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Spain: Rights for Ransom
Act Now to Defend Transgender Rights in Proposed Law
12/07/2001

SUMMARY

The Spanish Cortes (Parliament) is preparing to vote on a proposed bill on the "Right to Sexual Identity." In its current form, the bill would allow both pre- and post-operative transgender persons to change their legal names in all identity papers, including those used to gain access to health care. Change of name would still be separated from legal change of sex: transgender activists remain troubled that the opportunity to change the latter would, in the present draft, be reserved (with only limited exceptions) to those who have fully undergone sex reassignment surgery. However, the legislation would also expressly state that transgenders who have changed their registered sex in identity papers must enjoy all the rights accorded to members of that sex by the law.

Even these gains are not secure, however. Amendments to the legislation introduced by the governing Partido Popular (PP) would deny transgender people who have not undergone sex reassignment surgery the right to change their name, and would remove the guarantee of equal rights for those who have changed their sex.

The International Gay and Lesbian Human Rights Commission (IGLHRC) joins Spanish transgender activists in opposing the proposed amendments. In addition, IGLHRC is gravely concerned about the abusive, inhuman, and unethical consequences of making civil status certifiable only by medical procedures. IGLHRC urgently calls for speedy passage of this potentially landmark legislation in a form which ensures full equality and protection to transgender people. See the "International Law" section of this action, below, for an important statement concerning transgender rights, civil recognition, and medical ethics

ACTION

Spanish transgender activists demand:

• That members of the Chamber of Deputies vote against the amendments restricting the rights of transgender people and in favor of a version of the legislation which would guarantee those rights in law.


• That, if amendments proposed by the Partido Popular are passed, representatives vote against the law as a whole, to prevent the passage of a partial version of rights which should rather be uniform and indivisible.

Please send a short message to the following Spanish transgender associations IMMEDIATELY stating:

"I/we support your demand" Give your name, organization if relevant, and address (postal/physical - including town, state and country - fax/phone and email)

Write to:

trans@mundivia.es (Centro de Identidad de Género de Andalucía)

transexualia@nodo50.org (Asociación Transexualia)

Your message will be passed on to the relevant members of the Cortes.

BACKGROUND

In March 2001, the Spanish Senate unanimously voted to open Parliamentary debate on the proposed "Right to Sexual Identity Law," submitted by the Parliamentary group of the Socialist Party (PSOE--Partido Socialista Obrero Español). The proposal was then sent for preliminary consideration to the Chamber of Deputies, where amendments were introduced. On October 2, 2001, a draft was decided upon, but remains subject to further amendment.

The current text includes the following:

1. Once a transgender person has begun the transition process, his/her legal name can be modified without the need for sex reassignment surgery (SRS) to have been performed (Art.4). This measure is meant to facilitate the person's integration into society from the outset of his/her transition. The name will be changed in all identity papers.


2. In order to change the legal sex under which a person has been registered at the Civil Registry, the person must have undergone sex reassignment surgery. Some exceptions are however allowed on the basis of health problems or other extreme circumstances (Art. 3). Such identity changes have been allowed up to now by the time- and resource-consuming method of petitioning or suing the registry; the present legislation would for the first time create an automatic mechanism for the change. However, transgender organizations believe criteria for these changes should be more open and elastic, particularly because methods of surgery remain variable, and because sex reassignment surgery can involve numerous separate stages. They have submitted proposals to that end.


3. Once the person's registered sex has been legally changed at the Civil Registry, the transgender person will enjoy all rights inherent to her/his new legal sex (Art. 6). As precedent, transgender associations cite an exiting resolution adopted by the General Board of Registries on January 8, 2001, allowing marriage between transsexuals who have changed their sex in the Civil Registry, and people of the opposite registered sex.

Transgender associations are concerned by amendments introduced by Deputies from the Partido Popular (PP). In their view, those amendments implicitly aim at protecting society from transgenders and transsexuals, instead of recognizing their rights. Those amendments would have the following effects:

• To eliminate the possibility of changing a person's name before SRS has been performed (Art.4)


• To eliminate all exceptions allowing change in a person's sex without SRS (Art. 4)


• Only those who are of legal age will be allowed to change the sex under which they were registered. Emancipated minors (e.g. married minors, or those released by their guardians) are excluded from the possibility.


• Article 6, which guarantees that a transgender person's legal rights will be identical to the legal rights of members of their new sex, is eliminated from the proposal. Transgender associations claim that without it the legal consequences of a change of registered sex will remain in question: transgender people will not know clearly which rights they actually enjoy, will be left vulnerable to any institution or individual which refuses to recognize them or wishes to deny their rights.

Sex and name would be changed only in the Civil Registry and related identity papers: credentials used to access public health services would not be modified. Transgender associations claim this measure would severely affect their constituencies' right to receive appropriate medical assistance and care.

The Partido Popular holds a majority in both chambers (Senate and Chamber of Deputies). Thus the passage of these amendments appears likely, rendering the proposal as a whole an insufficient and mutilated means of protecting Spanish transgender and transsexual persons' rights.

The Socialist Party has decided to let the initiative fail if the PP cannot be persuaded to withdraw their proposed amendments.

Transgender associations would have no legislation rather than a law that would unreasonably restrict their rights. This position has been endorsed by the 13th National Conference of Gay, Lesbian, Transsexual and Bisexual Organizations held in Granada, November 23-25, 2001, and attended by most such organizations active in Spain. A statement to this effect was signed by the following associations (as of December 5, 2001):

Asociación de Identidad de Género de Andalucía
Asociación Española de Transexuales Transexualia
HÈRAKLES SAFO. Assemblea per la Llibertat Sexual (Valencia)
GRUPO DE IDENTIDAD DE GENERO Y TRANSEXUALIDAD DEL COLECTIVO LAMBDA (Valencia)
HEGOAK. Area por la liberación afectivo sexual de I.U. (Euskadi)
M.I.T. Movimiento de Identidad Transexual (Italia)
PARTIT DELS SOCIALISTES DE CATALUNYA
IZQUIERDA UNIDA FEDERAL
IGUALES, Asociación proderechos de gays, lesbianas y bisexuales de Castilla y León (Salamanca)
COLECTIVO LAMBDA de Gais, Lesbianas, Transexuales y Bisexuales de Valencia
GRUPO FEDERAL DE GAIS, LESBIANAS Y TRANSEXUALES DEL PSOE

INTERNATIONAL LAW

The record of European human rights jurisprudence on transgender and transsexual issues--and particularly on the rectification of official documents and registered identity--contains undeniable ambiguities. At the same time, certain principles of individual privacy and dignity have remained, beneath the differences, consistent.

In two cases involving the United Kingdom (Rees v. United Kingdom, Judgment No. 106 of 17.10.1986, and Cossey v. United Kingdom, No. 184 of 27.9.1990) the European Court of Human Rights has declined to order the government to undertake a comprehensive change of identity papers for post-operative transsexuals. In both cases, however, this decision was contingent on the particular features of the British legal system, which at the time did not require a single State-issued proof of civil status for all official transactions. The Court stated that the "introduction of a civil status system indicating and proving present civil status" would "have important administrative consequences and would impose new duties on the rest of the population"--including new and potentially intrusive burdens on transgender people. Consistent with this position, in a similar case involving the French legal system (B. v. France, No. 232C of 25.3.1992) the Court in fact required France to rectify transsexuals' official documents, on the argument that identity documents were more intrusively required in France. The ubiquitous need for State identity documents thus rendered it a rights abuse when the State refused to allow them to conform with apparent sex. The Court stated: "The disadvantages and even perturbation to which transsexuals are exposed in their everyday life when their identity and other documents do not correspond to the new conditions they have acquired in fact reach such a degree of seriousness as to be taken into account" as a violation of the right to privacy under Article 8 of the European Convention on Human Rights.

This decision is telling. Official identity papers provide civil personhood. In many countries, possessing a standard State ID is a predicate for the ability to enter into a variety of relationships in civil and official society--for obtaining driver's licenses, for purchasing even temporary accomodation, for accessing essential benefits including health care. Recent fears of terrorism have led to renewed calls for adopting such IDs even in countries previously reluctant to impose them--with both the United Kingdom and the European Union moving rapidly in such a direction. (Spain already issues national ID cards.) In today's world, to have an ID, and to have it correspond to one's everyday appearance, is a necessity for normal life.

Among the instruments by which States define civil personhood, gender is a crucial and unavoidable category. States expect to be able to say who is male and female. To have the State's definition of one's gender differ from one's preferred or apparent gender can mean lapsing into a limbo of indifferent invisibility or malevolent neglect. One's rights to housing, to health, to ordinary freedom of movement, can all be jeopardized. Such jeopardy is brutal, discriminatory, inhuman, and unacceptable. (For examples of the potential consequences of the disparity between appearance and civil status, see IGLHRC's report on a similar situation in Argentina, "The Rights of Transvestites in Argentina," at http://www.iglhrc.org/news/factsheets/Argentina_trans.html.)

States therefore have an obligation to ensure that gender identity is not a tool for denying civil recognition. And gender identity, moreover, cannot be made simply a matter of medical certification. Gender cannot be treated solely as a biological fact to be modified or rectified only in accordance with certain surgical techniques. Gender is a social fact and a product of the individual's interaction with culture, not merely a physical or biological datum.

That gender has such a non-biological dimension has been articulated inter alia by the United Nations Committee on Economic, Social, and Cultural Rights, which notes in its General Comment 14 (on the right to health) that "A gender-based approach [to health] recognizes that [both] biological and socio-cultural factors" are involved. It has also been recognized in the Rome Statute of the International Criminal Court, which states in Article 7, paragraph 3 that gender "refers to the two sexes, male and female, within the context of society" (emphasis added).

Gender is an aspect of one's self-image, one's lived personhood, and one's integration into society. Human beings should have authority over the expression of their gender, in recognition of their internal autonomy, their social irreplaceability, and their essential human dignity. The affirmation of that autonomy, the respect for that dignity, cannot be made dependent upon medical procedure. To assert otherwise--to have the recognition of one's civil personhood (and one's enjoyment of the consequent rights) hinge on one's having already undergone sex reassignment surgery--would be in effect to require such medical treatment without consent. Such compulsory surgical invention would violate Article 7 of the International Covenant on Civil and Political Rights (ICCPR), which states that "In particular, no one shall be subjected without his free consent to medical or scientific experimentation." It would also violate the European Convention on Human Rights and Biomedicine (ratified by Spain). Article 1 of that Convention commits State Parties to "protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine." Article 2 states that "The interests and welfare of the human being shall prevail over the sole interest of society or science." And Article 5 affirms that "An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it." To extort consent to surgery as the price of civil recognition, to demand medical intervention before rights can be enjoyed, flouts all those principles. Rights cannot be held for ransom to the scalpel. To create two civil classes of transgender people--a post-operative class recognized by the State, and a pre-operative class deprived of civil status--also constitutes blatant discrimination on the grounds of health, banned by Article E of the Revised European Social Charter (signed by Spain, but not yet entered into force).

The Spanish proposal in its existing, unamended form also protects the following basic human rights, to which transgender people are entitled along with all other human beings, and to which Spain is committed by treaty or by customary international law:

• The right to marry and form a family is affirmed by the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), Article 12; by the ICCPR, Article 23; and by the Universal Declaration of Human Rights (UDHR), Article 16.


• The right to work is affirmed by the European Social Charter (ESC), Article 1; by the International Covenant on Economic, Social, and Cultural Rights (ICESCR), Article 6; and by the UDHR, Article 23.


• The right to social security is affirmed by the ESC, Article 12; ICESCR, Article 9; and UDHR, Article 22.


• The right to social and medical assistance is affirmed by the ESC, Article 13.


• The right to benefit from social welfare systems is affirmed by the ESC, Article 14.


• The right to freedom from discrimination is affirmed by the ECHR, Article 14; ICCPR, Article 2; ICESCR, Article 2; and UDHR, Article 2.


• The right to recognition as a person before the law is affirmed by the ICCPR, Article 16; and UDHR, Article 6.


• The right to equality before the law and to the equal protection of the law is affirmed by the ICCPR, Article 26; and UDHR, Article 7.


• The right to the enjoyment of the highest attainable standard of physical and mental health is affirmed by the ICESCR, Article 12.


• The right to a standard of living adequate for health and well-being, including medical care and necessary social services, is affirmed by the UDHR, Article 25.