The Fiscal Council endorses the system of age brackets for the change of legal sex provided for in the trans law, which limits judicial intervention to cases of children under 14 years of age. This is reflected in the report on this rule that was approved on September 14 by the main advisory body of the attorney general. The document, to which elDiario.es has had access, supports the main aspects of the text designed by the Ministry of Equality, which continues to generate discrepancies in the feminist movement and the coalition government.
The Equality text recognizes that trans people may apply to the Civil Registry for the modification of the legal mention of their sex without having to provide psychological reports or the obligation to take hormones for two years, which are the requirements established by current legislation. until now. They will have, yes, to reaffirm the decision after three months. In general, it allows the change of legal sex from the age of 12 in different sections: from 16 without requirements, between 14 and 16 with the consent of their legal representatives, and between 12 and 14 by judicial authorization.
This system of age brackets, which limits judicial intervention to cases of children under 14 years of age, was one of the issues that generated the most debate at the Fiscal Council meeting. The plenary session rejected the proposal of the speaker, prosecutor Miguel Rodríguez Marcos, of the conservative Association of Prosecutors, which included the need for judicial authorization with parental assistance for all minors. In a particular vote, the six members of the AF state that “only with judicial authorization is the best interest of the minor safeguarded” and defend the need to “individualize” the situation of each minor, which is “incompatible” with the sections of age.
On the other hand, the text finally approved considers the option of “specifying ages” to be “justified” for the sake of “legal certainty”. “The other option, which would be integrated by the empowerment of minors for whom sufficient maturity is proven, opens up undesirable spaces for insecurity, also taking into account the difficulty of assessing this concept,” the text maintains.
The document underlines that minors “have the right to have their gender identity respected” and points out that “as they become more mature, they must be heard and recognized as having greater capacity for self-determination, especially when it comes to the exercise of personality rights. ”.
On this point, the Fiscal Council differs from the General Council of the Judiciary (CGPJ). The governing body of the judges requested in its report to extend until the age of majority the need for judicial approval, after processing a file of voluntary jurisdiction and demonstration of “the necessary maturity” and “the stable will to proceed with the rectification sex registry.
The completion of this report is a mandatory procedure, although its conclusions are not binding on the Government. On June 27, the Executive gave the green light to the bill without waiting for this opinion, which arrives months late. He was forwarded to the Prosecutor’s Office on December 17. The text is already in Congress, where it will be processed expressly through the urgent procedure. Last August, the Minister of Equality, Irene Montero, said that her will is that both this rule and the abortion law “become a reality before the end of the year.”
The report of the Fiscal Council also considers “correct” the “suppression of the requirement for medical treatment” to proceed with the change of legal sex provided for in the draft. However, it states that “simultaneously” the need to “prove stability in the disagreement with the sex mentioned in the birth registration” could be maintained. “This solution would preserve the intended purpose of depathologization and at the same time it would contribute to satisfying the requirements of legal certainty and general interest”, maintains the opinion.
The ‘trans law’ is one of the projects that has caused the most discrepancies between the partners of the coalition government. The aforementioned gender self-determination was the main stumbling block. The PSOE claimed that the change of legal sex on the DNI was not allowed based on the free will of the person concerned. Finally, the socialists accepted the formula included in the project, which establishes that the person has to reaffirm her decision after three months before the Civil Registry in a kind of period of reflection. However, a sector of the party is pressing to include changes in this precept during the parliamentary process. The norm has the rejection of part of the feminist movement, which considers that it can harm women who are not trans.
On the other hand, the Fiscal Council assesses “positively” the prohibition of conversion therapies, which are those that seek to modify the sexual orientation or gender identity of a person. The bill provides for a ban “even if they have the consent of the person concerned or their legal representative.”
There the Fiscal Council moves away again from the CGPJ. The governing body of the judges considered that the prohibition does not fit if the person who goes to them does so by giving their consent. The Fiscal Council’s report points out, however, that what is affected by these practices is not the sphere of individual freedom, but “the unavailable dignity of the human being”, and supports their prohibition even in that case.
In addition, the opinion emphasizes that, taking into account the “possible physical and psychological damage” that these therapies may cause, the possible subsumption of these acts in the crimes of injuries (article 155 of the Penal Code) or against moral integrity should be taken into account. (article 173.1).
In addition, the Fiscal Council supports the prohibition of surgeries for non-medical reasons on intersex people under 12 years of age. However, regarding minors between 12 and 16 years of age, it considers that the same treatment should be given as is given in the regulation of trans minors. That is, they can request surgeries with the consent of their legal representatives (in the case of minors under 14 and 15 years of age) and through voluntary jurisdiction (those of 12 and 13 years of age).
The document underlines that the need for a law that guarantees “equal and respectful treatment” for LGTBI people is evident when observing the multitude of regional laws approved on the matter. And, consequently, he sees the inclusion of provisions for coordination between administrations through the Sectorial Conference on Equality as “correct” in the face of this “plurality of legislations”.
The report does make some criticisms in terms of legislative technique. He regrets, for example, that the opportunity to harmonize the concepts used with different contents in state and regional legislation is wasted or questions that, on occasions, the text includes “generic and indeterminate expressions”.
