Pathologizing gender identity: An analysis of Spanish law and the regulation of gender recognition

Abstract

Despite recent worldwide legal advances in the protection of LGBT (lesbian, gay, bisexual, and transgender) rights, legal systems continue to take the categories of ‘male’ and ‘female’ to be based on a fixed and permanent natural order. Taking the current Spanish law regulating changes in gender identity as an example, we analyze how this recent (2007) legal advance still imposes medical criteria that pathologize the trans person and reinforce sexist assumptions. Although it is no longer up to a judge to determine a person's legal gender, the criteria for modification of official documents still implicitly support inaccurate and oppressive understandings of sex/gender/sexuality by, for example, relying on diagnostic criteria that support the imposition of gendered stereotypes on children and traditional social roles on adolescents and adults. Only through reconceptualizing our very notion of sex and gender can the law be revised to protect the rights of everyone no matter what their lived sex/gender histories and experiences.

Keywords:

• heteronormative
• transgender law
• LGBT law

Notes

 1. It seems that Spain is included in this category, but the expectation that subjects will develop secondary sex characteristics typical for their acquired gender does imply the need for hormonal therapy.

 2. Although a physician must certify that applicants have ‘undergone appropriate clinical treatment for gender transition’, without specifying the nature and limits of such treatment.

 3. Lagen om fastställelse av könstillhörighet i vissa fall (SFS 1972: 119). This early law did, however, require forced sterilization, a requirement that has recently been upheld despite pressure from human rights groups (McCormick 2012). It should be noted that while these early laws set precedents in recognizing sex/gender changes, many remain controversial for their requirement of sterilization and/or other medical interventions.

 4. Gesetz über die Änderung der Vornamen und die Feststellung der Geschlechtszugehörigkeit in besonderen Fällen (de:Transsexuellengesetz – TSG), 10 September 1980.

 5. Normativa in materia di rettificazione di attribuzione di sesso, Law 14 April 1982, n. 164.

 6. Art.1:28 van het Burgerlijk Wetboek (‘BW’), Article 28 of the Civil Code.

 7. Gender Recognition Act, 1 July 2004.

 8. , Act on Special Cases in Handling Gender for People with Gender Identity Disorder, Act No. 111, 16 July 2004.

 9. Loi relative à la transsexualité, Law Relating to Transsexuality, 10 May 2007.

10. This process is often referred to as gender reassignment surgery or sex reassignment. While the term gender confirmation surgery may not be as widely recognized, we feel it is a more accurate term. It is also important to point out that ‘surgery’ is a gross oversimplification of what can encompass a complex variety of possible procedures that may involve not only genitals but hair, facial features, voice, etc. Decisions about surgical interventions are affected by particular medical, legal, economic factors; see, for example, ‘A guide to lower surgery for trans men’ published by Gender Identity Research and Education Society (GIRES) which focuses specifically on these factors as they apply to the UK context. (available at: http://www.gires.org.uk/medtreatment.php#lower).

11. These same definitions are used in both P00, Gender Dysphoria in Children, and P01, Gender Dysphoria in Adolescents or Adults.

12. Actually, the first term translates as ‘sex identity disorder’: Trastornos de la identidad sexual (disforia de género).

13. This social legitimacy does not, however, guarantee equality, just as women in Western societies are legitimate but not historically equal members of society.

14. Spanish Supreme Court ruling, 1 ^a , 2.7.1987 (RJ 1987∖5045), 15.7.1988 (RJ 1988∖5722), 3.3.1989 (RJ 1989∖1993), and 19.4.1991 (RJ 1991∖2725)

15. Supreme Court ruling, 6 September 2002.

16. Provincial Court ruling, Valencia, 30 December 2003.

17. Provincial Court ruling, Barcelona, 6 May 2002.

18. Provincial Court ruling, Madrid, 15 July 2004.

19. Supreme Court ruling, 17 September 2007.

20. See, for example, details on the European Court of Human Rights ruling concerning Goodwin v. UK and I. v. UK at http://www.equality-network.org/Aptronym/home.nsf/newsweb/D5D07BB222C9874480256FC0005FECCC?OpenDocument.

21. Having received a ‘Certificate of Femininity’ based on earlier tests, subsequent testing revealed the XY chromosomal constitution which, at the time, categorized her as male. Martinez-Patiño actually has androgen insensitivity, a condition in which the body does not respond to testosterone. In her own words, ‘my tissues never heard the hormonal messages to become male’ (2005, p. 366).