The application of the trans law in Spanish prisons

The Law 4/2023, of February 28, "for the real and effective equality of trans people and for the guarantee of the rights of LGTBI people" better known as "Trans Law" was approved in our country after a long and complicated process, not exempt of controversy until the last moment. In recent weeks, news has surfaced that an inmate who declared himself a woman and was transferred to the women's module of the Penitentiary Center, got another inmate pregnant.

See the following link.

For this reason, and for a better understanding of the current situation, I consider it necessary to publish this article, in which I will try to explain the repercussions of this legal text on our penitentiary system, and therefore on our prisons.

We will begin the study by referring to cases in which the gender identity of inmates and their sex are taken into account within Spanish prisons.

We will begin with a reference to the separation by sexes in Penitentiary Centers, which is regulated in article 99 of the Penitentiary Regulations (hereinafter R.P.) which indicates that:

"Article 99. Interior separation.

In accordance with the provisions of Article 16 of the General Penitentiary Organic Law, inmates will be separated within the Establishments taking into account, as a priority, the criteria of sex, age and criminal record and, with respect to convicts, the requirements of treatment.

With respect to the separation of members of the State Security Forces and Corps and military personnel who are interned in common penitentiary establishments, the provisions of the corresponding legislation must be observed.

Exceptionally, men and women may share the same department with the prior consent of both and provided they meet the requirements regulated in Chapter III of Title VII.

Juveniles under the age of twenty-one may only be transferred to adult departments when so authorized by the Treatment Board, bringing it to the attention of the Supervisory Judge."

The aforementioned article refers to Article 16 of the Penitentiary Law (or LOGP) provides that:

"Whatever the center in which the admission takes place, a complete separation will be carried out immediately, taking into account the sex, emotionality, age, background, physical and mental state and, with respect to the convicts, the requirements of the treatment.

Consequently:

Men and women shall be separated, except in exceptional cases to be determined by regulation.
Detainees and prisoners shall be separated from convicted prisoners and, in both cases, primary detainees from recidivists.
Juveniles, whether detainees, prisoners or convicts, shall be separated from adults under conditions to be determined by regulation.
Those with physical or mental illness or deficiencies shall be separated from those who can follow the normal regime of the establishment.

• Those arrested and imprisoned for intentional crimes shall be separated from those arrested and imprisoned for reckless crimes."

On the other hand, Articles 168 to 172 of the R.P., which make up Chapter IV of said legal text, regulate the exceptional cases in which men and women are allowed to live together in the same module under the following wording:

"Article 168. Joint Centers or Departments.

Exceptionally, the Management Center, in accordance with the provisions of Article 16, a), of the General Penitentiary Organic Law, may, in order to carry out specific treatment programs or to prevent family breakdown, establish, for specific groups of the prison population, Mixed Centers or Departments where men and women may be assigned indistinctly.

Article 169. Voluntariness.

When the Treatment Boards, with the consent of those selected as required in Article 99.3 of these Regulations, make proposals for assignment to an Establishment of this type, they must weigh all the personal and prison circumstances and, especially, the variables of individual self-control of the inmates.
Inmates sentenced for crimes against sexual freedom may not be assigned to these Mixed Departments.

Article 170. Therapeutic community.

The Management Center may authorize the organization of therapeutic community groups in these Establishments in the manner and under the conditions established in Article 115 of these Regulations.

Article 171. Activities in common.

Depending on the sexual differentiation of the residents, the Board of Directors or the Treatment Board responsible in the cases of therapeutic community of the previous article, will submit to the Management Center for approval the rules of the internal regime, which will detail what type of activities can be carried out in common and those others for which the general criterion of separation of the General Penitentiary Organic Law must continue to preside over the living regime.

Article 172. Spouses.

In any case, and unless reasons of treatment, classification, security or good order of the Establishment make it inadvisable, the full cohabitation of the spouses who are deprived of liberty shall be encouraged."

Thus we observe that the general rule is that men and women must remain separated inside the prison, for which there will be modules for men and women, but with some exceptions expressly regulated in Chapter IV of the R.P., without any regulation in these legal provisions relating to transsexual persons.

II.- The so-called "strip searches".

We must also refer in our article to this type of search, since it also affects gender identity, since art 68.3 of the R.P. indicates in this regard that:

"The strip search shall be conducted by officers of the same sex as the inmate, in a closed place without the presence of other inmates and preserving, as far as possible, privacy."

Therefore, gender identity would not only affect interior separation, but also this type of searches, since it is required that the person performing the search be of the same sex as the person being searched.

III.- Prison regime for Transsexual persons prior to the entry into force of the "Trans Law".

With regard to transsexual persons, as early as 2001, Instruction 1/2002 of the Directorate General of Penitentiary Institutions established criteria for ordering the admission of "transsexual inmates" within the framework of the aforementioned "internal separation". For this purpose, the "apparent sexual identity" of these persons was established as a criterion, taking into consideration their physiological characteristics and their internal appearance, excluding other psycho-social criteria, which meant that in practice only those persons who externally had the appearance of the other sex were considered transsexuals, leaving out the rest of the persons. After this Instruction, those considered transsexuals already had the rights of the recognized sex and were admitted to the modules corresponding to them.

Subsequently, Instruction 7/2006 of the General Directorate of Penitentiary Institutions (which is expressly cited in the Explanatory Memorandum of Law 4/2023) established a procedure to integrate transsexual persons whose gender identity in this case did not match their psycho-social gender identity, and thus advance their social integration. This provision already regulated the rights and duties of these persons and established a procedure for their assessment through medical and psychological reports, which meant that once these medical-psychological filters had been passed, these persons could be integrated one hundred percent into the modules and activities of the sex they had recognized.

IV. The current situation after the approval of the "Trans Law".

The controversial application in prisons.
First of all, we have to say that Law 4/2023 does not make any express mention of the situation of trans persons in prison, except for the one made in the Explanatory Memorandum to Instruction 7/2006.

Secondly, the main characteristic of this law is the self-determination of gender, since the change of sex in the Civil Registry is allowed without the need of a medical or psychological report to prove the so-called "gender dysphoria", being enough only that the person makes the declaration of transsexuality in accordance with the provisions of Chapter I of Title II of Law 4/2023 (arts. 43 and following of the same), i.e.: going to the Civil Registry and making such declaration and without "in any case it may be conditioned to the prior exhibition of a medical or psychological report regarding the non-conformity with the sex of the person". 43 and following of the same), that is to say: going to the Civil Registry and making such declaration and without "in no case may it be conditioned to the previous exhibition of a medical or psychological report regarding the non-conformity with the sex mentioned in the birth registration, nor to the previous modification of the appearance or body function of the person through medical, surgical or other procedures" (art. 44.3 of the Law), and for this reason the Instruction 7/06 to which we have referred would be, a priori, obsolete, since from the entry into force of the new Law, these medical-psychological filters that were necessary in the same for a person to be considered transsexual without the need of appearing the sex would not be required.

The controversy of this new regulation lies in the fact that it would allow male sex offenders to be transferred to women's modules simply by declaring themselves women, and thus, in principle, would avoid the application of Article 169.2 of the R.P. "Inmates convicted of crimes against sexual freedom may not be assigned to these mixed departments, since it would NOT be inmates transferred to mixed departments, but rather, since they are transsexual persons, they should be transferred to the module of the sex of which they declare themselves, and this because there is no mechanism in the new Law to avoid it (a mechanism that existed with Instruction 7/06, with the requirement of medical and psychological reports).

This could "a priori" cause problems or be used "in fraud of law", and this despite the warnings or requests of certain groups that before the publication of the Law requested that the change of sex be limited to persons "without incompatible criminal records", alluding to those convicted of sexual assault or gender violence, for which an official certificate of sexual and violent crime records should be required of the applicant, determining that "for security reasons, males with such criminal records could not obtain the change of sex", or requesting that those convicted serve their sentence in the prison module corresponding to their biological sex, i.e., that the person with such a criminal record could not obtain the change of sex, or requesting that those convicted serve their sentence in the prison module corresponding to their biological sex, that is, regardless of their registered sex, and only clarifying that "Penitentiary Institutions may exceptionally grant the change of module to transsexual women without a history of sexual or violent crimes, provided they have undergone genital surgery".

In any case, and at the time of publication of this article, and probably due to the controversy that we have highlighted in the preceding paragraphs, it seems that the General Directorate of Penitentiary Institutions continues to be governed by Instruction 7/06, requiring medical and psychological reports prior to the change of module, at least in the matters that this lawyer has been informed of, and awaiting the promulgation of a new Instruction after the entry into force of the Trans Law.

To conclude, and in the case referred to in the news item at the beginning of this article, and according to the news item, the transsexual inmate who got the other inmate pregnant had requested the change in January or February, and therefore before the entry into force of Law 4/2023, so that her situation at that time was governed by Instruction 7/2006 and not by the Trans Law, so that if things were this way, what happened could not be attributed to the enactment of the same.

V.- Other interesting aspects regarding prisons.

On the other hand, and apart from what has been said above, and leaving aside this controversy, I consider it interesting to point out, with regard to the relationship of the Law with the penitentiary administrations, that articles 11 and following of the Law provide for the adoption of measures by the Public Administrations to guarantee the rights that the law recognizes, to provide continuous training to the personnel in their service and to procure administrative documentation in accordance with sexual identity.

This means that the administration must establish training programs for prison officials, and implement actions for the integration, not only of transgender people, but of all LGTBIQ+ groups inside prisons, as well as their integration when they access the third degree of penitentiary or parole.

José Soler Martín - Lawyer