After 15 years of denying migrant trans people’s access to the right to legally change their sex and name, the Spanish Government is about to introduce the Law for the Real and Effective Equality of Trans People and the Guarantee of the Rights of LGBTI People in Congress. The current lack of access is attributed to Law 3/2007, passed on March 15th, that. The new law contains some advances in regards to the recognition of rights, however the proposed bill, as it stands in the current version approved by the Council of Ministers on June 29th, 2021, with prior intervention from the Ministries of Equality and Justice, continues to deny trans migrants the possibility of changing their gender identity on immigration documents issued by Spain.
In light of the imminent Government approval of the final text of this proposed bill, the undersigned individuals and organisations consider that the time has come to extend this right to the trans migrants living in our country, many of whom are beneficiaries of international protection.
Article 44 of the proposed bill requires trans migrants to prove that they have initiated administrative procedures to change their gender identity in their countries of origin. This does not occur in the majority of cases due to the legislation of the countries, which persecute or do not recognize the trans community. In other words, in practice, when the text is broadly applied, the vast majority of trans migrants in the country will not be able to carry out the necessary procedures to have their gender identity recognized on official Spanish documents.
The majority of trans migrants are not able to change their legal gender or choose not to take this risk due to the implied danger, and it is an injustice to demand they prove their transition in their country of origin, when the majority are beneficiaries of or are seeking international protection precisely because of their gender identity. Therefore, not only is this requirement unacceptable from a human rights perspective, it also represents yet another barrier for a population that already faces significant obstacles in their migration or international protection process.
In recent months the need to guarantee the inclusion of these people in systems of protection has been demanded by numerous organizations and institutions of recognized prestige, such as The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), The European Commission through the Strategy for Equality of LGBTIQ People 2020-2025 and the European Court of Human Rights (ECHR).
Trans migrants arrive in our country seeking to develop their life projects in conditions of security, stability and quality. We consider it an injustice to force these individuals to wait 15 years or more to see their gender identity recognized, while also being left out of systems of international protection. This would be in contravention of European jurisprudence and cause serious harm.
Further, the lack of precision in some state regulations has proved to be a serious problem in the ability of citizens to be able to exercise their rights. This is the case, for example, of RDL 7/2018, which intended to guarantee universal access to the healthcare system, but has in practice been unable to resolve the situations for which it had been conceived.
Therefore, given the possibility of restrictive interpretations of the regulatory texts themselves, we urge that the inclusion of trans migrants be expressed in unequivocal terms as to its purpose.
For these reasons, we call upon the State Government and the Parliamentary Groups to take the following measures:
- To remove Article 44 of the Projected Bill for the Real and Effective Equality of Trans People and for the Guarantee of the RIghts of LGBTI People.
- To guarantee the recognition of the gender identity of trans people with permanent residence in Spain, regardless of their administrative situation.
