Spain's judiciary council questions details of proposed trans law

Transgender flag Ink Drop/Shutterstock

The Plenary of Spain’s national council of the judiciary has questioned the draft law on “the real and effective equality of trans people and for the guarantee of LGTBI rights.”

The bill would provide for self-determination of gender, so a person can change one’s name and sex on their National Identity Document by presenting a declaration, without the need for medical reports or proof of having started hormone treatments.

The legal change of sex could be requested beginning at the age of 12 with judicial authorization. For those 14 to 16 years old, it could be requested with the consent of parents or legal representatives; after 16 years of age, the person could go to the civil registry office alone and request the change, without the need for anyone to certify the change.

The draft law would also prohibit conversion, or reparative, therapy.

On April 8, judges Ángeles Carmona, Clara Martínez de Careaga, and Wenceslao Olea sent a report to the members of the General Council of the Judiciary on the draft law expressing serious doubts about it, saying they considered that in some aspects it would violate the rights of heterosexual women and that it goes against the best interests of minors.

The CGPJ oversees Spain’s judiciary, and among its functions is reporting on laws pertaining to judicial questions.

During an April 20 vote, the Plenary of the CGPJ accepted the points made in the April 8 report, and objected to the prohibition of reparative or conversion therapy, since "the prohibition does not fit those situations which have the consent of the affected person.”

“By majority, it has been agreed to propose that the age limit be raised to 18 years so that a person can request on his own the rectification of the registry related to sex. In this way, the procedure provided for in the preliminary draft for minors between 12 and 14 years of age which requires judicial approval, prior processing of a voluntary jurisdiction file and the demonstration of the necessary maturity and the stable will to proceed to rectify the sex in the registry would be extended to the age of majority,” the justices stated.

In addition, three other magistrates, José Antonio Ballestero, Juan Manuel Fernández, and José María Macías, presented a dissenting opinion strongly questioning whether “the mere manifestation of the will is enough for the rectification of the sex registry to be effective.”

These three members of the CGPJ noted that "such an important decision and with effects also for third parties, such as that of gender change, cannot depend on the mere expression of will."

“The gender dysphoria that justifies the change of sex must have an accreditation that allows establishing a correspondence between the real will and the expressed will, and that this is not the result of not only a spurious interest, nor of an unthinking or little matured decision,” the judges said, according to the newspaper El Debate.

"We consider insufficient the mere declaration of will as a sufficient element for the effectiveness of the right to rectify the registry related to sex, and accreditation must be required of nonconformity with the sex mentioned in the registration of the birth, by the means that the legislator deems proportionate and appropriate,” they stressed.

The three judges emphasized that the European Court of Human Rights has dispensed with the requirement of surgical intervention for a change of sex, but “it has not done the same with the need for a diagnosis, nor the need to justify a stable situation of transsexuality.”

And although they noted that the World Health Organization stopped considering transsexuality a pathology, it kept it in an epigraph of "conditions related to sexual health" called "gender incongruence,” so it is evident that an effort has been made “to eliminate the stigma of mental illness or pathology, but it has not stopped considering it as a situation that can come into contact with or require health services.”

Consequently, the judges considered that "the establishment of certain requirements, accrediting gender dysphoria, would be constitutionally legitimate" and they also emphasized that "the proposed change does not correspond to the registry function, since, if the law is passed, it will not be confirming and publishing facts and acts that refer to the civil status of persons, but rather mere manifestations of will devoid of any evidentiary basis.”

The draft law was approved by Spain’s Council of Ministers in June 2021, and sent to the legislature.

At that time Bishop Luis Argüello, auxiliary bishop of Valladolid and spokesman for the Spanish bishops’ conference, said the draft law law "transforms feelings into a legal category and enthrones the will to do whatever one wants without any limits.”

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Bishop Argüello stressed that the draft law "ignores the sexual reality of all the cells of the body and above all, it despises people who are suffering by proposing they change their National Identity Document (DNI) as a way out” of their gender dysphoria.

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