Rights in Exile Programme

Refugee Legal Aid Information for Lawyers Representing Refugees Globally

Spain LGBTI Resources

 (See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)

 

International Law

As a member of the European Union, Spain is bound by the EU Charter of Fundamental Rights. Article 21 states that ‘any discrimination based on any ground such as sex … or sexual orientation shall be prohibited’.

Article 8 of the European Convention on Human Rights states that ‘everyone has the right to respect for his private and family life, his home and his correspondence’. The European Court of Human Rights has ruled that failure of a state to alter the birth certificate of a person to the preferred gender constitutes a violation of Art. 8. Member states are thus required to legally recognise the gender of transgender and transsexual persons.

National Law

Article 14 of the Spanish Constitution recognises non-discrimination and the equality of all Spanish citizens regardless of ‘birth, race, sex, religion, opinion or any other personal or social condition or circumstance.’ 

Spain was the third country in the world to legalise same-sex marriage. In 2005, the Spanish Código Civil  (civil code) was amended by Law 13/2005 to include within the definition, that marriage may be a union between two people of the same sex or gender. This includes social benefits, rights of the spouses and the ability to adopt within the same capacity as heterosexual couples. Article 44 of the Spanish Civil Code, now amended, includes the provision, ‘Marriage shall have the same requirements and effects when both prospective spouses are of the same or different genders.'

A Spanish citizen may marry a non-citizen regardless of whether that person's homeland recognises the partnership; same-sex marriage is permitted provided one of the couple is a Spanish citizen. Two non-Spaniards may marry if they both have legal residence in Spain.

In the Spanish Constitutional Court Judgment No. 198/2012 Mr. Ignacio Astarloa Huarte-Mendicoa brought an action of unconstitutionality (no. 6864-2005), empowered by another seventy-one members of the People’s Party Parliamentary Group in Congress, against Law 13/2005 amending the Civil Code as regards the right to marry. The Spanish Constitutional court dismissed the case and supported the amendment to the Civil Code to allow same-sex marriage.

Article 8 of the European Convention on Human Rights (see above) encouraged the ‘Ley de Identidad de Género’ 03/2007 (‘Law of Gender Identity’) which was passed in 2007 to cover trans rights. This has improved access to the legal recognition of trans identity, saving trans persons the inhumane medical examinations which were previously compulsory elements of trans identity recognition by the courts. Transgender people can now rectify their sex and/or name on their national identity cards (Documento Nacional de Identidad: DNI).

However law 03/2007 above does not apply to non-nationals and minors. It also requires a professional diagnosis of 'gender dysphoria' and two years of hormonal treatment to enable the DNI changes to be made. This does not, however, amount to a requirement of reassignment surgery.

Hate speech and hate crime is covered by the Spanish Penal Code, by way of the anti-discrimination provisions in Articles 511 and 512. With this group of offenses, the Spanish legislature brings discrimination within the scope of criminal law. The penalty for breach of these articles is imprisonment for a period of six months to two years and a penalty of 12 to 24 months and special disqualification from public employment or position for a period of one to three years.

Spanish Asylum Law 12/2009 regulates asylum rights and subsidiary protection. Under the new legislation, asylum seekers need to demonstrate, firstly, that persecution exists in their country of origin and, secondly, that the applicant is truly a part of the sexual minority in question.

Spanish autonomous communities

Catalonia passed an LGBT anti-discrimination law  in October 2014, ‘a law which will punish attacks against the LGBT community with fines of up to €14,000 (£11,000)’.

The recognition of anti-discrimination laws for transsexuals was also verified in the Ley integral para la no discriminación por motivos de identidad de género y reconocimiento de los derechos de las personas transexuales, which was passed unanimously by all political parties in the Parliament of Andalusia in June 2014, and which came into force on 19 July in the Community of Andalusia (Spain). 

 

CASE LAW

In 2012, a Columbian transsexual was denied protection from the Spanish Interior Commission on the grounds that the individual only wanted ‘to avoid deportation.’

Despite Spain’s encouraging attitude toward LGBTI and their established community in Spain, the process of seeking asylum is still lengthy and complex. This video gives a detailed account of one man’s struggle to be given asylum in Spain.

 

PUBLIC ATTITUDES AND/OR STATE'S CAPACITY TO PROTECT

Spain is seen as one of the friendliest countries for the LGBT community and is recognised as the least homophobic country out of a survey of 40 countries, according to the Pew Research Center's Global Views on Morality poll. 55% of Spanish citizens surveyed said homosexuality is acceptable and 38% declared it was not a moral issue.

In 2007, the country held one of the most popular Europride festivals and the country has a prevalent gay scene in Madrid and Barcelona.

Incidences of discrimination

Despite Spain’s seemingly friendly approach to the LGBT community, it was reported that two out of five Spanish students “always” or “often” witness homophobic insults against classmates, with 46.8% being witnesses of the exclusion of LGBT peers. These are the results of the 3,500 questionnaires distributed by the Universidad Complutense de Madrid, in collaboration with the Federación Estatal de Lesbianas, Gais, Transexuales y Bisexuales (FELGTB) to secondary schools students and teachers. 

The EU Agency for Fundamental Rights (FRA) developed the ‘European Union survey of discrimination and victimisation of lesbian, gay, bisexual and transgender persons’, which was launched online on 2 April 2012 and ran until 15 July 2012. A very large number of respondents, 93,079, participated in the research, providing a wealth of comparable data. The research indicated that 38% of Spanish citizens felt discriminated against due to their sexual orientation in the previous year before the study.  The study also indicated this affected mostly 18-24 year olds and particularly the lesbian minority. This was elaborated upon to include 16% of Spanish LGBT feeling discriminated against at work, 27% in areas other than employment and 13% in school or university. 66% of respondents said they ‘always’ or ‘often’ hid or disguised being LGBT during schooling before the age of 18. The survey did not cover intersex persons.

 

NON-GOVERNMENTAL ORGANIZATIONS (NGOs)

We do not currently list any LGBTI NGOs in Spain, but we welcome suggestions.

 

COUNTRY OF ORIGIN SPECIALISTS

We do not currently list a specialist in LGBTI issues in Spain, but we welcome suggestions.

 

Researched by: Jessica Sweet
email: jessicajanesweetatgmail [dot] com   

 

 

 

 

Share