Spain reverses burden of proof regarding trans discrimination


Southern Europe

Lennart Nijenhuis,

Minister Irene Montero. Photo EPA, Fernando Alvarado

If the Spanish government gets her wish, people accused of trans discrimination have to prove their innocence. The new Trans Law will reverse the burden of proof very openly.

According to El Mundo, the Spanish Minister of Equality presented the bill on Tuesday. Irene Montero speaks about a “historic” proposal.

If the bill becomes law, this would mean that a homeowner who refuses to rent to a couple because he doesn’t like gays or trans people will face a fine of up to 150,000 Euros. Discrimination as such is very recognisable for LGBT people. For that reason, it is classified as “very serious” in the proposed legislation.

The Trans Law officially has a much longer name: law for the real and effective equality of trans people and the guarantee of rights of LGTBI people.

This Tuesday, the draft was approved by the Council of Ministers and will now begin its processing in the parliament. The norm includes new rights for the LGTB collective such as gender self-determination.

But, in addition, the Trans Law project deploys a vital range of protective measures against sexual and gender discrimination underpinned by sanctions that can be extended to all areas of life, such as personal, educational, work, health, sports and leisure.

Other laws that reverse burden of proof

Avoiding a penalty for a complaint like that of that discriminating landlord may not be that simple. According to the Minister of Equality, the law will establish a regime “based on the reversal of the norms relating to the burden of proof.” In other words, it will be the defendant who must prove that he has not discriminated.

The Minister affirms that it is a question “fundamental in anti-discrimination law”, which is already contemplated in other laws already in force and that its origin is in European regulations.

For example, an essential law that governs the entire contentious-administrative jurisdiction was added in 2007. In proceedings on “discriminatory actions” on the grounds of sex, “it will be up to the defendant to prove the absence of discrimination in the measures adopted.”

Another rule of 2003 already included an article according to which in civil and contentious proceedings, when the allegations deduce “the existence of well-founded indications of discrimination” on the grounds of race or ethnicity, “the defendant will be responsible for providing an objective justification. and reasonable, sufficiently proven “.

Questions by the Constitutional Court

The Constitutional Court has already said that “in the provision of credible evidence or the principle of proof of the alleged violation, the simple affirmation of discrimination will be insufficient.”

The most severe sanctions will be fined between 10,001 and 150,000 Euros. In addition to the example of rent, which is a problem for finding a flat for trans people, the law mainly penalises harassment, retaliation and adverse treatment of an LGTBI person in this category.

Light penalties 200 Euros

Refusal to assist or the use and promotion of reconversion therapies is also punished as “very serious”. Likewise, teaching in books or didactic material that places LGTBI people in a condition of inferiority in human dignity.

Gender self-determination

Part of the law is also gender self-determination. A trans person will be able to change gender at the civil registry only based on his own declaration. They don’t need any psychiatric medical report or a two-year hormonal period, as required in the present law.

All that disappears because transsexuality is depathologised. “They are no longer going to be considered sick people”, Montero says.

According to El Mundo, people from 16 years old onward are entirely independent to change their sex. Between 14 and 16, the Minister assumes that the parents will coach the youngsters. Children between 12 and 14 have to go to court to get their sex changed.

The original plan was to include a “third gender” in the proposal. According to El Mundo, this has not happened because of political pressure from conservatives.

Opposition from feminists and Evangelicals

According to Evangelical Focus, the Spanish Evangelical Alliance finds the proposals “very worrying”. Also, the feminists question the bill.



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