Проект правовой помощи трансгендерным людям

R. case: legal gender recognition without surgery (2016)

28.03.2016

R., transgender man, appealed to the Legal Defense Project in April, last year.

He had diagnosis F64.0, proven by Novosibirsk Psychiatric Commission, certificate of hormonal sex reassignment, issued by endocrinologist, and the Civil Registry Office opinion to refuse to amend the record of birth certificate due to the fact of absence of established form of gender reassignment.

Court preference was made up by the Project lawyer Daniel Haimovich.

In the Court of the First Instance the applicant was represented by Lidia Sayutina, lawyeress from Novosibirsk.

In addition to the documents mentioned above, the assessment issued by the chairman of the Novosibirsk Commission was submitted to the court, there was stated that “the change of passport sex due to transsexualism is a necessary procedure in the basic medical and social activities context for a given disorder” and that “the consequences of applicant’s long-term  mismatch of passport sex with appearance and social gender are social exclusion, the formation of prolonged depressive state with high risk of suicide.”

Despite this, in September, 2015, the Court of the First Instance dismissed the applicant’s claim, referring to the fact that the sex reassignment surgery was not performed.

Furthermore the court insisted not only on the mastectomy and / or removal of the gonads, but also on changing anatomical sex, that is making phalloplasty, pointing out that the change of the passport sex without it “in the court’s opinion, will arouse legal conflicts, including the areas of family, employment and pension legislation.”

In addition, in fact the Court unlawfully assumed the function of a medical specialist and, quoting the description of “transsexualism” diagnosis of ICD-10, stated in the judgment that it is based on the anatomical discomfort rather than social gender, therefore the conclusion of a psychiatrist was regarded “as an aspiration of the doctor and the person temporarily relieve the applicant’s discomfort from his anatomical (morphological) sex.”

Our lawyer Tatiana Glushkova prepared an appeal to the court, with examples of the positive court practice in cases of changing documents without surgery, obtained in the course of our work.

In January, 2016, a court hearing took place in Novosibirsk regional court.

Additional court practice that appeared between appealing and court hearing was attached to the case materials.

In her speech representing the client, Tatiana Glushkova, pointed out that the mismatch of client’s appearance with passport sex causes a lot of difficulties in everyday life, in particular it doesn’t let to get a job while sex change surgeries aren’t paid from the country budget.

She also noticed that her client even could enter the court building only after showing to ushers the judgment he came to take review against.

Judicial division fairly pointed out that the criteria of sex change are not standarted and come within the terms of reference of medical specialist while the applicant’s medical certificates were issued according to the medical legal requirements.

The court also took into account the fact that the applicant is going to undergo sex change surgery and the expert opinion with description of negative psychological consequences of the prolonged mismatch of client’s passport sex with his appearance.

As a result the judgment of Court of the First Instance was overturned and the redress sought by the applicant were satisfied to the full extent.

Judicial decree has already taken legal effect, at the time the applicant is changing his documents: birth certificate and passport. Appellate decision can be viewed by reference.

We thank our volunteers for translation!

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