Peru's Supreme Court Ruled That Pathologizing Trans Identities Is Unconstitutional — and Invoked Happiness to Explain Why

In confirming the unconstitutionality of a decree that had classified transgender identities as mental disorders, the Court drew on Jeremy Bentham’s utilitarian idea that laws should maximize overall utility for the people they affect by maximizing happiness and minimizing suffering. As the Court put it, if recognizing a person’s gender identity produces “great happiness in the individual and their environment,” then there is no good reason for the state to stand in the way. And if a regulation produces only pain, humiliation, and stigma for a minority, it simply cannot be justified as a fair exercise of public power.

The decree at the center of the case, Supreme Decree No. 009-2024-SA, was issued by Peru's executive government in May 2024. It updated the country's basic health insurance plan by adding diagnostic codes from the International Classification of Diseases — specifically, from the ICD-10, a classification the World Health Organization has since replaced with the ICD-11 since 2022. The ICD-10 lists transgender identities, including "transsexualism" and "gender identity disorder in childhood," under the chapter on mental and behavioral disorders. In other words, Peru's health ministry incorporated an outdated framework that treats being trans as a form of illness and made that framework the gateway through which trans people must pass to access healthcare.

Two citizens — trans activist Fara Zamudio, with the support of the Pro Bono Alliance, and lawyer Silvana Rosales — filed suits contesting the constitutionality of this decree. Outright International submitted an amicus brief in support. The Superior Court of Lima ruled in their favor in June 2025, finding the decree unconstitutional. In response, the government appealed. On March 24, Peru's Supreme Court unanimously confirmed that the decree is unconstitutional and void, retroactively, from the date of its publication.

The legal reasoning matters, and it is worth following carefully. The Court applied the doctrine of "suspect classification" — a widely recognized principle stating that laws affecting historically marginalized groups are presumptively unconstitutional and must survive strict scrutiny. Gender identity is one such category: people with diverse or minority gender identities face systematic discrimination and exclusion, including — as this very case illustrates — being officially classified as mentally disordered. Crucially, the Inter-American Court of Human Rights had already established this in its Advisory Opinion OC-24/17, which explicitly protects gender identity under the American Convention on Human Rights and is binding on Peru. Once that presumption was established, the burden shifted to the state to demonstrate that the decree served a compelling government interest, was narrowly tailored to achieve it, and used the least restrictive means available.

The government's defense rested on a supposedly straightforward claim: the decree was necessary to expand healthcare coverage for trans people. But the proceedings made clear that in practice, no such expansion had materialized — in fact, many trans people were still not able to access gender-affirming care. As a result, the state could not prove that the decree served a  compelling state interest. 

More fundamentally, the Court found that even if expanding health coverage for trans people were a compelling state interest – and it is – pathologizing trans identities through an outdated psychiatric classification is not the correct instrument. The ICD-11 provides an alternative: it moved trans-related conditions out of the mental disorders chapter entirely, relocating them to a chapter on sexual health. The decree failed not because the goal was wrong but because the means were gratuitously harmful.

And here the Court's philosophical reasoning becomes most powerful. Drawing on Michael Sandel's Justice — a landmark exploration of the moral foundations of law — the judges invoked two of the thinkers Sandel examines most closely. First, John Stuart Mill's argument that individuals must be as free as possible unless they cause harm to others. Second, Jeremy Bentham's principle that maximizing welfare cannot be ethically achieved through a rule inflicting pain and stigma on a vulnerable group. Invoking American philosopher John Rawls directly, the Court concluded that there is no social good worth protecting by limiting trans people's rights.

The Court's own words are worth quoting. There is no justification, the judges wrote, for limiting the rights of trans people,  "unless it be phobias, irrational hatreds, or resistance to change." From that premise, the conclusion followed directly: "There is no reason for a society to sponsor the suffering of minorities through legal provisions that result in discrimination and stigmatization." And perhaps most movingly: given that the recognition of diverse or transgender identity produces "great happiness in the individual and their environment, surpassing any possible 'pain' or social discomfort," the state must facilitate this recognition. 

The decree the Court struck down was, in one sense, a technicality; a health ministry update to an insurance coverage list. But law works through categories, and categories have consequences. Being classified as having a mental disorder is not an administrative neutrality, particularly where it is a requirement to access any form of care related to your trans identity and wellbeing. It shapes how doctors treat you, how families respond to you, how courts weigh your testimony, and how you might understand yourself. When the state embeds a pathological classification into its insurance infrastructure, it sends a message: your identity is a disorder, your existence is a problem, your suffering is incidental. It also hands ammunition to those already looking for it. We could verify this directly: the day the decree was published, the social media accounts of trans individuals and organizations were flooded with transphobic attacks.

The remaining challenge is implementation. A ruling declares what the law requires. It does not, on its own, retrain healthcare workers, reform institutional culture, or guarantee that the next ministerial decree will be crafted with trans people's dignity in mind. National courts can strike down harmful laws and policies but the harder work of transformation happens in clinics, in police stations, in schools, in the media, in the everyday encounters and spaces that the law regulates.

The ruling carries real weight. It has put on record, in the official archive of one of Latin America's most populous countries, an argument that the dignity and happiness of trans people are constitutionally relevant facts. The kind that, in Rawls’s terms, are not subject to political bargaining or to the calculus of social interests.

The argument that dignity and happiness of trans people are constitutionally relevant facts is now part of the permanent legal record, belonging to everyone who will invoke it next.