Legal sex change and the gender violence law in Spain: art. 46.3

Since Law 4/2023 of 28 February came into force, any Spanish national over the age of 16 can rectify the sex recorded in the Civil Registry (Registro Civil) without medical reports. This has raised a recurring question in the courts: what happens with the gender violence law if the man who has been reported, investigated or convicted comes to be registered as a woman? The answer depends above all on one factor: when the acts took place in relation to the registration. We explain it using the text of the law, the known court decisions and the two perspectives at stake.

What exactly the law says

Article 46 of Law 4/2023 governs the effects of the registry rectification. Paragraphs 1 and 3 are the decisive ones:

• Art. 46.1: the decision granting the rectification “shall have constitutive effect from its registration in the Civil Registry”. In other words, it takes effect from that moment, not retrospectively.
• Art. 46.3: “The rectification of the registry entry relating to sex and, where applicable, the change of name shall not alter the legal regime which, prior to the registration of the change, applied to the person for the purposes of Organic Law 1/2004 of 28 December on Comprehensive Protection Measures against Gender Violence”.

In addition, article 46.4 limits positive action measures for women to situations arising after the change, and article 47 allows the rectification to be reversed once six months have passed since registration.

Remember that Organic Law 1/2004 applies to violence committed by men against women who are or have been their partners, and that the Criminal Code (Código Penal) specifically punishes certain conduct when the victim is the “wife or woman” linked to the offender (arts. 153.1, 171.4 and 172.2). That is why the registered sex of both offender and victim has criminal and procedural consequences.

The possible scenarios

1. Acts before the registry change

This is the clearest scenario. The Criminal Division of the Supreme Court, in its judgment 517/2026 of 22 July, ruled on a cassation appeal brought by a man convicted of an offence under article 153.1 CP against his ex-partner, committed in April 2022. After the first-instance judgment, and while the appeals were pending, the convicted man obtained the registry rectification (June 2023) and argued that he could no longer be convicted of gender violence. The Supreme Court rejected the argument: the change of sex has no retroactive effect on acts committed when the offender was legally a man, nor can it be used to neutralise the conviction where it amounts to evasion of the law.

2. Ongoing proceedings

If the change takes place during the investigation stage or before trial, but the acts are earlier, article 46.3 indicates that the Organic Law 1/2004 regime must continue to apply. In practice, questions of jurisdiction have arisen: in July 2026, according to published reports, the Provincial Court (Audiencia Provincial) of Zaragoza overturned a specialised court’s decision to decline jurisdiction in favour of an ordinary court following the registry change of the person under investigation, and ordered an inquiry into whether that change could amount to evasion of the law. If you are the person under investigation and the acts attributed to you are not true, see also how to prove your innocence in the face of a false complaint.

3. Acts after the registry change

Here the debate remains open. If, at the time of the acts, the person under investigation is already registered as a woman in the Civil Registry, a literal application of the law means that it is not formally gender violence. That is how the Provincial Court of Seville saw it in April 2025, according to reports, in a case of an assault after the rectification, which was referred to an ordinary investigating court.

That does not mean impunity. The acts are still an offence as domestic violence (art. 173.2 CP), although some penalties and the investigating court change:

• Physical assault or psychological harm moves from article 153.1 (6 months to 1 year in prison) to article 153.2 (3 months to 1 year in prison).
• Minor threats and coercion without weapons come to be punished as minor offences (arts. 171.7 and 172.3), with lower penalties.
• Habitual abuse (art. 173.2) and stalking (art. 172 ter.2) are punished in the same way, because they protect everyone within the family sphere.

It is also possible for the prosecution to argue that the registry change was made precisely to evade the law, which the Civil Code (Código Civil) calls evasion of the law (fraude de ley, art. 6.4): acts carried out under the cover of one rule in pursuit of a prohibited result do not prevent the application of the rule that was being evaded. But evasion must be proven in each case; it is not presumed.

The victim’s perspective

If you are a victim and your abuser has changed their registered sex, you should know that:

• For acts before the change, you keep the protection of Organic Law 1/2004, including any protection orders already issued. Breaching them is still the offence of breach of a court order (quebrantamiento, art. 468.2 CP).
• If the proceedings are referred to an ordinary court, your lawyer can appeal the decision to decline jurisdiction and rely on article 46.3 and, where applicable, evasion of the law.
• For later acts, the protection order (orden de protección) under article 544 ter LECrim is still available, because it protects all victims of domestic violence under article 173.2 CP.
• Gather evidence of the timeline: the date of the acts, of the complaint and of the registry entry.

The perspective of the person under investigation

If you are a trans person under investigation or accused:

• Registry rectification is a right recognised by Law 4/2023, which does not require medical reports or treatment (art. 44.3). Exercising it is not, in itself, an indication of evasion.
• For acts before the change, you should expect the Organic Law 1/2004 regime to apply: arguing otherwise has already been rejected by the Supreme Court.
• For later acts, your defence can argue for the application of the general domestic violence regime under article 46.1, and oppose an allegation of evasion that is not supported by specific evidence.
• You have the right to be treated in accordance with your registered identity during the proceedings, with the same procedural safeguards as any other person under investigation.

In any event, the presumption of innocence regarding the acts is independent of this question: the registry change only affects the legal classification and jurisdiction, not whether or not the acts are proven. You can read our guide on the differences between gender violence and domestic violence.

Other scenarios

Article 46.3 refers to the regime applicable “to the person”, without distinguishing between offender and victim. Therefore, a woman who is a victim of gender violence and later rectifies her registered sex keeps, in respect of earlier acts, the protection to which she was entitled. In addition, under article 46.4, a person who rectifies from female to male keeps vested property rights arising from positive action measures. For acts after the change there are, as yet, no Supreme Court decisions that we are aware of.

Frequently asked questions

Can an abuser escape a conviction by changing sex?

Not for acts before the change. Article 46.3 of Law 4/2023 maintains the Organic Law 1/2004 regime that applied before registration, and the Supreme Court, in judgment 517/2026 of 22 July, has confirmed that the registry rectification has no retroactive effect on those convictions.

What happens if the acts take place after the registry change?

Formally, if the person is already registered as a woman, the acts have been treated as domestic violence rather than gender violence, which changes the court and some penalties. If it is shown that the change was made to evade the law, evasion of the law (art. 6.4 of the Civil Code) may be found and the regime that was being avoided may be applied.

Does the restraining order remain in force after the change of sex?

Yes. Measures ordered for earlier acts remain in force, and breaching them is the offence of breach of a court order under article 468.2 of the Criminal Code. In addition, the protection order under article 544 ter LECrim protects any victim of domestic violence, so it can also be requested for later acts.

Is changing registered sex in itself an indication of evasion?

No. It is a right recognised by Law 4/2023, and the vast majority of rectifications have nothing to do with criminal proceedings. Evasion of the law must be proven in each case with specific evidence, such as closeness in time to the complaint or statements revealing an intention to evade Organic Law 1/2004.

This is an evolving area in which dates and documentation decide almost everything. If you are a victim or a person under investigation in proceedings affected by a change of registered sex, we can analyse your case. See our pages on defence in domestic violence cases, representation of women victims or breach of a restraining order, or call us on 607 449 491, available 24 hours a day.