Celebrating the wins of the new Spanish trans law, while reflecting on what still needs to be achieved for for non-binary people, minors and migrants
On Friday 17 February 2023, the Spanish Parliament adopted a comprehensive law for the “effective and real equality of trans people, and the guarantee of the rights of LGBTI people”.
Legal Gender Recognition based on self-determination
This law represents a key milestone for many trans activists, as it follows a long fight for legal gender recognition based on self-determination in Spain. Trans people aged 16 or older will no longer need external medical approval to legally register their gender.
The process for legal gender recognition will be administrative. Any person requiring legal gender recognition can file a written application to the public registry, followed by a first personal appearance. No health diagnosis or medical approval is required. The confirmation will happen in 3 months and in person.
After many discussions and amendments, the law also foresees legal gender recognition based on self-determination for migrants. Trans people can use the procedure to change their Spanish documents, even if their country of origin does not provide for legal gender recognition.
This legal change from the previous process will positively impact the experiences of many trans people. It also represents a social advancement in Spain, and it is the result of many years of trans activism in a context that has been increasingly hostile for trans people, especially trans youth.
The law, however, leaves some people behind.
For children and youth, the law states that the child’s best interest is overriding. For people 14 to 16 years old, parental consent is required. If there is no parental consent, then the person will need a legal guardian. For people 12 to 14 years-old, judicial authorisation will be required. And people under 12 cannot change their gender marker (only their name).
Non-binary people are also not protected by this law. National gender markers in Spain will remain male or female only. This means self-determination will not be possible for any person whose gender identity falls outside this binary. This is a tough loss for non-binary people and for the trans community, and it is, unfortunately, a win for the anti-LGBTQI rhetoric in Spain. While this new legislation will improve the lives of many trans people, many others are forsaken and will, unfortunately, have to wait many years to see a new change in the law.
Other necessary measures for LGBTQI young people under this law
This law does not only cover legal gender recognition. The text of this new legislation also includes other positive policy changes for LGBTI youth:
- Education: there is a comprehensive section with measures for inclusive education in the law. According to the text, school curricula must include age-appropriate content on non-discrimination and positive representations of sexual and gender diversity. The law also foresees teacher training and specifies that schools must take appropriate measures to address and prevent school harassment and bullying against LGBTI students.
- Banning of the so-called “conversion therapies”: the law prohibits practices destined to modify anyone’s sexual orientation and/or gender identity, regardless of the consent they (or their legal guardians) might have given.
- Intersex genital mutilation: the law prohibits genital mutilation of people over the age of 12 born with variations in sex characteristics.
- Protection of LGBTI minors: while the law falls short in ensuring legal gender recognition based on self-determination, it still has a section on LGBTI minors, providing measures to ensure they are not discriminated against in several areas of life.
- Infringements: the law foresees a system of violations and penalties for acts of discrimination with sanctions of up to 150k for acts of severe offences.
In summary, Spain is finally one of the European countries providing legal gender recognition based on self-determination for people 16 or older. Spain also puts a ban on the so-called “conversion therapies”, and it improves the lives of many LGBTQI young people by requiring schools to provide content on sexual and gender diversity and to tackle school bullying faced by LGBTQI learners.
However, the solid opposition to LGBTQI rights in Spain (especially the opposition to trans and LGBTQI children’s rights) has meant that this law could only see the light, excluding some of our communities. Sadly, the law doesn’t include non-binary people and minors under 16 with unsupportive families will have to wait to have their gender marker and name legally recognised.
Rú Ávila Rodríguez (they/them), our Policy & Research Manager, commented on the law:
“I had mixed feelings while drafting this article. Like many of us, I guess. On the one hand, this necessary change for trans people happened thanks to the effort of many of my fellow friends – activists, allies, and policymakers who have put their emotions, their lives and their bodies at the forefront to ensure this change was a reality. I’m proud and thankful for everything our communities have achieved, especially in a very contentious context. And we need to celebrate this. But, on the other hand, I know there is still a long way to go.
Unfortunately, this change will not be enough for many people. From my personal experience, I can say it will definitely not be enough for those of us who are non-binary. We will not be able to update our gender marker, and I’m afraid we will have to wait many years for another update to this law. It will also not be enough for people under 16, and for trans migrants. I know our movement will keep working together, protesting, advocating for our rights, and speaking up to ensure no one is left behind. Because our identities, our bodies, and our experiences do matter.
Felicidades a todes, todas y todos. ¡Seguiremos trabajando juntes! ¡Seguiremos la revolución!“
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Rú Ávila Rodríguez (they/them)
IGLYO Policy & Research Manager
