Portuguese LGBTQ Activists Say Expanded Laws for Trans and Intersex People Need Work

On July 12, Portugal adopted a new law that allows trans people older than 18 the right of self-determination regarding having their gender identity legally recognized. In the same law, intersex children are now protected from unnecessary surgeries and medical interventions; Portugal becomes the second country in the world to legalize such protection.

Though the law changed since originally being voted on in Parliament in April, it is still a significant step for trans and intersex rights in Portugal and the whole of Europe.

The law was meant to establish the right of self-determination for trans people aged 16 and older. This meant that individuals would not have to undergo a medical test, essentially a document from a doctor confirming the person’s consent, in order to legally change their gender on their documents. However, after being passed in Parliament with 109 votes for and 106 against, President Marcelo Rebelo de Sousa vetoed the legislation.

Rebelo de Sousa reportedly approached Members of Parliament to push for a medical test for those not over 18, according to the BBC.

The law that recently passed still requires those under 18 to receive a doctor’s approval.

In response to the passage of the law, rights groups welcomed the progress but believed the law should have included 16 to 18-year-olds as well.

“We at ILGA-Europe together with the trans community continue to advocate for legal gender recognition procedures available without any age limits and fully based on self-determination,” Katrin Hugendubel, ILGA-Europe’s Advocacy Director, said in a statement about the law, noting ILGA-Europe’s disappointment that those younger than 18 would not have the right to self-determination.

She said that young trans people should be given the trust to know who they are and that “there is no reason why their fundamental rights should be less protected than those of adults.”

Portugal has maintained a reputation of being progressive on trans rights. In 2011, Parliament approved a law that recognized the right of trans people to change their legal documentation to reflect their identity.

Marta Ramos, the Executive Director of ILGA Portugal, is pushing for more protections for trans and intersex people in the country. The organization she directs is the largest and oldest NGO in the country working on queer issues and was one of the organizations involved in drafting the legislation.

“It is not perfect,” Ramos tells INTO in an email. “And [it is] not in line with civil society’s claims, but it was the possible compromise with the veto of the President.”

“We are satisfied with the solution arranged given that we represent many, many people who are in need of such a law and that will no longer have their lives suspended due to third-party intervention in the process,” she says.

Trans people are still ostracized in society, according to Ramos — though it’s true that policies are being developed to ensure a better quality of life. She says that this is due to the lack of visibility of trans rights.

It is partly for this reason that the Portuguese government has launched the #Righttobe campaign to promote trans and intersex voices. Its mission is to “invite all of society to see them, to listen to them, to know a little of their stories.”

The visibility is especially important for intersex people in Portugal.

“We have very little information available regarding the experiences of intersex persons in Portugal. There are no health guidelines for procedures nor are there any specific policies,” writes Ramos. However, she notes, the new law is a huge step in the history of intersex rights in Portugal and the world. “Considering that we’re only the second country to prohibit medically unnecessary surgeries upon birth, I think we should take time to celebrate this huge achievement for intersex persons.”

Malta is the only other country that has outlawed these unnecessary medical interventions.

Ramos explains that this piece of legislation is actually the first to refer to sex characteristics, consequently recognizing intersex people. It is also the first time the Portuguese law acknowledges the right to gender identity.

“This is huge,” she says.

Fourteen countries in Europe require sterilization of trans people in order for them to legally change their documents. In 2017 the European Court of Human Rights ruled it was not compatible with human rights. The trans rights organization Transgender Europe found that 34 countries force trans people to undergo a mental health diagnosis, pathologization, in order to obtain legal gender recognition.

The Portuguese law explicitly states the needed medical report for less than 18-year-olds is not pathological, says Ramos. This means the law is in line with the WHO’s recent reclassification of trans identities.

The protections in place with the new law will also make other ministries in the government create policies regarding trans and intersex issues, according to Ramos.

“The Ministry of Health will have to draft guidelines for trans and intersex specific health issues, so there’s room to create better standards there,” Ramos tells INTO. The Ministry of Education will also now have to create guidelines to integrate trans and intersex children in schools.

“We know there’s much more work ahead than the legislative processes and adopting new laws, but we have to celebrate even the imperfect achievements because they open the way to specific and better public policies.”