I am a Brit living in San Sebastian, northern Spain, and this case has been in the local headlines.
the TL:DR is: A police officer changed his registered sex in November to female under the Ley Trans (controversial 2023 Self-ID law), but did not change his name, physical appearance or inform those around him (pronouns as he kept them he/him!). In August he attacked his wife with a knife in the presence of his two daughters. In 2004 Spain passed a world-first gender-based violence law that introduced special courts that deal with cases where the survivor’s gender is an aggravating factor. If he is registered as a woman, he cannot be tried for Gender Violence, only Domestic Violence, the penalties for which are less severe and the case cannot be counted as VAWG.
Here is a translation of the article:
The case of the trans Ertzaintza officer who attacked his wife opens the debate on possible fraud
The case seemed like another terrible episode of gender-based violence. On August 17, an Ertzaintza officer threatened his wife with a knife in the presence of their two daughters, in San Sebastian. The woman defended herself with pepper spray and fled hastily into the street, barefoot and with a baby in her arms. The alleged aggressor, meanwhile, barricaded himself in his house with his other daughter, until the Basque Police negotiated his arrest.
The incident, however, took an unexpected turn when he arrived at the police station. The detainee had been registered as a woman in the civil registry since November, when he changed his sex under the Trans Law, which he did not even inform those around him. This person also kept his name and physical appearance, so the Gipuzkoa Prosecutor's Office suggested that he had changed sex in order to circumvent the legislation against gender-based violence.
The change in the registry, not in vain, had a first significant legal consequence: the alleged crimes committed on the 17th could not be referred to the Court of Violence against Women, at least not at first, nor could they be judged as gender-based violence. And it is from this point that the questions accumulate.
Does sex change affect possible previous crimes?
The first question concerns the possibility that a change of sex could be used to circumvent the Law against Gender Violence, which is somewhat tougher than the legislation against domestic violence, which would apply, in this case, to violence between one woman and another.
Patricia Orejudo, a professor at the Complutense Faculty of Law, firstly emphasises that the change of legal sex “does not affect the treatment with respect to crimes that may have been committed before” registering it. In fact, the law itself states that the new registration mention “will not alter the legal regime that was previously applicable to the person for the purposes of the Law against Gender Violence”.
In this regard, as regards the case of San Sebastian, a priori the detainee could not be tried for gender-based violence for the attack that took place a week ago, but he could be tried for those crimes, linked to gender-based violence, that could have been recorded before the sex change, when he was listed as a man.
Can it be cancelled?
The legislation offers two avenues that would also allow the latest incidents to be judged as gender-based violence. The first has to do with the annulment of the sex change, proving that the change in registration pursued spurious ends.
“Changes in legal sex can be denied by the judicial authority linked to the registry ex ante , before it takes place, if there are signs that fraud is going to be committed, but also ex post . Any individual can file a complaint with the registry office itself, reporting the indicative facts that there may be fraud, or with the Public Prosecutor's Office. From there, the court linked to the corresponding registry would decide,” explains Saul Castro, a lawyer specializing in LGTBIQ+ rights.
A planned change of sex for fraudulent purposes could in itself constitute an aggravating factor.
The other way in which the latest events, which occurred after the legal change of sex in November, could be prosecuted as gender-based violence is by linking them to situations of abuse prior to the change in the registry. “There are indications that there were other acts of violence prior to the change of legal sex,” said Juan Galparsoro, chief prosecutor of Gipuzkoa. This would allow, according to the prosecutor, to investigate “all the events in a single procedure,” allowing the ordinary court to abstain in favour of a Court of Violence against Women.
Gender or domestic violence
In Patricia Orejudo's opinion, however, it is important to highlight that, although the Law Against Gender Violence imposes harsher sanctions because it responds to "a structural problem", a hypothetical crime of this nature committed by a person whose ID shows that she is a woman would not go unpunished, but would be judged as domestic violence.
The penalties for gender-based violence, or sexist violence, are slightly higher than those for domestic violence in cases of injuries, psychological abuse, threats and coercion, since the penal code considers sexist violence as an aggravated crime. In addition, according to Juan Galparsoro, “if the aggressor is a man and the victim is a woman and there is a relationship between a partner or ex-partner, the status of the victim is different, and is more protected than in the case of an assault by a woman against a woman.”
Saul Castro, however, believes that a planned change of sex with a fraudulent purpose and aimed at avoiding, in the future, possible accusations of gender-based violence could constitute in itself an aggravating factor. In fact, he is considering taking action in this regard.
“I would like to work with some association to have the registration cancelled before the investigation into the case is completed, and to suggest that the fact that the registration took place before the commission of these crimes is an indication that the offender may have acted with malice aforethought or some kind of premeditation. In this way, the case could serve as a warning to sailors,” he explains.
Fraud, inherent in the law
In summary, Patricia Orejudo raises a reflection on why the Trans law is being questioned “because there is a possibility of fraud”: “We are surrounded by fraud. There are also so-called marriages of convenience or shell companies to defraud, but no one is considering repealing the Capital Companies Law. Fraud coexists with the legal system itself, which has mechanisms to combat it. The fact that fraud is possible does not mean that the Trans law is not necessary; in fact, it is almost obligatory if we look at the latest resolutions of the European Court of Human Rights.”
Saul Castro agrees that “the possibility of fraud is inherent in the law” and says that “it is now that legal mechanisms must be put in place to demonstrate that the law and the legal system work.”
"If this person or others with some other motivation, including the aim of sabotaging the law, have sought to commit fraud, the moment to prove it is precisely when the spurious effect of the fraud will be able to manifest itself," he concludes.