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Volume 2, Number 2, April - June 1998
Yugoslavia: The Legal Issue of Transsexualism
By Prof. Dr. Marija Draskic
Citation: Draskic M. (1998) Yugoslavia: The Legal Issue of Transsexualism. IJT 2,2, http://www.symposion.com/ijt/ijtc0403.htm
Abstract
The Yugoslavian law has no statutory solution for the problems of transsexualism, nor is
there any judicial practice in this field. What exists is only the marginal practice of
the municipal agencies of administration, which have enacted rulings in about ten cases,
permitting transsexual persons to change the sex previously entered into the civil status
register. This was treated only as correcting a mistake in the birth certificates files.
Since the concept of "correction" really does not apply, it will be necessary to
enact special legal regulations setting forth in a precise manner either court procedures
(such as special contentious proceedings as in German law) or an administrative procedure
(for which the closest example can be found in Austrian law) by which process the change
of sex on the birth certificate can be realized.
The right to change one's sex presupposes a completed sex reassignment surgery and should
in fact become easily available once reassignment surgery has taken place.
Two groups of countries may be distinguished in contemporary comparative law in terms
of their attitude regarding transsexualism. The first group includes the countries which
adopted special legislation to regulate the legal status of transsexuals (Sweden, Germany,
Italy, the Netherlands and Turkey), setting forth medical and legal requirements to be met
by transsexuals in order to be permitted the legal change of sex. Medical requirements
include: the existence of the firm and long-term belief of a person that he/she does not
belong to the sex indicated in official registers ('real-life test'); the permanent
inability of child bearing (sterility); and a completed surgical intervention (sex
reassignment surgery). Legal conditions include: minimum age, domestic citizenship, and
unmarried status.
The other group of countries - those without any special legislation which would cover
only the cases of voluntary alteration of sex - permit legal change of sex through
judicial decisions (for instance, Switzerland and France), then through the practice of
administrative agencies (Austria), or by applying solutions found in other regulations,
such as the laws concerning the requirements for making changes and corrections of data
entered into civil status registers e.g. legal systems of Illinois, New Jersey and
California (1).
Yugoslavian law undoubtedly falls into the second category, since the change of the
legal status of persons who have undergone sex reassignment surgery is realized solely on
the ground of the general record books regulations. Due to the fact that making decisions
on corrections of record books falls within the jurisdiction of the agencies of
administration, the solution adopted in Yugoslavian law could be qualified as being
closest to Austrian law (2).
By applying the mentioned statutory power, the Municipal General Administration
Secretariat of the Savski Venac Municipality in Belgrade has handed down about ten
rulings, whereby persons registered in the birth registry as female were permitted the
correction of the sex entered - "from female to male", and vice versa, persons
registered in the birth registry as male were permitted the correction of the sex entered
- "from male to female" (3).
In any event, the problem was not a new one within the scope of experience acquired in
comparative law. However, it is astounding that this problem was not new for Yugoslavian
law either, judging by the incredibly superficial and simplistic approach applied in
settling first requests for altering the sex submitted by transsexuals in Belgrade. In
other words, there was not a bit of hesitation or doubt on the part of the agency as far
as their competence in deciding these cases was concerned. It goes without saying that
such an evaluation was not solely based on the clinical presentation of the case involved
- there is no doubt at all that transsexuals have to be provided with a legal status that
corresponds with their unchanged conviction and their surgically altered body - but the
decision making process had numerous shortcomings which may have discredited the final
result.
First of all, the provision in the Law on Record Books, otherwise referred to by the
Municipal Secretariat in mentioned rulings, applies exclusively to corrections of record
books with the supposition of an originally incorrect registration. The alteration of sex
in cases of transsexualism is a fact which may be determined only in special
administrative or judicial proceedings, then based on expert opinion of qualified
specialists, and by respecting the elementary right to human dignity. Consequently, this
is not a case of correction, because the notion of "correction" necessarily
means that one is correcting something containing an error. In cases of transsexualism -
both at the moment of registering the sex in the record book and until the applicant has
undergone surgical intervention thus achieving adaptation to the external appearance of
the other sex - there were no errors, neither in the real nor in the legal-technical sense
of the word (4).
On the other hand, to leave it to municipal administrative agencies to decide on such a
delicate legal and human problem as the alteration of sex, and not to provide them with
instructions and detailed regulations regarding judicial procedure is extremely risky, so
that one cannot suppose this to have been the intention of the legislator (5). This would
amount to accepting an entirely arbitrary evaluation by any municipal secretary of the
most complex issues: whether surgical intervention is necessary for altering sex in the
record book; what kind and what quantity of medical evidence should be enclosed with such
requests (6), who should be authorized to supply such evidence; what legal consequences
should be acknowledged, should the legal "correction" have a retroactive effect
and finally what is the fate of an eventual marriage of a person who has undergone sex
reassignment surgery and applied for a corresponding legal change.
My critical remarks are based only on some ten rulings concerning the correction of an
originally registered sex in the birth registry, handed down by the Savski Venac
Municipality in Belgrade, because these are the only legal acts relating to transsexuals I
had the opportunity to find in Yugoslavian law. Not a single one of these persons applied
to get married, or to have recognized parental rights, or to adopt a child. Also, there
were no judicial proceedings in Yugoslavia which would involve any rights for
transsexuals. Therefore my conclusions could be challenged as being not founded on a
statistically relevant sample. However, in spite of that, one is quite rightfully
concerned that other state agencies could easily treat some future request of a
transsexual person, entirely unaware of medical, social and legal knowledge of the problem
of transsexualism.
It seems therefore only rational to call for an urgent intervention by the legislator, not
because transsexualism problems should by all means be regulated by statute - many
successful solutions were demonstrated both in judicial and administrative practices of
other countries - but because such an intervention would at this moment prevent complete
ignorance of the seriousness of the problem on the part of the appropriate administrative
agencies in Yugoslavia. Contrary to the experience in foreign legal orders where, as a
rule, initial hesitation was noted on the part of registrars and courts in recognizing
legal alteration of sex, the lack of strict legislative regulation in Yugoslavian law
could, as it seems, open the way to an irresponsible and superficial interpretation,
according to which alteration of sex is a matter of routine administrative decision - to
be copied on a hectographed form - which is but another and not less unfavorable extreme.
Pointing to the need for prompt legislative intervention, finally, is the information that
a Belgrade medical team, engaged in treatment of transsexualism, has diagnosed 78
transsexuals in the January 1986 - January 1993 period, out of which 22 have undergone
surgery (7). It is thus logical to expect that in the near future the agencies and the
courts in Yugoslavia will receive a series of new requests by transsexuals, with the
purpose of altering the sex registered in the record books, or of recognizing other
rights. These requests will require a civilized and adequate response by the state
agencies and the positive law.
Footnotes:
(1) More on the legal situation of transsexual persons, see:
Will, M, Legal Conditions of Sex Reassignment by Medical Intervention - Situation in
Comparative Law, XXIIIrd Colloquy on European Law: Transsexualism, Medicine and Law,
Amsterdam, 1993;
Patti, S., Will, M, Mutamento di sesso e tutela
della persona, Cedam Padova, 1986;
Draskic, M, Transsexualism: A European
Union Legal Issue (to be published), Belgrade, 1997;
(2) Article 16 of the Law on Record Books ("Official Herald of the
SR of Serbia", No.15/1990) reads as follows: "Errors noted by the registrar
prior to completing the registration in the record book may be corrected by the registrar.
Corrections in record books after completing the registration may be effected by the
registrar only on the ground of the ruling of the agency competent in terms of the keeping
of the record book where correction should be effected.
Corrections in the record books may be effected in line of duty or at the request of the
party, namely of the person having a direct or legally founded legal interest
thereof."
(3) See, for instance: the rulings of the Municipal General
Administration Secretariat of the Savski Venac Municipality in Belgrade, No. 200-433/92,
of June 5, 1992 and No. 200-612/90 of July 26, 1990. The same Secretariat has handed down
a month later the ruling by which the first person was permitted to change the name
"Ankica" into "Aleksandar". See the ruling of the same Secretariat in
Belgrade, No.201-77/92-02, of July 6, 1992.
The subject of analysis in the present paper are only the rulings of the mentioned
Secretariat, since all maternity homes in Belgrade, except one, are located in the
territory of the Savski Venac Municipality, and because the authority for keeping record
books is determined according to the place of birth of the child. Unfortunately, data from
other towns in the provinces or from the former Yugoslav republics were not available,
although patients previously operated in Belgrade live there too.
(4) It is clear from the grammatical interpretation of the mentioned statutory norm that
the legislator had an error in mind as prerequisite of a correction. See Article 16 on the
Law on Record Books.
On the other hand, even the Municipal Secretariat, which has enacted the mentioned ruling
did not refer to the provision in the Law of Record Books while deciding on the request
for changing the name of a person and permitted the correction of every information
entered including the personal name, but rather referred to the provisions of articles
404-406 of the Law on Marriage and Family Relations which regulates the "change of
personal name" and article 202 paragraph 1 of the Law on General Administrative
Procedure covering the relevant procedure. See the ruling of the Municipal General
Administration Secretariat of the Savski Venac Municipality in Belgrade, No. 201-77/92-02
of July 6, 1992.
(5) Indeed, at the time of enactment of the most recent Serbian Law on Record Books
(1990), the problem of transsexualism was already well known in both medical and judicial
practices of quite a number of countries. Moreover, the example of many countries close to
us who found a solution for this problem in terms of legal culture and tradition, should
have motivated a conscientious law maker to make use of the experience of these other
legal systems.
(6) It was said in the assignment of reasons of one of the mentioned
rulings of the Savski Venac Municipality "that a surgical transformation of sex has
been effected at the YugosChildren Clinic in Belgrade, Tirsova Street 10 from female to
male - which is proved by the discharge summary and the report by Clinic 017 No.1245/1 of
May 22, 1992". See the ruling of the Municipal General Administration Secretariat of
the Savski Venac Municipality in Belgrade, No. 200-433/92, of June 5, 1992.
(7) See: Rakic Z, Vukov M, Maric J: Gender Dysphoric Patients -
Belgrade's Team Experience, XXIIIrd Colloquy on European Law: Transsexualism, Medicine and
Law, Amsterdam April 14 - 16, 1993.
