Gender and associations. Weighting between the right to equality and the principle of the independence and autonomy of associations after the judgment of the Spanish Supreme Court (Civil Chamber) n. 925/2021, of 23 December

Abstract

In December 2021, the Spanish Supreme Court issued a ruling in which
the right of association and the right to freedom of religion take precedence over the principle of no discrimination on the basis of gender. The dispute refers to a religious association which was created in the xvii century and whose statutes exclude women membership. The first and second instance rulings considered the plaintiff’s lawsuit: it was concluded that excluding women from the association was contrary to article 14 of the Spanish Constitution. There was an important difference between the facts of this dispute and the facts taken into account in previous caselaw: the association that acts as defendant neither receives public funds, nor is it controlled by the public authorities, nor is the access to the association a sine qua non requirement for carrying out a professional or economic activity, and its activity does not require any previous administrative authorization. Besides, in previous judgments the right to freedom of religion was not taken into account. In this dispute, the weighing of rights refers to the right of association, the right to freedom of religion, the principle of no discrimination on the basis of gender and the right to equality. The Supreme Court explains previous Spanish and European caselaw, highlighting the doctrine of dominant position associations —associations with a dominant position in the economic, labour, social or cultural fields—. According to the Supreme Court, the exclusion of membership of dominant position associations may imply substantial and unjustified damages to women. However, as a general rule, in non-dominant position associations, its autonomy and, in this case, its right to self-organisation must prevail over the right to equality. That because women whose access was denied have the right to set up new associations and to stablish its own membership requirements —e.g. membership of just women or membership of both genders—. The Supreme Court uses different arguments in its judgment, but the one referred to the necessity to maintain Spanish traditions is not adequate in current Spanish society, since our country aims to achieve the most effective level of improvement of the right to equality and the no discrimination principle.