A judge in Chubut declared unconstitutional the article that requires judicial authorization for the body adaptation of trans adolescents.

A judge in Chubut ordered a health insurance company to cover the body readjustment surgery requested by a trans teenager. Through an injunction, the family judge of Trelew, Daniel Manse, indicated that the health provider "Seros" should provide coverage for all the expenses demanded by the intervention of body readjustment.

This is the first ruling that aims to "a real de-judicialization and depathologization in relation to this type of requests" since the magistrate considered that judicial authorization is not necessary "to move towards the realization of their most intimate feelings".

The injunction was filed after the provincial health insurance company, through its legal advisors, required the 17-year-old to obtain prior judicial authorization in order to request the surgery.

Requiring judicial authorization, an anachronistic article

"The magistrate declared the unconstitutionality and the unconstitutionality of Article 11 of Law No. 26,743 (of gender identity) in relation to the requirement of judicial authorization to understand that it did not conform to the provisions of the new Civil and Commercial Code or international conventions that our country has signed on the subject," the statement added.

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 said that this rule should be declared "unconstitutional ex officio, which entails its invalidity, and cannot be applied to the specific case, as it is incompatible with the provisions of the Pact of San Jose, Costa Rica".

The magistrate sought to understand whether it is he, as a judge, who must validate the self-perceived gender of the young person, concluding that this is not what the law is requiring of him. After these considerations, he considered that, in this case, the young man "does not require judicial authorization to move towards the realization of his most intimate feelings" so he granted the appeal.

What the Gender Identity Law says

Law 26.743 -sanctioned on May 9, 2012- was recognized because, among other aspects, it allows trans people (transvestites, transsexuals, transgender) to be registered in their personal documents with the name of their choice and their gender.

In addition, it orders that all medical treatments to adapt to gender expression be included in the Compulsory Medical Program, which guarantees coverage of the practices throughout the health system, both public and private.

The magistrate explained that the knot of his resolution points to the fact that "Law 26743 has been in force since May 2012 and says in its Article 11 that all persons over 18 years of age may access total and partial surgical interventions to adapt their body to their self-perceived gender identity."

In the case of minors, it speaks of the conformity of the competent judicial authority of each jurisdiction, who must ensure the principles of progressive capacity, "although that is not what the Civil and Commercial Code that was issued later says," explained Manse.

On that point, he indicated that, for that reason, he considered it "inconventional ex officio", given that 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 urged the Institute of Social Security and Insurance (ISSyS) of Chubut to implement training for all its administrative, professional and hierarchical staff on gender issues, in accordance with the guidelines set by the so-called Micaela Law.

The Seros social security scheme belongs to the provincial public employees of Chubut and depends on the ISSyS of this province, which also manages the retirement fund.