The Constitutional Court rules that gender identity is protected as a fundamental right of the person
El Constitutional Court has declared It is illegal to discriminate against trans people based on their gender identity., considering that it contradicts the rights enshrined in the Constitution. The magistrates have analyzed the dismissal of a transsexual person and, although they have not considered that her condition was the reason why she lost her job, she does defend the legal protection of transsexual people, and points out that they have suffered "deep normatively and socially ingrained prejudices".
The ruling recognizes for the first time that discriminating against trans people clashes with the Constitution, although she has rejected the appeal filed by an aerospace engineer who received comments from her superiors for sometimes wearing pants and others wearing a skirt. The company fired her on the grounds that she had not passed the probationary period, and the court gives credence to that argument.
Historically entrenched position of social disadvantage
The sentence -of which the magistrate has been rapporteur Mary Louise Balaguer- Maintains that "gender identity is a circumstance that has to do with the free development of the personality, closely linked to respect for human dignity” (art. 10.1 of the Constitution). He adds that said trait of identity, “when it does not conform to classic hetero-normative parameters, that is, where the gender identity and sex of the person are not absolutely coincident, it can make the individual creditor of a historically rooted position of social disadvantage”, of which the Article 14 of the Constitution.
The court considers that they arethe deep normatively and socially ingrained prejudices against these people” those that can lead to discrimination incompatible with the right to equality proclaimed by the constitutional text. Specifically, it is included in the aforementioned article 14, which establishes that "Spaniards are equal before the law, without discrimination based on birth, race, sex, religion, opinion or any other personal or social condition or circumstance.".
Reversal of the burden of proof
In cases of complaints of this type, when there are indications that there may have been discrimination, the courts admit the inversion of the burden of proof, that is, that it is the company that has to demonstrate that it did not carry out the dismissal for said discrimination. cause, but for another legally admissible.
In the judicial pronouncements prior to the filing of the amparo appeal, it was considered that the company had justified its reasons for the dismissal, and the Constitutional Court did not modify this criterion. In this regard, the testimonies provided were relevant in the sense that the appellant was able to continue attending work wearing pants or a skirt, according to his free will, without any clothing being imposed on him.
The court, however, wanted to make the rejection of the amparo compatible with a resounding message in favor of non-discrimination of trans people, collecting in this sense various pronouncements of European justice. It is quoted so European Court of Human Rights also interprets the anti-discrimination clause contained in the European Charter of Human Rights "as an open clause that allows the inclusion of gender identity among the protected characteristics".
