LGBT rights in Spain

The rights of lesbians, gays, bisexuals, and transgendered (LGBT) persons in Spain have undergone several drastic changes in recent decades. Today Spain provides one of the highest degrees of liberty in the world for its LGBT community. However, this was not the case for much of Spain's history. The evolution from the Roman sexuality, where the sexual act and power relationships engendered were more important, to the modern concept of homosexuality as a type of sexuality and even lifestyle, was determined and modified by many factors. One of the main ones has been the influence of Christianity, which characterized sexuality as an act whose only goal was procreation, so that the other sexual activities were seen as sinful and contrary to God's wishes. This would be reflected in the legislation of the time, where sodomy was identified with State treason and punished harshly with death by fire. The turnabout point was marked by the Enlightenment, when individual liberties started gaining importance, to the point that in 1822 sodomy was taken out of the Spanish criminal code and effectively legalised. The slow and hard ongoing process toward acceptance of homosexuality was suddenly interrupted by the Spanish Civil War and Francisco Franco's regime, which precipitated a strong repression of the LGBT community in Spain. When the regime ended, the process resumed, although homophobia was strong.

Today, Spain is one of the ten countries around the world that allows same-sex marriage and has the most progressive laws, since they also permit adoption by same-sex couples. Spanish LGBT culture has been exported internationally with film directors such as Pedro Almodóvar and events like the Europride celebrated in Madrid in 2007. Visibility of homosexuals has reached several layers of society that were previously unthinkable, such as the army, Guardia Civil, judges or priests, although in other areas like football there is still a way to go.

The Romans

The Romans brought, as with other aspects of their culture, their sexual morality to Spain. Romans were open minded about their sexuality, and relationships among men were commonplace. Among the Romans, bisexuality seems to have been perceived as the ideal. Edward Gibbon mentions, of the first fifteen emperors, "Claudius was the only one whose taste in love was entirely correct"—the implication being that he was the only one not to take men or boys as lovers. Gibbon based this on Suetonius' factual statement that "He had a great passion for women, but had no interest in men." Suetonius and the other ancient authors actually used this against Claudius. They accused him of being dominated by these same women and wives, of being uxorious, and of being a womanizer.

Marriages between men occurred during the early Roman Empire. This is proved by a law in the Theodosian Code from the Christian emperors Constantius and Constans which was passed on 16 December 342. Martial attests to same-sex marriages between men during the early Roman Empire.

The first recorded marriage between two men occurred during the reign of the Emperor Nero, who is reported to have married two other men on different occasions. The Roman emperor Elagabalus is also reported to have done the same. Emperors who were universally praised and lauded by the Romans such as Hadrian and Trajan openly had male lovers, although it is not recorded whether or not they ever married their lovers. Hadrian's lover, Antinuous, received deification upon his death and numerous statues exist of him today, more than any other non-imperial person.

Among the conservative upper Senatorial classes, status was more important than the person in any sexual relationship. Thus, Roman citizens could penetrate non-citizen males, plebeian (or low class) males, male slaves, boys, eunuchs and male prostitutes just as easily as young female slaves, concubines and female prostitutes. However, no upper class citizen would allow himself to be penetrated by another man, regardless of age or status. He would have to play the active role in any sexual relationship with a man. There was a strict distinction between an active homosexual (who would have sex with men and women) and a passive homosexual (who was regarded as servile and effeminate). This morality was in fact used against Julius Caesar, whose allegedly passive sexual interactions with the king of Bithynia were commented everywhere in Rome. However, many people in the upper classes ignored such negative ideas about playing a passive role, as is proved by the actions of the Roman Emperors Nero and Elagabalus. Martial also attests to adult men who played passive roles with other men. Martial describes, for example, the case of an older man who played the passive role and let a younger slave occupy the active role. In contrast to the Greeks, evidence for homosexual relationships between men of the same age exists for the Romans. These sources are diverse and include such things as the Roman novel Satyricon, graffiti and paintings found at Pompeii as well as inscriptions left on tombs and papyri found in Egypt. Generally speaking, however, a kind of pederasty (not unlike the one that can be found in the Greeks) was dominant in Rome. It is important to note, however, that even among straight relationships, men tended to marry women much younger than themselves, usually in their early teens.

Lesbianism was also known, in two forms. Feminine women would have sex with adolescent girls: a kind of female pederasty, and masculine women followed male pursuits, including fighting, hunting and relationships with other women.

Marcus Valerius Martialis, a great poet and lawyer, was born and educated in Bílbilis (Calatayud today), but he spent most of his life in Rome. There he characterised Roman life in epigrams and poems. In a fictitious first person he talks about anal and vaginal penetration, and about receiving fellatio from both men and women.

Another example is Hadrian, one of the Roman emperors born in Hispania, specifically in Itálica (Santiponce today). He was emperor from 117 to 138. He had a famous lover, Antinous, whom he deified and in whose honour he built the city of Antinopolis in Egypt after his accidental death in the Nile.

Advance of Christianity

The first law against same-sex marriage was promulgated by the Christian emperors Constantius II and Constans. Nevertheless, the Christian emperors continued to collect taxes on male prostitutes until the reign of Anastasius (491–581). In the year 390, the Christian emperors Valentinian II, Theodosius I and Arcadius declared homosexual sex to be illegal and those who were guilty of it were condemned to be burned alive in front of the public. The Christian emperor Justinian I (527–565) made homosexuals a scape goat for problems such as "famines, earthquakes, and pestilences."

As a result of this, Roman morality changed by the 4th century. For example, Ammianus Marcellinus harshly condemned the sexual behaviour of the Taifali, a barbaric tribe located between the Carpathian Mountains and the Black Sea which practised the Greek-style pederasty. In 342 emperors Constans and Constantius II introduced a law to punish passive homosexuality (possibly by castration), to which later in 390 Theodosius I would add death by fire to all passive homosexuals that worked in brothels. In 438 this law was expanded to include all passive homosexuals, in 533 Justinian punished any homosexual act with castration and death by fire, and in 559 this law became even more strict.

Three reasons have been given for this change of attitude. Procopius, historian at Justinian's court, considered that behind the laws were political motivations, as they allowed Justinian to destroy his enemies and confiscate their properties, and were hardly efficient stopping homosexuality between ordinary citizens. The second reason, and perhaps the more important one, was the rising influence of Christianity in the Roman society, including the Christian paradigm about sex serving solely for reproduction purposes. Colin Spencer, in his book Homosexuality. A history, suggests the possibility that a certain sense of self-preservation in the Roman society after suffering some epidemic such as the Black fever increased the reproductive pressure in the individuals. This phenomenon would be combined with the rising influence of Stoicism in the Empire.

Until the year 313 there was no common doctrine about homosexuality in Christianity, but Paul had already condemned it as contra natura:

And likewise also the men, leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly, and receiving in themselves that recompence of their error which was meet. : Bible King James. Romans 1:27.

Eventually, the Church Fathers created a literary corpus in which homosexuality and sex were condemned most energetically, fighting against a common practice in that epoch's society (including the primitive Church). On the other hand, homosexuality was identified with heresy soon enough, not only because of the pagan traditions, but also due to the rites of some gnostic sects or Manichaeism, which, according to Augustine of Hippo, practised homosexual rites.

The Visigoths

The Germanic peoples had little tolerance for both passive homosexuality and women, whom they considered on the same level as «imbeciles» and slaves, and glorified the warrior camaraderie between men. However, there are reports in Scandinavian countries of feminine and transvestite pastors, and the Nordic gods, the Æsir, including Thor and Odin, obtained arcane recognition drinking semen.

In the Early Middle Ages, attitudes toward homosexuality remained constant. There are known cases of homosexual behaviour which did not receive punishment, even if they weren't accepted. For example, king Clovis I on his baptism day confessed having relationships with other men; or Alcuin, an anglosaxon poet whose verses and letters are impregnated with homoerotism. However, slowly but surely Christian morality, which was highly tied to sexuality and based in the Jewish idea that the only purpose of sex was reproduction, started to form a complex web of canonical dispositions which strongly influenced contemporary law.

One of the first legal corpus that considered male homosexuality a crime in Europe was the Liber Iudiciorum (or Lex Visigothorum). The Visigoth law included in that code (L. 3,5,6) punished the so-called sodomy with banishment and castration. Within the term "castration" were included all sexual crimes considered unnatural, such as male homosexuality, anal sex (heterosexual and homosexual) and zoophilia. Lesbianism was considered sodomy only if it included phallic aids.

It was king Chindasuinth (642–653) who dictated that the punishment for homosexuality should be castration. Such a harsh measure was unheard of in Visigoth laws, except for the cases of Jews practising circumcision. After being castrated, the culprit was given to the care of the local bishop, who would then banish him. If he was married, the marriage was declared void, the dowry was returned to the woman and any possessions distributed among his heirs.

The Spanish Inquisition

Homosexuality, known at the time as sodomy, was punished by death by civil authorities. It fell under the jurisdiction of the Inquisition only in the territories of Aragon, when, in 1524, Clement VII, in a papal brief, granted jurisdiction over sodomy to the Inquisition of Aragon, whether or not it was related to heresy. In Castile, cases of sodomy were not adjudicated, unless related to heresy. The tribunal of Zaragoza distinguished itself for its severity in judging these offences: between 1571 and 1579 more than 100 men accused of sodomy were processed and at least 36 were executed; in total, between 1570 and 1630 there were 534 trials and 102 executions. This does not include, however, those normally executed by the secular authorities.

Repression under Franco's regime

Homosexuality was highly illegal under the dictatorship of Francisco Franco, with laws against homosexual activity vigorously enforced and gays being imprisoned in large numbers. The 1954 reform of the 1933 "Ley de vagos y maleantes" ("Vagrancy Act") declared homosexuality illegal, equating it with proxenetism. The text of the law declares that the measures in it "are not proper punishments, but mere security measures, set with a doubly preventive end, with the purpose of collective guarantee and the aspiration of correcting those subjects fallen to the lowest levels of morality. This law is not intended to punish, but to correct and reform". However, the way the law was applied was clearly punitive and arbitrary: police would often use the Vagrancy laws against suspected political dissenters, using their homosexuality as a way to go around the judicial guarantees. The law was repealed in 1979.

However, in other cases the harassment of gays, lesbian and transsexuals was clearly directed at their sexual mores, and homosexuals (mostly males) were sent to special prisons called "galerías de invertidos" ("galleries of deviants"). This was a common practice until 1975, when Franco's regime gave way to the current constitutional democracy, but in the early 70s gay prisoners were overlooked by political activism in favour of more "traditional" political dissenters. Some gay activists deplore the fact that, even today, reparations have not been made.

However, in the 1960s clandestine gay scenes began to emerge in Barcelona, an especially tolerant city under Franco's regime, and in the countercultural centers of Ibiza and Sitges (a town in the province of Barcelona, Catalonia, that remains a highly popular gay tourist destination). Attitudes in greater Spain began to change with the return to democracy after Franco's death through a cultural movement known as La movida. This movement, along with growth of the gay rights movement in the rest of Europe and the Western world was a large factor in making Spain today one of Europe's most socially tolerant people.

Government of Zapatero

Same-sex marriage and adoption were legalized by the Spanish Legislature under the administration of Spanish Socialist Workers' Party prime minister José Luis Rodríguez Zapatero in 2005. As of 2006, the Spanish Administration is seeking to negotiate foreign adoption with other countries. In November 2006 Zapatero's government passed a law that allows transgendered persons to register under their preferred sex in public documents without undergoing prior surgical change. The law on assisted reproduction was also amended in 2006: children born within a lesbian marriage for in vitro fertilisation treatment can be legally recognized by the non-biological mother.

Soon after the same-sex marriage bill became law, a member of the Guardia Civil, a military-police force, married his lifelong partner, prompting the organization to allow same-sex partners to cohabitate in the barracks, the first police force in Europe to accommodate a same-sex partner in a military installation.

Acceptance

Homosexuality and bisexuality today are greatly accepted all around the country and intensely in larger and medium cities. In small villages and among some parts of society, there is still a certain level of discrimination. A Eurobarometer survey published December 2006 showed that 66 percent of Spaniards surveyed support same-sex marriage and 43 percent recognise same-sex couple's right to adopt (EU-wide averages are 44 percent and 33 percent, respectively).