Spain's Supreme Court rules that changing legal sex does not overturn previous conviction for gender-based violence

This is the conclusion the Supreme Court reached in a recent ruling rejecting an appeal by a man from Castellón who sought to overturn his conviction for assaulting his former partner and their daughter after registering as a woman more than a year after the attack.

The court has ruled that criminal responsibility must be assessed according to the circumstances at the precise moment when the offence was committed, while also protecting the legal system against attempts to circumvent the law.

In its ruling, the Supreme Court sets out two key principles to prevent changes to the civil registry from undermining the criminal protection afforded to victims. First, it states that changes of legal sex do not have retroactive effect. Assaults committed when the perpetrator was legally registered as male must therefore be prosecuted under the legislation governing gender-based violence.

Second, the court establishes a framework for dealing with potential fraud: even if a person changes their legal sex before committing an offence, that change cannot be used to avoid a conviction if the authorities prove that the registration was carried out solely to prevent the relevant law from applying.

The Supreme Court has issued its ruling following the appeal of the aforementioned defendant. Both courts found that, on 20 April 2022, the defendant went to the area around his former partner's home to exercise his visiting rights with their eight-year-old daughter. During a tense confrontation, he allegedly grabbed his daughter forcefully by the arm, intending to harm her physically.

Her mother intervened, at which point the man punched his former partner in the waist and hit and scratched her neck. The court sentenced him to nine months in prison for gender-based violence against his former partner and a further nine months for domestic violence against his daughter.

In his appeal to the Supreme Court, the defendant argued that he was legally a woman rather than a man following a civil registry decision in Castellón on 1 June 2023 approving his change of legal sex. He argued that he could not be convicted of gender-based violence against his former partner.

The Supreme Court has now rejected that argument, ruling that the change cannot be used to neutralise a conviction for gender-based violence when, as in this case, the offence occurred while the perpetrator was legally registered as male. The court stressed that a change of legal sex has no retroactive effect.

Beyond the question of retroactivity, the ruling examines the legal concept of fraud aimed at preventing a change of legal sex from being used as a pre-planned way of avoiding criminal liability.

The judges explain that fraud occurs when someone relies on the apparent protection of a legal provision while actually seeking to achieve an outcome that the law prohibits or that conflicts with its purpose. If the authorities prove that this was the person's intention, the Supreme Court says the law that the defendant sought to circumvent will apply.

However, the court makes clear that a change of legal sex does not automatically amount to fraud. The ruling stresses that the authorities must establish the person's intention "fully and beyond any doubt".

Courts must therefore assess each case individually to determine whether the change reflects a genuine decision or whether the person made it for an improper or unlawful purpose.

Review the latest crime and judicial news reports