Act on Transgender People and LGBTI Rights: impact on labor relations in Spain

Key issues of Act 4/2023
Act on Transgender People and LGBTI Rights: impact on labor relations in Spain
March 2, 2023

Act 4/2023, of February 28, for the full and effective equality of transgender people and for the guarantee of LGBTI rights, which entered into force on March 2, has a considerable impact on the regulation of labor relations in Spain.

Broadly speaking, any labor decision that affects people of diverse gender identities must have a clear and objective justification. Failure to do so may lead to the decision being declared null on the grounds of discrimination. Companies are advised to review and adjust their equality plan, and to include specific measures in their anti-harassment protocol and channels for reporting sexual assault—within the new internal reporting system—to assess specific treatment strategies for situations affecting LGBTI people.

Below is a summarized list of new developments:

  • In general, prohibited grounds of discrimination have been extended. To date, the regulations in force only referred to prohibition of discrimination based on “sexual orientation.” The term now has a much broader meaning: “Sexual orientation and identity, gender expression and sexual characteristics.”

    Moreover, one clear manifestation of this effective equality is the provision established in article 48.4 of the Spanish Workers Statute, which, in relation to leave for the birth of a child states that “the term biological mother also includes expectant transgender people.”
  • On the other hand, to ensure the full and effective equality of these groups, under article 15, companies with over 50 employees have 12 months to adopt a planned set of measures and resources allowing them to achieve this, including a plan of action to prevent harassment and violence against LGTBI persons. In turn, article 55 establishes that equality and anti-discrimination plans must specifically include transgender people, with special attention given to transgender women.
  • The act sets out special rules for the procedural defense of effective equality as regards legitimacy as well as sharing the burden of proof. 
March 2, 2023