The Constitutional Court has postponed the sentence it had prepared against the call Trans law of the Community of Madridpresided over in Madrid by Isabel Díaz Ayuso after three magistrates from the conservative bloc requested it. The draft sentence has already been drafted and was distributed among the members of the court, to which three of them, Enrique Arnaldo, Concepción Espejel and José María Macías, wrote a letter to the president of the court, Cándido Conde-Pumpido, to request that he delay deliberation, since the PP has initiated the procedures for the Madrid Assembly to retrace its steps and modify said law, appealed by both the Government and the Ombudsman.
There are two pending sentences against the controversial Madrid law, one of which focuses on the alleged invasion of state powers, while the second is more specifically directed against the articles that would violate the fundamental rights of transsexual minors. The Ministry of Equality argued before the approval of this autonomous law that it “pathologizes transsexuality” by establishing that trans minors will only be able to start their hormonal treatment after being examined by a pediatrician, after being treated “by a mental health professional” (psychologist or psychiatrist), and stating that they will need a favorable medical report “essential” if they have two or more mental illnesses or disorders at the same time. Regarding the first aspect, the draft ruling was already drafted, which was initially included in the agenda of the plenary session that the court begins this Tuesday. The speaker, Judge Ramón Sáez, from the progressive group, considered that the law incurred an invasion of the powers of the State, by attempting to legislate on procedural rules, proposing the corresponding annulment of this provision as unconstitutional.
In parallel, the aforementioned three magistrates from the conservative sector wrote by letter to the president of the Constitutional Court to ask him to “proceed to immediately withdraw” the item on the agenda that provided for the deliberation and ruling on the law of the Madrid Assembly 18 /2023, of December 27, which modifies Law 3/2016, of July 22, “on comprehensive protection against LGTBIphobia and discrimination based on sexual orientation and identity in the Community of Madrid.”
In their letter, the magistrates say they understand “that there is no reason for this court to rush to resolve” this unconstitutionality appeal, among other reasons because the court itself agreed to suspend the law. This was requested by the Government, and the Constitutional Court agreed to it, applying the provision of the Constitution itself that obliges it to do so when requested by the President of the Executive in the appeal. The aforementioned magistrates explained that the postponement was even more reasonable “when there is evidence that the autonomous legislator who authored the contested norm intends to modify it immediately, to correct precisely the alleged unconstitutionality on which the unconstitutionality appeal is based” .
In fact, the opposition of the Community of Madrid believed from the first moment that the announced rectification of the law promoted by the Ayuso Government was due to the conviction of the PP itself about the very probable declaration of unconstitutionality of the norm. In the first sentence, this was how it was going to be declared. The second has as its speaker Judge Enrique Arnaldo, one of the signatories of the letter. His draft ruling had not yet been included in the agenda of the plenary session, nor distributed among the magistrates. This ruling already had to go into more substantive issues, apart from those of jurisdiction. The law, on the other hand, was suspended for five months, a period that expired in the middle of next November. The court, therefore, must then decide whether to maintain said suspension, which sources from the guarantee body itself take for granted.
The sources consulted add that the Constitutional Court will give itself a period of another two months to issue both sentences, which — they explain — should give Ayuso time to finish the parliamentary process to modify its law. This will not necessarily prevent the first ruling from stating that the norm invaded the powers of the State, although it is no longer necessary to expel it from the legal system, having been changed. However, the second sentence may dispense with the constitutionality judgment of the provisions that could violate fundamental rights, having been annulled and replaced by the Madrid Assembly itself, which will allow the appeal to be archived considering the “loss of purpose” of the challenge.
The sources consulted have also explained that the progressive sector of the Constitutional Court – and very particularly the president, Cándido Conde-Pumpido, who has formally agreed to it – has wanted to favor internal detente in the guarantee body with the postponement. The aforementioned sources have stressed that the majority group has frequently been accused of “acting like a roller”, imposing its decisions by 7 votes to 4 – before the incorporation of Macías – or, now, by 7 to 5. The same sources They highlight that by acceding to the request of the three conservative magistrates, the aim has been, in short, for the court to be able to face the already begun examination of the appeals against the amnesty law without strong prior controversies that hinder the deliberations with more ambient noise.
