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Intersex genital mutilation: How Spain's Law is failing intersex children

The following is a revised and expanded section from the new spanish edition of the 2019 CCPR Intersex NGO Report for Spain by StopIGM.org and Brújula Intersexual. It further examines the existing Laws and proposed legislative initiatives in Spain and their abysmal failure to effectively protect intersex children.

UPDATE! Based on our Report, CCPR has now put IGM on the “List of Issues prior to Reporting (LOIPR)” for Spain, asking the Government about “measures taken to prohibit” and “access to justice and redress” for IGM survivors.
>>> Full Question & Timeline 

The Rapporteurs thank Daniel J. García López for his important critical analysis of the Regional Laws leading to this new version.
This blog would further like to thank Amets Suess Schwend for alerting us to Regional Laws and the expiration of the National Initiative.  

In 2018, Spain has already been reprimanded for IGM by the UN Child Rights Committee (CRC). This year, CRC further denounced similarly failing Laws in Malta and Portugal, while CCPR denounced lack of “necessary measures” to “eliminate” IGM in Belgium and Mexico.

                T A B L E   O F   C O N T E N T S :
                IGM in Spain: State-sponsored and pervasive, Gov fails to act
                2. Existing Laws and Legislative Initiatives against IGM
                    a) Overview
                    b) Regional Laws and Initiatives
                           Madrid (2016): No sanctions at all
                           Murcia (2016): No sanctions at all
                           Extremadura, Navarra, Balearic Islands (2015-17): No sanctions at all
                           Andalusia (2018): No sanctions at all
                           Valencia (2018): Some sanctions – but not for IGM
                           Canary Islands (2019): No sanctions so far
                    c) National Initiative (Expired)
                           Original Draft (2018): No sanctions at all
                           Revised Commission Draft (2018): No protections, no sanctions at all
                    d) Contrast: Existing Spanish Laws against FGM
                    Footnotes

IGM in Spain: State-sponsored and pervasive, Gov fails to act

2.  Existing Laws and Legislative Initiatives against IGM

a) Overview

Out of the 17 autonomous Communities in Spain, so far 7 have enacted laws claiming to formally prohibiting or at least restricting IGM practices (Madrid, Murcia, Extremadura, Navarra, Balearic Islands, Andalusia, Valencia), however, only 1 of these laws contains any (minor) sanctions concerning intersex people at all (Valencia), and none of them contain any sanctions for IGM practices, or address obstacles to access to justice, namely the statutes of limitations, or contain extraterritorial protections. In fact, concerning IGM none of them are enforced.

Currently, also the autonomous Community of the Canary Islands is considering a Law proposal, but again without any sanctions.

On the national level, last year a Draft Law was filed in the Spanish Lower House gaining Commission support, however, the Original Draft and the watered-down Commission Draft both didn't contain any sanctions, or adress obstacles to justice, or extraterritirial protections, and due to the change of the legislative period the proposal expired, .

In contrast, existing Spanish legislation against FGM includes prohibition under Criminal Law, comparatively strong sanctions, preventive measures, extraterritorial protections and mandatory notification by professionals.

b) Regional Laws and Initiatives

• Madrid (2016): No sanctions at all

The Community of Madrid has to be commended for being the first to have enacted legislation aimed at preventing IGM practices. Law 2/2016 of the Community of Madrid [13] states in art. 4 (3), “[...] genital surgeries of intersex persons without the informed consent of the person concerned or the need to ensure biological functionality for health reasons, are prohibited in the health services of the Community of Madrid.” Art. 15 titled “Health care for intersex people” further affirms, 1. The public health system in Madrid will ensure the eradication of genital modification practices in newborn babies [...] with the exception of medical criteria based on the protection of the newborn’s health and with legal authorisation.”

However, while Madrid’s Law 2/2016 art. 51 “Infractions”, art. 52 “Repeat Offences” and art. 53 “Penalties” have to be lauded for at least including some sanctions for infractions against LGBT persons of up to 45,000 Euros plus possible temporary suspension, they contain no sanctions for IGM (or any other violations against intersex people) at all, as intersex (or “sex characteristics”) is not included in arts. 51-53. Concerning IGM, in practice the Law 2/2016 isn’t enforced (nor its implementation monitored), as also in the Community of Madrid both public and private children’s hospitals openly flaunt the law by continuing to publicly advertise, perform and promote IGM practices (see below p. 12-14) – just the same as in the other autonomous Communities without such a law.

• Murcia (2016): No sanctions at all

Similarly, the Community of Murcia has to be commended for being the second to have enacted legislation aimed at preventing IGM practices. Law 8/2016 of the Community of Murcia [14] states in art. 8 (3), It is forbidden in the sanitary services of the Autonomous Community of the Region of Murcia […] the genital surgeries of intersex people that do not obey the decision of the affected person or the need to ensure biological functionality for health reasons.” Art. 16 (2) further affirms, “The public health system of the Region of Murcia will ensure the eradication of the practices of sex assignment in newborn babies attending only to surgical criteria and at a time when the real identity of the newborn intersex person is unknown. All this with the exception of medical criteria based on the protection of the health of the newborn person.”

However, while also Murcia’s Law 8/2016 art. 50 “Infractions”, art. 51 “Repeat Offences” and art. 52 “Penalties” have to be lauded for at least including some sanctions for infractions against LGBT persons of up to 45,000 Euros plus possible temporary suspension, it contains no sanctions for IGM (or any other violations against intersex people) at all, as intersex (or “sex characteristics”) is not included in arts. 50-52. Concerning IGM, in practice the Law 8/2016 isn’t enforced (nor its implementation monitored), as also in the Community of Murcia children’s hospitals openly flaunt the law by continuing to publicly advertise, perform and promote IGM practices (see below p. 12, 13, 15) – just like in the other Communities without such a law.

• Extremadura, Navarra, Balearic Islands (2015-17): No sanctions at all

Also the autonomous Communities of Extremadura, [16] Navarra [17] and the Balearic Islands [18] enacted laws containing sections that stipulate to “ensure the eradication of the practices” of involuntary, non-urgent genital surgeries and other procedures on intersex children. Further, these laws stipulate to establish health-care guidelines, including to provide intersex persons and their families with “adequate psychological care”. [19] However, all these laws don’t include any sanctions for IGM (or any other violations against intersex people) at all, and further fail to address obstacles to access to justice, such as the limitation period, as well as extraterritorial protections, as intersex (or “sex characteristics”) is not included in the relevant articles on infractions, repeat offences and sanctions. Concerning intersex people and IGM, these Laws are again not enforced, as all typical forms of IGM practices continue to be practiced in public hospitals with impunity (see below p. 15) – just the same as in the other autonomous Communities without such a law.

• Andalusia (2018): No sanctions at all

Further, the autonomous Community of Andalusia [20] enacted a vaguely formulated Law to ensure that the practices of genital modification in newborn babies do not attend only to surgical criteria”, with “exception[s]” only allowed in the case of urgent medical necessity. However, also this Law fails to include any sanctions for IGM (or any other specific violations against intersex people) at all, as intersex (or “sex characteristics”) is not included in the articles on infractions (arts. 60-62), repeat offences (art. 63) and sanctions (art. 64), and further fails to address obstacles to access to justice, such as the limitation period, as well as extraterritorial protections. The only areas where intersex is included is under inciting violence against LGBTI persons and their families” (arts. 60(a), 61(a)+(f), 62(f)), and “LGBTI discrimination (arts. 61(f), 62(d)+(f)). However, concerning intersex people, the Law is not enforced, as IGM practices continue to be incited and practiced with impunity (see below p. 15).

• Valencia (2018): Some sanctions – but not for IGM

Also, the Community of Valencia enacted a Law containing a section “People with intersex variations or differences of sex development (DSD)” (arts. 46-50). [15] However, the Law 23/2018 exclusively frames IGM as a “health care” issue (art. 48) under the authority of “reference hospital departments”, i.e. the current perpetrators (art. 49).

Nonetheless, the Valencia Law has to be commended for being the first and only Spanish Law to contain any sanctions for any infractions against intersex people at all, namely

  • a fine of up to 6,000 Euros for “using or issuing abusive speech on the grounds of […] sex development” (art. 60(2a) “Minor Infractions” and 62(1) “Sanctions for Minor Infractions”)
  • a fine of up to 60,000 Euros e.g. for inciting violence against LGBTI persons”, failure to immediately retract […] expressions inciting violence for reasons of [sex development]”, discrimination [in court] on the grounds of […] sex development”, “isolating, rejecting or publicly and notoriously disparaging people because of their […] sex development or their family group”, “in education, portraying persons as inferior or superior on the grounds of […] sex development” (arts. 60(3) “Severe Infractions” and 62(2) “Sanctions for Severe Infractions”)
  • a fine up to 120,000 Euros, e.g. for aggressive or harassing behavior based on a person’s […] sex development”, and refusal of assistance to victims by a person officially obliged to do so (arts. 60(4) “Very Severe Infractions” and 62(3) “Sanctions for Very Severe Infractions”)

However, also the Valencia Law 23/2018 contains no sanctions for IGM at all, and further fails to address obstacles to access to justice, such as the limitation period, as well as extraterritorial protections. What's more, concerning intersex people and IGM, also Law 23/2018 is not enforced, as IGM continues with impunity.

• Canary Islands (2019): No sanctions so far

In May 2019, a Draft Law aimed at preventing IGM practices was presented by the Councillor for Employment, Social Policies and Housing of the autonomous Community of the Canary Islands. [21] Unfortunately, the Draft Law again fails to include any sanctions for IGM (or any other violations against intersex people), and fails to address obstacles to access to justice, such as the limitation period, as well as extraterritorial protections.

c) National Initiative (Expired): Watered down, no sanctions

• Original Draft (2018): No sanctions at all

In October 2018, a Draft Law 162/000841 [22] was filed in the Spanish Lower House (Congreso de los Diputados) proposing, in line with the recent CRC recommendations to Spain, to

  • explicitly prohibit unnecessary medical or surgical treatment during childhood to ensure bodily integrity, autonomy and self-determination for affected children”

  • “provide families with intersex children with appropriate counselling and support

  • provide redress to victims of such treatment, including adequate compensation and the fullest possible rehabilitation, and conduct an investigation of incidents of surgical and other medical treatment on intersex children without informed consent”

Notably, the Law Draft failed to include any sanctions, and to address obstacles to access to justice, such as the limitation period, as well as extraterritorial protections.

• Revised Commission Draft (2018): No protections, no sanctions at all

In December 2018, the Commission on the Rights of Children and Adolescents of the Spanish Lower House (Comisión de Derechos de la Infancia y Adolescencia del Congreso de los Diputados) approved the modified Draft Law 162/003870 [23] [24] for parliamentary discussion.

Unfortunately, the Commission modifications watered down the original Draft Law, making it no longer in line with the CRC recommendations:

  • First, the Commission discarded all sections concerning access to justice and redress, i.e. the Commission Draft no longer proposed to the Government to adopt a law to “[e]ncourage the adoption of the necessary legislative measures to provide redress to victims of such treatment, including adequate compensation and the fullest possible rehabilitation, and conduct an investigation of incidents”, but now merely proposes to study the adoption of the necessary legislative measures to provide reparation and support to the victims of such treatment and to carry out an investigation of incidents”.
  • Second, the Commission Draft added two sections promoting medical self-regulation as a solution (e.g. “adopt protocols to ensure, to the extent possible, the participation of minors in the decision-making process”).

Again, the Commission Draft failed to include any sanctions, to address obstacles to access to justice, such as the limitation period, as well as extraterritorial protections.

Due to a change of the legislative period, in 2019 the law proposal has expired without further parliamentary discussion. [25]

d) Contrast: Existing Spanish Laws against FGM

In contrast, FGM is explicitly forbidden in the Spanish Criminal Code, with sanctions including “imprisonment from six to twelve years” (Organic Act 11/2003, modified article 149.2). Also, extraterritorial protections are established (Organic Act 6/1985, article 23.4, modified by Organic Act 1/2014). Further, Article 158 of the Civil Code, modified by Organic Act 9/2000, allows judges to adopt preventive measures in the case of an imminent risk of genital mutilation. As FGM is considered a crime, professionals aware of an actual or impending incident are therefore subject to mandatory notification (article 450 of the Criminal Code; articles 262 + 355 of the Civil Procedure Act; Organic Act 1/1996). [26]

Footnotes:

[13]    Comunidad de Madrid: Ley 2/2016, 29.03.2016, art. 4, para 3 (prohibition); art. 51 (infractions), art. 52 (repeat offences), art. 53 (sanctions), https://www.boe.es/eli/es-md/l/2016/03/29/2/con

[14]    Comunidad Autónoma de la Región de Murcia: Ley 8/2016, 27.05.2016, art. 8, para 3 (prohibition); art. 50 (infractions), art. 51 (repeat offences), art. 52 (sanctions), https://www.boe.es/eli/es-mc/l/2016/05/27/8/con

[15]    Comunitat Valenciana: Ley 23/2018, 29.11.2018, arts. 46-50, https://www.boe.es/buscar/act.php?id=BOE-A-2019-281

[16]    Comunidad Autónoma de Extremadura: Ley 12/2015, 08.04.2015, art. 11, para 2,
https://www.boe.es/eli/es-ex/l/2015/04/08/12/con

[17]    Comunidad Foral de Navarra: Ley Foral 8/201, 19.06.2017, art. 17, para 1,
https://www.boe.es/eli/es-nc/lf/2017/06/19/8/con

[18]    Comunidad Autónoma de las Illes Balears: Ley 8/2016, 30.05.2016, art. 23, para 2,
https://www.boe.es/eli/es-ib/l/2016/05/30/8/con

[19]    Extremadura law: art. 11, paras 1; Balearic Islands law: art. 23, para 1. The Navarra law: art. 53, instead contains stipulations for guidelines on the “preservations of the gonads” (para 2), to avoid “experimental” and other unnecessary “hormonal treatments” (para 3), “limitation of genital explorations” (para 4), and “respect for privacy” (para 5).

[20]    Junta de Andalucía: Ley 8/2017, 28.12.2018, art. 29, https://www.boe.es/eli/es-an/l/2017/12/28/8/con

[21]    https://www3.gobiernodecanarias.org/noticias/el-gobierno-elabora-en-tiempo-record-el-anteproyecto-de-ley-de-no-discriminacion-por-razon-de-identidad-de-genero/

[22]    See p. 19-20, http://www.congreso.es/public_oficiales/L12/CONG/BOCG/D/BOCG-12-D-445.PDF

[23]    See p. 38-39, http://www.congreso.es/public_oficiales/L12/CONG/BOCG/D/BOCG-12-D-468.PDF

[24]    https://www.europapress.es/epsocial/igualdad/noticia-congreso-pide-gobierno-prohibicion-expresa-mutilacion-genital-menores-intersexuales-20181121193656.html

[25]    http://www.congreso.es/public_oficiales/L12/CONG/BOCG/D/BOCG-12-D-519.PDF

[26]    https://uefgm.org/index.php/legislative-framework-es/

>>> Intersex human rights at the UN are under attack!!!

See also:
'Only the fear of the judge will make IGM perpetrators change'
“Harmful Medical Practice”: UN, COE, ACHPR, IACHR condem IGM
48 UN Reprimands for IGM – and counting ...
UN Committee for the Rights of the Child (CRC): IGM = Harmful Practice + Violence
UN Committee against Torture (CAT) 2015: IGM = Inhuman Treatment or Torture
UN Women's Rights Committee (CEDAW): IGM = Harmful Practice
UN Committee on the Rights of Persons with Disabilities (CRPD): Violation of Integrity
UN Human Rights Committee (HRCttee-CCPR) condemns IGM Practices

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