Municipality of Vitória, et al. v. Almeida, et al.

The Municipality of Vitoria, in the State of Espritio Santo, Brazil, and the Federal Government appealed to the Federal Supreme Court of Brazil – an extraordinary appeal – to have the decision of the lower court overruled. The lower court had decided in favor of Alessandro Dias Almeida and others that the State should provide a psychological and multidisciplinary assessment of the patient in order for him to undergo sex reassignment surgery. The lower court stated that health was a fundamental right of every human being, made evident by the Federal Constitution, and that the facts alleged by the Municipality were fragile, incapable of justifying the interruption of the program the defendants had begun with the HUCAM institution for the sex change.

The court also defended that it was not a matter of the Judiciary acting outside its scope and interfering in the power of the Public Administration – as alleged the plaintiff –the Municipality of Vitoria, it was a matter of equality in treatment, assured by the Constitution, as well as the right to life and dignity. The lower court sentence the Municipality to continue assessing the patients as too whether they qualified for the surgery to be paid for by the Municipality. The Federal Supreme Court did not admit the extraordinary appeal by part of the Municipality and the Federal Government on the basis that it didn’t not find that the Constitution was violated and, therefore, it was in the defendants’ constitutional right to have their surgery followed up and paid for by the government, based on right to health and equal treatment.

The Federal Supreme Court of Brazil decided in favor of the plaintiffs.  The extraordinary appeal was not admitted on the basis that the plaintiffs' constitutional right to health was clearly provided in article 196 of the Federal Constitution of Brazil of 1988. Therefore, it was the Municipality of Vitoria's duty to ensure this right to health by offering a follow up on the pre-operative surgical procedures as well as to financially provide for the procedure.  The Supreme Court upheld the lower court’s decision, which complied with the Constitution, and dismissed the appeal.

“Consagração da saúde como direito fundamental da pessoa humana, evidenciada pelos artigos 196 e seguintes da Constituição da República de 1988. Solidariedade entre os Réus, todos legitimados, quanto à gestão das políticas de saúde e à responsabilidade pela sua implementação.”
“...não há que se falar, no caso concreto, em revisão do mérito administrativo ou interferência indevida do Poder Judiciário sobre o juízo discricionário da Administração Pública, impondo-se, por seu turno, a proteção à vida e à dignidade da pessoa humana, bem como a restauração da isonomia, claramente comprometida em fundação da interrupção do programa, dotado de finalidade terapêutica, não estética.”