the payment of a tax for the registration of the official records. This tax is compulsory and applies to the registration of any State record. If the person benefits from legal aid at the expense of the State, this tax will not be due.
Technical advice is arranged within a legal procedure, every time the Judge requires further information or in-depth studies considered necessary to rule a case.
The reasons that may lead the Judge to appoint a CTU in legal gender recognition proceedings may be due to:
In any case, the appointed CTU must be a person with proven experience in the subject (gender identity). A CTU may not perform any bodily inspection on the person.
The costs of appointing the CTU are covered by the person. Even if the person benefits from free legal aid, the judge may decide to charge the person for the costs of the CTU.
Free legal aid is the recognition of legal assistance at the expense of the State, in favor of a person who intends to take legal action, or who must defend themselves before a judge, and whose annual income does not exceed a certain threshold.
In short, if you are granted free legal aid, the expenses relating to your lawyer (who must be registered as a pro bono attorney) will be borne by the State. You will not have to pay any court fees (such as the unified contribution or any fees for the registration of the Court order).
To apply for legal aid it is necessary that one's personal income (in gender reassignment cases the income of cohabitants and/or family members is not included) does not exceed the threshold of 11,493.82 euros gross (as of the date of publication of this document).
To determine whether you are eligible, you must check the income threshold from your last tax return (or from your last CUD, if employed in Italy). If you have no income, you must fill out a self-declaration that is provided by the competent office, by which you declare the absence of personal income.
The requirements for benefiting from free legal aid must remain in force throughout the duration of the legal gender recognition proceeding. By way of example, if during the proceedings you find a job or your income increases above the stated threshold, you must immediately notify your lawyer. In case of forfeiture of the benefit of legal aid, the party will be responsible for payment of all proceedings costs.
All Italian citizens can benefit from free legal aid, as well as all foreigners or stateless persons residing in Italy.
For years now, the Courts have considered Law 164/82 applicable to foreign transgender people residing in Italy.
The fundamental rights of the human person are recognized to any foreign person living in Italy, as provided for by the rules of domestic law, the international conventions in force, and the generally recognized principles of international law (art. 2, paragraph 1 of Legislative Decree no. 286 of July 25, 1998 “Consolidated text of provisions concerning the regulation of immigration, and rules on the condition of foreigners”).
Therefore, a transitioning person living in Italy with a regular residence permit can apply for authorization to undergo gender reassignment surgery and legal name change and gender marker update in Italy. Being a resident, they can also benefit from gender reassignment surgery at the expense of the National Health Service. Once the gender reassignment order has been obtained, the question will arise as to which records the registry office should modify, given that the person's birth certificate is in another country. In these cases, we suggest seeking assistance from a lawyer or a dedicated organization.
It should be noted that, in the presence of a court order for legal name change and gender marker update, if the country of origin of the transgender person does not contemplate legal gender recognition – thus making it impossible to adjust the foreign passport to the order of the Italian court – the Italian municipalities will proceed to update the identity record of the foreign citizen. After that, their Italian identity card may be updated accordingly. In short, if it is true that the Italian State may not modify the documents issued by a foreign state (such as a passport of another country), it is equally true that it can modify the documents issued in Italy (identity card and tax code), thus allowing the foreign person residing in Italy to have an Italian document that suits their gender identity.
Transgender persons’ residence permit.
It is important to keep in mind that humanitarian protection is granted if a person is the victim of “acts of persecution”, i.e., there must be a condition of “serious violation of fundamental human rights that would take place in the country of origin" in case of repatriation. The law “prohibits expulsion or deportation to a State where the foreigner may be subject to persecution for reasons of sexual orientation or gender identity, or other”. “Persecution” is to be understood as “a form of radical harassment against a minority, which can also be implemented on a legal level, and specifically by considering the mere prediction of the behavior intended to be opposed as a crime punishable by imprisonment". This situation occurs when persons of homosexual orientation or transgender persons are forced to violate the criminal law of their country and expose themselves to severe penalties if they freely express their sexual orientation and/or gender identity.
It is also worth mentioning a recent decision of the Court of Rome that recognized the refugee status of a transgender asylum seeker from Peru, on the basis of various reports and data on the country of origin. The judges considered that “the load of discrimination endured by the applicant during her life —from her school years until the first period of stay in Italy— widely reflected in the sources consulted, has reached the level of persecution. In this regard, it is noted that the link between the various forms of discrimination and the gender of the applicant, who is part of the specific social group of the LGBTI community, pursuant to art. 1A(2) of the 1951 Convention on refugee status, justifies the recognition of this type of international protection”. Supporting this legal reasoning, the decision explicitly cites the UNHCR Guidelines on International Protection, N. 9.