“The consensus understanding of experts in the sector in question is that the regime currently in force with the Lei nº 38/2018“, which respects “the technical and academic consensus” that “points to the importance of ‘depathologizing’ gender identity issues”, “continues to be the most appropriate for people’s needs and most respectful of human rights, being more aligned with international standards and guidelines than its predecessor Law no 7/2011, of 15 Marchwhich these projects aim to reprise.”
This is the main conclusion of the opinion of the Commission for Citizenship and Gender Equality (CIG) on the three bills, from the PSD, Chega and CDS/PP, which, aiming to repeal the current legislation, were approved on March 20th in general, with the favorable votes of the three parties and the opposition of the other parliamentary groups.
The 28-page, unsigned opinion, to which DN had access, and which in turn cites the various expert opinions sent to parliament — which, he emphasizes, go to the effect that “reversion to the previous regime will be at odds with current scientific knowledge on gender identity”“constituting a significant setback in protecting the rights of trans and intersex people, potentially damaging to their health, well-being and quality of life” — also draws attention to the fact that “the model of legal recognition of gender identity based on self-determination”, as enshrined in current law, has been “expanding in the European spaceincluding wider age ranges than that existing in Portugal, and there was, at the time, no indication of any State that had reversed this model”. Translating: by repealing the law that adopted such a model, Portugal would be the first European state to back down on this matter.
In doing so, it highlights the CIG — which expressly criticizes the fact that the Chega’s bill uses “discontinued terminology on the international scene”(“gender dysphoria”, “hermaphrodite”) and “definitions not consensual or adopted by international organizations”, such as “gender ideology” —, the country risks becoming, in Europe, a symbol of regression, turning its back on “the most recent guidelines from international organizations, including the Council of Europe and the World Health Organization”with which the current law is aligned, as evidenced by this, the opinion states, “all the positive references in international reports”.
Unconstitutionality in sight, warns CIG
Furthermore, the opinion says, repealing the law under the terms in which the diplomas in question do so may be unconstitutional.
Because, the document reads, “the regression to the previous regime [o da lei de 2011] in which the exercise of the right to self-determination of gender identity is subject to the presentation of a report prepared by a multidisciplinary clinical sexology team, proving the diagnosis of gender identity disorder, raises the question of whether such a return to an external conditionality of the exercise of the right to gender self-determination, as part of the exercise of the fundamental rights to personal identity and personality development, expressly enshrined in Article 26 of the Constitution of the Portuguese Republic [CRP]can be considered a restriction incompatible with Article 18 of the CRP, which establishes the legal force of fundamental personal rights protected by the Constitution.”
And the CIG, citing the Constitutional Court, continues: “In addition to [tais direitos] can only ‘be restricted in cases expressly provided for in the Constitution and the restrictions must be limited to what is necessary to safeguard other constitutionally protected rights or interests’”, imply that the laws that restrict them, as they are “restrictive of rights, freedoms and guarantees”, must be of a “general and abstract nature and cannot have retroactive effectnor diminish the extension and scope of the essential content of constitutional precepts”.
As DN has already pointed out, the bills in question do not clarify what happens to minors who, while at school, already have, under the terms of the law, the right to be addressed by their self-assigned name (chosen according to their respective gender identity), or to those undergoing hormonal therapy, namely with puberty blockers (therapy that the Chega and CDS/PP bills prohibit for minors with gender incongruence).
Precisely, the CIG warns of the need to evaluate the real effect of laws on the people they affect, highlighting that “it would appear relevant, for the purposes of further reflection (before the implementation of legislative changes in this area), be able to have a study(s) to evaluate the implementation and impact of Law No. 38/2018, of 7 August, currently in force, as well as promote a possible systematic hearing, particularly of LGBTI+ young people and adults, their families and a wider range of organizations and entities, namely civil society that are dedicated to intervention with LGBTI+ peopleas well as professionals from different sectors involved in the operationalization of the current legal framework.”
It should be noted that associations representing transgender people and their families complained about not having been heard in the drafting of the bills in question, and that these same parliamentary groups did not request opinions from organizations representing specialists in the field; all opinions of this type that were sent to parliament, such as that of the Order of Psychologists and the Portuguese Society of Sexology, were sent on the initiative of these entities.
“Government did not hide any opinion”
The CIG’s opinion on the bills, remember, was requested by the PSD/CDS Executive, more precisely by the minister responsible for Equality, Margarida Balseiro Lopes, as the government official acknowledged in parliament, in a hearing in the first committee, this Tuesday, stressing that it is normal for the Executive to ask for opinions from entities related to the areas on which there are legislative initiatives, and “it does not, in principle, have the obligation to share with the Assembly of the Republic the documentation it receives from the entities that depend on directly from you.”
After o Public having, on March 26, revealed the existence of the document and the fact that both the CIG and the minister’s office refused access to it and even clarified its meaning, BE, Livre and PS asked the Government to publish it, without success. Two weeks later, however, and when both DN and Livre had invoked the Law on Access to Administrative Documents (Livre also requesting access to any previous versions of the opinion, as well as correspondence, including emails, relating to it between the CIG and the Government), the minister sent the document to parliament, guaranteeing that “the Government did not hide any opinion” and “does not admit anyone accusing it of lack of transparency”.
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