On April 20, the General Council of Justice will review and vote on a nearly 140-page report on the Trans Law, released by the Ministry of Equality under the direction of Irene Montero. The report does not question the right of trans people to gender self-determination, but warns, for example, of possible discrimination against “non-transgender women” and calls for more control over the process of changing the civil registry of minors. . The full text that this newspaper was able to discuss also contains technical objections to the articles of the bill that deal with sanctions against discrimination against trans people.
The first comment on this issue is the endorsement of the shift in the burden of proof that the new law imposes when a trans person condemns any form of discrimination. If he presents “the basis for his existence,” the report says, it will be the defendant who must substantiate his alleged discriminatory action.
This measure, according to the draft report, is relevant and meets the requirements of European regulations and very positively emphasizes that the trans law stipulates that the applicant must provide reasoned guidance on the discrimination situation. Of course, he asks the executive to specify that this change will affect civil or disputed litigation, but not criminal proceedings where this shift in the burden of proof does not apply. But in other types of proceedings, the report recalls, it is normal that as soon as it is proven that unequal treatment has taken place, it is the defendant’s job to prove that this unequal treatment has nothing to do, in this case, with transsexuality. Affected person ..
This happens, for example, when a pregnant woman’s dismissal comes to court. If it is proven objectively that the company fired a pregnant woman, the burden of proving that she did not do so rests with the company that carried out the dismissal. If you do not accept this, it is a discriminatory release with all its legal consequences.
The Pre-Draft Trans Law also lists a series of violations in terms of equal treatment and non-discrimination, which may be minor, serious or very serious and impose various types of sanctions within the administration. For example, discriminatory labor practices or harassment in the use of derogatory language in public or private services, among many other situations.
The Council understands in this draft that many of the violations contained in the draft have already been addressed because of hate crime under Article 510 of the Criminal Code, which protects the dignity of human beings when insults occur between persons. For this reason, the report calls into question the sanctioning administrative authority of these cases and not directly, as it already is during criminal proceedings.
The fines and sanctions proposed by the Equality Project certainly do not include any form of punitive prison response, but they do include economic consequences that sometimes involve higher fines than the Criminal Code provides for hate crimes. Penalties from six months to one year under criminal law for this type of crime must exceed the quota of € 30 per day in order to reach the fines provided by trans law, for example, for punishing a serious offense.
The report also confirms that one of the additional sanctions, in the event of a serious or very serious breach, is to ban access to any kind of state aid for up to three years. This measure should be limited to, according to the report of the Council, which is still voting, public assistance and subsidies related to public policy aimed at promoting effective equality of LGTBI people or specifically trans people.
The report also explicitly calls for the elimination of the article entitled “Legal Liability for Discrimination”, which, for example, protects those who discriminate on the basis of a person’s sexual orientation or gender identity as “liable for harm” and also “assumes” the existence of non-pecuniary damage. The bill that the CGPJ is voting on requires to be eliminated because it is general and does not reveal any specific legal effect or specific effect on legal liability: if Equality speaks of criminal conduct, it should have happened under organic law, and if it speaks of administrative consequences, it would have Properly reflected.
In this case, the Council understands that this clause should be removed, as it puts on the table “general and indefinite legal liability, which is not limited to a specific area.”
The text also criticizes the fact that the new trans law puts on the table its own concept of “judicial protection”, which, in its view, is aimed at judges and magistrates. It is not the job of the legislature, the report recalls, to determine what measures each judge should take in the exercise of his or her position or to “reformulate” the constitutional concept of effective judicial protection.
Regulations on the trans population before equality was promoted before the passage of this bill, which led to controversy in the coalition executive, meanwhile developed into autonomous communities, a dozen of which have their own laws. One of the first was Andalusia in 2014, with its pioneering national standard to prevent people from having to undergo any kind of treatment or psychological test to cure or establish their gender identity. The Council, in this draft, goes so far as to recall that this state rule must “coexist” with the “many regional legislations” enacted in recent years.
It also means that the sanctions and prohibitions provided by this state law come after extensive regional regulation that will have to be adjusted to the new norm. The draft Council report states, however, that one of the articles of this new trans law clarifies that in regions where there are “special regimes of discrimination and sanctions in terms of equal treatment and non-discrimination”, these regional regulations “will work”. Preferential application for what is provided by this law. “
The draft understands that this is a contradiction and clarifies that the articulation of powers is the opposite and cannot depend on the pre-existence of regional legislation: Article 149.1.1 of the Constitution, recalls a report that has not yet been approved. It clearly states that regulating norms that “ensure the equality of all Spaniards in the exercise of their rights and in the exercise of their constitutional duties” is the “exclusive competence of the state.” Therefore, they demand that they avoid the “root of this framework of legislative action” and that the regional regulations in terms of sanctions be adapted to the new state trans law.
The key points of this report were already made public by the Governing Council of Judges last Friday. The report, which notes, in general, the provision of the law on granting more protection to trans people in Spain, but points to various technical shortcomings and possible discriminatory effects that it may have.
Four speakers have repeatedly warned that the “positive discrimination” that the norm implies for trans people can also escalate into “non-transgender women” discrimination, such as sports. The report called for “necessary precautions” to be taken to prevent discrimination against non-transgender women athletes, saying “differences in physical conditions and the physical advantages of transgender women over non-transgender women”. “Such as the situation that creates inequality in the field of women’s sports.” He also points out the contradictions that require a physical test.
The report, released by the council last Friday, also understands that a change in the civil registry could lead to “dark aspects and certain dysfunctions” and calls for more control. For example, “to guarantee that the modification of the gender designation will not allow obligations and responsibilities towards victims of gender-based violence to be avoided in order to prevent fraudulent situations.”
It also introduces some recommendations regarding the process that minors between the ages of 14 and 16 must go through to change a certificate in the civil registry. The report says that even the Constitutional Court recognizes the right of minors to enjoy this right because “it brings significant benefits to right holders”, but believes that minors in this age group should meet more requirements than their parents’ consent. Members, therefore, believe that the power of the court should be exercised through voluntary jurisdiction, as is already the case with juveniles between the ages of 12 and 14.
The report also mentions the fight against therapies to change homosexuality or transsexuality, but believes that it should not be classified as a very serious crime when the people who go through these processes do so with full consent. The text says that leaving the bill at this stage “would be doubtful, as it is an unjustified restriction on the ability of the people to act.”
Source: El Diario
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