by Alessia Riccioli*
The principle of gender self-determination. The Ley 4/2023, de 28 de febrero, para la igualdad real y efectiva de las personas trans y para la garantía de los derechos de las personas LGTBI states the right to gender self-determination (although the term of autodeterminación is never mentioned, unlike regional laws on the issue). The Law provides for the possibility to obtain sex and name rectification without any kind of medical advice, solely relying on a voluntary act (Art. 44). This is consistent with the Yogyakarta Principles (Principles on the application of international human rights law in relation to sexual orientation and gender identity, Yogyakarta, 2017), especially with the third principle as per which: «(…) Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom. No one shall be forced to undergo medical procedures (…). No one shall be subjected to pressure to conceal, suppress or deny their sexual orientation or gender identity», and the thirty-seventh principle (in The Yogyakarta Principles plus 10, Geneva, 2006), which provides for “the right to recognition before the law”, stating that States shall «take all necessary legislative, administrative and other measures to fully respect and legally recognise each person’s self-defined gender identity» (point B).
According to the principle of gender self-determination guaranteed by the Law, no one can be involved in the process of gender self-identification other than the person concerned, not even a doctor, a psychologist, a justice official or any kind of specialist. In this sense, the conscious objection (the reference is to Article 30.2 of the Spanish Constitution, although the article provides only for military objection) is considered inapplicable, being under the jurisdiction of the Consejo Nacional de Objeción de Conciencia, as regulated by Real Decreto 551/1985 and sanctioned by the Constitutional Court (in the ruling n. 160/1987, which confirmed the legitimacy of Law 48/1984 on conscious objection). Furthermore, no witnesses or any other type of evidence must be provided to prove that the person has socially externalized the change in his or her gender identity (Art. 44.3).
Among all the democratic values the acquis Communautaire is based on, Law 4/2023 seems to be linked especially to Article 4 of the Declaration Of Human And Civic Rights (1789), stating that: «liberty consists in being able to do anything that does not harm others (…)». The concept of gender identity thus embodies the concept of dignity, as sanctioned by the Spanish Constitutional Court in the ruling 67/2022, establishing that «la identidad de género es una circunstancia que tiene que ver con el libre desarrollo de la personalidad, íntimamente vinculada al respeto de la dignidad humana (art.10 .1 CE)» (although the ruling refers to an amparo action which was not upheld by the Court).
Law 4/2023. According to this Law, Spanish citizen over the age of 16 can apply unilaterally and freely, those between the ages of 14 and 16 must be assisted by their legal representatives, and those between the ages of 12 and 14 must apply for judicial authorization. The Law provides for a dual procedure (Art. 44), whereby the person who made the request will be summoned within a maximum period of three months to ratify his/her original will in a second appearance.
Mutatis mutandis, a similar time gap had been provided in abortion cases. According to Article 14 of Ley Orgánica 2/2010, de 3 de marzo, de salud sexual y reproductiva y de la interrupción voluntaria del embarazo, amended in 2015, a minimum reflection time of three days from the request was required to perform the abortion procedure, later modified by the Ley Orgánica 1/2023, de 28 de febrero, por la que se modifica la Ley Orgánica 2/2010, de 3 de marzo, de salud sexual y reproductiva y de la interrupción voluntaria del embarazo, partly because providing for a reflection time for abortion was considered to be the result of a paternalistic approach of the legislative system toward women. Such discussions still endure regarding the Italian discipline, referring to the Law n. 194/ 1978, Norme per la tutela sociale della maternità e sull’interruzione volontaria della gravidanza, which provides for a seven-day reflection time, except in cases of urgent procedures (Art. 5). Since the Law 4/2023 establishes a similar provision in order to require a change in the mention of sex, the specification of a maximum period and not of a minimum period seems rather unreasonable, since the first and second appearances may take place in a too short span of time.
During the first appearance, Law 4/2023 requires the Registrar’s Office to give all the information about the legal consequences of the requested rectification, including the possibility of reversal, rectification procedures in other areas (health, employment, education, etc.), measures to protect against possible discriminations, and associations or other bodies that develop programs to protect the rights of trans people (Art. 45.5). Based on the self-determination principle, the Law provides for the reversibility of the procedure (after a minimum period of six months) and the recovery of the original status. Even in this case, a new application would still be possible, but a judicial review would be required (Art. 47).
The Law 3/2007, of March 15, on the «rectificación registral de la mención relativa al sexo de las personas» previously allowed trans people to change the sex assigned at birth and their name into the one they identify with. The Law provided for several requirements: a gender dysphoria report issued by a physician or psychologist and at least two years of medical treatment to adapt physical characteristics to those corresponding to the declared sex. Foreigners and minors were excluded from this possibility. The Constitutional Court, ruling n. 99/2019, deemed unconstitutional the total exclusion of minors, taking into consideration those with sufficient maturity and in a stable transgender situation. Compared to the previous law, Law 4/2023 seems to be more balanced, setting the limit to the access to rectification at the age of 12 [1]. Moreover, in order to facilitate the daily lives of minors under that age, Law 4/2023 provides that minors, whether or not they meet the requirements for the rectification of the mention of sex, have the right to change their name for reasons of sexual identity on the Civil Registry (Article 48).
Furthermore, the Law establishes that citizens whose countries do not allow sex and name rectification can ask for sex rectification at least in the administrative documentation provided to them by Spain, applying the same requirements established in this Law, except that of being in possession of Spanish nationality (Art. 50).
Comunidades autónomas. Until the approval of the Law 4/2023, the gender self-determination right was not recognized nationally, but it had already been embodied in the laws of the Comunidades autónomas, to allow everyone to be identified in accordance with the perceived sex in the public and private spheres under the jurisdiction of the respective Comunidad Autónoma. These regional regulations require a single appearance mechanism, also not in person, but at the electronic office, without the need to provide any additional documentation and without a reflection period with double appearance.
These autonomous provisions were mainly applied in cases of people who were in the process of transition to a new gender identity and who did not meet the requirements of Law 3/2007, either because they had not yet undergone medical treatment or because they had not done so in the two years prior to the application. Moreover, these rules were applicable also to minors. Since the procedure for amending the registry office, established by Law 4/2023, also includes amending the national identity card, passport, and any other document (Art. 49), it is likely that these autonomous procedures will gradually diminish.
Although the laws of the Autonomous Communities do not formally provide for the reversibility of the request for administrative registration, not allowing it seems inconsistent with the principle of self-determination. Therefore, it is possible that cases of judicial denial may occur and the rectification may still be noted in the administrative registers of Autonomous Communities. In addition, the regional laws, along with no minimum age limit, will continue to be an alternative for children under the age of 12.
A comparison with the Italian discipline. In Italy, the reference is to Law 164/1982 (Norme in materia di rettificazione di attribuzione di sesso), whose many critical profiles remain even after the amendment in 2011 (D. Lgs 150/2011). One of the most controversial aspects concerns the requirements for access to rectification, because originally it was not specified whether the rectification of the mention of sex could be carried out as a result of hormonal treatment (that modifies only secondary sexual characters) or rectification of primary sexual characters was needed.
Both the Supreme Court of Cassation and the Constitutional Court addressed the issue, stressing that people have the right to choose the medical path they deem better for themselves (as long as the choice of sex modification is final and clear, requiring at least the change of the secondary sexual characters, Cass. No. 15138 of 2015) and underlining that a medical surgery could not be mandatory, being only one of the available means to adequate sexual characters to gender identity (Const. Court No 221 of 2015 also stating that voluntaristic element is not sufficient, conf. Const. Court No. 180 of 2017). Finally, the Supreme Court of Cassation (Cass. Civ, Sec. I, ord. 5 December-17 February 2020, n. 3877), stated that the correction of the name was consequential to the rectification of sex, providing for the possibility to change their own name separately from the former, as much as consistent with the sex indicated in the Civil Register (being the right to a free choice of a name an inviolable right according to the combined provisions of Art. 2 and 22 of the Italian Constitution and Art. 6, paragraph 3 of the Italian Civil Code, also recognizing the right to cancel the previous identity – in Italy: so-called “diritto all’oblio”).
Comparison with other states. Among all different legislations provided by states, the common goal is to guarantee the right of people to live with dignity according to their gender. This aim could be achieved by facilitating the amending procedure of all types of registries based on the right to self-determination, eliminating the requirement of a mental health diagnosis for legal gender recognition. In this regard, several European countries are positive examples in addressing the issue: Denmark (2014), Ireland (2015), Malta (2015), France (2016), Belgium (2017), Greece (2017), Portugal (2018), Luxembourg (2018), Finland (2023) [2]; but there is not consensus on self-determination. In Germany, for example, the requirements for changing sex and name were the same: loss of reproductive capacity and a surgery to adjust the person’s sexual characteristics to those of the other sex, but the Federal Constitutional Court (1 BvR 3295-07, Federal Constitutional Court, Germany, 11 January 2011) declared unconstitutional the latter, providing for new requirements, namely: 1) the perception that they no longer belong to the gender registered at birth, 2) living for at least three years in a manner corresponding to the other gender, and 3) that it can be assumed with high probability that this perception will not change again (the reference is to Law on the Alteration of Forenames and the Determination of Sex in Especial Cases (Transsexual Law), 1980, as amended).
Regarding other non-European states, countries such as Argentina (Ley de Identidad de Género, nº 26743 de 2012), Chile (Ley nº. 21120/2018, amended on December 2022), Costa Rica (Reglamento del Registro del Estado Civil, Decreto nº 6/2011), Colombia (Decreto nº. 1227/2015 and Colombian Constitutional Court, ruling T-080/15), Uruguay (Ley Integral para Personas Trans, Ley nº. 19684 de 2018, ruled by Decreto n. 104 de 2019) and India (Tribunal Supremo National, Legal Services Authority v. Union of India (2014) 5 S.C.C. 438 (5)), among others, have made progress in recent years with legal provisions also recognizing gender self-determination, without the need to prove it with psychological or medical certificate, and just relying on the declaration of one’s innate and self-perceived identity.
*PhD Candidate, University of Pisa
