He will begin in his full of next week the deliberation over the state, with a project of sentence that supports almost all of this legislation, approved two years ago. If this draft prosper, the Court would give in very broad terms to its endorsement to the law and its regulation of registration in the registration of sex for the will of the person, without obstacles.
among the parliamentary groups, within the government (especially between Podemos and PSOE) and within the PSOE itself. The anger ended with the exit of the government of then Minister Carmen Calvo – controlled to the norm – and weakened the Minister Irene Montero. The quid of tensions was gender self -determination: that a person can change their name and sex in the ID only with their will. The PP argued in its appeal that this approach to the ley trans generates legal insecurity.
The project of sentence reasoned that said law “only contemplates.” The comparison in the exercise of rights between women who have exercised that right and those who identify with the sex assigned to them at birth – adds the text – “is required by the recognition of the right not to be discriminated against by reason of the trans condition of the person and cannot be analyzed, in general, as a discrimination against women, as long as we are, in any case, before women, they are not very trans -women.
In conversations prior to deliberation, it has been found that the examination of the Law for the real and effective equality of trans persons and for the guarantee of the rights of those will require more than one full to resolve the unconstitutionality appeal presented by the PP. Therefore, the magistrates themselves estimate that in this first approach to the analysis of the ley trans No vote is going to be made, so the challenge will remain on the table, waiting for the debate to lead to greater consensus.
Constitutional sources indicate in this regard that in the preliminary contacts among the magistrates it has been found that there are reservations from the progressive sector of the court – in concrete of the magistrates María Luisa Balaguer and Immaculate Montalbán – in front of the draft sentence prepared by the speaker, the magistrate Juan Carlos Campo, of the same group, which has seven members. These reservations, together with the probable opposition of the components of the conservative block – composed by seven other magistrates – would not now ensure the approval of the resolution.
The sources consulted consider the recomposition of the unit in the progressive group possible, through nuances of the sentence project, which would not necessarily affect the core of the law. The rapporteur’s proposal only declares two sections of the ley trans that contemplate sanctions that are considered excessive in cases of discrimination due to sexual identity.
The resource of the PP is rejected in everything else, although the article that prohibits genital modification in children under 12 years, except in cases where medical indications require the opposite in order to protect the health of the person ”should be applied.
The presentation of Judge Juan Carlos Campo insists on various passages that the function of the Constitutional is to verify the lace of the norms with the Constitution, without entering into assessments about alternative solutions that the legislator could have raised to guarantee the fundamental rights. “Once the legislator has opted for a certain registration rectification procedure of the mention of sex in order to guarantee the right to privacy of trans people, as well as their personal dignity and the free development of their personality,” says the presentation -, all virtuality cannot be subtracted from that procedure by not recognizing any legal efficacy to the registration rectification of the mention relative to the sexual mention of the person. “
Gradual and progressive character
The project of sentence applies this principle to the treatment that the law dispenses to the minors. “The legislator,” says the presentation, “has attended to the gradual and progressive character with which minors acquire maturity and ability to discern and have designed three different regimes for the registration rectification of the sex of people depending on age.” Each of these “regimes” affects “those over twelve and children under fourteen, older than fourteen and children under sixteen; and over sixteen.”
The text emphasizes in this sense that “the guarantees surrounding the procedure in each of these three assumptions, as well as the support and accompaniment measures offered to minors are greater the lower their age, in the understanding that the lower the age of a person, the less its intellectual and emotional capacity to understand the consequences of complex and older decisions are, therefore, their protection needs”.
“Regardless of other regulatory options, they could also have lace in our constitutional text,” says the draft resolution -, the caution that the law introduces are sufficient to preserve the principle of legal certainty, especially if we consider the secondary importance that it acquires against the guarantee of the dignity and free development of the personality of trans people and their right to personal privacy. ”
In its substantial aspects, in short, the presentation coincides with the criteria set forth by the State Advocacy, which opposed the appeal, interesting its dismissal in understanding that the law “does not incur any of the vices of unconstitutionality that the recurring allege”, to respond, instead, to “a specific legislative option that cannot be reputed unconstitutional, by much option constitutional in force ”.
