The indemnity clause in the support protocol for transgender people in the workplace

On March 31, 2026, the Ministry of Labour and Social Economy, together with the CCOO and UGT unions, and with the participation of FELGTBI, presented the Support Protocol for transgender people in the workplace. The aim of this document is to ensure the respect, inclusion, and protection of transgender people in the workplace, providing a voluntary model for collective bargaining that facilitates and streamlines support processes for this group.

The protocol does not emerge from nowhere. It responds to an increasingly comprehensive regulatory framework, originating from Article 14 of the Spanish Constitution and the mandate of Article 9.2 of the Spanish Constitution, which directs public authorities to promote real and effective equality. Law 15/2022, of July 12, on integral equality of treatment and non-discrimination, expressly incorporated gender identity and gender expression as protected categories. And Law 4/2023, of February 28, on real and effective equality for transgender people and the guarantee of rights for LGBTI people, established in Article 15.1 the obligation for companies with more than fifty workers to have a planned set of measures and resources to achieve real and effective equality for LGBTI people.

In compliance with this obligation, Royal Decree 1026/2024, of October 8, specified the minimum measures that must be agreed upon within the framework of collective bargaining, including, in the section on 'Training, awareness, and language', the recommendation to publicize and disseminate the support protocol for transgender people at work, when it exists. It is worth noting that the wording used by the regulator clearly indicates that the adoption of this support protocol is not mandatory: it is designed as a voluntary tool available to companies and negotiating parties, which can constitute good practice or be enforceable only insofar as a collective agreement specifically regulates its mandatory nature.

Those of us who, in our professional practice, have advised companies on the development of LGBTI plans and protocols to address harassment based on sexual orientation, gender identity, or gender expression understand the origins of this initiative. Trans people represent a group with a high risk of suffering discrimination in the workplace. The challenges they face (ranging from the discrepancy between their actual situation and the legal one to social prejudices) can be overcome more easily if there are specific support mechanisms.

However, a careful reading of the protocol raises a legal-technical question that deserves analysis: the inclusion, among the guiding principles and procedural guarantees, of a so-called 'guarantee of indemnity' for transgender workers.

The 'guarantee of indemnity' provided for in the protocol

The protocol includes the following provision among its guiding principles: the company must make it clear that no retaliation or humiliating treatment against transgender people will be tolerated at any time, with the warning that the corresponding protocol for addressing harassment and violence against LGBTI people will be activated. This wording, under the heading 'guarantees of indemnity for transgender workers', seems to suggest that the mere activation of the support protocol generates, by itself, reinforced protection against employer retaliation comparable to that recognized by the legal system in specific cases.

This reference raises the question of whether the voluntary activation of this protocol by a worker can be considered a circumstance that triggers the guarantee of indemnity in a technical-legal sense.

The answer, based on a rigorous analysis of legal sources, must be negative for several reasons.

• Firstly, the protocol defines itself as a 'voluntary model' aimed at collective bargaining and at companies that wish to adopt it voluntarily. It has no normative nature. It is a reference document, a 'soft law' tool that, by its very nature, lacks the capacity to create enforceable rights or establish new procedural guarantees not foreseen in the legal system. Article 3 of the Workers' Statute clearly establishes the normative sources of the employment relationship (legal and regulatory provisions, collective agreements, the will of the parties, and established practice). A voluntary model published by the Ministry of Labour does not fall within any of these categories with the necessary binding force to create a guarantee of indemnity ex novo.
• Secondly, the guarantee of indemnity, as defined by the Constitutional Court, has a specific constitutional basis (Article 24.1 of the Spanish Constitution) and a clearly defined scope of application: it protects against retaliation for initiating legal proceedings or for filing prior claims for rights. The activation of an internal support protocol does not constitute, in a technical sense, the initiation of judicial proceedings or a prior claim for labor rights. It involves a request for access to an internal organizational resource within the company, which lies in a different conceptual plane from the exercise of the right to effective judicial protection.
• Thirdly, to accept that a soft law instrument could, through interpretation, generate a guarantee of immunity comparable to that provided by the Constitution would imply a disproportionate extension of this institution, which could lead to legal uncertainty and undesired consequences. If a voluntary internal protocol could protect workers who invoke it from management decisions, this would create, de facto, a kind of special jurisdiction without legal basis, which is hardly compatible with the principles of legality and legal certainty governing our legal system (Article 9.3 of the Spanish Constitution).

Protection against discriminatory dismissal due to gender identity: an autonomous and solid guarantee

That being said, it is essential to establish a clear distinction between the issue of the guarantee of indemnity linked to the activation of the protocol (which, as explained, has no legal basis) and the protection that the legal system already offers against discriminatory dismissal due to gender identity or gender expression.

Article 55.5 of the Workers' Statute states that any dismissal motivated by any of the grounds of discrimination prohibited by the Constitution or by law shall be null and without effect. Law 15/2022 expressly incorporated gender identity and gender expression as prohibited grounds for discrimination, and Law 4/2023 reinforced this protection by establishing a comprehensive framework to guarantee the rights of transgender people. Therefore, a dismissal motivated by a worker's gender identity can be declared null and without effect, with the consequences established in Article 55.6 of the Workers' Statute (mandatory reinstatement and payment of back wages), as well as the possibility of claiming additional compensation for the violation of fundamental rights in accordance with Article 183 of the Organic Law of the Judiciary.

This protection applies regardless of whether the worker has initiated a support protocol or not. It is a substantial guarantee, of legal and constitutional rank, which does not require the support of a soft law instrument to fully deploy its effects. A transgender person dismissed because of their gender identity is protected by Article 14 of the Spanish Constitution, Articles 17.1 and 55.5 of the Workers' Statute, Law 15/2022, and Law 4/2023, without the need to assert (nor legally correct) that this protection is channeled through the guarantee of indemnity arising from the activation of a voluntary protocol.

Implement without fear, but with rigor

The support protocol for transgender people in the workplace constitutes a good practice concerning regulatory compliance, as it allows organizations to progress towards the real inclusion of transgender people in the workplace. However, the reference to a 'guarantee of indemnity' in the proposed model is inadvisable and only demonstrates a lack of technical rigor in the drafting process of the document, which, unfortunately, could dissuade its use, especially since it is voluntary. Errors of this type have become common in templates provided by the Ministry, such as templates for protocols on sexual harassment or gender-based harassment, which contain numerous normative errors that may compromise the viability of the investigations carried out according to their procedures.

Therefore, companies can adopt a support protocol with full legal certainty, although it is recommended that these be drafted on a case-by-case basis by legal experts specialized in the subject, rather than using the aforementioned standard format.

As professionals dedicated to developing LGBTI plans and advising companies on diversity and inclusion, we encourage organizations to implement this type of framework. Not only for regulatory compliance (remember that Royal Decree 1026/2024 recommends its adoption), but because experience shows that companies that actively commit to diversity and inclusion create safer and more productive work environments that align with the values demanded by society. Legal rigor and commitment to equality are not, nor should they be, contradictory concepts.

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