Naturist Holidays
Spain
The legality of nudity in Spain
Courtesy of the Spanish Federation of Naturism (FEN)
Since 1978, with the approval of the Constitution, it is no longer possible to appeal to "moral" considerations in our laws. No particular morality prevails over another when it comes to legal protection. The right to nudity, therefore, is derived from our Constitution (Article 1; Articles 14, 17, and 20; Articles 138, 139, and 149). It is also derived from the European Charter of Human Rights, as expressly affirmed by the European Court of Human Rights (protected at least by freedom of expression, Article 10 of the Charter).
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"Public morality" was the tool used (in the old regime) to legally enforce moral discrimination. Thus, the Circular of July 6, 1957, from the Ministry of the Interior, prohibited not only "any manifestation of nudity and impropriety in the same respect that clashes with the traditional honesty and good taste of Spaniards," but also extended the prohibition to "the use of bathing garments that are indecent, such as two-piece suits for women and briefs for men. Women must have their chest and back covered, and men must wear sports trousers."
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Under our current Constitution, all morals are of equal rank as long as they do not affect any public good protected by law, and therefore no discrimination can be established, so there is no legal impediment to the practice of nudism.
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Authorized nudist beaches arose because, while this freedom was guaranteed by the Constitution, the old Penal Code, with its article on "public indecency," was still in force. In an attempt to reconcile both, beaches were designated for nudism in an effort to resolve an impossible contradiction (that something illegal could be legal in some areas). Today, they no longer make sense, since one cannot "authorize" what is not and cannot be prohibited. It is no longer correct to speak of "nudist beaches," but rather, at most, of "beaches with a nudist tradition," since in reality all beaches are nudist beaches; all are free to use without any limitations regarding clothing.
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In 1989, Article 431 of the Penal Code was abolished to eliminate moral considerations, which were deemed unconstitutional. From that moment on, nudism became legal in any public space (Organic Law 5/1988).
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The abolition of "public scandal" was the consequence of Proposition 122/000046 , of March 17, 1987, which described "public scandal as radically incompatible with a democratic and pluralistic order such as that which the Constitution enshrines as a mandate of the legislator."
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In 1995, with the approval of the new Penal Code (the one from the democratic era), the articles contrary to the Constitution were repealed, thus definitively confirming that "public indecency" ceased to exist as a crime. Nudism is fully legal on any beach, river, park, etc., and in any situation.
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Some people continue to discriminate against nudity by invoking the existing crime of indecent exposure. The law is very clear on this point and includes a definition of what constitutes indecent exposure: "lewd acts or obscene displays in the presence of minors or people with mental disabilities." In other words, we are talking about sexual acts in public, which can be performed with or without clothing. It is obvious that a person sunbathing nude does not intend to sexually provoke others. Nudists cannot be held responsible for the prejudices or lack of education of others, but only for their own actions.
FEN website
Let's not raise our children to be against their own bodies. No part of the body is less worthy than another. By forcing them to cover certain parts of their bodies in unnecessary situations, we teach them that those parts are different or negative. By depriving them of the usual view of human bodies, of people, in their entirety, we create myths and distortions and lead them to equate nudity with sex.
In practice, some (very few) local councils have issued illegal ordinances prohibiting or regulating their beaches, and the Supreme Court has ruled that local councils can include this in their ordinances based on the fact that naturism (according to the Supreme Court) is not an ideology (the Spanish Naturist Federation argued in its lawsuit that nudism or naturism is an ideology, and as such is reserved for Organic Law according to articles 53.1 and 81.1 of the Constitution), and since it is not an ideology, its regulation is not reserved for law, so a local council could intervene. But even if that were the case, later, in another lawsuit filed against the British state, this time based on freedom of expression, the European Court of Human Rights ruled that freedom of expression includes the human body and therefore nudity cannot be repressed by mere ordinances. This Court is superior to the Supreme Court.
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The Ombudsman, Francisco Fernández Marugán, on October 19, 2017 , insisted, based on Constitutional Court jurisprudence, that naturism or nudism is an ideology, regardless of the Supreme Court's ruling. In his legally sound document , he called for the withdrawal of ordinances regulating nudity, arguing that "the exercise of any fundamental right is reserved to the law and therefore cannot be directly regulated by a municipal ordinance."
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Some regional parliaments are taking action in response to the insistence of some city councils on introducing illegal, nudophobic articles into restrictive ordinances. For example, the Parliament of the Region of Murcia approved a non-binding resolution on October 10, 2017, urging the "elimination of municipal ordinances that make any reference to citizens' clothing, understood as a right to freedom of expression, given that the exercise of this right is reserved to the law and cannot therefore be directly regulated by a municipal ordinance, and instead protecting and/or promoting the values ​​of Naturism, as values ​​of our society." The resolution can be downloaded in PDF format by clicking on this link.
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The Spanish Federation of Naturism* (FEN) is working alongside the #WeAreNotACrime Platform on the elimination/modification of the Gag Law. Our proposal consists of clarifying Article 139 of the Local Government Act (LBRL ) so that it cannot be interpreted as a free pass to issue 8,000 mini-gag laws through municipal ordinances. Our proposal was well received at the meeting with the Interior Committee of the Congress of Deputies, which took place on July 5, 2018. It is pointless to eliminate the Gag Law while thousands of "Gag Ordinances" are being generated by local councils.
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In short: find out if there are any local ordinances prohibiting or restricting nudity on certain beaches if you want to avoid trouble. If you don't mind the hassle and you get fined, it would be easy to win with the European Court ruling and the Ombudsman's report in hand, and even with a non-legislative motion like the one from the Region of Murcia . If you want to spend a day among other naked people, visit this website that lists beaches with a nudist tradition. And yes, go topless in all bathing areas, including swimming pools, as gender equality is very clear in this case and it's rare to have problems with this.
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* This word was shown as "Nursing" on the FEN website
but we think that they meant "Naturism".