The Implications of Spanish Law 4/2023 related to transgender people

Spanish Law 4/2023, known as the Trans Law, has caused a great stir in the Spanish legal landscape, generating both supporters and detractors. If you have any doubts about the purpose of this law, this article will enlighten you. In order to do so, it is necessary to briefly outline the legislative trajectory of LGBTQIA+ rights in Spain.

First of all, there is a fundamental right to effective equality protected by Article 14 of the Spanish Constitution:

“…All Spaniards are equal before the law, without any discrimination on the grounds of birth, race, sex, religion, opinion or any other personal or social condition or circumstance being able to prevail…”

The Constitution is the normative framework of reference on which the rights and duties of citizens are based. However, it needs subsequent normative development, which is implemented through legislative tools such as organic laws, ordinary laws, legislative decrees, etc.

The first significant regulatory development on LGBTQIA+ rights took place in 2005 with the approval of equal marriage by Law 13/2005. This milestone was followed in 2007 with the establishment of the right to rectify the gender of adults in the registry, related to individuals who had elected to change gender, according to Article 4 of Law 3/2007.

Since then, there have been no significant regulatory updates, beyond the decision of the autonomous communities to enact laws at the regional level detailing the aspects included in the aforementioned regulations.

The need for new legislation

• Despite these advances, a number of matters still needed to be outlined and reiterated in an updated regulation. Therefore, after 17 years since the last ordinary law, Law 4/2023 was passed in March last year, the main objectives of which are set out in Article 1:
• This Law aims to guarantee and promote the right to real and effective quality of lesbian, gay, transgender, bisexual, and intersex (hereinafter LGBTQIA+) people, as well as their families.
• To this end, the Law establishes the principles of action of the public authorities, regulates the rights and duties of natural and legal persons, both public and private, and provides for specific measures aimed at the prevention, correction, and elimination, in the public and private spheres, of all forms of discrimination; as well as the promotion of the participation of LGTBI people in all areas of social life and the overcoming of stereotypes that negatively affect the social perception of these people.
• Likewise, the Law regulates the procedure and requirements for the rectification of the sex and, where appropriate, the name of persons in the register, as well as its effects, and provides for specific measures derived from this rectification in the public and private spheres.

Organisation of the regulation

The regulation is organised as follows:

• General definitions relating to the LGBTQIA+ community that help the general population to become familiar with the subject matter.
• Imposition of actions that promote (effective) material equality and non-discrimination of the LGBTQIA+ population by public administrations for public and private entities.
• Specific chapter for the integration of trans people in all areas of public life.

Awaiting regulatory development

However, we are still waiting for a regulatory development that specifies and expands the obligations contained in this regulation. For example, the LGBTQIA+ equality plan for companies with more than 50 employees in Spain is expected to be published in the coming weeks.

Conclusion

Law 4/2023 represents a significant step forward in LGBTQIA+ rights legislation in Spain. However, its effective implementation will depend to a large extent on the regulatory development of the envisaged measures. In future Gay Lawyers Spain articles we highlight in depth detail on some of these measures, such as the aforementioned equality plan for companies and gender self-determination.

Stay tuned to our next publications to keep abreast of all the news and developments in this area of legislation.

Please do not hesitate to contact us: info@gaylawyers.com 

Mireia Peco García

Immigration Consultant