Constitutional and Legal Regulation of the Right to Change Sex in the Context of the Implementation of Somatic Human Rights

Abstract

The article considers the problem of constitutional and legal regulation of the right to change sex in the context of the implementation of somatic human rights. Based on the analysis of ECHR decisions and positive practice of foreign countries, it is noted that gender denial (mismatch between anatomical gender of an individual and his gender identity (mental gender)), i.e. transsexualism, is a type of mental and behavioral disorders of an individual. According to the most Western experts, the only effective method of treating transsexuality that gives more or less satisfactory results is surgical and hormonal correction of sex in accordance with gender self-identification, taking into the account the change of documents and socialization in a new gender role. It is emphasized that the most controversial issue so far is the issue of succession in case of gender reassignment, i.e related to the transfer of rights and responsibilities from a person before gender reassignment to a person after such a change. Emphasis is placed on the need to consolidate the universal succession in the event of a person’s change of sex, which implies the transfer of all property, a set of rights and obligations belonging to the person to the successor, and it is not only about existing rights and obligations, but also future not identified at the time of succession. It is noted that the succession should take into account the ability to accept such rights and responsibilities, the ability of a person (who has changed sex) to bear them (e.g, military service, the right to an old-age pension, etc.), as these provisions form vacuum in legislation. The new legal status of a person who has changed sex is established in full at the time of the final change of identity documents, and this should be the basis for succession in the event of a change of sex. The correlation of the available definitions gave grounds to assert that the right to change (correction) of sexuality is a somatic right, as it allows for the fundamental reconstruction of a person by changing sex. It is concluded that since Art. 51 of the Constitution of Ukraine clearly states that marriage is based on the free consent of women and men, so it is too early to talk about the mechanism of same-sex marriage in Ukraine, as this institution is not enshrined in law. National law also prohibits adoptive parents who are same-sex or unmarried foreigners.

The fourth generation of human rights: European standards and national experience

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