A judge of Chubut ordered a social work cover the body readjustment surgery requested by a trans adolescent. Through an injunction, the Trelew family judge, Daniel Manse, indicated that the health provider “Seros” should provide coverage for all the expenses required by the body readjustment intervention.
This is the first ruling that points to “a real dejudicialization and depathologization in relation to this type of petitions” since the magistrate considered that judicial authorization is not necessary “to move towards the realization of your most intimate feeling”
The amparo was filed after the provincial social work, through its legal advisers, required the 17-year-old to access a prior judicial authorization and then request surgical intervention.
Demanding judicial authorization, an anachronistic article
“The magistrate declared the unconstitutionality and the ex officio unconstitutionality of article 11 of Law No. 26,743 (on gender identity) in relation to the requirement of judicial authorization when it was understood that it did not conform to the provisions of the new Civil and Commercial Code or the international agreements that our country has signed on the matter “, added the statement.
In his ruling, Manse argued that “Article 11 of the Gender Identity Law has become anachronistic after the enactment of the Civil and Commercial Code ”, and stated that this norm should be declared “unconventional ex officio, which entails its invalidity, and cannot be applied to the specific case, because it is incompatible with the provisions of the San José de Costa Rica Pact “.
The magistrate aimed to understand if it is he, as a judge, who must validate the self-perceived gender of the young man, concluding that this is not what the law is demanding of him. After these considerations, he estimated that, in this case, the young “It does not require judicial authorization to move towards the realization of its most intimate feeling” so he made room for protection.
What does the Gender Identity Law say?
Law 26,743 – sanctioned on May 9, 2012 – was recognized because, among other aspects, it allows trans people (transvestites, transsexuals, transgenders) to be registered in their personal documents with the name of their choice and their gender.
Also, order that all the medical treatments of adaptation to the gender expression are included in the Compulsory Medical Program, which guarantees coverage of practices throughout the health system, both public and private.
The magistrate explained that the knot of his resolution points out that “Law 26743 has been in force since May 2012 and says in its article 11 that all people over 18 years of age will be able to access interventions total and partial surgical procedures to adapt her body to her self-perceived gender identity “.
In the case of minors, speaks of the conformity of the judicial authority competent authority of each jurisdiction, who must ensure the principles of progressive capacity, “although that is not what the Civil and Commercial Code says that was issued later,” Manse explained.
At that point, he indicated that, for that reason, he considered it “unconventional by trade”, since it is “a 17-year-old person who demands a right and cannot be considered incapable of exercising it.”
On the other hand, the judge exhorted the Institute of Social Security and Insurance (ISSyS) of Chubut to implement training for all its administrative, professional and hierarchical personnel in matters of gender, in accordance with the guidelines established by the so-called Micaela Law.
The Seros social work belongs to the provincial public employees of Chubut and depends on the ISSyS of this province, which also manages the retirement fund.