Spain’s Supreme Court has ruled that changing a person’s registered sex cannot have retrospective effect and be used to overturn a conviction for gender-based violence committed when the offender was legally male.
The ruling establishes an important precedent following a case in Castellón (Valencia) in which a man convicted of assaulting his former partner subsequently changed his registered sex and argued on appeal that, as he was now legally a woman, his conviction for gender violence could not stand.
The Supreme Court rejected that argument, while also addressing a separate question that has emerged since Spain’s so-called trans law came into force: whether changing registered sex before an offence could prevent the specialist legislation on violence against women from being applied. ALSO READ: Spain approves new laws on menstrual leave, abortion and transgender rights.
In its statement on the ruling, the Supreme Court said that ‘the change of sex does not have retroactive effects that would allow a previous conviction for gender-based violence against a woman who was the offender’s former partner to be overturned, when the acts were committed while the appellant was a man for all legal purposes’.
It also established that ‘a change of registered sex made before the offence may also not be sufficient to prevent a conviction for gender-based violence if it is proven that the change was made with the intention of circumventing the law’.
However, the court stressed that a change of registered sex cannot automatically be regarded as fraudulent. Any finding that someone changed their sex specifically to circumvent gender violence legislation would have to be established individually and on the evidence of the particular case.
‘The evidence that it was done with the intention of circumventing the law must be conclusive and leave no room for doubt. That determination is for the courts to make and must be based on the specific circumstances of each case,’ the Supreme Court said.
The case dates back to 20 April 2022, when the defendant went to the area around his former partner’s home in Castellón to see their eight-year-old daughter under existing visitation arrangements.
During a tense encounter, he grabbed the girl forcefully by the arm. When her mother intervened, he punched his former partner in the waist and struck and scratched her around the neck.
He was sentenced to nine months in prison for gender-based violence against his former partner and a further nine months for domestic violence against his daughter. The conviction was subsequently upheld by the Provincial Court.
The defendant appealed to the Supreme Court, arguing that he was legally a woman after changing his registered sex at the Civil Registry in Castellón on 1 June 2023, and therefore could not be convicted of gender-based violence.
However, the court noted that the assaults took place more than a year earlier, while the process to change his registered sex did not begin until April 2023.
The judges ruled that ‘a change of sex cannot be used to neutralise a conviction for this type of violence when the acts, as in this case, occurred while the perpetrator was male’, stressing that ‘the change of sex does not have retroactive effects’.
The ruling also addresses cases in which a change of registered sex takes place before an alleged offence. In those circumstances, it could still be treated as gender-based violence if a court establishes that the change was made specifically to circumvent the law.
Spain’s 2023 legislation on LGTBI rights and transgender equality allows people to change their registered sex on the basis of self-declaration, without the previous medical requirements. The law itself states that such a change does not alter legal obligations arising beforehand, including those covered by Spain’s legislation on gender-based violence.
Several cases have nevertheless raised concerns about attempts to exploit the system.
In one recent example, the Provincial Court of Zaragoza called for an investigation in July into the registered sex change of a person accused of violence against a former partner who is classified as being at extreme risk under Spain’s VioGén monitoring system.
The accused had changed his registered sex to female the previous year, before a new complaint was filed this spring. However, the court pointed to several previous convictions for gender-based violence as grounds for suspecting possible fraud.
It said those previous convictions created ‘a well-founded suspicion that the new registered sex may have been obtained through fraud of law, which is expressly prohibited by the Civil Code’.
The court also said that, following the latest complaint, the accused told Guardia Civil officers ‘spontaneously’ that the sex change had been made ‘for the sole purpose of protecting himself against this type of complaint, because he feels that he has fewer rights than women’.
Pending a decision on the issue, the Provincial Court ruled that the specialist gender violence court should continue investigating the case, citing the need to safeguard the victim’s rights and protection.
In the Castellón case, the Supreme Court also rejected the defendant’s claim that his presumption of innocence had been violated. It dismissed a separate appeal by a woman who accompanied him during the 2022 incident and who was fined for a minor assault offence after pulling his former partner’s hair and attempting to grab the child.
The ruling therefore reinforces the principle that a subsequent change of registered sex cannot alter the legal circumstances of an earlier offence, while allowing courts to examine possible fraud where such a change takes place before an alleged act of gender-based violence.
ALSO READ: Spain confronts surge in gender violence after four women killed in five days.
Anyone affected by gender-based violence in Spain can contact the 016 helpline, available 24 hours a day in 53 languages. Help is also available via WhatsApp on 600 000 016. In an emergency, call 112, National Police on 091 or Guardia Civil on 062. Calls to 016 do not appear on phone bills, although users should delete them from their device’s call history.
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