The Constitutional Court (TC) maintains the precautionary suspension of the reform of the trans law of the Community of Madrid that required a prior examination by the doctor so that trans minors, with any illness, could access hormonal treatment. The Plenary has considered that it affects the freedom of self-determination of boys and girls. The measure was applied after the central government filed an appeal of unconstitutionality. Almost five months later, the Court of Guarantees has decided to lift the suspension of the rest of the articles, until it resolves whether the regional legislation fails to comply with the legal system.
“This rule affects the freedom of self-determination of the minor, making it difficult for them to make personal decisions in the transition procedure,” the Constitutional Court indicated in a statement. This decision, approved in plenary session, was opposed by judges Ricardo Enríquez, Enrique Arnaldo, Concepción Espejel, César Tolosa and José María Macías. For these judges “it is a guarantee that does not entail serious harm to the public interest or to the individuals of the recipients of the norm, given the importance of the decision to submit to hormonal treatment and its irreversibility”.
Specifically, the court of guarantees maintains without effect the final paragraph of article 14.2.b of the law of the Community of Madrid 17/2023, of December 27, which modifies Law 2/2016, of March 29 , gender identity and expression and social equality and non-discrimination. The text points out that “In the event that comorbidity exists, a favorable report from the professional will be essential who is treating the minor for said pathologies.” In cases where there is no pathology, the boys and girls will require a clinical report.
The action of the TC follows from the unconstitutionality appeal registered by the Government of Pedro Sánchez against regional laws. The central Executive invoked article 161.2 of the Constitution, so the challenged articles were suspended and ineffective as a precautionary measure. Now, after this pronouncement, the suspension of sections 11, 12, 15, 17 and 22bis of the law is lifted, with the exception of 14.2.b. After almost five months since the appeal was filed, the court has decided to lift the suspension in cases where “it had not been requested by the State’s lawyer and also in those others in respect of which no allegations had been made to justify the suspension.” suspension maintenance.
On the other hand, the LGTBI law has also maintained the suspension of the article that It prevented entities and groups from participating in criminal and administrative sanctioning processes. The TC argues the decision “due to the risk of affecting the fundamental right of effective judicial protection.” Specifically, it is section d) of art. 65 of Law 3/2016, of July 22, on comprehensive protection against LGTBIphobia and discrimination based on sexual orientation and identity in the Community of Madrid, in the wording given by section fourteen ter of the sole article of the Law 18/2023, of December 27, which modifies Law 3/2016, of July 22.
The suspension of these two provisions will be maintained until the TC rules on the constitutionality or not of the rule. However, since The Community of Madrid has already registered a bill to reform the contested parts. The PP in the Madrid Assembly registered the initiative to amend article 13, 14, section 5 of article 30 and the participation of entities and organizations in all types of judicial procedures is recovered.
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