Here’s how European countries contemplating legal gender recognition can follow Spain’s lead

Spain is the most recent European country to adopt a self-determination model for legal gender recognition. The legislative process and surrounding conversation were explosive, but a smoother, less harmful path to recognising the right to gender self-determination is possible
Activists celebrate outside Spain’s parliament after approval of a law that will make it easier for people to self-identify as transgender | Alamy

By Katrin Hugendubel

Katrin Hugendubel is the advocacy director for ILGA-Europe

02 Mar 2023

On 16 February, when the Spanish senate passed an omnibus bill to expand protections and entrench rights for lesbian, gay, bisexual, trans and intersex (LGBTI) people, including legal gender recognition (LGR) with a self-determination model, the reaction from civil society was largely one of relief. They felt the government had done its job in the face of a long and, at times, explosive process.  

The passage of the law represents a major victory, but the campaign was often painful. As more and more EU Member States look to adopt LGR with a self-determination model, we would like to offer some observations about how the legislative process and surrounding media coverage can unfold in a less harmful, more constructive way. 

First, some definitions. Both the Council of Europe and the United Nations assert that LGR should be fast, accessible, affordable, without discrimination on any grounds, and based on self-determination. Self-determination simply means that a person can decide what is written on their own identity documents. This is in contrast to other models of LGR, where a person needs a third party to verify information about their gender, such as a doctor, judge, spouse or ex-spouse. At its core, self-determination is about the right to privacy and autonomy.  

That's where the effort to move toward self-determination really is heading. It is about the appropriate role of the state. 

Every person needs documents that show who they are in order to function in their everyday lives. The state's job is to make sure a person has those documents and to keep track of its citizens. It is not the job of the state to tell people which boxes they belong in and to keep them there by force. That's where the effort to move toward self-determination really is heading. It is about the appropriate role of the state. 

That being said, Spain’s newly passed law is about much more than LGR. It's a ban on conversion therapy and intersex genital mutilation, it's about access to sexual and reproductive health, and it's about rights for all LGBTI people. However, as we have seen elsewhere, dropping trans issues when the politics get too hard has become a long-term pattern in these sorts of legislative processes.  

The challenge that Spanish Minister for Equalities Irene Montero and her colleagues faced during the process of passing this legislation was that those opposing LGR based on self-determination refused to offer solutions to the problems they were presenting. Frequently, opponents to this aspect of the legislation weren't even presenting concrete problems so much as suggesting that problems may exist. This is a recognised tactic of anti-rights actors; they create ambiguous problems without any desire to seek solutions. Governments and activists try to engage in these supposed problems in good faith, looking for solutions, but these actors are not interested in such an exchange; they're simply interested in stopping the process.  

In this case, the Spanish government was able to see through this tactic and stay focused on the prize, which was securing human rights protections for LGBTI people in Spain based on international law.  

Currently, there are eight EU Member States who have LGR based on the self-determination model, while the Netherlands, Sweden, Germany and Cyprus are in the process of attempting to reform towards self-determination. Whether they will get all the way there or not isn’t straightforward.  

For politicians in these countries and in countries that will in the future move towards LGR based on self-determination, it is vital to be aware of tactics that can derail the conversation, like asking inflammatory questions or putting forward strawmen. It's also very important for policymakers and politicians to be proactively vocal in supporting the rights of trans people.  

We often see a few very vocal anti-rights actors whose voices are disproportionately elevated compared to pro-rights voices, particularly on social media but also in general media coverage. The impact of this can have devastating effects on the wellbeing of trans people. 

In this year's ILGA-Europe Annual Review of the Human Rights Situation of LGBTI People, we saw a significant rise in reported suicides among LGBTI people in Europe. We concluded that this tragic uptick is in part due to the media’s role in elevating anti-trans views while at the same time not providing adequate responses.  

It is vital to insist that we're not talking about two opposing views that come from equal places here. We don't hear about people who vocally wish to exclude trans people committing suicide. When trans people are forced into spaces that don't match their gender expression, they routinely experience sexual violence. In fact, half of all trans people have been subjected to sexual violence. We don't hear that part of the conversation; we only hear about how trans people are monsters.  

How our societies treat LGBTI people highlights where their deepest fragile. When politicians bow to anti-trans arguments, either afraid to enter the discourse or because they haven’t taken the time to research and articulate their own arguments, they are bowing to forces that are much larger than the anti-trans movement. They’re bowing to diversionary tactics that ultimately seek to instrumentalise LGBTI people as an attack on everyone’s rights.  

The Spanish government, together with civil society organisations, did a phenomenal job in keeping all the pieces together and finally getting a bill that adequately protects all LGBTI people through the legislative stages. It is also a huge win that the LGBTI movement was able to stay together and focused on getting a comprehensive bill passed. They did so in the face of well resourced, well organised and subversive forces.