last month in Scotland it was confirmed that the transgender person who had raped two women before their sex change and who was incarcerated on a preventive basis in a women’s prison would not serve his sentence in a women’s facility. The case of Isla Bryson, who transitioned from a man to a woman while awaiting trial for two rape cases, while still responding to the name Adam Graham, has sparked a national debate that has resulted in the resignation of Prime Minister Nicola Sturgeon.
During the trial, he argued that he knew he was transgender at the age of four, but it wasn’t until he was 29, two years ago, that he decided to take hormones and undergo surgery.
However, his wife says that the sex change was nothing more than a “sham” to deceive the authorities, a “strategy” to avoid ending up in prison surrounded by men and thus obtain “a much more bearable sentence”. Bryson has been in a women’s-only prison since the rape charges were filed as the case has been debated in political circles for weeks.
In Spain, yesterday the Congress definitively approved the trans law, which will be published in the Official State Gazette (BOE). However, some experts maintain that the approved text does not include criminal penalties for fraud, while the British region contemplates up to two years in prison and a fine. In other words, there are no mechanisms here to criminally prosecute fraud in the change of sex in the registry, nor in the Penal Code.
Unlike Scotland, the trans law in Spain does not contemplate requirements for the registration change of those of legal age, beyond their declaration of will, which makes it difficult to accuse alleged fraudulent cases. According to a prosecutor consulted by this article in El Mundo, demonstrating the lack of authenticity in the gender change “it would be an impossible task”. And he adds that it would be like pursuing the case of someone who, for example, “changes gender with the aim of gaining access to an opposition position reserved for transgender and transsexuals.”
According to the Prosecutor’s Office, if criminal proceedings do not work, the case could be reversed through civil proceedings. But since it is a civil matter, there would be no conviction (criminal, we insist) for the person responsible, although the change in the registry could be annulled (that is, he would lose his position in the opposition, continuing with the hypothesis), something that already happens with the marriages of convenience.
What does the law say in Spain?
Article 41.3 of the LeyTrans is the one that deals with these “opportunistic transitions” and establishes that the change of legal sex and, where appropriate, the change of name, “will not alter the legal regime that, prior to the registration of the registry change, were applicable to the person for the purposes of Organic Law 1/2004, of measures of Comprehensive Protection against Gender Violence”. In other words: it does not work as a clean slate.
According to various legal sources in this other article from El País, the change of gender opportunist It would not serve either to avoid complaints or convictions for gender violence. The simple fact of changing the mention related to gender in the Civil Registry would not annul the events that occurred before it, in this case a macho aggression: “The transition does not mean that you stop responding to the situations of violence that you have committed before” .
The Ministry of Equality highlights precisely this, that there is no retroactivity in the penalty no matter how much you change gender. If you kill your partner as a man and then transition, the law says you are judged as a man. On the other hand, the Ministry emphasizes that the law allows the Public Prosecutor to act ex officio in the event of irregularities and that the Head of the Civil Registry Office, if in doubt, can make checks and, where appropriate, communicate them to the Prosecutor’s Office.
In other words, although there is no criminal prosecution… There are clauses that prosecute future fraud.
In this sense, a case in the Canary Islands has recently set off alarm bells and has brought scottish debate to Spain. Some feminist associations (but contrary to the recognition of trans people: TERF), such as the group Alianza Contra el Borrado de las Mujeres, believe that cases similar to that of Adam Graham “already occur” in Spanish prisons. To prove it, they mention the case of a prisoner who would have asked to be transferred to a women’s prison.
This is Jonathan de Jesús Robaina Santana, who confessed to the murder of his cousin with a hammer. He had requested “a sex change process within the penitentiary center” and during the trial he asked to be called Lorenademanding the transfer to a women’s penitential center.
According to article 16 of the Organic Law 1/1979people who request recognition of sex change can do so directly to their prison, thus reducing controls over the process: “With the mandatory medical and psychological assessment reports and recognition of psychosocial gender identity, to For penitentiary purposes, transsexual people without an official gender identity in accordance with this, will be able to access modules and detention conditions appropriate to their condition”.
As the association explains in this article, the Scottish regulation contains a clause that indicates that once a person changes their registered sex, it becomes “a violation of their privacy and intimacy the expose or reveal their past under the original sex”. In Spanish legislation there is nothing in this regard.
On the other hand, it should be noted that all this debate usually results in a stigmatization of the collective (especially when the transition is presented as a “whim”, when in fact for the overwhelming majority of trans people it is not and it is a very conscious decision).
And, as we’ve discussed on Magnet before, the “how do we categorize trans people” debate also has multiple ramifications in other areas of everyday life. In sport, there are doubts about in which category trans women should compete (whether as women because of their self-determined gender or as men because of their biological characteristics).
In fact, some feminist associations have opposed the fact that, according to the norm, “controls of sexual and/or gender identity are prohibited in the sports field” because they consider that it would affect the achievements obtained by women in said competitions.