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Intersectional feminism, the draft trans rights law in Spain, and building a more inclusive world for trans migrants

Trans DJ, performer and artist Translocura during a decolonial march in Barcelona, October 12, 2019. Photo by Christine Thao Tyler

In the week before 8M (International Women's Day) we would like to call attention to the struggle for Trans Rights in Spain and around the world. Trans rights are human rights, and trans liberation is an integral pillar of the fight for intersectional feminist liberation. In talking about transness, we would also like to focus on the lived realities of trans migrantswe see you, we love you, and we pledge to uplift you however we can.

8M can be a difficult time of the year for trans and non-binary folks because narratives of trans-exclusionary feminism reach an all-time high. 8M is a beautiful day of celebration for women, and a much-needed day of commemoration in the feminist struggle, but on social media, in activist spaces, and in dialogues around feminism in the mainstream media, TERFs, or trans-exclusionary feminists are continually given platforms at the expense of intersectional inclusion. As the queer Latin American news collective Agencia Presentes puts it, TERFs are a group of so-called feminists “whose theoretical basis is the exclusion of trans women and men and by exclusion I mean the violation, stigmatization, criminalization, pathologization and denial of our identities and life stories.” “These groups question the existence of trans people and affirm that their presence endangers the spaces and rights achieved in what they call ‘the erasure of women.’” In other words, TERF-y conceptions of “feminism” lack intersectionality and center cis women, refusing to make space for the spectrum of gender identities beyond cis womanhood.

Feminism needs to be trans-inclusionary because trans and non-binary folks experience the violence and quitodian trauma of patriarchy just as acutely as cis women do. Trans women are women too, and truly inclusive feminism acknowledges the needs and oppressions of all, including trans, genderqueer, non-binary, two spirit, agender folks and more, with a special emphasis on black trans women, indigenous trans women and trans women of color.

As the organizing group for the manifesto “Feminists for the Rights of Trans People” write, “(we) convey our unconditional love and support to trans women partners. We will always be by their side, as they are also in the spaces in which...we...fight day after day: defending social justice and public services, practicing mutual support and resistance to the policies and the lack of policies that are killing us, at the borders, in the CIEs and in the streets.”

When someone says that they support trans rights, or when intersectional feminists use inclusive language, saying “trans women are women,” this doesn't infringe on the rights of cis women. Cis women can absolutely experience oppression; calling for more expansive conceptions of feminism doesn't negate that. Rather, intersectional, trans-INclusionary feminism questions structures of privilege that center cis women within feminism, and cis-ness in society as a whole. Intersectional and trans-inclusionary feminism supports an understanding of womanhood and those who experience patriarchal oppression that includes many more types of identities than that which is far too often considered the default.

Let´s say it another way: deplatforming and decentering cis-ness in feminism isn’t discriminating against women, or lessening rights for women, but rather creating a world where all womenespecially BIPOC trans womenare safe and included. This is necessary labor in dismantling capitalist catholic cisheteropatriarchy and the cis supremacy, islamophobia, racism and white supremacy therein. With intersectional and transfeminist feminism we fight for safety for all, not just some.

8M en Barcelona, 2020. Foto de Christine Thao Tyler

Now that we’re on the same page about trans rights, what's happening in Spain?

There is a new law being written in Spain right now in relation to trans rights: “Ley Estatal Trans” or the “Ley para la Igualdad Real y Efectiva de las Personas Trans.” This new trans law is being drafted by the Ministry of Equality, in an initiative spearheaded by Spanish Minister of Equality Irene Montero and the political party Podemos. There was a formal public consultation period on the draft law from October 01, 2020, until November 27, 2020, and in February 2021, some parts of the draft were released online. In the versions of the new draft law that we have seen, there are advancements in ensuring the rights of trans and non-binary people. However, other parts do not go far enough in reforming existing laws, instead entrenching trans inequality and creating further difficulties for trans women and migrants.

Solidary Wheels calls on the Ministry of Equality and the Spanish state to consider the rights, voices and dignity of trans migrants while writing and finalizing the Ley Estatal Trans.

Inclusion of trans migrant voices: in the remaining time for finalizing the draft Ley Trans, the Ministry of Equality should do everything in its power to listen to, consult and include trans migrants and BIPOC trans folks in the law’s finalization process, in order to co-create a piece of legislation that incorporates the voices of those the law will affect.

Autodetermination of gender regardless of legal status: In the new draft law, anyone, regardless of legal situation, should be able to change their gender on identity documents or in the civil registry, without having to produce a medical report, documents showing they are undergoing transition, or psychological analyses “confirming” their trans-ness.

This is an important reform for trans migrants, because the existing law regarding legal change of gender, Ley 3/2007, de 15 de marzo, states that “Any person of Spanish nationality, of legal age and with sufficient capacity to do so, may request the rectification of the civil registration mention of sex." The wording of the prior law, by enshrining rights for Spanish nationals only, doesn’t cover foreigners with legal residency in Spain, or undocumented people in Spain who might want to legally change their gender. This has created difficulties for trans migrants, refugees, asylum applicants living in Spain who, under the existing law, often have their right to legally change their gender denied.

In some regions in Spain you can be undocumented“in an irregular situation”but registered“empadronarse”for the census, an administrative form that marks an individual’s gender. Additionally, people without legal residency can have other administrative records that state gender, such as educational certificates, a public health card, drivers license, or social security application. Therefore, it is important that Spanish law extends the right of legal gender change to all those living in Spanish territories, not just those with Spanish nationality or legal residency.

A system where someone’s ability to access gender-affirming legal processes is determined by nationality or lack thereof is not a just system.

Depathologizing and Demedicalizing transness: In the new draft law, anyone, regardless of legal situation, should be able to change their gender on identity documents or in the civil registry, without having to produce a medical report, documents showing they are undergoing transition, or psychological analyses “confirming” their trans-ness.

The current draft of the new trans law includes provisions where “No psychological or medical proof will be required to change the name relative to sex in all administrative records and documents, nor will it be necessary to change the appearance or bodily function of the person through medical, surgical or other procedures.” We hope that these protections remain in place while the law is being finalized and debated.

We welcome these parts of the Tran Law that allow people to change their gender without medical justification because this places gender determination in the hands of trans people themselves, rather than so-called legal, medical or psychological “authorities” whose vision of transness may not align with understandings of sex and gender within queer communities.

In the fields of psychology and psychiatry, transness has far too often been viewed as a mental or medical disorder. While gender dysphoria is a real condition that many people struggle with, not all trans people experience dysphoria. Therefore requiring trans people to “prove” their transness, i.e. that their gender identity doesn’t match the sex they were assigned at birth, with medical reports or psychological analyses, devalues the lived experiences of trans folks. The personal, self-reported gender identity of an individual should be enough to confirm gender, without needing affirmation from external sources.

The current Law 3/2007, of March 15, states that “to carry out the rectification of sex registry, it is required to prove gender dysphoria through a medical or clinical psychological report, as well as undergoing medical treatment for at least two years to accommodate the physical characteristics of the claimed sex.

However, someone’s transness doesn't begin and end with physical transition. Not every trans person transitions. And for those that might want to, there are numerous barriers to physical transitioning: some people are medically unable to transition, many cannot afford it, and some trans people may simply elect to forgo aspects of physical transitioning that entail surgery or hormones. Additionally, safe and gender-affirming trans healthcare can be incredibly difficult to access and in many places simply does not exist. Others, especially BIPOC trans folks, may weigh their options and decide that the effort of navigating racist, transphobic and ableist medical systems places a greater strain on their mental health than living with gender dysphoria, and therefore elect not to pursue medical transition.

For trans migrants that do wish to physically transition, long and difficult trajectories of migration can make it incredibly difficult to access hormone therapy, maintain hormone injection schedules or access trans medical care that is affordable and language-accessible. Exclusion of migrants from public and private health systems leads some trans migrants to self-medicate with black-market hormones or injections from doctors who take advantage of institutional exclusion to charge exorbitant fees while delivering sub-par services. None of the latter situations result in a formal medical report. Therefore, current laws in Spain that require medical records of two years of physical transitioning before qualifying for a legal change of gender place an unreasonable burden on trans migrants to a) physically change their appearance in order to legally obtain a gender-affirming name or b) wait a minimum of two years after the point of entry into Spain’s health system in order to legally change their name.

There are many trans folks who speak publicly about their experiences, and a plethora of resources for trans allyship exist both online and in print. We invite you to listen to, trust, and affirm the voices of trans folks, especially when speaking about their gender identities.

Defining gender outside of the gender binary and understanding gender as a spectrum: Under the new Ley Estatal Trans, people should be able to choose from a spectrum of genders on their identity documents and administrative records. This means either removing gender from legal documents or including more options apart from “male” or “female.”

Additionally, the new trans law should include a comprehensive understanding of transness and gender that doesn’t just view transness within a binary of transition from male to female or vice versa, but a gender identity across a spectrum that can fluctuate and change over time. Trans people are not just people assigned male at birth who identify as women, or people assigned women at birth who identify as male, but a trans person could also be a non-binary person assigned female at birth (but not all non-binary people identify as trans), an agender person assigned male at birth, or a person assigned intersex at birth who identifies as a woman (but not all intersex people are trans, and not all intersex people are automatically genderqueer, meaning that intersex folks who live life as a man or woman don’t necessarily consider themselves trans). These examples are not all-inclusive! Transness, like gender, is a spectrum, and encompasses a myriad of sex and gender expressions and realities.

We highly recommend this video from @bambi.butch, which deconstructs the draft trans law and explains its impact on non-binary people: Ley Trans

  • The draft trans law does not address the existence or needs of non-binary people: "The draft does not make any recognition (of non-binaryness) beyond a short mention of non-binary genders."

  • In legislation regarding trans people, non-binary folks are typically left out because "they are not considered trans or are considered 'second-tier' trans."

  • Non-binary people need legal recognition of the non-binary gender identity, not simply omission of sex/gender from identity documents or an "other" option in addition to "man" and "woman" on documents: "We want to be able to say 'we are non-binaries' and we want to be able to have equal legal status to that of binary, trans or cis people."

As the collective Trans Latinos states, “if the ley estatal trans is not going to include the rights of disabled and non-binary migrants then it is not ‘estatal’ because we are also part of the state.”

Access to legal name changes for trans, migrants, refugees and asylum seekers: Trans migrants and applicants for international protection should be able to change their legal names at will, without submitting “accreditation” or “justification” for requesting said name change.

Legal name changes are a crucial gender-affirming step for many trans individuals. While enabling legal name change is just one small part of the trans struggle, and not a substitute for social inclusion, physical security, healthcare access, workplace safety, anti-discrimination laws, intersectional protections, or any of the many other aspects of trans rights, it is one that can have profound impact on mental health, feelings of belonging, and everyday quality of life.

Solidary Wheels supports the statement of KifKif, a Spanish association of LGBTI+ migrants and refugees, in calling for an “absolute rejection of the concept of ‘accreditation’ introduced in the draft Ley Estatal Trans for trans migrants and applicants for international protection, who must prove that they have suffered persecution in their countries of origin to obtain their chosen names in the Civil Registry.”

This creates a barrier to accessing gender-affirming identity documents for trans migrants, that those with Spanish nationality or residence do not have to pass in order to change their names. An additional layer of bureaucracy that only applies for those without Spanish passports is a racist one and requiring trans migrants to “prove” that they have faced persecution shows a lack of understanding of the reality trans migrants face in their countries of origin.

As the collective Trans Latino put it, “these types of norms are systematic eurocentrism.”

Many people facing persecution decide to flee rather than try to navigate judicial systems that do not include trans rights in their conceptions of justice. In the course of migrating from an unsafe place to a safe one, papers, memories, identity documents and remnants of life are frequently lost along the way. To expect every queer migrant entering Spain to have detailed bureacratic records of their former lives ignores the reality of perilous migration journeyswhich often entail hours, or even days at sea, thousands of kilometers across foreign countries, and years of waiting in detention centers.

Solidary Wheels asks that the Ministry of Equality question the equality of a system where trans migrants have to climb additional administrative hurdles to access gender-affirming legal processes, in comparison to trans people of Spanish origin.

Attention to intersectional and multiple discrimination: the new Ley Estatal Trans should recognize the existence of intersectional discriminations, and provide special legal protections for trans migrants, trans women, and BIPOC trans people.

Based on their intersectional identities, trans migrants must confront all the challenges of being a migrant in Spain in the same moment as the everyday struggles of being trans in a cis-supremacist world. Some of the intersectional discrimination trans migrants can face include xenophobia, racism, colorism, classism, ableism, stigmatization of mental health and/or discrimination based on religion (e.g. islamophobia). In the new Ley Estatal Trans we ask that the unique needs of trans migrants be considered, and that the Ley Estatal Trans makes reference to other Spanish rights laws, such as those against gender-based violence.

Attention to intersectional and multiple discrimination necesitates robust data collection mechanisms. The Ministry of Equality should ensure that data is being collected on crimes against trans people, with demographic information included so that researchers, the government and the general public can be aware of the disproportionate impact of hate crimes on BIPOC trans women.

Additionally, there should be avenues for denouncing hate crimes against trans folks that intersect with racist incidents, gender violence and discrimination, and inclusion of special provisions for the protections of trans migrants both within Spain and at its borders. Undocumented people should be protected from deportation or ordens of expulsion when reporting hate crimes, violence, or any other type of denunciation.

Melilla and trans rights across autonomous communities in Spain:

A ley estatalstate level law—for trans rights is needed in Spain because the situation of trans rights varies greatly from one comunidad autonoma to another.

According to a report from Chrysallis, an association of the families of Trans* minors, titled “Protocol for the Accompaniment of Trans* Students and Attention to Gender Diversity in the Educational Centers of Melilla” discrimination against and bullying those who break gender norms results in a situation where:

“Due to lack of information, lack of support, or fear of suffering a direct discrimination, exclusion of certain groups of belonging, and even physical and / or verbal aggressions, trans people can also live a double life, not revealing their real (or social) name in some settings and being referred to with a gender that does not correspond to your true sexual and / or gender identity.

LGTBIQ + people frequently grow accustomed to hiding a fundamental part of themselves: the result of discriminatory socialization, they grow hiding your true identity, feelings, wants and needs showing only a superficial part of themselves.”

Additionally, writes Chrysallis, “affective-sexual orientation, sexual identity and gender expression are not something watertight, but can vary throughout life and are part of a

construction process: they are not given once and for all, but are gradually configured and undergo changes according to their immediate environment....As a consequence of the ignorance at the social level of trans identities, and the lack of administrative structures that contemplate, protect and respect this, in reality, trans* people may see their sexual and/or gender identity denied constantly.”

In a place like Melilla, which is a gateway to Europe and receives hundreds, if not thousands of people and youth on the move every year, some of who are trans and/or genderqueer, laws that offer greater rights and protections for trans people also offer greater rights and protections for migrants. As an organization that fights for the human rights and dignity of all at Europe´s southern border, Solidary Wheels calls for explicit trans rights at the level of Melilla’s regional governance as well as at the state level, so that our trans kin can exist and live in a more inclusive and intersectional feminist society.

Article written by Christine Thao Tyler



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