The Plenary Session of the General Council of the Judiciary will analyze next Wednesday the 20th a very harsh report with the preliminary draft of what is known as the Trans Law promoted by the Ministry of Equality.
The text prepared by three members considers the intention of the bill to be “commendable” – called “Draft Bill for the real and effective equality of trans people and for the guarantee of the rights of LGTBI people” – but detects numerous problems. The most relevant, which could lead to a situation of discrimination against non-transsexual women.
It considers that it contains provisions “that contradict the fundamental right to equality contained in the Constitution, because they promote the” unwanted effect of generating situations of positive discrimination and, therefore, of generally indirect discrimination of those people not contemplated in their subjective sphere. of application, especially significant with respect to non-transsexual women”.
The criticism coincides with that exposed by feminist associations and from a part of the PSOE, which was given voice by the former Vice President of the Government Carmen Calvo.
That risk of discrimination is the result, the members continue, of using the system of comprehensive and transversal laws on a subject. This leads to an “excessive atomization of the legal system” by providing certain groups with a privileged protection regime, apart from the regime applicable to other citizens, “with notable detriment to the right to equality and the principle of legal certainty”.
An example of this is the measures relating to the sport. He considers it “essential” that “the necessary precautions be added to the draft bill in order to prevent the practice of sports activities from leading to discrimination against non-transsexual female athletes, given the reality of the difference in existing physical conditions and the superiority physique of the transsexual woman in front of the one that is not”.
On the other hand, the members detect legal insecurity in the text and demand greater precision in “essential” aspects such as those referring to the consequences in marriage derived from transsexuality, the fixity of marital status, or the clarification of rights after the reversal of the sex in the Civil Registry after a previous modification.
INTEREST OF THE MINOR
The report considers that when the preliminary bill legitimizes minors between 14 and 16 years of age to request the rectification of their gender without further conditions than the assistance of their legal representatives, “it does not comply with the principle of special protection of minors” nor with the primacy of the best interests of the minor.
He considers them excessive and proposes that minors under 16 be required “sufficient maturity” and “stability in the transsexual situation”, as is done in the 12 to 14 age range. For this verification, the judge must have the appropriate specialist reports. Thus, the rectification of sex in the Civil Registry without any condition should be limited to those over 16 years of age.
Objections follow. The way in which the effects of changing sex in the registry are regulated presents “dark aspects and certain dysfunctions”. The members recommend a “clearer and more precise” wording on aspects such as gender violence or the aforementioned sports competitions.
It is requested that the revised text guarantee that the law “will not allow the avoidance of obligations and responsibilities towards victims of gender-based violence”, in order to avoid fraudulent situations.
According to the draft report, the preliminary draft also does not resolve the consequences derived from the general rule according to which the person may exercise all the rights inherent to their new condition after the registration of the change of sex.
“Consequences that, paradoxically, can lead to situations of discrimination against women and, therefore, contrary to equality”, such as sports competitions or physical tests that are required to access certain professions.
The changes in the legal text foreseen by the Ministry should also reach the situations of regression to the sex that was initially had. The bill allows reversing the rectification of sex in the registry with no more limit than the lapse of six months from the registration of the change of sex
The opinion of the members is that the reversion should be contemplated with an “absolutely exceptional” character, predetermining the cases and conditions in which it must take place, always under the judicial decision and never in an unconditional or unlimited way. To do otherwise would mean putting the principle of legal certainty at risk, in addition to not sufficiently protecting the minor when this is the case.
An applauded aspect of the reform is the prohibition of conversion therapies to modify the orientation or sexual identity or gender expression of people. But even here some change is proposed because in cases where the consent of the person affected is of legal age, it could mean “an unjustified restriction of people’s ability to act.” The recommendation is that a spatially sound justification be required in those cases.
Another aspect addressed is the breadth of those who are entitled to defend the interests of LGTBI people in civil, contentious, or social proceedings. It extends to political parties, trade union organizations, business organizations, associations of consumers and users, as well as associations and organizations for the purpose of defending and promoting the rights of the collective.
The report proposal adds that allowing associations to act if they are linked to the group would allow fraudulent situations, which would mean “paradoxically distorting the very purpose of defending the rights of the group that the projected norm intends to protect.”
The text of the proposal, of which the members Ángeles Carmona, Clara Martínez de Careaga, and Wenceslao Olea have been rapporteurs, has been distributed this Friday to the rest of the members of the governing body of the judges so that they can study it clearly in plenary.