Open access peer-reviewed chapter - ONLINE FIRST

Public Policies Advances on Transgender People in Portugal

Written By

Dalia Costa and Miguel Miranda

Submitted: January 8th, 2022 Reviewed: January 17th, 2022 Published: April 6th, 2022

DOI: 10.5772/intechopen.102704

IntechOpen
Transgender Health: Advances and New Perspectives Edited by Carlos Rios-González

From the Edited Volume

Transgender Health: Advances and New Perspectives [Working Title]

Dr. Carlos Miguel Rios-González

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Abstract

When rights are guaranteed through public policy, the probability of becoming de facto rights rather than just de jure rights is greatly increased. On the one hand, the conditions and mechanisms for its implementation are created or, at least, foreseen, and the conditions for effective access by all people to the rights in question are reviewed. This is the case of Portugal in promoting the rights of trans people, following a consolidated public policy on equality and gender (since 2007). The countries in Europe (European Union) have adopted different perspectives and paths ahead regarding the definition and implementation of comprehensive public policies for trans people. Previous studies about Portuguese case reveal that health, work, but also rights in the family and sexuality, are fragile domains, which place trans people in a situation of great vulnerability. Adopting a participatory methodology, the chapter presents the diversity in political and ideological positions and debates the obstacles in the process of public policy formulation to promote the integral well-being of trans people. The evaluation of the Portuguese case is useful for other political and social contexts, while it reveals the cornerstones of public policies advances on transgender persons, namely stereotypes and gender biases.

Keywords

  • gender identity
  • trans
  • self-determination
  • public policy
  • Portugal

1. Introduction

This chapter describes the process of advances in public policy, applied to the recognition of the right to gender identity and the sexual characteristics of people, including transgender. Portugal is the case study.

The Portuguese case is interesting because it has a recent democratic regime (since 1976) consolidated with the State’s accession to the European Union (EU) in 1986. This social and political path shows a slow development until the 1990s focusing on the country’s economic growth. This explains why it was only in the late 1990s that society began to wake up to plurality, including the uniqueness of people due to their gender identity.

Another fact that makes the Portuguese case interesting is that this period coincided with the resurgence of equality issues in the European context. Throughout the chapter, we demonstrate how Portugal aligned itself with other social contexts at the turn of the century. In the 1990s, the concept of gender entered the scientific lexicon. In addition, the pressure groups have also helped to make it part of the political agenda. These two elements are important for the process of construction of the right to gender self-determination, which culminated in the legislation of this right in 2018.

In an attempt to contribute to the in-depth knowledge of this process, we carried out a study with its main protagonists: deputies in the Portuguese parliament, who have the capacity and legitimacy for decision-making; social activists, with opportunities to emphasize the relevance of the right to self-determination of gender identity, specifically for transgender people; and social scientists who, in some cases, are also politicians or deputies and, in other cases, are also activists.

The study revealed the importance of external factors for deputies, such as voter expectations. It also revealed the importance of debate for the appropriation of concepts, questioning stereotypes in the public policies process production.

In the policy process analysis, we adopt the political pluralism, as the most suitable model for the analysis of a complex topic. This means that we are not going to analyze the content of the policy, but the policy production process, interviewing the main protagonists in that process.

In the first point of the chapter, we frame the theme. In the second, we describe the Portuguese context, to locate readers. We then present the study, highlighting its main results.

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2. New perspectives on trans people

New perspectives on transgender people are relatively recent. The identification of transgender as an (autonomous) gender identity can be located in the paradigm shift generated from the conceptualization of gender. The ideological construction of a trans person began only after the appropriation of the gender concept. After that, the social problem construction process started, questioning how to deal with trans and how to answer to their expectations and needs, adapting public responses and their mechanisms. The next point follows this order.

2.1 A paradigm shift towards essentialist determinism

The concept of gender emerged from the feminist debate, chronologically identified with the second wave of this social, political and ideological movement, on the 1970s. Its operative dimension made it possible to deal with the ‘anxieties of placing the issue of differences between the sexes on the social research agenda, removing it from the domain of biology’. At the same time that it was willing to ‘orient its analysis to the historical and social conditions of production of beliefs and knowledge about the sexes and the legitimization of social divisions based on sex’. [1].

In this way, the gender perspective allowed for an effective shift towards the differential Psychology of sexes approach, which explains differences between men and women, and towards Biology, which defines differences based on a nature determinism. Scientifically in the field of social sciences, and, later, politically, this can be considered ‘an important transformation’ [2] or, as the authors of this text consider it, a paradigmatic shift.

We consider this a paradigm shift for three main reasons. First, because it favored the emergence and subsequent imposition of another paradigm of interpretation of society and social relations in everyday life, replacing the paradigm of biology and psychology, both based on an interpretation of nature. Alternatively, the interpretation of the environment, the context or the social, encourages considering more factors in explaining the complexity of social relations.

Secondly, for giving to the scientific community and to the political community as well, specific concepts with a new meaning. Thus, thinking, describing and interpreting differences become possible through a concept, that of gender. Having a concept available, in turn, raises questions and drives away determinism. Among the questions were the extent and depth of social norms and expectations in shaping masculinities and femininities. Another issue linked to this was the weight of social structures on individuals, constraining their self-determination. The questioning of patriarchal social norms and broad expectations of performance of a social role defined by the sex of individuals at birth became easier.

Being born a man or a woman makes a difference and accentuates a determinism that is difficult to change, especially by common sense. It is very different to admit that one is born with a reproductive physiological system, but that we become men or women, through the induction of social processes, as Simone de Beauvoir had stated in her famous book (published in 1949).

It is very different because it opens up the concept of identity and establishes the importance of culture and the action of social structures on subjects. Thirdly, we believe that this is a paradigm shift because it has transformed the way of interpreting people, their relationships and the ways in which societies are organized around the way they interpret people. Gender is not determined but socially constructed; therefore, societies have a transforming capacity to change the subordination of the feminine to the masculine [3]. Gender, by ceasing to be something biologically determined, also ceased to be seen as something static, natural and immutable.

Considering that gender ‘is not just about identity, not just work, not just power, not just sexuality, but all of this at the same time’ [4], the complexity thickens. In this text, this complexity is addressed in relation to trans people who biologically have a male or female mark but who have a gender identity that does not coincide with that mark and socially impose who they are.

Being trans is more than the affirmation of a gender identity because it involves social interactions, thus implying social structures and mechanisms to guarantee equality, rights and de facto, that is, in everyday life.

2.2 New perspectives based on what means to be trans

The interpretation of a trans person began by being based on the most available and dominant model: the biological. Thus, the dimension of sexuality became the most relevant.

Western scientific communities have developed two relevant conceptual approaches: the concept of transsexuality and the concept of transgender. Transsexuality suggests a biomedical model, popularized in part by the North American contributions of John Money in the 1970s [5], and basically seeks to understand a situation in which the individual’s gender contrasts with the physiological identification of sex.

The concept of transgender gained prominence from the 1990s onwards with the expansion of gender studies and the post-structuralist trend within the social sciences, distancing themselves from biomedical contributions. Authors such as Butler place the emphasis of their critical analysis on the binary gender system [6] that manages to associate biological characteristics with the sphere of social phenomena, intertwining them and producing attributed identities that do not always correspond to the unique experience and identification of each person. Butler, in fact, identifies gender as an instrument for naturalizing sex, making use of discourse to produce the distinction between sexual bodies; making room for the attempt to rationalize, in a social context, allegedly natural relations of power, shaping institutional action and, simultaneously, other individual and collective practices and discourses [7].

In this text, the term trans is adopted in order to emphasize ‘the history of the shift from a paradigm of pathology and medical appropriation on gender variability to a new approach that recognizes, and to a large extent through the hands of trans activism, the right of people to designate themselves’ [5].

Instead, what we see most of the time is a process in which people identify, define and reframe, plus, attribute a resignification of trans and, after this process, allow themselves to enter into interaction with trans people.

2.3 New perspectives from social relationships with trans people

The Universal Declaration of Human Rights resulted from one of the most serious and heinous ways of selecting people and determining their extermination: the holocaust. Following World War II, in 1948, humanity explicitly states equality through that declaration. As further developed in another text by the first author [8], ‘human rights are inherent rights of all human beings, regardless of the place where they are born, conferring nationality, the place where they live, defining cultural norms and the legal and legal norms to which obedience is owed (tacit or mandatory), of the sex with which one is born, of the religion professed and of any other belonging’. The main and distinctive argument is the principle of universality, emphasizing the common element worldwide: to be a human being.

The human rights framework is the broadest approach analyzing social relationships with trans. It is easier to let stereotypes domain in everyday life. In the same way, prejudices emerge unquestionably in social interactions. It is, also, where discrimination occurs and social exclusion takes place.

Seeing the issue from this perspective and knowing that trans persons have become the subject of increased research activity and everyday conversation [9], it is clear that promoting the rights and protection of trans people is a social concern and, therefore, also a political issue. Although it is not assumed that trans persons are a vulnerable population, it is assumed that they may be placed in a vulnerable situation, as they are confronted with stigmatization and transphobia, being sometimes exploited as a weirdo, and not accepted by others [10]. Heteronormative expectations conflict with the idea that a person could be trans. In youth, specifically, trans can be discriminated against and even victims of violence. Furthermore, their gender identity tends to be disrespected, as they are regarded by ‘others’ as being in the process of ‘becoming’ and also for being considered that someone only become fully gendered as adults [11]. Recent research dedicated to homophobic bullying, developed in a public school with young people (participating in several focus groups), suggests the acceptance of those who challenge heteronormative expectations—at least among peers, once the study did not involve teachers or other professionals in the school context [12]. In the adult phase of life, research is also being carried out on the acceptance of the labour market and the integration of trans people in the labour market by companies [13]. In fact, the process of building a trans identity is still to be understood in Portugal.

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3. The process of right recognition to gender self-determination in Portugal

Internationally, the World Health Organization (WHO), on June 2018, published the 11th version of the Manual for the Classification of Diseases (ICD), where transgender experiences no longer appear as ‘sexual identity disorder’ (also referred to as ‘transsexualism’). Even so, in the V edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) of the American Psychiatric Association (APA), trans people still appear as suffering from a ‘gender dysphoria’. This interpretation, in fact, maintains a sexist perspective, when it uses a diagnosis rooted in gender stereotypes of what it is to be a woman or a man, thereby promoting an environment not inclusive of other gender expressions [5].

A few years earlier, in 2009, the International Network for Trans Depathologization, created an international initiative, called Stop Trans Pathologization, with the aim of removing non-normative gender identities from the categories of mental pathologies and disorders. In addition to this objective, it also aimed to revoke the mandatory medical and psychiatric diagnosis for hormonal and surgical treatments and for changing the name and gender in the civil registry.

The ‘ideology of legal protection’ [14] not always allows us to admit the inability to make an adequate response to sexism, transphobia or misogyny. What is at stake is more than discrimination against people. It is social rights, whether in the sense of access to their effective enjoyment by all people, or in the sense of their inability to cover all people globally, that is, universally. The plurality of gender identity and the diversity of gender intersectionality force us to re-locate the issue in the analysis of processes and not just in the analysis of the result or the impact generated by the result.

A process is a series of actions or steps taken in order to achieve a particular end, distinct, therefore, from a procedure, which is an established or official way of doing something. The process presupposes a duration, and meanwhile, it allows the external influence of other agents on the political position of an agent. Besides, it also allows the same agent to change its interpretation, to review and even change its opinion and/or to get involved in a more participatory way. Moreover, the same agent can distance himself from the debate—either because you lose interest or because you feel that your investment has an unsatisfactory return.

The biomedical model has imposed itself in the social field, expanding its space to areas of behavior previously seen as moral problems or as natural phenomena in the course of life [15]. Despite this, bio-politics, in the case of the regulation of the right to gender self-determination, in Portugal, did not succeed. The legislative framework seems to have favored the opening of space for debate, calling for different positions, including the claim of rights by activist groups inspired by feminism.

In Portugal, the process of building the right to gender self-determination began with a legal-legal perspective, which, in turn, is based on a medical position.

3.1 The Portuguese socio-political context

It is important to situate politically Portugal in the European context, specifically, in the context of Southern Europe. In this context, recent progressive legal transformation coexists with conservative cultural paradigms linked to previous right-wing dictatorships, colonial practices and a powerful Catholic influence, there is a deficit of visibility for lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) people throughout history [16].

The individual experiences of trans and non-binary people allow us to retain the importance of the socio-cultural transformation undergone at the micro level, in parallel with the macro-based legal and political advances already studied in the Southern European context [17].

Belgium and Spain show similarities regarding the matters of trans protective rights. In both countries, the regional level has been relevant in introducing trans protective policy. In Belgium, the federal level is responsible for the legislative framework regarding gender recognition. The regional government of Flanders has developed additional extensive policies in order to enhance the well-being, care and equal rights of trans individuals. Similarly, in Spain, a growing number of regions are developing nowadays both trans specific and LGTB antidiscrimination policies, filling the gap that exists at the central state level. In addition, when looking at Trans Rights Europe Map and Index 2017 of Transgender Europe, we see that both countries have developed protective trans legislation at about the same speed [18].

In both Belgium and Spain, additional medical pathways and legal requirements for trans care are demanded, as well as in Portugal.

In turn, the European Parliament in its 2016 Resolution on the application of Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation (called the Employment Equality Directive), called on the Member States and the Commission to combat all forms of multiple discriminations and to ensure application of the principle of non-discrimination and equal treatment in the labour market and in access to employment, increasing monitoring of the intersectionality between gender and other grounds in cases of discrimination and in practices.

The principle of equal treatment, expressed in Article 2 of the Treaty on the European Union and Article 21 of the Charter of Fundamental Rights of the European Union, is a fundamental value of the European Union. The Employment Equality Directive 2000/78/EC forbids discrimination based on sexual orientation only in the context of employment, occupation and training. However, most Member States have extended protection based on sexual orientation, and in some cases, gender identity, to cover some or all fields to which the Race Equality Directive (2000/43/EC) applies. These fields include social security and healthcare, education and access to and supply of goods and services, including housing.

EU law also prohibits sex discrimination in employment and access to goods and services (the Gender Equality Directive (Recast) 2006/54/ EC and the Goods and Services Directive 2004/113/ EC), partly covering trans people.

3.2 Portuguese socio-cultural context

Portugal went through several structural changes that led to the end of a dictatorship, lasting about 50 years. Thus, visibility and space for some themes that were already part of the agenda of other EU Member States were only achieved in Portugal at the end of the first decade of the twenty-first century [19].

It was during this period that the scientific literature began to draw attention to the discrimination and stigmatization of trans people, especially when the gender expression of some trans individuals did not follow traditional gender norms [20, 21, 22, 23].

The various social actors place certain identities in a collective social imaginary, composed of social representations, in which trans people are pathologized through biomedical narratives, as they do not integrate the expectations of a binary model in which the genitalia, for a long time, was considered a predictor infallible of each person’s gender identity [24].

In Portugal, one of the turning points was the decriminalization of homosexuality in the Penal Code in 1982. Progressively, gender plurality was accepted by society, although initially closely linked to differences between men and women [1]. The first time that the theme of the needs of trans people was on the agenda was through the creation of health responses, linked to surgical intervention aimed at the reassignment of sex. Regulation, once again, marked the process; this time not from a legal perspective, but linked to the ethics of the medical professional practice.

In 1995, the medical profession’s regulatory body revoked the prohibition of sex reassignment surgeries in the Code of Ethics, which until then was considered an unethical and illegal practice [25]. The resolution approved on 19 May 1995, by the National Executive Council of the Medical profession’s regulatory body, states in article 55, paragraph 1, that ‘Surgery for sex reassignment in morphologically normal people is prohibited, except in clinical cases properly diagnosed as transsexualism or like dysphoria’. Following the last authors mentioned, the repeal of the ban on sex reassignment surgeries did not result from pressure exerted by LGBTI activists. In the mid-1990s of the twentieth century in Portugal, collective activist actions were still recent and dispersed. It was only from 2000 onwards that activism formally took over social and legal struggles.

In the process we describe here, this is another turning point, considering that the most organized and most prominent activisms were those on gay and lesbian issues, compared with issues related to bisexuality or specific themes of trans people and women intersex people. Despite the acronym identifying diversity, in reality, only the rights, expectations, needs and the political agenda of gays asserted themselves in Portugal. Even lesbian claims were and continue to be much more dispersed, discrete and with little influence on the political agenda.

It is interesting to know that in Portugal, the trans movement matured and consolidated only after the Gisberta Salce Júnior case, a trans woman victim of homicide, carried out by a group of teenagers, in the city of Porto in 2006 [26]. The attention given by mediahas catapulted a hidden reality marked by social vulnerabilities, which trans person can be targeted, in a way, exposing the fallacies of the Portuguese legal system. Following the social pressure exerted by LGBTI organizations, the small group of organizations specializing in trans issues has become more visible.

Following these events, in 2007, sexual orientation was included in the Penal Code as an aggravating factor in cases of hate crimes. Although this legal advance did not integrate gender identity issues, it represented an achievement for the social movement and reinforced a collective attitude of intolerance towards forms of violence against LGBTI citizens.

In fact, until 2011, the Portuguese legal framework did not contemplate the legal recognition of gender identity. Sex, a natural and birth attribute, continued to be legally considered as an objective, unambiguous factor. In practical terms, that is, in everyday life, a trans citizen had to sue the State to change his name and mention of sex in his civil identification. Only after the bodily transformations could the case lead to the recognition of that person’s gender identity [27].

The law that regulated the procedure for changing the sex and changing the name in the civil registry (Law n.° 7/2011, of 15 March), known as the gender identity law, was approved by the Parliament, celebrated by activists and identified by mediaas one of the most progressive laws in the world, for allowing gender to be changed in the personal documentation of each citizen regardless of bodily changes. Corroborating this fact, a report published by Action for Identity in 2015 also states that this was the first law in the world to comply with all Yogyakarta principles, protecting citizens from the obligation to undergo bodily modifications, hormonal treatments or sterilization, different than it was before.

However, from 2015 and 2016, trans and intersex activists began to question aspects they considered obsolete in the law. One of the heavily criticized aspects was the power attributed to medical diagnosis. Although bodily changes due to the use of hormones or surgical procedures are not an aspect taken into account by the Civil Registry in cases of gender recognition, the 2011 law considers a diagnosis to be necessary, carried out by a multidisciplinary team specialized in clinical and surgical sexology, signed by at least one physician and one psychologist, attesting to a gender identity dysphoria, also commonly referred to as transsexuality. Adding to the critique of the pathologized character, activists also point out a need to reduce the bureaucratic burden of this administrative procedure; gender self-determination from 16 years of age onwards; gender recognition for citizens from other countries living in Portugal; the end of any gender-based categories in identification forms and documents; access to other possibilities for gender neutral names; and the prohibition of medical intervention in new-born or intersex child without their consent.

This was the agenda of trans and intersex activists. The bills discussed in parliament included some of these demands, with greater boldness for change in the bills of parties located in the left wing of the Portuguese political party spectrum.

In March 2017, the government presented a final, more consensual version. In this version, changes were made in relation to themes in the health, legal and education areas. Specifically, the biomedical report is no longer mandatory and allows an individual (trans or intersex) aged 16 or over to choose their gender identity. In addition, younger children will be able to choose the name they want to be treated with in schools, regardless of the name on official documents. That is identified as your social name, different from your civil name, which appears in your documentation.

The two bills and the proposed law presented by the government were discussed in the first months of 2018, and the law was approved in April. This process was very intense, as shown in the text below, when we present the results of the study carried out with the main protagonists who participated in the process.

It is now important to bear in mind that in this process, the right to self-determination of gender identity seeks to change pathologized representations towards trans people. Thus, it also breaks with the idea of the existence of a binary gender system, recognizing the right to a plurality of expressions of masculinity and femininity [4, 7].

This very peculiar advance in Portuguese society, which tends to be conservative, was quite important to raise gender issues in the field of human rights. In the Portuguese constitutional system, which is semi-presidential, bills are sent to the president of the republic, who approves or vetoes them. It was precisely in the effective fulfillment of this requirement that, in Portugal, everything seemed to go backwards. Portuguese society in general, activists, social scientists, even a part of the doctors and a part of the deputies in parliament were disappointed.

Decree-Law n. ° 203/XIII, which defined the following: ‘Right to self-determination of gender identity and gender expression and to the protection of each person’s sexual characteristics’, was vetoed (lead) by the President of the Republic in June 2018. The main argument was the prediction of access to self-determination for young people between 16 and 18 years old, without medical supervision. Self-determination turns out to be a critical point. In addition to this, the fact that the doctors did not lead the process was also revealed as a critical point.

The diploma has then returned to parliament. At its plenary meeting on 12 July 2018, the proposed law was approved, providing for the possibility for people aged between 16 and 18 years old to proceed with their process of changing their name and mentioning sex, since accompanied by their legal representatives, and with a medical report attesting to their decision-making capacity and informed will.

Public policies are the result of a negotiation process, with advances and concessions. And, once again, this is demonstrated in the process described here. In addition to this aspect, often referred to in the literature, public policies are always framed by a context. This context, which is external to the political decision process, but which imposes itself on the process, is part of a conservative tradition, a guaranteed way of legislating and an interpretation of the family as determinant, moving away from a perspective of the subject’s autonomy. The subject, although he is the holder of rights, enjoys his rights as a member of a family unit. The welfare state has a strong familial bent in Portugal.

The diploma was promulgated (approved) on 31 July 2018, after being modified and resubmitted to the President of the Republic. On 7 August 2018, is published the Law n. ° 38/2018, which defines and regulates the ‘Right to self-determination of gender identity and gender expression and to the protection of the sexual characteristics of each person’.

In 2018, Portugal approved a remarkable gender identity law that respects self-determination, because of the concerted work between political actors, academics and activists. The questions that deserved our attention and led us to develop an empirical study were the following: How did social actors interact with each other? What reciprocal influences have occurred?

This text aims to record and analyze the process of formulating the law that established the right to self-determination of gender identity and gender expression and to the protection of each person’s sexual characteristics. The achievement of this objective was sought through a qualitative study, using interviews carried out with leaders of the parliamentary groups of political parties represented in Parliament; to activists defending the rights of LGBT people; and to researchers who study the subject scientifically. We have carried out 14 in-depth interviews. The interviews allowed us to identify the reciprocal influence between these social agents and characterize the modes of political pressure most used in the legislative process.

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4. The study of public policies advances on trans rights in Portugal

This chapter describes the process of recognizing people’s rights through legislative action. In this way, it assumes a critical trans politics perspective instead of a critical approach to resistance. That is, a trans politics demands more than legal recognition and inclusion, seeking to transform current logics of state and social equality. A critical approach does not recognize as useful national stories about social change that actually continues to operate. Besides, a critical approach assumes that public policies and laws are mechanisms used by those with (more) power in society to maintain conditions of suffering and disparity for some—the disempowered ones. Instead, a critical tans politics recognizes legal change in the form of rights as a way of deep transformation [28].

As we said before, the focus of the study and this text is the analysis of the process and not the result or impact of the law. Nor is the focus on analyzing the content of the law. In view of this objective, we explain in more detail the policy analysis process.

4.1 Policy analysis

This text deals with the process of producing a policy (policy process) that refers to the set of methods, strategies and techniques employed in the political resolution of a problem and not the content of that policy (policy content), that is, the essence of matter dealt with [29] —which is analyzed elsewhere.

The analysis of the political process is carried out from the definition of the political agenda in Portugal, including the theme of gender equality in a comprehensive way, to include in the debate the right to gender self-determination.

The agenda is a set of themes that, at a given moment, are perceived by certain political actors as deserving of the State’s attention, most of the time in order to correct a situation. In a pragmatic sense, the agenda is a tool that allows organizing problems, favoring an effort to understand their causes and defining possible solutions [30, 31]. The definition of the agenda establishes an order of priorities between themes that do not always follow clear criteria known to others.

The systemic agenda includes issues that gather consensus among the political community as problems that must be resolved, and whose resolution may depend on the Governments. Political decision-makers transfer a part of these issues to the institutional agenda, through pressure, generated by the aggravation of problems or carried out by activists [30]. This internal pressure sometimes coincides with external pressures, which, in the case of Portugal, assume greater importance when they come from the EU and when they result from commitments made by the State [32]. Furthermore, in the virtual space, influence is also exerted on political agendas, which can, in a negative sense, generate some entropy in the collective perceptions that form around a social problem [33].

The political process model, inspired by the contributions of Easton [34], moves away from perspectives that consider the needs, the impulses for social policies. Impulses are factors external to a political system that influence the process of producing social policies, such as public opinion and pressure groups. These present demands or requirements, the demands and keep them continuously in their action. At the same time, they gather support, which assumes different expressions of political support.

The most recent proposal, by Jenkins [29], takes this as a starting point, but it is more useful because it allows integrating the competition between groups and key actors, in a dynamic sense based on a systemic perspective. Thus, the various proposals of a diversity of social actors are considered, in addition to the proposal initially presented [35].

Policy decisions are decisions authorized by political authorities and constitute the pressure for government action that arises both within and outside the political system.

One of the main tools used by interest groups to disseminate their beliefs and views about social reality, whether supported or not by scientific arguments, is the creation of narratives [36, 37].

Narratives are attempts to bring order to a set of complex information. Especially when it comes to information that raises uncertainties, narratives reduce complexity through the creation of stories or scenarios, which can neutralize complex phenomena [2]. One of the main effects that narratives produce on social policies is the reduction of room for negotiation, by conditioning the possibility of new approaches to the problem and by prescribing a set of solutions that tend to be rudimentary [37]. Despite recognizing these biases, the narratives do in fact influence the development of policy-making. They continue to be used because they are instrumental and intrinsic to institutional structures [38]. Therefore, we chose to use the Narrative Policy Framework [39] since it centrally locates the role of policy narratives in the policy process.

4.2 Methodological options in the study of public policies advances on trans rights in Portugal

The Linear Model assumes that policy-makers approach the issues rationally. If we followed a linear model, the flaws would be blamed on a lack of political will, poor management or shortage of resources [37]. In this study, we opted for an analysis of the policy process, as influenced by a range of interest groups that exert power and authority over policy-making. This option makes it clear that we assume a pluralist model that presents policy as primarily reflecting the interests of groups within society.

For the study, we chose as protagonists those most evidently connected and interested in the political process: deputies in parliament; activists, who act as political pressure groups; and the agents who study and, at the same time, define and offer to the other concepts, contribute to marking the barriers to the discussion and to identifying the lines of debate, in a rational and rigorous way. Those names legitimize the debate in the field of science, while the first ones carry out the debate on the political stage of the parliament.

Mediawere not included in this study, although their power to reinforce and construct alternative narratives is recognized.

The interview was chosen as a data collection technique as it allows the interviewees to elaborate their reasoning only with the orientation of the interviewer (the same in the 14 interviews carried out). The interviews were carried out after the invitation and signing of the informed consent form by each of the interviewees. All interviews were in person and carried out according to the same script and by the same interviewer. The shortest interview lasted about 30 minutes and the longest, about 90 minutes. The transcript, which constituted the corpus of analysis, was subjected to theoretically thematic analysis.

4.3 Main results

This section presents the results of the empirical study, involving different social actors (parliamentary groups, activists and researchers), who were interviewed, individually and separately. One of the objectives is to understand the reciprocal influence between them, despite operating in different stages: the leaders of the parliamentary groups are linked to the stictu sensupolitical process, with the parliament having legislative powers; activists play a fundamental role in a mixed political system and in a democratic regime in which social movements and organized activism can influence the political and legislative process; and researchers produce knowledge about the object of the law and its process as well, analyzing it from a scientific perspective, which is not to be confused with politics or the activist.

All the people interviewed reveal great knowledge and familiarity with the Law, resulting from their involvement with the political process, as deputies or researchers and/or activists heard in parliamentary hearings. In some cases, the people interviewed revealed more than one form of involvement, for example, some deputies simultaneously presented themselves as citizens concerned with the social rights of the trans, and others were simultaneously deputies and activists and/or also experts in area of gender studies.

Five of the 14 interviewees support the designation of trans person as a doctrinal reference used by activists in the trans community, and that they recognize themselves as trans people, coming closer to the conceptual logic of the transgender person, which emphasizes the individual construction of the identity, blurring the experiences of gender as strictly related to the sphere of biology most perceived as a central element in the concept of transsexuality and in pathologize trans people.

It is interesting to point out the opportunity created for social actors to reflect and increase their specific knowledge regarding a proposed law. For example, in one of the interviews it is stated that, ‘Regarding the conception I have, it was always a conception that I didn’t even question, I didn’t know that to say trans instead of saying transgender or transsexual was a political statement’.

Other interviewees look for security in the construction of their political position in international bodies and mechanisms, saying: ‘I particularly anchored myself in these guidelines, some of them with the participation of WHO, as you know, WHO on this issue of change It took a long time, but finally it removed issues related to gender change and gender identity from the category of disease’.

The interviewees create, on their own, an association between the conceptual identification and the ideology and political belonging to the party. As one respondent mentioned: ‘In political terms, I think there is a tendency for right-wing parties to anchor themselves more to the concept of transsexuality and left-wing parties to the concept of transgender’.

The biomedical model, in turn, emerges as being instrumentalized by conservative political forces. The existence of conceptual tensions that separate ideological-party wings. Specifically, in the narrative of three interviewees, ideological cleavages are an influencing factor on the definition and conceptual references of sex, gender and even on the integration of self-determination for people under 18 years of age.

In this association spontaneously made by the interviewees, one of them refers to the capacity of empathic understanding of certain deputies, from parties more to the right, who internally did not see themselves in the party’s position. In an expressive way, an interviewed deputy states that: ‘there are positions already taken and it is not exactly scientific knowledge and what we are told changes positions, this was noted in this case’.

Another respondent admits that there are overlapping political commitments, namely the need to maintain the electorate, for example, by constraining a party position aligned with a human rights framework. Thus, there are only three interviewees who place the social rights of trans people within the framework of human rights, adopting it as their reference.

From the interviewees’ point of view, among the main triggers for public and political discussion is political intention or will. The government’s programme has been an essential factor, because it contained the intention to legislate on this topic—specifically in the chapter entitled ‘Building a more equal society’, in which it is explained that the intention is to ‘improve the regime of gender identity, namely in the which concerns the need to provide for the civil recognition of intersex people and to improve the legislative framework for transsexual and transgender people’ [40].

Another trigger that drives the legislative process itself is activist work and scientific investigation. These emerge in the interviewees’ speeches as the main tools for integrating the theme in the public space of debate and in the political agenda. The penetration into the institutional agenda of the right to gender self-determination, gender expression and protection of sexual characteristics may have been the culmination of a path guided mainly by social actors outside the political arena, in the strictest sense, such as activists and researchers.

Immediately afterwards, the individual perception of the availability of political decision-makers to incorporate scientific contributions and associations in the decision-making process emerges in their speeches. The majority of interviewees, 11 out of 14, believe that scientific contributions and/or those arising from the pressure of movements or associative processes may have calibrated the discussion in light of the initial opposition to the idea of gender self-determination by some political forces.

Nevertheless, the remaining respondents believe that the valuation exists, but up to a point. One of the interviewees mentions that scientific contributions should be even more valued in the decision-making process of some parliamentary groups, which sometimes have positions previously taken even before scientific considerations.

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5. Final remarks

The study of policy process on advances on rights of trans persons in Portugal confirms that when rights are guaranteed through public policy, the probability of becoming ‘de facto’ rights rather than just ‘de jure’ rights is greatly increased.

The interviews reveal that when reflecting on gender identity in the political sphere, it is not always clear that gender is also a discursive medium that situates certain identities in a collective social imaginary, composed of social representations, in which trans people have been pathologized by the biomedical model, for not integrating the expectations of a binary model in which the genitalia, for a long time, was considered an infallible predictor of gender identity.

The study also revealed that the interaction between activists and some political decision makers is productive, namely in the assimilation of some concepts and in the appropriation of reflexive logics. This interaction is also seen as productive because it is instrumental, improving parliamentary contributions and interactions with the media. Even so, some policy-makers are selective about what they listen to and what they integrate into their political agendas, especially concerning structural issues.

Lastly, it emphasizes the importance of analyzing the political process from theoretical models that invite us to observe each of the interveners and the interaction between them, admitting also that the interpretation of a theme as a problem influences the outcome of this political process.

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Acknowledgments

This work was funded by national funds through FCT - Fundação para a Ciência e Tecnologia, I.P., under project UIDP/04304/2020.

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Written By

Dalia Costa and Miguel Miranda

Submitted: January 8th, 2022 Reviewed: January 17th, 2022 Published: April 6th, 2022