'A vitória é nossa', diz transexual do RS que provocou mudanças no SUS

Renato Fonseca, de 46 anos, integra grupo que iniciou ação judicial.
Ministério da Saúde anunciou novas diretrizes para mudança de sexo.

Caetanno FreitasDo G1 RS

Renato Fonseca espera há sete anos por cirurgia de troca de sexo pelo SUS (Foto: Arquivo pessoal)

Ao ficar sabendo sobre as mudanças para o atendimento de transexuais e travestis pelo Sistema Único de Saúde (SUS), publicadas nesta quinta-feira (21) pelo Ministério da Saúde, o serígrafo Renato Fonseca, de 46 anos, viu cada vez mais próximo o fim da longa fila de espera que o atormenta há sete anos. Ele é uma das vozes mais graves entre o grupo com cerca de 30 pessoas que ingressou, no Rio Grande do Sul, com uma representação no Ministério Público Federal (MPF) para que o SUS contemplasse transexuais masculinos em cirurgias de trocas de sexo no Brasil.

Nascido Rosane Oliveira da Fonseca, Renato esperava há muito tempo pela oportunidade de fazer a cirurgia de troca de sexo. Agora, com as novas diretrizes do Ministério da Saúde, válidas para todo país, o procedimento poderá ser marcado a qualquer momento.

Renato diz ser o 2° na lista de espera do HCPA
(Foto: Arquivo pessoal)

“Fizemos tudo juntos, a vitória é nossa. A gente vive tapado com roupas em pleno verão. Queremos a liberdade. Estou desde ontem (quinta) vibrando muito. É uma alegria enorme”, descreve ao G1.

Renato adianta que na próxima segunda-feira (25) o grupo estará no Hospital de Clínicas dePorto Alegre (HCPA) para dar início ao processo de marcação das cirurgias.

“Esperamos que o hospital agilize. A gente passa tanto tempo em avaliação com psicólogos e psiquiatras para que eles tenham certeza da nossa certeza que, quando chega uma notícia dessas, a ansiedade é quase incontrolável”, afirma.

O procurador regional da República da 4ª Região, Paulo Leivas, foi um dos que ajuizaram a ação para que o SUS incluísse na sua lista de procedimentos a cirurgia de transgenitalização, ou mudança de sexo, em meados de 2002. Cinco anos depois, o Tribunal Regional Federal (TRF) da 4ª Região deu parecer favorável e notificou a União, que recorreu da decisão. As possibilidades de reversão judicial foram esgotadas em 2009. Desde lá, a medida estava sendo descumprida, conforme o procurador.

“A União desistiu dos recursos por causa de uma declaração do então ministro da Saúde (José Gomes Temporão), que declarou ser favorável ao direito dos transexuais. Ou seja, a decisão transitou em julgado. O SUS começou a oferecer o procedimento a transexuais femininos e ignorou os masculinos até hoje”, explica.

O Programa de Transexualidade do HCPA é coordenado pelo cirurgião Walter Koff, também professor de urologia da Universidade Federal do Rio Grande do Sul (UFRGS). Ele também exaltou as mudanças anunciadas pelo Ministério da Saúde. “Temos 32 pacientes na fila esperando essa portaria para poder retirar mamas, ovários e útero. Isso vai ser muito importante.”

O HCPA é um dos quatro centros brasileiros capacitados para realizar esse tipo de tratamento. A instituição já fez 168 cirurgias de redesignação do sexo masculino para feminino.

Novas diretrizes do Ministério da Saúde
A Portaria 2.803 de 19 de novembro de 2013, publicada nesta quinta-feira (21) no Diário Oficial da União, estabelece que os transexuais masculinos – pessoas que são fisicamente do sexo feminino, mas se identificam como homens – tenham as cirurgias de retirada das mamas, do útero e dos ovários cobertas pelo sistema público. Eles também passam a ter direito à terapia hormonal para adequação à aparência masculina. Esse grupo não estava incluído na portaria que regia o processo de mudança de sexo pelo SUS até então.

Já as transexuais femininas – pessoas que nascem com corpo masculino, mas se identificam como mulheres – também terão um tratamento adicional coberto pelo SUS: a cirurgia de implante de silicone nas mamas. Desde 2008, elas também têm direito a terapia hormonal, cirurgia de redesignação sexual – com amputação do pênis e construção de neovagina – e cirurgia para redução do pomo de adão e adequação das cordas vocais para feminilização da voz.

A partir de agora, também terão direito a atendimento especializado pelo SUS os travestis, grupo que não tem necessariamente interesse em realizar a cirurgia de transgenitalização. A portaria define que o tratamento não será focado apenas nas cirurgias, mas em um atendimento global com equipes multidisciplinares.

Polêmica da idade mínima
As novas regras estabelecem a idade mínima de 18 anos para início da terapia com hormônios e de 21 anos para a realização dos procedimentos cirúrgicos. Essas são as mesmas idades estabelecidas pela Portaria 457, de 19 de agosto de 2008, regra que regia o processo de mudança de sexo até então.

Em 31 de julho deste ano, o Ministério da Saúde chegou a publicar uma portaria para definir o processo transexualizador pelo SUS – suspensa no mesmo dia da publicação – que estabelecia a redução da idade mínima para hormonioterapia para 16 anos e dos procedimentos cirúrgicos para 18 anos, o que foi revisto nas novas regras.

Segundo o Ministério da Saúde, essa revisão foi decidida para adequar as normas à resolução 1955, de setembro de 2010, do CFM.

Para Koff, o ideal para o paciente é passar pelo tratamento o quanto antes. “Vamos reivindicar que se abaixe a idade mínima para a cirurgia e para o tratamento com hormônios. Quanto antes, melhor. Como esse processo começa na infância, quando eles têm 16 anos, já estão no fim da puberdade e têm condições de tomar a decisão”. Segundo ele, o tratamento precoce pode evitar sofrimentos no âmbito social e afetivo.

do site G1

Judge Orders New Jersey to Allow Gay Marriage

By KATE ZERNIKE and MARC SANTORA

Published: September 27, 2013 

Full Decision

A New Jersey judge ruled on Friday that the state must allow same-sex couples to marry, saying that not doing so deprives them of rights that were guaranteed by the United States Supreme Court in June.

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Pool photo by Tony Kurdzuk

Judge Mary C. Jacobson

It is the first time a court has struck down a state’s refusal to legalize same-sex marriage as a direct result of the Supreme Court ruling, and with lawsuits pending in other states, it could presage other successful challenges across the country.

The decision was a rebuff to Gov. Chris Christie, a Republican whovetoed a bill passed by the Legislature last year that would have allowed same-sex couples to marry. His office said it would appeal to the state’s highest court. And he is likely to seek a stay preventing same-sex marriages from beginning on Oct. 21, as the judge ordered.

New Jersey was particularly ripe for a challenge after the Supreme Court ruling, because of a previous ruling by the state’s highest court in 2006. In that decision, in the case Lewis v. Harris, the New Jersey Supreme Court ruled unanimously that same-sex couples were entitled to all of the rights and benefits of marriage. But the court stopped short of saying they had a fundamental right to marry, and in an unusual step instructed the Legislature to define how to confer equal protection.

“The ineligibility of same-sex couples for federal benefits is currently harming same-sex couples in New Jersey in a wide range of contexts,” Judge Mary C. Jacobson of State Superior Court in Mercer County wrote on Friday. “Same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution.”

Legislators had responded to the 2006 court ruling by passing a bill to allow civil unions, but same-sex couples sued again, arguing that civil unions denied them many benefits, particularly in health care decisions and financial matters.

The United States Supreme Court’s ruling in June striking down the federal Defense of Marriage Act meant that the federal government must provide the same benefits to gay married couples as it does to heterosexual married couples. Justice Anthony M. Kennedy noted in his opinion that the ruling was “confined” to legal marriages, and several federal agencies have since said that partners in civil unions would not be extended benefits, including those having to do with immigration, tax status and health care. Thirteen states and the District of Columbia allow gay couples to marry.

The same-sex couples in New Jersey pressed for a fast judgment after the Supreme Court’s decision. Judge Jacobson agreed with the plaintiffs that the federal decision demanded a change in New Jersey, to abide by the state’s earlier ruling recognizing equal protection for gay couples.

“Under these circumstances, the current inequality visited upon same-sex civil union couples offends the New Jersey Constitution, creates an incomplete set of rights that Lewis sought to prevent, and is not compatible with ‘a reasonable conception of basic human dignity,’ ” she wrote, quoting from the earlier State Supreme Court decision.

While the decision is limited to New Jersey, gay rights advocates said that it would help fuel the argument that marriage is a fundamental right for gay couples.

“Other states may not have a Lewis decision that says that not giving same-sex couples an equal footing violates the Constitution, but I think that argument is available, and a vibrant argument to make,” said Hayley Gorenberg of Lambda Legal, who representedGarden State Equality and six gay and lesbian couples and their children in the New Jersey case.

The federal decision, she said, “made the freedom to marry even more urgent than before because the state stood between these families and a host of federal protections, benefits, rights and responsibilities.” She hailed Judge Jacobson’s ruling as “thrilling.”

The ruling heightens the political drama for Mr. Christie, who is up for re-election in November, and is considered a leading candidate for his party’s nomination for president in 2016.

His Democratic opponent, State Senator Barbara Buono, called the ruling “a stark reminder that Governor Christie stands on the wrong side of history.”

“The courts have spoken and the people have spoken,” Ms. Buono added. “It is time for Chris Christie to stop blocking equal rights for all New Jerseyans.”

But the court ruling might not work against him in a presidential campaign as he courts conservative voters in key primary states. He frequently rails against the New Jersey Supreme Court as too liberal, and has tried to fill it with judges who would rule more conservatively on issues like affordable housing and school financing.

If the appellate court rules against him on same-sex marriage, and even opponents believe there is a strong chance it will, Mr. Christie could simply campaign against activist judges. He could even ask the appellate court to push the case immediately to the State Supreme Court for quick resolution.

When Mr. Christie vetoed the same-sex marriage bill, he urged lawmakers to put the issue before voters. The Democratic-led Legislature declined, saying that questions of civil rights should not be subject to a referendum.

The governor’s office, in a statement on Friday, signaled that he intended to make the Legislature, if not the courts, his boogeyman. “Since the Legislature refused to allow the people to decide expeditiously, we will let the Supreme Court make this constitutional determination,” the statement said.

Legislative leaders, working with state and national gay rights groups, are pushing to override Mr. Christie’s veto, which they have until January to do.

This article has been revised to reflect the following correction:

Correction: September 27, 2013

An earlier version of the article misspelled the surname of the judge who ruled in the same-sex marriage case. She is Mary C. Jacobson, not Jacobsen. And an earlier version also misstated the legal status of gay unions in the District of Columbia. The district has same-sex marriage, not only another form of protection for same-sex couples.

This article has been revised to reflect the following correction:

Correction: October 1, 2013

An article on Saturday about a New Jersey judge's ruling that the state must allow same-sex couples to marry misstated the role of Hayley Gorenberg in the lawsuit that led to the ruling. She represented Lambda Legal in the case; she did not argue it. (The case was argued before Judge Mary C. Jacobson by Lawrence S. Lustberg.)

A version of this article appears in print on September 28, 2013, on page A1 of the New York edition with the headline: Judge Orders Gay Marriage In New Jersey.

from the site NYtimes

Opinions recap: Giant step for gay marriage

Giving tens of thousands of already married same-sex couples in a growing list of states fully equal access to all benefits that the federal  government provides for those who are wed, a closely divided Supreme Court struck down a 1996 law on the theory that it was aggressively anti-gay.  And, by a different combination of Justices, the Court came close to assuring that millions of still-single gays and lesbians in California will very soon be able to legally marry.

Even while the Court firmly insisted that it was not saying anything about the authority of states to deny marital rights to same-sex partners — as thirty states still do — the obvious practical and political impact of two five-to-four decisions was to advance the cause of equality for homosexuals everywhere in the country, perhaps further than it had ever gone in more than four decades of gay activism.

Justice Kennedy announces DOMA opinion (Art Lien)

In fact, the rulings were issued just two days short of the forty-fourth anniversary of the famous Stonewall riots, the first uprising of homosexuals to assert their claims to equality in America, outside a bar in New York’s Greenwich Village.  Those riots are regarded as the dawning of the gay rights movement.

And the decisions emerged exactly on the tenth anniversary of the Court’s historic decision in Lawrence v. Texas, declaring a constitutional right of privacy in the intimate relations of gays and lesbians — a decision that the Court majority cited on Wednesday in affirming the dignity of committed homosexual couples.

Here, in summary, is what the Court did — and did not do — on same-sex marriage on the final day of its 2012-13 Term:

** It ruled unconstitutional the Defense of Marriage Act’s Section 3, which defines marriage for purposes of one thousand federal laws and multitudes of official regulations as the union of one man and one woman only — a definition that excludes probably millions of already-married same-sex couples from any of those benefits or opportunities.  “DOMA,” the Court majority said caustically, ”writes inequality into the entire U.S. Code.”

** It decided that sponsors of California’s “Proposition 8,” adopted by the state’s voters in an election almost five years ago, did not have a legal right to be in the Supreme Court or in a federal appeals court to try to defend that measure from constitutional attack.  That is likely to have the early impact of putting into final effect a San Francisco federal judge’s 2010 decision striking down Proposition 8 under the U.S. Constitution.   Some 18,000 California same-sex couples already had been married when they had a brief chance to do so as the issue developed in that state, but now millions are likely to gain the right to marry when the judge’s ruling is implemented by state officials.  Happening perhaps in just a few weeks, that would make California the fourteenth — and largest — state to permit such marriages (along with Washington, D.C.).

** It declared, in quite explicit terms, that it was not deciding at this point whether the Constitution guarantees gays and lesbians a right to marry or whether the Constitution forbids states’ bans on such marriages.  That will leave the promoters of marriage equality to continue with their efforts, in state legislatures and in lower courts, to try to win the right one more state at a time.   The Court itself has a chance to take up that basic issue, as early as tomorrow, in a pair of new cases — from Arizona and Nevada — but it may not yet be ready to do so.

** And the Court did not spell out a new constitutional test for courts to use in judging new laws or other government actions that treat homosexuals less favorably than other people in similar settings and factual contexts.   Although DOMA’s benefits ban was nullified under the Fifth Amendment’s guarantee of legal equality, the majority opinion did not sort out explicitly which level of judicial review — in escalating toughness — is supposed to be used in gay rights cases.  In fact, the test that was applied this time appeared to be notably indistinct.

With the demise of the Defense of Marriage Act’s benefits ban in Section 3, for legally married gays and lesbians, the Court immediately — even if inadvertently — gave rise to a situation in which couples living in states that will not allow them to marry because they are homosexuals will still be able to qualify for federal benefits, many of which are handed out or managed by state governments.

But the ruling did not do anything explicitly about another section of DOMA — Section 2, which gives the states the right to refuse to recognize gay marriages performed in other states.  That thus raised the prospect that a same-sex couple married in one of the states now allowing such unions could face obstacles to their marital rights when they moved into states that still do not recognize their unions.  This might be a particular problem for already-married gay couples serving in the military, who often have to move from state to state.

Although Chief Justice John G. Roberts, Jr., dissented from the ruling in the DOMA case, he went to special lengths in his opinion in that case to apply the states’ rights language that Justice Anthony M. Kennedy’s majority opinion had employed in justifying the nullification of Section 3.

Roberts wrote, borrowing words from the Kennedy opinion: “While ‘the state’s power in defining the marital relation is of central relevance’ to the majority’s decision to strike down DOMA here, that power will come into play on the other side of the board in future cases about the constitutionality of state marriage definitions.  So too will be concerns for state diversity and sovereignty that weighs against DOMA’s constitutionality in this case.”

The Court, the Chief Justice added, “may in the future have to resolve challenges to state marriage definitions affecting same-sex couples.”  His remarks about the majority arguments on states’ rights in this field seemed to be telegraphing his views on the basic definition of marriage — and an implied suggestion that lower courts might be interested in following.

While much of the disagreement among the Justices played out most vividly in the ruling on DOMA, the dispute in the other decision on Wednesday was comparatively muted.  Even so, that decision — finding no right by backers of California’s “Proposition 8″ to be in court to defend it — did establish firmly a new principle of constitutional law.

That holding was that, when a state’s voters have approved new legislation or a new state constitutional amendment, and the state’s own officials refuse to defend it in court, the sponsors of the ballot measure will not be allowed to stand in for the state as the measure’s defenders.

The Chief Justice, who wrote the majority opinion in that five-to-four ruling, declared: “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to.  We decline to do so for the first time here.”

The lack of any defenders of “Proposition 8″ led the Court to order the Ninth Circuit Court (which had nullified the measure) to dismiss the appeal that the sponsors had pursued in the Circuit Court.  In procedural terms, that dismissal will start a series of steps in lower courts that will determine just when California’s large population of gays and lesbians could gain a full right to marry.

The case will first make a stop in the Ninth Circuit, which must obey the Court’s order to dismiss the backers’ appeal.  That would leave standing the August 2010 decision by now-retired U.S. District Judge Vaughn R. Walker of San Francisco, striking down the measure on a broad constitutional premise of equality and due process.   Judge Walker’s order against enforcing “Proposition 8″ thus would appear to go into effect once the case physically landed back in the District Court where he had sat, unless the measure’s backers can find some legal method to try to narrow its scope.

Absent such a narrowing, the Walker decision would require the top officials in California — the governor and attorney general — to apply the decision and to order county clerks across the state to begin issuing marriage licenses to gay and lesbian couples.  While the order also applies only to two counties’ clerks — in Alameda and Los Angeles — all clerks in California are likely to get orders to grant such licenses.

One of the ironies of the demise of the defense of ”Proposition 8″ in the Supreme Court’s procedural ruling on “standing” was that this case had been put together explicitly to be an ultimate test of a constitutional right to equal marriage for homosexuals — a test that ultimately the Supreme Court would settle.   In the end, the Court did not pass upon that issue, but appeared to have cleared the way for gays and lesbians to marry in that state, when whatever legal maneuvering remains reaches its end.

SCOTUSblog

Obama’s Pen May Shape Scope of Marriage Ruling

By MICHAEL D. SHEAR
Published: June 13, 2013

WASHINGTON — A Supreme Court ruling this month that could overturn the ban on federal benefits for same-sex couples is presenting the Obama administration with a series of complicated and politically sensitive decisions: how aggressively to overhaul references to marriage throughout the many volumes that lay out the laws of the United States.

The decisions could affect Social Security checks, immigration laws and military benefits for same-sex couples, among other issues, with the outcomes based on whether the couples live in a state that allows them to marry.

Gay rights advocates, aware that a Supreme Court ruling that overturns the 1996 Defense of Marriage Act would be the beginning of their push to have the federal government recognize same-sex marriage, are urging White House officials to plan to modify hundreds of mentions of marriage throughout federal statutes and regulations. Many legal analysts say there is a substantial chance that the Supreme Court will strike down the 1996 law, which in defining marriage as a union between a man and a woman denies federal benefits to same-sex couples.

“We’re going to fight to ensure that legally married gay couples have access to all federal benefits and protections, irrespective of state borders,” said Fred Sainz, a spokesman for the Human Rights Campaign, a gay rights organization in Washington. “When it comes to federal benefits, it shouldn’t matter what side of a state border you live on.”

The court is expected to rule in the next two weeks. Based on the justices’ questions at oral arguments, legal analysts predict that the justices will overturn the law on the grounds that marriage is a matter for the states.

If the justices do strike it down, they will sweep aside a law that has for years prohibited gay couples from receiving a vast array of federal benefits that married couples take for granted. But whether gay couples actually get those benefits would depend on where they live — and how vigorously President Obama seeks to change the legal language that determines whether a couple is married in the eyes of the federal government.

For Mr. Obama, who appears eager to have his legacy defined in part by the advancement of civil rights for gay Americans, his administration’s actions after the ruling may be as important as the ruling itself. A spokesman for the president declined to comment on the issue but hinted that the administration might be preparing to act.

“As the court has not yet ruled, it would be premature to speculate about what may happen after a decision is issued,” said Matt Lehrich, a White House spokesman. “The administration will, of course, be prepared to address any implications of the court’s decision.”

Activists, however, are warning gay couples not to expect that federal benefits would arrive immediately, because government agencies vary widely in how they determine whether a couple is legally married.

Some federal agencies, like the I.R.S. and the Social Security Administration, make that determination by looking to the state where a couple lives. Even with the 1996 law overturned, those agencies would deny benefits to gay couples who live in one of the 38 states that do not allow same-sex marriage.

In such cases, the administration would have to change its standard — for example, by defining marriage based on whether a couple is legally married in any state — in order to extend benefits to same-sex couples.

Other agencies, like the Defense Department, already base their decision on the location of a couple’s wedding, regardless of where the couple lives now. The same-sex spouse of a service member would get health care benefits no matter where the couple lives, as long as the two married in one of the 12 states where same-sex marriage is legal.

Gay rights advocates say that the scope of federal benefits that would become available to gay couples in the wake of the court’s ruling is uncertain. There are more than 1,100 places in the federal statutes where rights or benefits are based on a person’s marital status, according to one analysis by advocates for same-sex marriage.

“Without sweeping decisions from the court, we’ll continue to have a patchwork across the country that denies all families equal protection,” Mr. Sainz said. “We are going to fight for full equality in all 50 states, including marriage.”

Opponents of same-sex marriage say the legal questions surrounding the definition of marriage were a key argument behind the passage of the act in the first place. Chris Gacek, a senior fellow at the Family Research Council, said the organization would oppose any effort to impose same-sex marriage on states that do not want it.

“We certainly wouldn’t go for imposing gay marriage on the country administratively,” Mr. Gacek said.

He continued, “Once you open up this can of worms, there are a lot of issues here.”

President Bill Clinton signed the marriage act into law in the months before his re-election in 1996. Because no state allowed same-sex marriage at the time, the law was largely symbolic. Seventeen years later, the situation has changed, with gay couples able to marry in 12 states and the District of Columbia.

In his first term, Mr. Obama sought to do what he could to extend benefits to same-sex couples despite the Defense of Marriage Act. He required that any hospital that receives Medicare or Medicaid payments allow visitation by a patient’s gay spouse. And he ordered relatively small changes in policy affecting the federal work force, which permitted the State Department to issue embassy identification cards to same-sex partners of diplomats.

Now some activists want him to go further if the court overturns the law. But others are being more cautious, citing the politically charged nature of the issue and complex legal questions.

“It’s important that no one get ahead of the court,” said one adviser to gay rights advocates, who asked for anonymity because the court’s decision had not been announced. “People recognize that whatever the court decides will require some complex administrative implementation, which will take some time.”

From The NY Times