The Legal Status of Transsexual and Transgender Persons Spanish National Report

1. The Legal Status of Transsexual and TransgenderPersons Spanish National Report University of Hong Kong September 2013  Josep Ferrer / Albert Lamarca

2. SPANISH NATIONAL REPORT LEGAL FRAMEWORK AND STATISTICS Since 2007 Spain has specific legal rules dealing with the civil status of transsexual persons Act 3/2007, of 15 March, regulatingtherectification of registerentriesrelating to a person’ssex, allows transsexual persons to apply for a rectification of their Civil Registry records concerningsex, whensaid records do notreflecttheindividual’struegenderidentity The rectification of thesexentryinvolvesalsothechange of thegivenname in order to avoidaninconsistencywiththe new Registryentry.

3. SPANISH NATIONAL REPORT LEGAL FRAMEWORK AND STATISTICS Prior to 2007, in the absence of statutory rules, Spanish courts allowed the change of legal sex on a piecemeal basis. Under case law dating back to 1987, the change required a judicial decision and presupposed that the applicant had undergone sex reassignment full surgery. The change of legal sex did not extend to the possibility of marrying persons of one’s own chromosomical sex. This situation became heavily contested in the decade preceding the 2007 Act.

4. SPANISH NATIONAL REPORT LEGAL FRAMEWORK AND STATISTICS Act 3/2007 is based on the constitutional rights to dignity and the free development of personality It is not a comprehensive law on the rights of transsexuals, its scope is limited to the rectification of the entries of sex and given name of the person, encompassing “all rights inherently associated to the new legal condition”. The 3/2007 Act does not refer to the costs arising from medical treatment. They are not assumed by the National Health Service. Some regions have decided to bear the costs of sex reassignment surgery, which is practiced in four referral hospitals. It is estimated that there are in Spain around 3,000-4,000 transsexual persons. From the enactment of the 2007 Act to mid-2013, official statistics by the Ministry of Justice show that 1.089 persons had successfully changed their legal sex in Spain.

5. SPANISH NATIONAL REPORT LEGAL PROCEDURE The regulation establishes a administrative procedure handled by the officer in charge of the Civil Registry. The Civil Registry competent to decide on the application is the one of the person’s domicile or place of residence. Applications abroad must be filled in Spanish Consulates A judicial decision is not required. The decision is subject to appeal before a court of law. There is no a transitional regime or temporary name and identification before the legal change

6. SPANISH NATIONAL REPORT LEGAL REQUIREMENTS The applicant must have Spanish nationality, be of legal age (over 18) and enjoy sufficient capacity. And must show that: (i) it has been diagnosed with gender dysphoria; (ii) it has followed medical treatment for a minimum period of two years in order to accommodate its physical appearance to its perceived gender identity. The requirement of medical treatment may be dispensed with on account of health or age reasons which prevent to follow it, if this is attested by a medical certificate. There is no need to have undergone sex reassignment surgery.

7. SPANISH NATIONAL REPORT OFFICIAL DOCUMENTS Concerning the diagnosis of gender dysphoria: a report from a physician or a clinical psychologist registered in Spain or possessing a title recognized or authorized in Spain. The report must show that: (i) the person experiences a “dissonance between the morphological sex or physiological gender and the gender identity or psychosocial sex”; (ii) the dissonance is stable and persistent; (iii) there are no personality disorders which might decisively bear an influence on the existence of the dissonance. Concerning the medical treatment: a report from the physician under whose direction the treatment has been carried out, or, failing this, a report from a forensic doctor.

8. SPANISH NATIONAL REPORT CONSEQUENCES OF THE CHANGE OF LEGAL SEX The decision to grant the rectification has constitutive effects, which are produced from the date of its recording. Issuance of a new birth certificate from the Civil Registry including its new legal sex. Absence of publicity. Need to request the issuance of a new identity card. Possibility to obtain old official certificates amended with new identity. The change of legal sex and given name does not alter the rights and duties accrued to the applicant before the recording. The change of legal sex will allow the transsexual person to exercise all rights incumbent on its new condition. The law does not distinguish particular rights.

9. SPANISH NATIONAL REPORT CONSEQUENCES OF THE CHANGE OF LEGAL SEX No automatic effects either on marriage or cohabitation or on parental relationships. No need to be divorced. Spanish law allows same-sex marriage and free divorce without legal cause since 2005. Some judicial decisions about restriction of the parental relations between transsexual personal and his or her children: decision taken according to the best interest of the child. ECtHR case P.V. v Spain (30/11/2010). No restrictions on adoption or to the access to assisted reproduction techniques.

10. SPANISH NATIONAL REPORT LEGAL CHALLENGES OF THE EXISTING RULES Act 3/2007 was not voted by all parties in Spanish Parliament, but Popular Party (conservative) did not challenged it before the Constitutional Court Same-sex marriage Act, declared constitutional by Spanish Constitutional Court in November 2012. No doubt about the effects of sex change on the right to marry for transsexual people. Although a comprehensive regulation on gender identity is demanded, no plans by the conservative party in government since 2011. Due to economic crisis it is hard to foresee that the cost of sex reassignment surgery will be assumed by the National Health System in the next future in Spain.