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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.

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SPANISH POLITICS

Right leads mass protest against Spanish government in Madrid

Thousands of people protested in Madrid on Saturday against Prime Minister Pedro Sanchez's leftist government in a rally held in a key election year that was backed by far-right party Vox.

Right leads mass protest against Spanish government in Madrid

Participants waved red and yellow Spanish flags and called on Sanchez to resign. Some held up signs with a photo of the Socialist premier calling him a “traitor”.

Around 30,000 people gathered in Madrid’s Cibeles Square for the rally, according to the central government’s delegation in the Spanish capital. Organisers said some 700,000 people had taken part.

The protest was called by dozens of right-leaning civil society groups and backed by conservative parties including the main opposition conservative Popular Party (PP) and Vox.

The right is angered by the government’s decision to abolish the crime of sedition, of which nine separatist leaders were convicted over their role in the Catalonia region’s abortive secession bid in 2017. It was replaced with an offence carrying a lower prison sentence.

READ MORE: Spain drops sedition charge against ex-Catalan leader

Conservatives are also angered by a flagship law against sexual violence that toughened penalties for rape but eased sentences for other sexual crimes. This has set some convicts free after their jail terms were reduced.

Speaking to reporters at the start of the rally, Vox leader Santiago Abascal denounced “the worst government in history” which “has divided Spaniards and freed rapists and coup leaders”.

“We need a permanent and massive mobilisation until the autocrat Pedro Sanchez is expelled from power,” he added.

Conservative poll edge 

Retired accountant Antonio Orduna, 67, told AFP said he was upset the government was “letting those who want to break up Spain off the hook.”

He cited the abolishment of the crime of sedition and Sanchez’s 2021 decision to pardon the Catalan separatists initially sentenced to between nine and 13 years in prison for their role in the failed secession bid.

Madrid protests

A protestor holds a Spanish national flag as they gather during the anti-government demonstration on the Plaza de Cibeles square in Madrid, on January 21st, 2023. Photo by Pierre-Philippe Marcou / AFP

Catalonia’s attempt to become an independent state sparked Spain’s worst political crisis in decades, with then-Catalan leader Carles Puigdemont and several others fleeing abroad to escape prosecution.

PP leader Alberto Nunez Feijoo, who has tried to push the party to the centre since becoming its leader in April, was not at the rally but encouraged members for the formation to attend.

Most polls suggest the PP would win a general election expected at the end of the year but would need the support of Vox to govern. Before that, Spain will vote in May in regional and local elections.

One of the main dilemmas facing Feijoo is whether to continue pursuing political alliances with Vox as it has in some region or to freeze them out to try to widen the PP’s base.

Vox splintered off from the PP in 2013 and is now the third-largest force in parliament.

‘Before the abyss’

Lacking a parliamentary majority, Sanchez’s government has been forced since its formation to negotiate with Basque and Catalan separatists to pass bills, which has angered many on the right.

Conservatives accuse Sanchez of having eliminated the crime of sedition to assure the continued support of Catalan pro-independence party ERC in tight parliamentary votes.

“All he cares about is remaining in power,” said Rosa Torosio, a 44-year-old housewife at the rally.

Spain protest

Protesters wave Spanish national flags during the anti-government demonstration on the Plaza de Cibeles square in Madrid, on January 21st, 2023. Photo by Pierre-Philippe Marcou / AFP

The government argues sedition is an antiquated offence that needed to be replaced with one better aligned to European norms.

Sanchez defended his record, telling a Socialist party rally in the northern city of Valladolid on Saturday his government had to take steps to defuse the conflict in Catalonia.

The separatist bid which happened under the watch of the previous PP government had left Spain standing “before the abyss,” he added.

Sanchez also recalled that his government has ramped up social spending to help Spaniards deal with high inflation, for example by increasing pensions and civil servant salaries.

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