Laws

SPAIN

Limited information only available for these topics

Access to Children
Adoption of Children
Age of Consent
Annuities, Pensions
Anti-Vilification
Artifical Insemination
Assisted Reproduction
Asylum, Refugees
  Censorship
Civil Unions
Custody of Children
Discrimination
Estates, Inheritance
Fostering Children
Gender Identity
Harassment
  Hate Crimes
Health, Medical
HIV/Aids
Homosexuality
Immigration
In Vitro Fertilisation (IVF)
Marriage
  Military
Parenting
Partners
Property
Sodomy
Transgender, Transsexual
Violence
Wrongful Death

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Age of Consent Legislation/Cases/References
1.

National

On 30 April 1999, consensual sex (absent deceipt) between same-sex couples became lawful at age thirteen (13) years [R1.1].

If deception is used to obtain the consent of a minor under sixteen (16) years of age, an individual can be charged under Section 183 of the Penal Code upon parental complaint.

R1.1 Penal Code Articles 181 - 183
Annuities, Pensions, Superannuation Legislation/Cases/References
See also: [ESTATES]
1.

Courts & Tribunals

On 14 June 2016, the European Court of Human Rights ruled that Spanish national, Antonio Aldeguer Tomás was not discriminated against under Article 14 taken in conjunction with Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms on the ground of his sexual orientation in that he had been denied a survivor's pension following the death of his partner, with whom he had lived in a de facto marital relationship for twelve years [C1.4], [R1.3].

On 14 February 2013, the Tribunal Constitucional de España ruled that same-sex couples are now eligible for widow's or widower's pensions [C1.2], [R1.1].

Previously:

Under the law (40/2007), people in married or unmarried relationships needed to be able to prove they had lived together for five years, had some financial dependence upon their partner and had children "in common" to be eligible for widow's or widower's pension if a partner died [R1.1].

C1.4 Judgment: Case of Aldeguer Tomas v. Spain No. 35214/09 PDF 487.26kb, 14 JUN 16
R1.3 Out-Law: ECHR: not discriminatory to deny same-sex partner a survivor's pension 20 JUN 16
C1.2 Judgment (in Spanish): On the question of unconstitutionality no. 8970 - 2008 41/2013 PDF 215.45kb, 14 FEB 13
R1.1 UPI: Pension rule changed for same-sex couples
Asylum, Immigration, Refugees Legislation/Cases/References
1.

Asylum, Refugees

In January 2006, under a new law proposed by Spainsh Prine Minister Jose Luis Rodriguez Zapatero, people fleeing persection over their sexuality from their own country would be granted status [R1.2].

Previously:

In 2004, in the first case of its kind, the Spanish government granted political asylum to a homosexual on the grounds of his sexual orientation [R1.1].

1A.

Courts & Tribunals

On 19 January 2017, the European Court of Human Rights struck out the case of Cameroon woman M.B. seeking asylum in Spain based on her sexual orientation. The decision means that no judgment from the Court that has ever found that deporting someone to a country of origin outside the Council of Europe that criminalises same-sex relations violates the European Convention on Human Rights. However, following the application of Rule 39, the applicant's deportation was suspended and her asylum application will now undergo a thorough examination by the Spanish Asylum Office ]C1A,3], [R1A.2].

On 20 July 2012, the National Court was reported to have ruled that a Colombian transexual from Barrancabermeja seeking asylum only wanted to avoid deportation from Spain. The asylum petition was made after an order of expulsion [R1A.1].

R1.2 MCV: Sexuality Grounds for Asylum in Spain' 06 JAN 06
R1.1 News24: Spain Grants Man 'Gay Asylum' 02 JUN 04
C1A.3 Decision (in French): M.B. v. Spain No. 15109/15 HTML
R1A.2 ILGA-Europe: Update from Strasbourg - M.B. v Spain asylum case struck out 19 JAN 17
R1A.1 GayStarNews: Colombian transexual denied asylum in Spain 20 JUL 12
Censorship, Freedom of Association, Freedom of Expression, Free Speech, Right of Assembly Legislation/Cases/References
See also: [GENDER IDENTITY]
1.

Courts & Tribunals

On 02 March 2017, Judge Jose Juan Escalonilla was reported to have upheld the decision of the City of Madrid to impound a bright orange bus belonging to Catholic group, Hazte Oira that was emblazoned with a anti-transgender messages, technically for breaching municipal rules on outdoor advertising. The Judge did not find that the messages on the bus went as far as being a hate crime [R1.1].

R1.1 BBCnews: Madrid judge backs ban on Catholic group's anti-transgender bus 02 MAR 17
Children: Access, Custody, Visitation Legislation/Cases/References
See also: [PARENTING]
1.

Courts & Tribunals

In June 1999, a court in the southern city of Seville in Spain gave custody of an 11-year-old girl to a transsexual [R1.1].

R1.1 BBC Online News: Vatican: Transsexual Adoption an Insult 26 JUN 99
Civil Unions, Partners: Domestic, Registered Legislation/Cases/References
1.

National/Regional

Under 2002 regulations, gay and lesbian Civil Guard officers who have been living together for two years are entitled to live in staff barracks as a couple [R1.8].


On 08 May 2000, Members of Parliament from Catalonia introduced a gay and heterosexual partnership measure into Spain's Congress of Deputies [R1.7].


On 12 March 1999, the Regional Parliament of Aragon passed their domestic partnership bill [R1.6].


On 30 June 1998, the Catalonian parliament passed a bill giving cohabiting gay and straight couples many of the rights of matrimony except adoption rights for gays [R1.5]. On 23 October the law came into effect [R1.4].


In June 1997, a domestic partnership bill passed Spain's Congress of Deputies but several hurdles remained [R1.3].


On 18 March 1997, Spain's Congress of Deputies narrowly defeated two gay partnership bills 163-161 after two tied votes [R1.2].


In December 1996, Spain's Socialist Party (PSOE) submitted a draft for a partnership law to the Spanish Parliament which would grant same sex partners the same rights as heterosexual partners [R1.1].

2.

Courts & Tribunals

In 1996, the Catalonia Superior Justice Tribunal in Barcelona ruled that a Colombian gay man whose lover is Spanish has a right to seek residency in Spain [R2.1].

R1.8 Gay.com UK: Civil Guard To Live With Gay Partners In Barracks 07 NOV 02
R1.7 Capital Q: Partner Bill Introduced in Spain 19 MAY 00
R1.6 Fundacion Triangulo: Domestic Partnership Bill Passed in Aragon 10 MAR 99
R1.5 Capital Q: Spanish Partners Law 10 JUL 98
R1.4 Capital Q: Registered Partnerships for Spain 30 OCT 98
R1.3 Capital Q: Spanish Bill Clears Hurdle 13 JUN 97
R1.2 Capital Q: Spanish Partner Bill Loss 27 MAR 97
R1.1 Brother Sister: Spain Drafts Partnership Law 26 DEC 96
R2.1 Melbourne Star Observer: Spanish Court Supports Gay Couples 02 AUG 96
Discrimination Legislation/Cases/References
See also: [HATE CRIMES]
1.

National

In 1996, discrimination in employment based on sexual orientation was made unlawful [R1.2].

In 1978, Spain's liberal constitution outlawed sexual discrimination and homosexuality [R1.1].

2.

Autonomous Communities

On 02 October 2014, the Catalan Parliament approved a law which will punish those who attack gays, lesbians, bisexuals and transsexuals with fines of up to €14,000 ($17,700), reversing the onus of proof and requiring the accused to prove their innocence [R2.1].

R1.2 ILGA: State-Sponsored Homophobia PDF 382.87kb, MAY 08
R1.1 Reuters: Spain's New Government to Legalize Gay Marriage 15 APR 04
R2.1 TheLocal: Catalonia passes divisive anti-homophobia law 03 OCT 14
Estates, Inheritance, Property, Succession, Wills Legislation/Cases/References
1.

National

In June 2005, the 350-seat Congress of Deputies legalized gay marriage by a vote of 187 to 147. The bill, part of the ruling Socialists' aggressive agenda for social reform, also lets gay couples adopt children and inherit each others' property [R1.1].

R1.1 Melbourne Star: Spain Legalises Marriage 28 APR 05
Gender Identity, Intersex,
Transgender, Transexual

[?]
Legislation/Cases/References
See also: [CHILDREN]
1.

National

In January 2010, Barcelona's Hospital Clinico reportedly performed a sex-change operation on a 16-year-old boy. A sex-change operation on a minor requires the approval of a Spanish court to override the law [R1.3].


In 2007, a Specific law on Gender recognition after Gender Reassignment treatment recognises the "new" gender after Gender Reassignment treatment [R1.2].

Previously:

Whilst sex-reassignment surgical procedures and related treatments are legal in the Spanish State, public hospitals routinely refused to treat transgender people wishing to pursue such procedures [R1.1]


Only in Andalucia were sex-reassignment procedures included in public health service provisions--and facilities there were then crowded by transgender people from other regions of the country demanding treatment.


In 1989, the European Parliament adopted a resolution calling on all member States of the European Union to "enact provisions on transsexuals' right to change sex by endocrinological, plastic surgery, and cosmetic treatment, on the procedure, and banning discrimination against them."

In the same year, the Parliamentary Assembly of the Council of Europe – a different body embracing a broader range of European States – passed Recommendation 1117, which called on States to ensure the amendment of civil status papers for post-operative transsexuals, and to ensure that "all discrimination in the enjoyment of fundamental rights and freedoms is prohibited in accordance with Article 14 of the European Convention of Human Rights."

2.

Courts & Tribunals

On 02 March 2017, Judge Jose Juan Escalonilla was reported to have upheld the decision of the City of Madrid to impound a bright orange bus belonging to Catholic group, Hazte Oira that was emblazoned with a anti-transgender messages, technically for breaching municipal rules on outdoor advertising. The Judge did not find that the messages on the bus went as far as being a hate crime [R2.1].

R1.3 The Age: Sex change at 16 14 JAN 10
R1.2 ILGA: State-Sponsored Homophobia PDF 382.87kb, MAY 08
MCV: Spain Passes Gender Identity Law 08 MAR 07
R1.1 The International Gay and Lesbian Human Rights Commission (IGLHRC): "Protect Transgender People's Rights to Public Services" 10 JUN 02
2. Courts & Tribunals
R2.1 BBCnews: Madrid judge backs ban on Catholic group's anti-transgender bus 02 MAR 17

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Hate Crimes Legislation/Cases/References
See also: [DISCRIMINATION] [VIOLENCE]
1.

National

In 1996, the law was amended making hate crimes based on sexual orientation an aggravating circumstance [R1.1].

2.

Autonomous Communities

On 02 October 2014, the Catalan Parliament approved a law which will punish those who attack gays, lesbians, bisexuals and transsexuals with fines of up to €14,000 ($17,700), reversing the onus of proof and requiring the accused to prove their innocence [R2.1].

R1.1 ILGA: State-Sponsored Homophobia PDF 382.87kb, MAY 08
R2.1 TheLocal: Catalonia passes divisive anti-homophobia law 03 OCT 14
Health, Medical Legislation/Cases/References
1.

Courts & Tribunals

On 29 August 2016, it was reported that LGBT group Arcopoli had filed a complaint against Elena Lorenzo Rego, a psychotherapist who offers treatment for those wanting to change their sexual orientation from homosexual to heterosexual [R1.1].

R1.1 TheLocalES: Madrid LGBT group takes action over 'gay cure therapy' 29 AUG 16
Homosexuality, Sodomy Legislation/Cases/References
See also: [AGE OF CONSENT]
1.

National

In 2001, after a ruling by the Spanish parliament, thousands of lesbians and gays who were persecuted during the Franco regime in Spain had their criminal records purged and were likely to receive financial compensation [R1.4].

In November 1995, a new penal code was ratified, recognising sexual orientation as a fundamental liberty. This was the first law to protect the rights of homosexuals in any Latin Catholic country [R1.3].

In 1978, Spain's liberal constitution outlawed sexual discrimination and homosexuality was legalized shortly afterwards in 1979 [R1.2].

From 1939 to 1975, homosexuality was banned during Franco's dictatorship [R1.1].

R1.4 Melbourne Community Voice: Compensation for Persecuted Gays 04 JAN 02
R1.3 ILGA: Annual Report - Part 1 1996
R1.2 ILGA: State-Sponsored Homophobia PDF 382.87kb, MAY 08
R1.1 Reuters: Spain's New Government to Legalize Gay Marriage 15 APR 04
Marriage Legislation/Cases/References
1.

National

In January 2008, Spain's Prime Minister, Jose Luis Rodriguez Zapatero, lashed out at Roman Catholic leaders following their condemnation of Spanish laws allowing same-sex marriage, introduced in 2005 [R1.6].

In June 2005, the 350-seat Congress of Deputies legalized gay marriage by a vote of 187 to 147. The bill, part of the ruling Socialists' aggressive agenda for social reform, also lets gay couples adopt children and inherit each others' property [R1.5].

Previously:

In April 2005, the Spanish Lower House passed a Bill allowing same-sex couples to marry and adopt children [R1.2]. The Bill moved to the Senate, where it was passed, the Lower House being able to override a Senate rejection [R1.4].

In December 2004, Spain's socialist Government approved a bill that would allow same-sex couples to marry [R1.3]. Parliament was then to debate the Bill in February.

In October 2004, the Spanish parliament voted on a bill to legalize same-sex marriage making the country the third in Europe to allow gays and lesbians to marry [R1.2].

In April 2004, Spain would move to legalize homosexual marriages and grant equal rights to gay couples, incoming Prime Minister Jose Luis Rodriguez Zapatero had said [R1.1].

2.

Courts & Tribunals

On 06 November 2012, the Constitutional Court ruled 8–3 upholding the gay marriage law [R2.7].

On 04 September 2012, Justice Minister Alberto Ruiz-Gallardón reportedly revealed in an interview with ABC Punto Radio that the government cannot and will not retract an appeal to the 2005 law that legalized same-sex marriage in the country. This despite UPI reporting 05 July that the Court had apparently rejected the appeal (see R2.5 below) [R2.6].

On 05 July 2012, the Constitutional Court rejected an appeal against the Spanish law that allows same-sex marriage, a decision that upholds such unions as legal [R2.5]. (GayLawNet® believes this report to be inaccurate).

In May 2009, the Spanish Supreme Court ruled that judges in lower courts or in local town halls must marry gay and lesbian couples if required [R2.4].

In June 2008, after the General Direction of the Registry ruled that there is no legal impediment to stop a British couple's marriage being carried out, the government ordered a judge in the Denia region of Spain to marry the British gay couple she had previously refused [R2.3].


In July 2005, the Supreme Court of Justice of Catalonia cited an article in the Spanish civil code which says foreign residents seeking to wed Spaniards are bound by the laws of the country where they have citizenship [R2.2].

The court's comments - released in a statement prompted by media inquiries, not in a formal ruling - suggest that for the time being at least, gay Spaniards seeking to marry foreigners can only do so with people from the Netherlands and Belgium [R2.2].


In July 2005, Judge Francisco Garcia, from Gran Canaria, is reported to have lodged a query at Spain's Constitutional Court challenging the legality of same-sex marriages [R2.1].

R1.6 MCV: Spain Defends Gay Marriage 03 JAN 08
R1.5 Associated Press: Spain Legalizes Same-Sex Marriages 30 JUN 05
R1.4 Melbourne Star: Spain Legalises Marriage 28 APR 05
R1.3 MCV: Spain Definately Says 'I Do' 07 JAN 05
R1.2 B.News: Spanish Marriage Coming 23 SEP 04
B.News: Gay Marriage in Spain 07 OCT 04
R1.1 Reuters: Spain's New Government to Legalize Gay Marriage 15 APR 04
R2.8 Tribunal Constitucional de España: Judgments
R2.7 Reuters UK: Same-sex marriage upheld by Spain's highest court 06 NOV 12
R2.6 GayStarNews: Spain's government can't retract gay marriage appeal 04 SEP 12
R2.5 UPI: Spanish court upholds same-sex marriage 05 JUL 12
R2.4 PinkNews.co.uk: Spanish Supreme Court rules judges cannot refuse to marry gay couples 01 JUN 09
R2.3 PinkNews.co.uk: Spanish Judge Ordered to Marry British Gay Couple 14 JUN 08
R2.2 Associated Press: Spain's Gay Marriage Law Hits First Snag 06 JUL 05
R2.1 BBC News: Spanish Judge Challenges Gay Union 12 AUG JUL 05
Military Legislation/Cases/References
1.

National

In February 2009, the defence ministry announced that trans people would be allowed to serve in the Spanish Armed Forces [R1.3].


In 2005, Spain was reported to have lifted a ban on gays serving in the military [R1.2].


In 2002, under new regulations gay and lesbian officers of the Civil Guard who have been living together for two years were entitled to live in staff barracks as a couple [R1.1].

R1.3 PinkNews.co.uk: Transsexual Wins Battle to Serve in Spain's Armed Forces 13 FEB 09
R1.2 New York Times: New Course by Royal Navy: A Campaign to Recruit Gays 22 FEB 05
R1.1 Gay.com: Civil Guard To Live With Gay Partners In Barracks 07 NOV 02
Parenting, Adoption, Fostering Legislation/Cases/References
1.

National

In March 2010, it was reported that the Professor of Evolutionary Psychology at the Basque Country University, Enrique Arranz, with Alfredo Oliva from Sevilla University, had worked on a study of 214 families concluding that homosexual couples offered an 'excellent' atmosphere for the growth of children because education of values such as tolerance was enhanced, and because both members of the couple got involved in the education of the child, even if it was often because they feared social rejection [R1.5].

In 2006, following its legal recognition of same-sex marriage in 2005, Spain was creating new birth certificates to avoid discriminating against gay couples with children. Instead of the terms "father" and "mother," the new certificates say "Progenitor A" and "Progenitor B," respectively [R1.4].

In June 2005, the 350-seat Congress of Deputies legalized gay marriage by a vote of 187 to 147. The bill, part of the ruling Socialists' aggressive agenda for social reform, also lets gay couples adopt children and inherit each others' property [R1.3].

Previously:

In April 2005, the Spanish Lower House passed a Bill allowing same-sex couples to marry and adopt children [R1.2]. The Bill then moved to the Senate, where it passed, the Lower House being able to override a Senate rejection [R1.2].


On June 23, 2000, the Parliament in the autonomous region of Navarra, Spain, passed a law allowing all registered couples in Navarra (including same-sex couples) to adopt children, enjoying the same rights and obligations as heterosexual married couples [R1.1].

2.

Courts & Tribunals:

In September 2010, a judge in First Instance Court 15 in Valencia decided to annul the entry made in the Consular Civil Registry in Los Angeles and accepted by the Directorate General of Registries and Notaries in 2009, by a Spanish gay male married couple who were registered as the parents of twins. The twins were born legally in the United States by a surrogate mother. The decision is expected to be appealed [R2.4].

In March 2010, the Constitutional Court refused to admit an appeal to it by the Murcia Judge, Ferrín Calamita, who had been sentenced to a ten year ban from office by the Supreme Court on a charge of perversion of the course of justice, by refusing to allow a lesbian woman to official adopt her partner's child. He was also ordered to pay 6,000 € compensation to the woman [R2.3], [R2.1].

In January 2009, the Supreme Court rejected the decision of an Andalusian court and ruled that parents who do not want their children to attend civics classes that include lessons on gay rights do not have the right to conscientiously object [R2.2].


In December 2008, Judge Fernando Ferrin Calamita was suspended from work after attempting to stop a lesbian adopting her wife's child [R2.1].

R1.5 TypicallySpanish.com: Homosexual couples make 'excellent' parents according to Spanish study 19 MAR 10
R1.4 The Advocate: Spanish Birth Certificates to Account for Gay Couples 08 MAR 06
R1.3 Associated Press: Spain Legalizes Same-Sex Marriages 30 JUN 05
R1.2 Melbourne Star: Spain Legalises Marriage 28 APR 05
R1.1 IGLHRC: Registered Same-sex Couples May Adopt 23 JUN 00
R2.4 Typically Spanish: Valencia gay male couple told they cannot register as parents of twins 17 SEP 10
R2.3 Typically Spanish: Constitutional Court refuses to hear Judge Calamita appeal 20 MAR 10
R2.2 PinkNews.co.uk: Court Rules Spanish Children Cannot Opt Out of Gay Rights Class 30 JAN 09
R2.1 PinkNews.co.uk: Spanish Judge Suspended for Discrimination Against Lesbian Parents 30 DEC 08
Violence: Bullying, Domestic Violence, Harassment, Vilification Legislation/Cases/References
See also: [HATE CRIMES]
1.

Courts & Tribunals

In March 2010, a judge in Sabadell, Barcelona, awarded the first distancing order against a group of 16–18 year olds (who attacked a young man in the local district of the town in 2004), banning them from going any closer than 300m from the victim’s home and from making any communication with him. It's the first time that homophobia has been equated with domestic violence in a Spanish court [R1.2].

In April 2009, president Benito Gálvez of the Almería Provincial Court found that a murder could only be called a gay domestic violence incident if it had happened between two lesbians [R1.1].

R1.2 TypicallySpanish: First distancing order for homophobia in Spain 16 MAR 10
R1.1 PinkNews.co.uk: Spanish gay murder reveals issues with domestic violence laws 16 APR 09

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