The Constitutional Court (TC) extended this Tuesday the suspension of the article of the “Trans Law” of the Community of Madrid which requires a favorable medical report to start hormonal treatment when the applicant is a minor with previous pathologies, although The other suspended articles regained their validity thanks to the actions of the prosecutor’s office.
It was last July that the Plenary Assembly of the TC admitted having dealt with the appeals of unconstitutionality 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 “LGBTBIphobia”.
At the same time, the Constitutional Court suspended the contested articles because the government had requested it, invoking Article 161 of the Magna Carta. During 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 increased almost completely.
And this because the Public Prosecutor’s Office, which acts on behalf of the government, did not request the extension of the suspension of certain articles and, for those who did, it did not sufficiently argue, according to sources from the Guarantees Court. consulted by Ep. That is to say, the text of the Ayuso government is again in force, except in its most controversial aspect: the need for doctors’ reports for minors who present previous illnesses.
The TC reported that the plenary unanimously agreed to end the suspension of the said articles. However, by 7 votes to 5 (those of the progressive majority against the conservative minority) “the suspension of the provision which provides that transsexual minors, in the event of the presence of previous illnesses or medical pathologies, must obtain a favorable report from the doctor who treats the minor, as a condition for starting hormonal pharmacological treatment for his transition.
The Plenary “considered that this rule affects the freedom of self-determination of the minor, by making it difficult to make personal decisions in the transition procedure”, as detailed by the TC in a press release.
However, judges Ricardo Enríquez, Enrique Arnaldo, Concepción Espejel, César Tolosa and José María Macías opposed it, finding that “it is a guarantee that does not cause serious harm to the public interest or to the individuals of the beneficiaries”. the norm, given the importance of the decision to follow hormonal treatment and its irreversible nature.
Thus, Enríquez, Arnaldo, Espejel and Macías announced their intention to formulate a private dissenting vote, while the progressive magistrate María Luisa Balaguer will carry out a competing private vote.
Regarding the other suspension, that granted for several articles of Law 18/2023 of December 27, which modifies Law 3/2016 of July 22, on comprehensive protection against “LGBTIphobia” and discrimination based on orientation and sexual identity in the Community. of Madrid, the Plenary decided to maintain it. Unanimously, it was agreed that “this is maintained due to the risk of infringing the fundamental right to effective judicial protection”.
