A draft of the Judiciary questions the ‘trans law’ of Equality

The General Council of the Judiciary, which has been in office for three years, once again pronounces itself against a government bill. As it did previously with the so-called ‘only yes is yes’ law and with housing, now it is the turn of the ‘trans law’.

The presentation of the mandatory report of the CGPJ warns the Ministry of Equality that part of the content of the Draft Law for the real and effective equality of trans people and for the guarantee of the rights of LGTBI people “contradicts” the right of Equality, collected in the Constitution and, furthermore, it has “dark aspects” and “certain dysfunctions” in relation to gender self-determination.

As reported this Friday by the governing body of the judges, the speakers of this document have been the members Angeles Carmona (president of the Observatory against Gender Violence), Clara Martinez de Careaga (progressive cut) and Wenceslas Olea (conservative). The rest of the members of the CGPJ will be able to study the content from this Friday and it will be put to a vote in the next plenary session of the organization that will be held on April 20.

Through a statement, the CGPJ has advanced part of the content of this report in which, as it has explained, the purpose of the draft bill of “guaranteeing equality and avoiding discrimination of the group” is described as “commendable”, but has made some “technical considerations”.

He considers that the law “provides certain groups with a privileged protection regime, apart from the regime applicable to other citizens”

One of the things that the rapporteurs of the document point out is that this standard causes an “atomization of the legal system”, equality and legal certainty by “providing certain groups with a privileged protection system, apart from the system applicable to other citizens” and “to the notable detriment of the right to equality and the principle of legal certainty”.

According to the CGPJ, the bill contains provisions that “contradict the fundamental right to equality” to the extent that they promote the “unwanted effect of generating situations of positive discrimination and, therefore, generally indirect discrimination of those people not contemplated in its subjective scope of application, especially significant with respect to non-transsexual women”.

Complement regional laws

In the same way, he shows Equality his “doubts” that a “comprehensive and transversal” law be “the right tool” to achieve the objective they propose.

His proposal is to restrict the normative content of the preliminary draft to the “nuclear, trunk and autonomous aspects” specifically referred to achieving equality for trans people and protecting the rights of the LGTBI group that are not already contemplated in the autonomous laws on this subject, introducing the modifications of other regulations that are necessary through the final provisions.

On the other hand, the CGPJ refers to another of the points included in the norm and that has generated the most controversy regarding its content: gender self-determination.

The rapporteurs recommend that gender self-determination only apply to minors from 16 years of age, and not from 14

In the first place, the speakers of the text recommend that this measure –without any type of guardianship requirement– only be applied to minors from 16 years of age, and not from 14 as stated in the draft of the Ministry of Equality. The reasons alleged by the judges are that the rule is eminently registry Therefore, in his opinion, he does not question the right to sexual identity, which, as they point out, “is prior to the right to registry rectification of the mention of sex.”

The special protection of minors is not complied with

The opinion submits the preliminary draft to a proportionality judgment in which, on the one hand, the fundamental rights to the free development of the personality, moral integrity, privacy and the protection of health are confronted and, on the other hand, the principle that requires the protection of minors.

The proposal of the report, in this sense, considers that when the bill legitimizes minors between 14 and 16 years of age to request the rectification of the sex registry without more conditions than the assistance of their legal representatives does not comply with the principle of special protection of minors and, in terms of proportionality, with the special primacy of their best interests.

“This minimum requirement is not enough to protect the interest of minors in that age group who lack a sufficient degree of maturity or whose transsexual situation is not stabilized,” they warned.

In this way, it concludes that it is “appropriate” to subject the exercise of the right to rectify the registration mention of sex by minors under 16 years of age to the conditions of “sufficient maturity” and “stability in the situation of transsexuality” which is required of minors between 12 and 14 years of age. These conditions, proposes the CGPJ, must be verified by the judge through “timely reports.”

Consequences in gender violence and sport

But the report of the judicial body also refers to the “consequences” of gender self-determination in areas such as sport and measures against gender violence. In this sense, he has warned that the norm presents “dark aspects” and “certain dysfunctions”.

The members recommend a “clearer and more precise” wording

Given this, the members who have drafted the document recommend a “clearer and more precise” wording on these aspects determining that this determination of gender “will not allow the avoidance of obligations and responsibilities towards victims of gender violence” in order to “avoid fraudulent situations from occurring”.

And, in relation to sport, the CGPJ indicates that the problem is that the preliminary draft does not solve the consequences derived of 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.

This situation, warns the text, can lead to situations of discrimination against women and, therefore, contrary to equality, such as in sports competitions or the physical tests that are required to access certain professions, when there has been a transition from the male to the female gender.

Finally, the body points out that the prohibition of reconversion therapies for LGTBI peoplewhich also includes this text, reaches even those situations in which the affected person’s consent is available, which for the judges is “questionable because it constitutes an unjustified restriction of the person’s ability to act.”

Also against the laws of ‘only yes is yes’ and housing

The CGPJ also issued reports criticizing aspects of the ‘only yes is yes’ and housing laws. With regard to the first, he unanimously rejected two of the fundamental axes: the express sexual consent wording and that the distinction that the Penal Code makes between sexual abuse and rape be abolished.

The report considered as “unnecessary” the definition that the bill introduces on consent in sexual relations. On the other hand, the report also rejected the elimination of sexual abuse as a criminal category and the creation of a single crime under the type of sexual assault. According to his criteria, this disappearance would have as a consequence the “lack of protection of the victims, since for the perpetrator of the crime it will not have major consequences to use a more damaging commissive means than another of lesser intensity.” He also understood that this elimination could “incur the risk of punishing with great severity behaviors that present a lesser degree of harm.”

With regard to the housing law, the CGPJ rejected a first report and after changing the speakers, they prepared a new one that alerted the Government that the housing law collides with regional powers. The CGPJ stated that the policies to enforce the article 47 of the Constitution which provides that “all Spaniards have the right to enjoy decent and adequate housing” corresponds to each of the autonomous communities. Therefore, the regulation of housing will be exercised in accordance “with the majority political orientation existing in them.”

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