Foundations of Judicial Decisions on Gender-Based Violence and Trans Community in Spain

• In Event: Gender, Crime and Justice Working Group Panel 13: Investigative, prosecutorial and judicial decision-making in GBV

Abstract

Spain, like many other countries, has a range of legal instruments specifically aimed at preventing and punishing gender-based violence. In fact, the Spanish Criminal Code includes a generic aggravating circumstance in Article 22 (referred to as the "gender aggravating circumstance"), as well as various specific offenses that adjust the criminal response (punishment) to gender-based violence. Naturally, the application of these tools within the framework of the Courts and Tribunals has been common in cases outlined in the Criminal Code, where it is proven that a man has assaulted a woman due to gender discrimination. However, the purpose of this paper is to present and analyze the jurisprudential trends that have emerged in Spain regarding the criminal treatment of gender-based violence in cases where the victim is a trans woman. This proposal is particularly relevant considering that less than a year ago, Spain passed "Law 4/2023 for the real and effective equality of trans people and for the guarantee of the rights of LGTBI people," which unconditionally provides and regulates the right of citizens to self-determination of gender (Article 44).

Author

• Emilio-José Armaza-Armaza, Deusto University