SHARE
COPY LINK
For members

SPANISH LAW

IN DEPTH: What is Spain’s ‘Trans Law’ and why is it controversial?

The Spanish government's new gender self-identification legislation is facing widespread criticism from across the country and political spectrum. What is the new 'Trans Law' and why is it proving to be so divisive in Spanish society?

IN DEPTH: What is Spain's 'Trans Law' and why is it controversial?
Spanish model Lucia Heredia was the second transgender woman in history to run for the Miss World Crown. Spain's Trans Law has divided Spain’s feminist communityespecially. (Photo by JORGE GUERRERO / AFP)

Spain has long been a world leader when it comes to recognising and protecting the rights of the LGBT community. It was the world’s fourth country to legalise gay marriage with full adoption rights back in 2005, after all.

A couple of years later, in 2007, the same Zapatero government followed it up by passing a pioneering law that allowed people to change their name and sex assigned to them at birth, without having to undergo a full sex change.

A condition of the law, however, was that those wishing to legally change their gender must support their application with a psychological evaluation that diagnosed ‘gender dysphoria’ – that is, the perceived mismatch between someone’s biological sex and their gender identity.

But now, in 2022, the Spanish government has found itself mired in controversy over its proposed updates and expansion of the law.

Protesters wearing face masks wave trans flags during a demonstration calling for more rights for transgender people at La Puerta del Sol in Madrid in 2020. (Photo by PIERRE-PHILIPPE MARCOU / AFP)

The government’s junior coalition partner, Unidas Podemos, has pushed a new ‘Trans Law’ (La Ley Trans as it’s known in Spain) that is quickly becoming a major political sticking point and causing rifts not only within Spanish feminism but the government coalition itself.

And it’s not the first legal controversy this government has caused recently with what was intended to be progressive legislation. In fact, due to the political fallout over the recent ‘Only Yes Means Yes’ sexual consent law that has accidentally reduced sentences for convicted rapists, amendments to the Trans Law have been delayed and the controversy rumbles on.

READ ALSO: Why is Spain reducing prison sentences for rapists?

What is Spain’s new Trans Law?

The law, known at the draft stage as the ‘Real and Effective Equality of Transexual People and for the Guarantee of the rights of LGBTI people’, is seen as the ideological brainchild of Irene Montero, Spain’s Equality Minister who also guided the backfiring ‘Yes means Yes’ sexual consent law through Congress.

In a sentence, the new Trans Law simplifies the gender self-identification process. As currently proposed, the law states that any person over 16 years old will be able to legally change their name and gender on official ID documents by simply completing a basic administrative procedure.

According to Montero, the law is a recognition of “trans people’s right to be who they are, without witnesses, without any obligation to undergo hormone treatment… and without a medical report that must say that they are sick.”

As of yet, the law does not specify any limits on how many times a person would be legally able to change their gender, though the Spanish press has reported in recent weeks that the senior partner in government, Pedro Sánchez’s PSOE, may try to force further amendments to the legislation.

A woman holds up a placard reading “Families proud of their trans children” during a gathering marking the “International Transgender Day of Visibility” (TDOV) in Madrid on March 31, 2021. (Photo by PIERRE-PHILIPPE MARCOU / AFP)

Crucially, the new law removes the requirements from the 2007 bill of a gender dysphoria diagnosis – essentially making gender self-identification, and changing your legal gender, far easier.

If the new law is approved in its current form, children between the age of 16 and 18 will be allowed to legally change their sex without their parent’s consent, though those between 14 and 16 years will still need parental authorisation.

Gender self-identification will also be available to children between 12 and 14 years old, and children under the age of 12 will have the right to change the name on their formal identification documents.

READ ALSO: Teens in Spain can change gender on paper without medical evaluation

This aspect of the law – that of self-identification among children – is causing particular outrage, and has been subject to criticism from both Spain’s Council of State and its Judiciary, the latter of which has demanded that gender self-identification must, from a purely legal perspective, begin from the age of 18.

The Trans law also allows the use of hormone blockers on children from the beginning of puberty, and recognises the legal status of non-binary people, that is, those who do not identify with any gender. Under the proposed Trans Law, no letter signifying gender would appear on their ID documents.

It also bans conversion therapy, the pseudoscientific practice of changing a person’s sexual or gender identity.

Why is the Trans Law so controversial?

As you may have heard or read in Spain in recent weeks, this groundbreaking law has been met with considerable controversy. Sociocultural issues like those of sexuality and gender are always politically charged, and often become battlegrounds on culture war fighting between left and right.

But this draft law hasn’t just been attacked along traditional left versus right lines. It has been attacked by the Spanish judiciary and State Council, divided Spaniards across the country, including Spain’s feminist community and the government coalition itself.

As is the case around the world, much of the debate around gender self-identification has manifested itself in debates over sport.

Protesters wear masks during a rally to mark Transgender Day of Remembrance, in Madrid, on November 20, 2022. (Photo by OSCAR DEL POZO / AFP)

Spain’s Trans Law, in its current form, would allow trans people to compete in sports events according to their self-identified gender. This means plausibly maintaining physical and biological advantages over their cisgender counterparts, something that has led many to suggest self-identification in this instance would serve to be anti-feminist and bring into question fairness and competitiveness. It has also caused controversy with regards to toilets and changing rooms, a debate seen the world over.

In fact, the Trans Law has also divided Spain’s feminist community, with many suggesting that the implementation of gender self-identification serves to unpick decades of feminist attempts to move away from a gender-based view of the world. Some Spanish feminists have argued that the Trans Law takes Spain backwards as it elevates gender above other issues and adheres to traditional stereotypes.

Similarly, the Trans Law as it is currently conceived could, critics say, cause backwards steps in terms of women’s equality and legal rights. By allowing any man to change his legal sex by simply completing an administrative procedure, critics fear this could mean “legalising” sexual discrimination and facilitate gender violence.

Critics are demanding assurances that what they view as potentially fraudulent or opportunistic instances of gender self-identification be avoided, such as if a man legally becomes a woman to, for example, avoid legal consequences under gender violence legislation.

Supporters of the law say that gender self-identification is a human right, and that the state should not require medical or psychological proof for someone to be able to change their own gender.

As one might expect, the proposed law has been attacked by the Spanish right, with tensions also flaring from within the government coalition. PSOE have requested extensions to the deadline in order to “to give legal certainty to the law,” likely because it is certain that the law in its current form would be appealed by PP and Vox in the courts.

As the government continues to deal with the political fallout of its botched ‘Only Yes Means Yes’ law, expect controversy over the Trans Law – and gender self-identification in particular – to continue in 2023.

Member comments

Log in here to leave a comment.
Become a Member to leave a comment.

POLITICS

Spanish government to alter sexual consent law to fix loopholes

Spain's leftwing government said Monday it was looking to modify a landmark law to fight sexual violence to close a loophole that has let some convicted offenders reduce their sentences.

Spanish government to alter sexual consent law to fix loopholes

Since the law came into force in October, around 20 offenders have reportedly been released and 300 others have seen their sentences reduced.

Prime Minister Pedro Sánchez’s Socialist party has announced plans to reform the law.

“In the coming days, we will present a draft bill, a meticulous text that will provide a response and a solution to these undesired effects which we obviously don’t want to see repeated in the future,” said Education Minister Pilar Alegria, who is also party spokeswoman.

“Logically, the best way to specifically address these undesired effects would be to increase the penalties for sexual offenders,” she told reporters.

READ ALSO – ‘Only yes means yes’: Spain tightens sexual consent law

The controversy erupted barely six weeks after the entry into force of the “Only yes means yes” law, which reformed the criminal code in a bid to define all non-consensual sex as rape.

The overall aim of the law was to shift the focus in cases of sexual violence from the victims’ resistance to a women’s free and clearly expressed consent.

To this end, the charge of sexual abuse was dropped and everything was grouped under sexual assault. The range of penalties was widened to include all possibilities under that single term.

READ ALSO: How Spain is trying to fix its new trouble-ridden sexual consent law

The law effectively reduces the minimum and the maximum punishment in certain specific cases and hundreds have applied to have their sentences revised.

‘Consent must remain at the centre’

Over the weekend, reports that the government was mulling changes to the law prompted tensions between the ruling Socialists and their hard-left junior coalition partner Podemos, which has championed the legislation.

The right-wing opposition Popular Party (PP) had quickly moved to offer parliamentary support if the Socialists wanted to push through the changes without Podemos.

But Podemos reacted angrily. Equality Minister Irene Montero warned that such a move would mean the law reverting to its original format and she vowed to do “whatever necessary” to ensure consent was kept at the centre.

Her stance was hammered home by party leader Ione Belarra on Monday morning. “Consent has to remain at the heart of the criminal code. We can’t go back to the evidentiary ordeal of proving we resisted enough or that we hadn’t been drinking,” tweeted Belarra, the social rights minister.

Socialist ministers insisted the planned changes would merely address the loopholes and would not touch the issue of consent.

“The correction and modification of the law is designed to avoid any undesired outcomes in the future and the issue of consent will remain at the centre of the law against sexual assault so that women avoid enduring the ordeal of proof in court,” cabinet minister Felix Bolanos, a close Sánchez aide, told reporters.

Until now, rape victims had needed to prove they were subjected to violence or intimidation. Without that, the offence was considered “sexual abuse” and carried lighter penalties than rape.

With “sexual abuse” dropped from the reformed criminal code and a much wider range of offences grouped under “sexual assault”, a broader range of penalties was required to ensure proportionality.

At the weekend, Montero said it was only a “minority” of judges who had applied the law incorrectly.

She said there were similar teething problems with Spain’s landmark 2004 domestic violence legislation, the first in Europe, which faced “almost 200 questions” about its legality in the first years after it was passed.

SHOW COMMENTS