Companies with more than 50 employees have one year in which to comply with the Transgender Law by putting in place an action plan and measures to foster LGTBI equality and an LGTBI anti-harassment protocol

Law 4/2023, of February 28, 2022, for real and effective equality of transgender people and to guarantee the rights of LGBTI people will have a clear impact, the scope of which has still to be determined, on employer obligations in the area of equality and, in particular, as regards the traditionally public role of protector of rights, responsibility for which now lies with private employers.

Article 14 of the law ushers in a series of targets or measures that highlight the key collaborative role that employers will play in defending the effective equality of all individuals. The article advocates, among others:

  • (i) the creation of a seal to certify companies that excel in their application of LGTBI equality and non-discrimination policies;
  • (ii) the inclusion in collective labor agreements of clauses to promote diversity and to prevent, eliminate and correct all forms of discrimination towards LGTBI people, and of procedures to handle complaints;
  • (iii) the preparation of codes of ethics and protocols to prevent all types of discrimination on the grounds stipulated in the law.

In addition to these stipulations that must govern employers’ activities, the law imposes more specific obligations, particularly in article 15, which establishes the obligation on companies with more than 50 employees to have in place, within twelve months of the entry into force of the law:

  • a) a planned set of measures and resources for achieving real and effective equality for LGBTI people;
  • b) a procedure for dealing with harassment or violence directed at LGTBI people.

This means that by March 2, 2024 companies with more than 50 employees must have defined measures in place or to be implemented that guarantee effective equality for LGTBI people in their activity, which also means that employers must assume what has been a traditionally public duty, in a similar way to the provisions already introduced for gender equality.

That said, there is some uncertainty surrounding the approval of these measures, since the law stipulates that both the measures and the protocol should be negotiated “through collective bargaining and agreed with the workers’ statutory representatives”, which requires a similar procedure to be followed to that provided for equality plans.

However, the law does not state how these measures should be negotiated, simply making a generic reference to subsequent regulatory implementation, which begs a major question: can these measures be negotiated around the same negotiating table as the equality plan? Equally, does the LGTBI anti-harassment protocol need to be a standalone protocol or can it be integrated into existing company protocols?

Lastly, article 55.3 of Law 4/2023 introduces new obligations concerning the preparation of equality plans, establishing the need for them to include an express reference to trans people, with a particular focus on trans women.

However, the new law does not amend Organic Law 3/2007 on effective equality for women and men or Royal Decrees 901/2020 and 902/2020 regarding equality plans and pay registers, creating some uncertainty as to how this aspect should be included, not only in the equality plans approved following the entry into force of the law but also with respect to those already approved and published.

In light of the situation, it appears to be necessary to include a reference to trans people at the company in the preliminary situation diagnosis. Yet it should be borne in mind that the new law only refers to the preparation stage of the plan, so it would appear that this information need not be included in the final conclusions, unless the negotiating parties so agree.

Many of these measures impose new obligations on employers that may be difficult to comply with, particularly when they are not accompanied by a requirement to expressly state the sexuality or gender identity of workers.

What is more, the two versions of the current and problematic article 16.1.c of the Labor and Social Security Infringements and Penalties Law (LISOS), as amended by both Law 4/2023 and Employment Law 3/2023 and published in the Official State Gazette on the same day, expressly class employer requests for “personal data” of workers where such data refer to their “sexual orientation” or “gender identity” as a very serious infringement. These aspects would once again seem to call for the imposition of a new objective safeguard independent of employer knowledge.

In short, Law 4/2023 notably introduces the following requirements:

  • (i) in twelve months’ time, companies with more than 50 employees must have in place an action plan and measures to foster LGBTI equality and an LGBTI anti-harassment protocol, both of which must be negotiated with the workers’ representatives;
  • (ii) employers must also include a reference to trans people in the preparation of equality plans.

Law 4/2023 thus incorporates major new developments in the field of equality, giving employers a fundamental role in defending the rights of LGTBI people. Although we will need to wait for the implementing regulations referred to in the law to find out how these provisions are to be applied, the law is already in force, and with it, the obligations analyzed.

Javier Alonso Revuelta

Garrigues Labor and Employment Law Department