Equal treatment and criminal lawCriminal protection of LGBTQ+ people in Spain: hate speech, the discrimination aggravating factor and the burden of proof
SUBJECT
Legal protection of LGBTQ+ people
LEGAL FRAMEWORK
Act 15/2022, Act 4/2023 and Royal Decree 1026/2024
CRIMINAL PROVISIONS
Article 510 and the aggravating factor in Article 22(4) of the Criminal Code
KEY POINT
The reversal of the burden of proof does not govern criminal proceedings
Over two decades Spanish law has built a framework protecting lesbian, gay, trans, bisexual, intersex and queer people which operates on several levels: civil and registry law, employment and administrative law, and criminal law. Each responds to its own logic and, above all, to a different evidential regime.
Confusing those levels is the most frequent source of frustrated expectations. Equal treatment legislation establishes a reversal of the burden of proof that is decisive in employment and administrative matters but does not carry over into criminal proceedings, which are governed by the presumption of innocence. This analysis sets out the framework and marks where each instrument ends.
The legislation in force
- Act 13/2005, amending Article 44 of the Civil Code
- Constitutional Court judgment 198/2012 of 6 November
- Act 14/2006 on assisted human reproduction techniques
- Act 3/2007 on registry rectification of the entry relating to sex
- Act 15/2022, the comprehensive Act on equal treatment and non-discrimination
- Act 4/2023 of 28 February on the real and effective equality of trans people
- Royal Decree 1026/2024 of 8 October on LGBTI equality plans in companies
The criminal law instruments
- Article 510: incitement to hatred, hostility, discrimination or violence
- Article 510(2): conduct harming dignity through humiliation or contempt
- The aggravating factor in Article 22(4) on grounds of sexual orientation or identity
- Enhanced penalties where the conduct is spread through the internet or the media
- Article 173(1) as a route against degrading treatment
- The presumption of innocence and the requirement of sufficient incriminating evidence
THE DOCTRINEWhat the court holds
From civil recognition to comprehensive protection
Act 13/2005 amended the Civil Code to allow marriage between persons of the same sex, a reform whose constitutionality was confirmed by Constitutional Court judgment 198/2012 of 6 November. Act 14/2006 and Act 3/2007 completed the picture on parentage and registry rectification. The cycle closes with Act 15/2022, the comprehensive Act on equal treatment and non-discrimination, and with Act 4/2023 of 28 February, implemented in the corporate sphere by Royal Decree 1026/2024 of 8 October, which requires certain companies to adopt LGBTI equality plans.
Article 510: what it punishes and with what penalties
Article 510 of the Spanish Criminal Code punishes, in its first paragraph, the encouragement, promotion or direct or indirect incitement of hatred, hostility, discrimination or violence against groups defined by grounds that expressly include sexual orientation and identity, with imprisonment of one to four years and a fine of six to twelve months. The second paragraph punishes with imprisonment of six months to two years and a fine of six to twelve months conduct that harms dignity through humiliation, contempt or disparagement. Penalties are imposed in their upper half where the conduct is disseminated through the internet or the social media.
The aggravating factor in Article 22(4) and its relationship with the autonomous offence
The aggravating circumstance in Article 22(4) works differently: it creates no offence but increases the penalty for any offence committed on discriminatory grounds, including those relating to sexual orientation or identity and gender-based motives. Applying it requires proof of the motive, not merely of the context. Case law calls for objective elements revealing that motive, such as words uttered during the assault, the choice of victim or a pattern of earlier conduct.
The decisive question: the burden of proof
Article 30 of Act 15/2022 and Article 66 of Act 4/2023 provide that where a claimant alleges discrimination and supplies well-founded indications, it falls to the respondent to offer an objective and reasonable justification. That rule operates fully in the employment, civil and administrative jurisdictions, and in administrative penalty proceedings with the adjustments proper to them. It does not govern criminal proceedings. In a criminal court the prosecution must establish every element of the offence, including the discriminatory motive, beyond reasonable doubt. Anyone turning to the criminal courts expecting the evidential regime of equality legislation meets a substantially more demanding standard.
Choosing the right route
A practical consequence of the first order follows. Against discriminatory conduct at work, the employment jurisdiction offers a favourable evidential regime, short time limits and effective protection. Against the public dissemination of hate messages or against an assault, the criminal route is the appropriate one, at the cost of a higher standard of proof. The two are not mutually exclusive, but the strategy needs ordering: a premature criminal complaint without sufficient evidential support may end in dismissal and weaken the position in the other forums.
Surrogacy, a separate chapter
The source consulted also includes in this landscape Supreme Court judgment 1626/2024 of 4 December and the Instruction of 28 April 2025 on surrogacy. That is a civil and registry matter, bearing on parentage and the best interests of the child, which should not be confused with the criminal instruments examined here. It calls for separate analysis.
THE FIRM’S READINGWhat it means in practice
For the victim. Careful documentation matters: screenshots showing the source address and the date, witnesses, medical reports on injuries and, where they exist, the specific words used. A discriminatory motive is established through facts, not through the subjective characterisation of the episode.
For the defence. Applying the aggravating factor requires proof of motive. The existence of a prior dispute of a different nature, the absence of discriminatory language or the random choice of victim are matters to be examined before accepting the prosecution’s characterisation.
For companies. Royal Decree 1026/2024 requires certain companies to adopt LGBTI equality plans. Their absence gives rise to administrative liability and, in any subsequent litigation, weakens the objective justification that equality legislation demands of the respondent.
FREQUENTLY ASKED QUESTIONSFrequently asked questions
What does Article 510 of the Spanish Criminal Code punish?
It punishes the encouragement, promotion or incitement of hatred, hostility, discrimination or violence against particular groups, including on grounds of sexual orientation and identity, as well as conduct harming their dignity through humiliation or contempt. Penalties reach four years of imprisonment and are imposed in their upper half where the internet or the media are used.
Does the reversal of the burden of proof apply in a criminal trial?
No. Article 30 of Act 15/2022 and Article 66 of Act 4/2023 operate in the employment, civil and administrative jurisdictions. Criminal proceedings are governed by the presumption of innocence, and the prosecution must establish every element of the offence, including the discriminatory motive.
What is the difference between a hate crime and the discrimination aggravating factor?
Article 510 defines an autonomous offence directed against a group. The aggravating factor in Article 22(4) creates no offence: it raises the penalty for any offence committed on discriminatory grounds. There can be an aggravating factor without a hate crime, and a hate crime without an individual assault.
Is the criminal route always advisable?
Not necessarily. In employment matters the social jurisdiction offers a more favourable evidential regime and a swifter response. The criminal route is appropriate against assaults and the public dissemination of hate messages, but it demands a higher standard of proof.
YOU MAY ALSO LIKERelated content
Article 510: hate offencesArticle 22: aggravating circumstancesArticle 173: degrading treatmentPractical defence guides
Analysis prepared by the SCJE team on the basis of the legislation in force and public sources. It is intended for information only and does not constitute individual legal advice. Source consulted: Tirant lo Blanch, actualidad jurídica.
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Francisco Javier Martín Porras
Abogado penalista, socio de Société de Conseil Juridique et Expert y creador de la metodología LIWARD®. Dirige la defensa en procedimientos penales de alta complejidad, combinando estrategia procesal con análisis pericial y forense. Conozca al equipo →
