The Constitutional Court (TC) has extended this Tuesday the suspension of the article of the known as ‘Trans Law’ of the Community of Madrid that requires a favorable medical report to start hormonal treatment when the applicant is a minor with previous pathologies, although the other suspended articles have regained their validity due to the actions of the State Attorney’s Office.
It was last July when the Plenary of the TC admitted for processing the unconstitutionality appeals presented by the Government against several articles of two legal reforms promoted by the Community of Madrid related to gender identity (‘Trans Law’) and protection against ‘LGTBIphobia’.
At the same time, the Constitutional Court suspended the challenged articles because the Government requested it by invoking article 161 of the Magna Carta. In the plenary session held this Tuesday, the magistrates had to decide whether to extend or lift the suspension of these precepts.
The agreed suspension regarding Law 17/2023, of December 27, which modifies Law 2/2016, of March 29, on gender identity and expression and social equality and non-discrimination of the Community of Madrid, It has risen almost completely.
And this is because the State Attorney’s Office, which acts on behalf of the Government, has not requested to extend the suspension of some articles and, for those that have done so, it has not argued sufficiently, according to sources from the court of guarantees consulted by Ep . That is to say, the text of the Ayuso Government is once again in force, except in its most controversial aspect: the need for reports from doctors for minors who present previous illnesses.
The TC has reported that the Plenary Session has unanimously agreed to end the suspension of said articles. However, by 7 votes to 5 (those of the progressive majority versus the conservative minority) “the suspension of the provision that provides that transsexual minors, in the event of the presence of previous illnesses or medical pathologies, must be obtain a favorable report from the doctor who is treating the minor, as a condition for starting hormonal pharmacological treatment for his transition.”
The Plenary “has considered that this rule affects the freedom of self-determination of the minor, making it difficult for them to make personal decisions in the transition procedure,” as detailed by the TC in a statement.
However, judges Ricardo Enríquez, Enrique Arnaldo, Concepción Espejel, César Tolosa and José María Macías have been against it, understanding that “it is a guarantee that does not cause serious harm to the public interest or to the individuals of the recipients.” of the norm, given the significance of the decision to undergo hormonal treatment and its irreversibility.
Thus, Enríquez, Arnaldo, Espejel and Macías have announced their intention to formulate a dissenting private vote, while the progressive magistrate María Luisa Balaguer will cast a concurrent private vote.
Regarding the other suspension, the one agreed for several articles of Law 18/2023, of December 27, which modifies Law 3/2016, of July 22, on comprehensive protection against ‘LGTBIphobia’ and discrimination based on sexual orientation and identity in the Community of Madrid, the Plenary has decided to maintain it. Unanimously, it has been understood that “it is maintained due to the risk of affecting the fundamental right of effective judicial protection.”
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