On the Necessity of Including Gender in Spain’s List of Prohibited Bases of Discrimination

Abstract

Article 14 of the Spanish Constitution establishes the right to equality and non-discrimination and specifically rejects discrimination on the basis of birth, race, sex, religion or opinion, while also prohibiting discrimination on any other personal or social circumstance. This policy framework is highly consistent with the historical moment and the socio-political context in which the Spanish Constitution was adopted, which meant a significant breakthrough, not only in restoring democracy but also in establishing a modern framework of coexistence. Along these lines, sex-based discrimination was probably the main and most widespread ground of prohibited discrimination, and was key to building a basic constitutional framework on which the principle of equality between women and men was developed. Indeed, the prohibition of sex discrimination has been very present in the Spanish legal system. It has been a building block in extensive case law at the Spanish Constitutional Court, although it has sometimes been the subject of contradictory cases and controversial political debates. However, obstacles in the fight against discrimination in Spain remain, especially in those areas where gender conflicts result in new forms of socialization that go beyond classic and historical gender roles. A clear conceptual and statutory integration of the prohibition of gender-based discrimination is necessary, in order to overcome limitations posed by the prohibition of sex-based discrimination in the Spanish legal system, as well as to allow for modern legal instruments to respond to new social realities regarding sex, sexuality and gender identity.