Since the so-called trans law came into effect, which protected the right to self-determination ―that a trans person can change their sex in the Civil Registry solely by their free will to do so―, several men (not trans) accused or convicted of gender-based violence have made that registry change to try to evade the specific justice that has existed in Spain since 2004. The very regulations for the equality of the LGTBIQ+ community, in its article 46.3, clearly established that this change does not alter previous judicial matters arising from the application of the Comprehensive Law against Gender Violence. And, even though it is included in the legislation, the Supreme Court has now added case law, setting a key issue against this legal fraud: whether before or after committing the violence when men make that registry change, it will not serve to evade Justice.
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The Supreme Court establishes, on the one hand, that “the sex change has no retroactive effects that allow annulling a previous conviction for gender violence against the woman who was his former partner for acts committed when the appellant was a man for all legal and juridical purposes,” reads the statement sent by the High Court. And on the other hand: “That the registry sex change carried out prior to the crime may also not serve to neutralize a conviction for gender violence if it is proven that it was done with the intention of defrauding the law.”
It also adds that there will not be a general rule for all cases: “The proof that it was done with the intention of legal fraud must be full and without any doubt, a determination that corresponds to the courts and must be based on the specific circumstances of the case.”
This Supreme Court ruling is in response to a sentence issued by a Criminal Court in Castellón, ratified by the Provincial Court and appealed by the convicted man. The justice system considered it proven that, on April 20, 2022, he went “to the vicinity” of his ex-partner’s house to see his eight-year-old daughter, according to the visits he had established.
In that “tense environment, the man grabbed his daughter’s arm strongly with the intention of harming her physical integrity, her mother came to her aid, and the accused punched his ex-partner in the waist, hitting and scratching her neck.” He was sentenced to a year and a half in prison for the violence exercised both against the daughter and his ex-wife.
In his appeal to the Supreme Court, among other issues, “the man claimed that he was a woman and not a man because he had made a sex change in the Civil Registry of Castellón on June 1, 2023, so he could not be convicted of the crime of gender violence.” The magistrates now respond that “the sex change cannot be applied to neutralize a conviction for a crime corresponding to this violence when the facts, as was the case, occurred when the perpetrator of the crime was male,” because “the sex change has no retroactive effects.”
The Supreme Court also rejects that the conviction violated the presumption of innocence of the accused; and dismisses the appeal filed by a woman who was with him that day, and it was proven “that she pulled the hair of the accused’s ex-partner and tried to grab the daughter, and that she was fined for a minor injury offense.”
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A trickle of cases
Since the trans law was approved, a trickle of cases like this has followed. In the summer of 2024, there were so many cases that various experts in gender violence raised the issue. They emphasized that the problem was not the regulation, which expanded rights for trans people, but the aggressors, who tried to commit legal fraud.
The latest known case occurred in mid-July, when the Provincial Court of Zaragoza requested an investigation into the aggressor of a woman who is registered in the VioGén System with extreme risk ―the highest danger level― after he made a sex change in the Civil Registry to be registered as a woman. It is believed that he is committing legal fraud to evade the application of the law against gender-based violence.
That man made the registry change last year, before the last complaint filed by his ex in the spring, so in principle the competent court was the instruction court and not the one for violence against women. “But the fact that this person has several criminal records for acts of gender violence prior to that sex change leads us to detect a well-founded suspicion that the new registry sex could have been produced with legal fraud, expressly prohibited by the Civil Code,” the Provincial Court deepened last July.
And it added that besides those records, the man informed the Civil Guard agents after the last complaint last spring of “his condition as a woman” for a year, and then told them, “spontaneously,” that he had made the sex change “with the sole purpose of shielding himself against this type of complaints, because he feels unequal in rights with women.” The Court, while the case was resolved, took “as the most prudent decision” that the court specialized in gender violence continue to instruct the case. And it recalled that “the violation of the victim’s rights is at stake, with the corresponding risk to her comprehensive protection.”
The phone number 016 assists victims of gender-based violence, their families, and their environment 24 hours a day, every day of the year, in 53 different languages. The number is not recorded on the phone bill, but the call must be deleted from the device. Contact can also be made via email 016-online@igualdad.gob.es and by WhatsApp at number 600 000 016. Minors can contact the ANAR Foundation phone 900 20 20 10. In an emergency situation, you can call 112 or the National Police (091) and Civil Guard (062) phone numbers. And if you cannot call, you can use the ALERTCOPS app, from which an alert signal with geolocation is sent to the Police.
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