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Spain: Missed Opportunity on Gender Recognition

Spain’s Congress of Deputies on May 18, 2021, rejected a landmark legislative proposal that would have allowed legal gender recognition based on self-determination, Human Rights Watch said today. The existing process for modifying gender markers on official documents is pathologizing for transgender people and does not recognize non-binary people.

Transgender people in Spain currently can only have the gender with which they identify legally recognized if they provide evidence of a gender dysphoria diagnosis. They must also undergo two years of medical treatment to “adjust” their physical characteristics to those “corresponding” to the gender marker they seek. The only categories available are “female” and “male,” meaning non-binary people must carry documents designating them as a gender with which they do not identify.

“Congress voted to hold Spain back when it comes to the rights and dignity of trans and non-binary people,” said Cristian González Cabrera, LGBT rights researcher at Human Rights Watch. “Spain’s current procedure for legal gender recognition is onerous, inadequate, and out of tune with advances on gender identity in Europe and beyond.”

The proposed reform, Legislative Proposal for the Real and Effective Equality of Trans People (122/000133), would have eliminated the requirement for medical or psychological evidence to modify one’s legal gender identity. It would also have allowed non-binary and blank gender markers on identity documents, acknowledging the rights and dignity of people who do not identify with a rigid gender binary. The change, as proposed, would have upheld children’s self-determination by allowing children and adolescents access to legal gender recognition.

The final vote on the legislative proposal was 78 in favor, 143 against, and 120 abstentions. To advance in the legislative process, the proposal needed support from the Spanish Socialist Workers’ Party (Partido Socialista Obrero Español, PSOE), the largest party in Spain’s governing coalition, whose deputies all abstained.

On May 3, Human Rights Watch wrote to Prime Minister Pedro Sánchez Pérez-Castejón, urging his government to back legal gender recognition based on self-determination and highlighting how the status quo on official documents can infringe on human rights. These include the right to privacy, the right to freedom of expression, and rights related to employment, education, health, security, access to justice, and the ability to move freely.

The World Professional Association for Transgender Health, an interdisciplinary professional association with over 700 members worldwide, has found that medical and other barriers to gender recognition for transgender people, including diagnostic requirements, “may harm physical and mental health.”

The proposed reform, as well as another similar bill put forth by the Equality Ministry, have been the subject of increased political conflict and even transphobic vandalism in recent months in Spain. Both, however, were in line with international and regional human rights standards, which support individual autonomy when it comes to one’s gender identity.

Principle three of the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity affirms that each person’s self-defined gender identity “is integral to their personality and is one of the most basic aspects of self-determination, dignity, and freedom.”

The International Covenant on Civil and Political Rights (ICCPR) provides for equal civil and political rights for all (article 3), everyone’s right to recognition before the law (article 16), and the right to privacy (article 17). Spain is obligated under the ICCPR to ensure equality before the law and the equal protection of the law for everyone without discrimination on any ground, including sex (article 26). The United Nations Human Rights Committee has recommended that governments guarantee the rights of transgender people, including the right to legal recognition of their gender, and that countries should repeal abusive and disproportionate requirements for legal recognition of gender identity.

The European Court of Human Rights ruled in Goodwin v. United Kingdom (2002) that the “conflict between social reality and law” that arises when the government does not recognize a person’s gender identity constitutes “serious interference with private life.” The Committee of Ministers of the Council of Europe called on member states in 2010 to take “appropriate measures to guarantee the full legal recognition of a person’s gender reassignment in all areas of life, in particular by making possible the change of name and gender in official documents in a quick, transparent, and accessible way.”

In the Americas, the Inter-American Court of Human Rights in a 2017 advisory opinion held that to comply with the American Convention on Human Rights, gender recognition procedures must be “prompt and, insofar as possible, cost-free” and “based solely on the free and informed consent of the applicant” without medical or psychological requirements.

A growing number of countries around the world have removed burdensome requirements to legal gender recognition, including medical or psychological evaluation, sterilization, and divorce. Countries like Argentina, Belgium, Denmark, Ireland, Luxembourg, Malta, Norway, Portugal, and Uruguay are at the forefront of individual autonomy over gender identity, providing for simple administrative processes based on self-declaration. Costa Rica and the Netherlands have taken steps toward the removal of gender markers on identity documents altogether.

“Congress’ decision to scrap the legislative proposal and maintain the status quo means that trans and non-binary people will still have to carry identification cards that do not correspond with their identities,” González said. “Spanish legislators should seize the next opportunity to ensure that Spain’s transgender and non-binary residents have their rights fully respected in law.”

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