Hate Crimes and LGBTI Protection in Spain: What Really Changed

There is a widespread confusion — in professional filings as well as in the press — between three separate statutes that are often cited as if they were the same one. Only two of them amend the Penal Code, and neither of those two is the statute known as the "trans act". As criminal defence lawyers, we explain what actually changed, under which law, and what it means today for a person under investigation, an accused, or a victim.

Three statutes that get confused

• Law 4/2023, of 28 February (BOE-A-2023-5366), on the real and effective equality of trans people and the guarantee of the rights of LGBTI people. It is an ordinary statute, not an organic one, and it does not amend the Penal Code.
• Organic Law 6/2022, of 12 July (BOE-A-2022-11588), complementary to Law 15/2022 on equal treatment and non-discrimination. This is the source of the wording in force of the aggravating factor in Article 22.4 CP and of the hate offences in Article 510 CP.
• Organic Law 4/2023, of 27 April (BOE-A-2023-10213), amending the Penal Code on offences against sexual freedom, the Criminal Procedure Law and Organic Law 5/2000. It has nothing to do with hate crimes.

The shared numbering of Law 4/2023 and Organic Law 4/2023 explains much of the mix-up. But the difference is not merely formal: only an organic law can amend the Penal Code (Article 81 of the Constitution), so an ordinary statute such as Law 4/2023 could not have altered the discrimination aggravating factor or the hate offences even if the legislator had intended it.

What Law 4/2023 does — and does not — do

Law 4/2023 operates on the civil, registry, healthcare, employment, education and administrative planes: rectification of the registry entry relating to sex, healthcare provision, measures in employment and education, and its own regime of administrative infringements and penalties. That penalty regime is administrative, not criminal: it creates no offences and increases no penalties.

The practical consequence matters for any defence or prosecution filing: invoking Law 4/2023 as the basis for a criminal aggravation is a citation error. The applicable rule is the Penal Code as worded by Organic Law 6/2022.

The discrimination aggravating factor of Article 22.4 CP

Article 22.4 CP sets out a general aggravating circumstance: committing the offence for discriminatory reasons. Where it applies, that motivation is weighed in order to increase the penalty within the statutory range of the underlying offence (assault, threats, criminal damage, coercion, and so on).

Its wording in force, introduced by Organic Law 6/2022, covers racist, antisemitic and anti-Roma grounds, and any other form of discrimination based on the victim's ideology, religion or beliefs, their ethnic group, race or nation, their sex, age, sexual or gender orientation or identity, gender-based reasons, aporophobia or social exclusion, illness or disability. The provision adds an important qualification: the aggravating factor operates irrespective of whether those conditions actually apply to the person against whom the conduct is directed, so a perpetrator's mistake about the victim's status does not rule out the aggravation.

The aggravating factor does not create a new offence: it modulates the criminal response to the offence already committed. If an assault, a threat or an act of vandalism is committed out of aversion towards the victim's trans or LGBTI status, that motive can increase the penalty of the underlying offence.

The hate offences of Article 510 CP and their penalties

Article 510 CP independently punishes two broad sets of conduct directed against protected groups on discriminatory grounds:

• Public incitement to hatred, hostility, discrimination or violence, and the production or distribution of material apt to promote it: one to four years' imprisonment and a fine of six to twelve months (Article 510.1 CP).
• Acts of humiliation, disparagement or discredit, as well as the glorification or justification of offences committed against those groups: six months to two years' imprisonment and a fine of six to twelve months (Article 510.2 CP).

Two specific aggravations operate on those ranges. The penalty is imposed in its upper half where the acts are disseminated through a mass medium, over the internet or by means of information technologies in a way that reaches a large number of people (Article 510.3 CP), and also where they are apt to disturb public peace or create a serious feeling of insecurity or fear within the group, in which case it may be raised to the next higher degree (Article 510.4 CP). In every case, special disqualification is also imposed from educational professions or occupations, in teaching, sport and leisure settings, for a period between three and ten years longer than the custodial sentence imposed (Article 510.5 CP).

It is worth stressing what Article 510 CP does not punish. It does not target opinion or criticism, however uncomfortable or minority. It targets conduct that creates a climate of hostility or that incites discrimination or violence. That boundary with freedom of expression is precisely where these cases are won or lost.

"Gender expression": a term absent from the Penal Code

It is often stated that the Penal Code protects "gender expression". That is inaccurate: the phrase appears in no article of the Penal Code. The statutory language is "sexual or gender orientation or identity" and "gender-based reasons" in Article 22.4 CP, and "sexual orientation or identity" and "gender-based reasons" in Article 510 CP. The term "sexual identity" also appears in Articles 314, 511, 512 and 515 CP.

The point is not terminological purism. In a prosecution or defence filing, invoking a category the offence does not contain opens the door to an objection of expansive interpretation contrary to the principle of legality (Article 25.1 of the Constitution). The sound approach is to rely on the terms the provision does use and, where appropriate, argue that the conduct falls within them.

Organic Law 4/2023, of 27 April: a reform of a different subject

Organic Law 4/2023, of 27 April, is the corrective reform of Organic Law 10/2022 (the "only yes means yes" law) on offences against sexual freedom. It kept the consent-based model and the merger of abuse and assault, but reinstated violence and intimidation as an aggravated subtype and raised penalty ranges the earlier reform had lowered: sexual assault (Article 178 CP), rape (Article 179 CP), the aggravated subtypes (Article 180 CP) and assaults on children under sixteen (Article 181 CP). It also amended Articles 132 (limitation periods), 173 and 189 bis CP.

It is therefore a statute about sexual freedom, not about hate crimes. You can review this and other statutes in detail in our criminal law reforms section.

Hate speech in the digital environment

A large share of the cases now reaching the courts under Article 510 CP originate on social media, forums, messaging groups and video platforms. The aggravation in Article 510.3 CP makes the channel a decisive element of the classification, because the public reach and virality of a message multiply its harmful potential.

• Publicity and dissemination: the open nature of a post or its mass dissemination can trigger the upper half of the penalty.
• Authorship and evidence: identifying the true author of a message, distinguishing between accounts, screenshots and forwards, and correctly preserving electronic evidence is essential both to prosecute and to defend.
• Context of the message: the same text may be opinion, satire or incitement depending on the context, tone and intent; the analysis cannot be reduced to isolated words.
• Forwards and comments: sharing or commenting on someone else's content does not always mean adopting it as one's own; criminal liability requires the defendant's own conduct and motive.

What it means for a suspect, an accused, or a victim

For the person under investigation or accused, the risk is that an act will be classified with the aggravating factor of Article 22.4 CP or as a hate crime under Article 510 CP. This requires analysing two things from the outset: whether the conduct genuinely fits the offence, and whether there is proof of the discriminatory motive or whether it is being inferred automatically from the outcome.

For the victim, the legal framework allows the discriminatory motivation to have criminal consequences when reporting assaults, threats or hate campaigns. A well-documented complaint — messages, witnesses, context — is decisive in proving the motive.

In both cases, the legal classification is not automatic: it depends on the specific facts, the context and, above all, the evidence.

Lines of defence

• Absence of a discriminatory motive: Article 510 CP and the aggravating factor require proof that the perpetrator acted out of aversion towards the protected group. If the conflict had another cause (a personal, neighbourly or financial dispute), the subjective element falls away.
• Freedom of expression: punishable hate speech must be distinguished from opinion, criticism or satire protected by Article 20 of the Constitution.
• Conduct not meeting the offence: analysing whether the facts truly reach the threshold the offence requires (relevant incitement, humiliation or disparagement), ruling out expansive interpretations and categories the provision does not contain.
• Insufficient evidence: the motive cannot be presumed from the mere outcome; it is for the prosecution to prove it beyond reasonable doubt.
• Correct citation of the governing statute: checking which law produced the wording applied and when it came into force, since unfavourable criminal law is not retroactive (Article 2.1 CP).
• Possible mitigating factors: depending on the case, reparation of harm (Article 21.5 CP) or confession (Article 21.4 CP) may modulate the criminal response.

Conclusion

Criminal-law protection of trans and LGBTI people against hate speech and hate crimes exists and is robust, but it does not come from Law 4/2023: it rests on the aggravating factor of Article 22.4 CP and on Article 510 CP, both as worded by Organic Law 6/2022. Organic Law 4/2023, of 27 April, deals with a different subject: offences against sexual freedom. Citing the right statute is not an academic detail — it shapes the classification, the retroactivity analysis and the soundness of any filing, whether for the prosecution or the defence.