Employment and pensions

The Spanish Constitutional Court rules on gender identity

Published on 28th Oct 2022

The Spanish Constitutional Court analyses possible discrimination on grounds of gender identity, on the occasion of the dismissal of a transsexual person during the probationary period.

The judgement of the Plenary Session of the Spanish Constitutional Court of 2 June 2022 (number 67/2022) is of particular constitutional significance, as it is the first time that a complaint of employment discrimination on grounds of gender identity has been raised.

The Spanish Constitutional Court takes the opportunity to, firstly, identify what is understood by gender identity, and to what extent this differs from sexual identity and, secondly, to analyze whether or not this characteristic element of people is included within the categories suspected of being discriminatory as set out in Article 14 of the Spanish Constitution, which states equality before the law, without any discrimination on grounds of sex or any other personal or social condition or circumstance being able to prevail.

The High Court concludes that gender identity is an independent and different category from sexual identity, but that it is also protected by the prohibition of discrimination contained in Article 14 of the Spanish Constitution and by the right to self-image recognized in Article 18 of the same legal text.

Regardless of the pioneering nature of the ruling, in this particular case the Spanish Constitutional Court concludes that the dismissal of the employee cannot be classified as null and void on the grounds of discrimination, given that the company has been able to demonstrate the existence of grounds for dismissal that have nothing to do with the employee's transsexual condition.

It remains to be seen what the effects of this ruling will be in practice, i.e. whether clauses for the promotion, prevention and elimination of all discriminatory aspects of LGTB people will be included in Collective Agreements, as well as specific procedures so that potential complaints can be channelled.

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* This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.

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