Implications of Spanish Law 4/2023 for the guarantee of the rights of LGBTQIA+ people working for companies.

It has been 2 months since the mandatory application of Law 4/2023 for companies and many uncertainties remain unresolved. 

Law 4/2023 of February 28th came into effect in Spain: “For the real and effective equality of trans people and for the guarantee of the rights of the LGBTQIA+ community”. 

As the name itself says, the law as a whole addresses many matters in different areas of society meant to protect the LGBTQIA+ collective. Since this is a comprehensive law governing various aspects, analyzing it from the labor perspective of companies is paramount. It is essential for companies to be aware of the implications of such law and the obligations required to implement it in the best possible way. Thus many companies are reverting to our experts at Gay Lawyers for legal advice on the matter.

To keep in mind is that, according to the statistics published by UGT in Spain, while seeking work LGBTQIA+ people face the following situations: 

• 7 out of 10 LGBTQIA+ people consider that being LGBTQIA+ is a disadvantage
• 4 out of 10 LGBTQIA+ workers reported to have experienced verbal assault referred to their sexual orientation, gender identity or gender expression 
• Only 4 out of 10 LGBTQIA+ people are fully visible in their workplace; the remaining 6 hide fearing consequences in their professional careers or in their relations with co-workers and superiors. 

All these reasons made Article 15 of the new law provide for the protection of LGBTQIA+ people working in companies. 

[15.1. “Companies with more than 50 employees must have, within twelve months* from the entry into force of the law, a planned set of measures and resources to achieve real and effective equality of LGBTQIA+ people, including an action protocol for the attention of harassment or violence against them. To this end, measures will be agreed by means of collective bargaining and agreed with workers legal representation. The content and scope of these measures will be developed by way of regulation”]. 

As a matter of fact: 

➢ Which companies are obliged to? 

The legal obligation concerns companies with more than 51 workers within them. 

➢ What obligations will companies have? 

As stated in Article 15, companies must have a planned set of MEASURES and RESOURCES to achieve equality , including an action protocol for the attention of harassment or violence against LGBTQIA+ people. For the processing of these measures, as long as there is no regulatory development of the law, companies can take for now the Royal Decree 901/2020 regulating the equality plans between men and women, as a reference. The Royal Decree considers the following points as measures: training and awareness; professional promotion and access to employment; modification of the sanctioning regime; equal rights; anti-harassment protocol and coaching.

➢How do these measures are to be agreed?

According to the law, the measures are to be agreed through collective bargaining and 

with the legal representation of the workers as well. This helps understand that we will refer to Article 41 of the Workers’ Statute to determine how this negotiation of the measures should be, as it happened with the Royal Decree mentioned above. Clear is that the measures will not be decided and imposed unilaterally by the company. 

➢ What is my deadline to comply with the above? 

The law states as follows: ‘twelve months from the entry into force of this law’. Taking into account that the law was published in February 2023, the deadline for implementation was March 2024. Nevertheless, companies still have many unresolved questions on implementation not resolved by the law. 

Why? What can companies do? 

As mentioned above, the law states that ‘the content and scope of the measures will be developed by regulation’. Therefore, there is still a regulatory development that establishes and fixes certain aspects in order for the companies to proceed with the proper implementation of the measures, be clear about which measures are required, with whom they have to negotiate them and what are the deadlines for negotiations, among other things. 

Are companies allowed to do anything before the regulation of the law? Despite not having the regulatory development yet, companies can start implementing measures such as: 

• inclusive anti-harassment protocol with LGBTQIA+ diversity
• staff sensitization training 
• name change in internal documents for trans people. 

➢ Once properly implemented, what are the consequences of non-compliance? This law provides for its own sanctioning regime a fine of up to €150,000 and a ban on contracting with the Administration for a period of up to 3 years. 

This law has been a great step forward in terms of legislation that protects the LGBTQIA+ collective against discrimination. However, it is clear that it is a very new law and there is still a lot to be developed and also that, until the regulation that develops is not published, we will not be clear about some key points. We can see the forward evolution we are having in Spain and how important are such laws facing the clear discrimination suffered by many members of the LGBTQIA+ collective. 

From the Department of Gay Lawyers in Barcelona we invite you to contact our professionals to clear doubts about this new law and how to manage the measures within your company.

Gay Lawyers actively organises awareness-raising events and training sessions on these topics. For further information, please contact us at info@gaylawyers.com.

Emma Serrano

Legal Executive