The United Nations Human Rights Committee, the committee of experts responsible for monitoring compliance with the International Covenant on Civil and Political Rights, one of the most important human rights treaties, expressed its concerns about the non-recognition of non-binary identities in its Concluding Observations on Spain's seventh periodic report on 18 July 2025. All State States Parties – States that have signed and ratified the International Covenant on Civil and Political Rights – must submit periodic reports to the Committee on how they implement civil and political rights. States Parties must submit a report whenever requested by the Committee. Under the predictable review cycle, the Committee requests the submission of a report every eight years. While States have an obligation to submit a report, civil society has the opportunity to participate in the process by contributing alternative reports. At Sexualiarte, we present the report The violation of the human rights of non-binary people in Spain. In this report, we focus on the non-recognition of non-binary identities and the discrimination and violence we suffer in public and leisure spaces, the education system, the health system and at work. The Committee examines the State's report, taking into account information from civil society reports, and communicates its concerns and recommendations to the State Party in the form of ‘concluding observations’.
In its concluding observations regarding the LGBTIQA community, the Committee states:
“Discrimination on the grounds of sexual orientation and gender identity
16. The Committee welcomes the adoption of Act No. 4/2023 of 28 February on the full and effective equality of trans persons and the promotion of the rights of lesbian, gay, bisexual, transgender and intersex persons, which provides for the legal recognition of the principle of gender self-determination and prohibits so-called “conversion therapies” and medically unnecessary surgical interventions on intersex persons younger than 12 years old. While the Committee takes note of the information provided by the State Party’s delegation on the study on the needs of non-binary persons, it notes with concern that the only gender identities legally recognized under Act No. 4/2023 are “male” and “female”, which means, in practice, that non-binary identities are not reflected in official identity documents or other administrative records held by the Government. In this regard, the Committee expresses its concern that this lack of recognition exposes non-binary persons to discrimination in various areas, including public and recreational spaces, the education system, health services and employment (arts. 2, 7, 17, 24 and 26).
17. The State Party should redouble its efforts to combat all forms of stigmatization and discrimination against lesbian, gay, bisexual, transgender and intersex persons. In particular, the State Party should consider adopting the legislative and other measures necessary to ensure that all persons, regardless of their actual or perceived sexual orientation or gender identity, can fully enjoy, in law and in practice, all the rights enshrined in the Covenant.”
In the diplomatic language of the Committee, ‘concern’ means that the Committee sees an incompatibility with the rights guaranteed in the International Covenant on Civil and Political Rights. When the Committee states that it ‘notes with concern that Law 4/2023 limits the legal recognition of gender identity to the categories of “male” and “female”, which in practice means that non-binary identities are not reflected in official identity documents or other administrative records of the State,’ this means that the Committee sees this as a violation of the rights guaranteed in the Covenant. In the following, the Committee refers to several articles of the Covenant: Article 2 (obligation of the State to guarantee all rights under the Covenant to all persons within its territory, without discrimination), Article 7 (prohibition of torture and cruel treatment), Article 17 (right to privacy), Article 24 (right of children to non-discrimination and identity) and Article 26 (non-discrimination).
In its General Comment No. 31 of 2004 on Article 2 of the Covenant, the Committee states:
En su Observación general nº31 de 2004 sobre el articulo 2 del Pacto, el Comité dice: “ Article 2 defines the scope of the legal obligations undertaken by States Parties to the Covenant. A general obligation is imposed on States Parties to respect the Covenant rights and to ensure them to all individuals in their territory and subject to their jurisdiction.
(…)
The obligations of the Covenant in general and article 2 in particular are binding on every State Party as a whole. All branches of government (executive, legislative and judicial), and other public or governmental authorities, at whatever level - national, regional or local - are in a position to engage the responsibility of the State Party.”
Read in conjunction with the concluding observations, it is clear that Spain is obliged to recognise non-binary identities under the International Covenant on Civil and Political Rights. This is referred to in the mention of ‘the adoption of legislative and other measures necessary to ensure that all persons, regardless of their actual or perceived sexual orientation or gender identity, can fully enjoy, in law and in practice, all the rights enshrined in the Covenant.’ Furthermore, Spain must also ‘redouble its efforts to combat all forms of stigmatisation and discrimination against lesbian, gay, bisexual, transgender and intersex persons.’
According to Article 10, paragraph 2, of the Spanish Constitution of 1978, ‘The rules relating to fundamental rights and freedoms recognised by the Constitution shall be interpreted in accordance with the Universal Declaration of Human Rights and the international treaties and agreements on the same matters ratified by Spain.’ Here, too, it is clear that Spain should take the concluding observations of the Human Rights Committee very seriously.
While in practice nothing will change in the short term, these concluding observations are very relevant if a case involving a non-binary person of Spanish nationality regarding the non-recognition of their gender identity comes before the Constitutional Court. Perhaps these concluding observations can also be used to argue cases in lower courts.
But they are also important beyond that: they confirm what we have been saying for some time: that we have the right to our identity. We demand that the Spanish Government fulfil its human rights obligations. Now!
- Log in to post comments