Understanding non discrimination law in Portugal: a legal insight

Introduction

Discrimination law in Portugal is an evolving field, rooted in the country's constitutional guarantees and shaped by both domestic and European legal frameworks. While Portugal has made significant strides in combating discrimination, particularly since joining the European Union, there remain challenges in enforcement and practical application.

In this blog post, we provide an overview of the current legal landscape, highlighting the key legislation and leading cases, and offering insights into the practical implications for individuals and emerging businesses.

Constitutional Framework

The cornerstone of anti-discrimination law in Portugal is the 1976 Constitution of the Portuguese Republic (“the Constitution”), which stands as a foundational legal document reflecting the country’s transition from authoritarian rule to a democratic, rights-based legal order.

The Constitution embodies a strong commitment to human rights, social justice, and democratic values, enshrining principles that align with contemporary European and international legal standards. Let’s explore the three core principles — universalism (Article 12), equality (Article 13), and equity (Article 15) — as articulated in the Constitution, and consider their relevance from a legal practitioner’s perspective.

 Article 12 – Principle of Universalism

Article 12 of the Constitution affirms the universality of rights, declaring that all individuals within Portuguese territory, regardless of nationality, enjoy the same rights and duties as Portuguese citizens. The only exceptions are those rights and duties that, by their nature or by constitutional or legal provision, are exclusive to Portuguese nationals.

This principle is particularly important in the context of immigration, asylum, and international human rights law. It provides a legal basis for extending constitutional protections to foreign nationals and stateless persons residing in Portugal.

From a legal practitioner’s standpoint, this provision enhances the justiciability of fundamental rights in cross-border legal matters, and is consistent with European Union law, particularly the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights.

Article 13 – Principle of Equality

The principle of equality is enshrined in Article 13, which declares that all citizens are equal before the law and prohibits discrimination based on ancestry, sex, race, language, territory of origin, religion, political or ideological convictions, education, income level, social condition or sexual orientation.

This article reflects Portugal’s robust commitment to anti-discrimination and is complemented by extensive legislation across employment, housing, education, and public services.

As legal professionals, the practical implications of this provision are significant.

Article 13 not only supports individual litigation in discrimination cases but also serves as a constitutional benchmark for interpreting statutory law. It has been invoked in numerous legal challenges related to labour rights, gender equality, and minority protections, reinforcing its prominence in Portuguese jurisprudence.

Article 15 – Principle of Equity and Equal Treatment of Foreigners

Article 15 extends the principles of equality and equity to foreign nationals, providing that aliens and stateless persons who are in or reside in Portugal shall enjoy the same rights and be subject to the same duties as Portuguese citizens. Exceptions may apply only in respect of political rights, public office, or functions that are constitutionally or legally reserved for Portuguese nationals.

Notably, Article 15 also contains specific provisions allowing for the equal treatment of citizens of Portuguese-speaking countries and for the extension of reciprocity arrangements to EU and other international partners. This demonstrates Portugal’s commitment to equity not just within its borders but also within its international relations framework.

From a legal advisory perspective, this article is particularly relevant for immigration and nationality lawyers, as well as for businesses operating internationally. It guarantees a level of legal certainty and non-discriminatory treatment for foreign nationals, thus promoting fair treatment in areas such as employment law, access to justice, and administrative procedures.

Legislative Framework

Building upon this constitutional mandate, several specific legislative instruments have been enacted:

• Law no. 18/2004, of May 11th, transposed EU Directives 2000/43/EC and 2000/78/EC, providing legal protections against discrimination on the grounds of racial or ethnic origin, establishing a legal framework applicable to both the public and private sectors. This act was revoked by Law no. 93/2017, of August 23rd.

• Law no. 93/2017, of August 23rd, the Anti-Discrimination Law, consolidated and expanded the framework by establishing the principle of equality and non-discrimination on different grounds (racial and ethnic origin, colour, nationality, ancestry and territory of origin) in a broader range of contexts, including education, healthcare, housing, and access to goods and services.

• Law no. 04/2024, of January 15th, created the Commission for Equality and Against Racial Discrimination (CICDR), an independent administrative body endowed with powers of authority which works within the Assembly of the Republic.

• Labour Code (Código do Trabalho) also contains robust anti-discrimination provisions, particularly in Articles 24 and 25, which prohibit direct and indirect discrimination in hiring, employment conditions, and dismissal.

Portugal has also adopted Law No. 38/2004, of August 18th, which establishes the legal framework for the prevention of discrimination on the basis of disability and the enforcement mechanisms.

In what concerns the Portuguese Penal Code (Decree-Law no. 48/95, of March 15th), there is a section dedicated to the crimes related to actions against cultural identity and personal integrity. This section includes crimes such as genocide, discrimination, hate speech, incitement to violence, as well as torture and other cruel, degrading and inhumane treatments.

Enforcement and Institutional Framework

Discrimination cases in Portugal can be pursued through the courts or administrative bodies.

A key institution is the Commission for Citizenship and Gender Equality (CIG), which promotes gender equality and combats discrimination based on sex and sexual orientation.

Similarly, the Commission for Equality and Against Racial Discrimination (CICDR) applies the legal framework for preventing, prohibiting and combating discrimination on the grounds of racial and ethnic origin, race, nationality, language, ancestry and territory of origin.  CICDR receives complaints within Portugal, initiates the respective administrative offence proceedings, decides on and applies fines and ancillary sanctions in the context of administrative offence proceedings, and liaises with the bodies responsible for non-discrimination in cases of multiple discrimination.

Individuals alleging discrimination may seek redress through:

• Civil litigation for damages.

• Criminal prosecution in cases involving hate speech or incitement to hatred.

• Administrative complaints to relevant public bodies.

Sanctions may include fines, compensation to victims, and orders to cease discriminatory practices.

Landmark Cases

In Portugal, there are many potential grounds on which discrimination may occur — from gender and age to social status and cultural background. However, not all incidents reported by potential victims reach the courtroom.

A 2022 report by Michael Page revealed that over half of employees in Portugal claimed to have experienced some form of workplace discrimination. Age was the most frequently cited basis, followed by gender, socio-economic status, and ethnic or cultural origin.

One of the most significant cases in recent years concerning gender discrimination was brought before the European Court of Human Rights (ECtHR) in Carvalho Pinto de Sousa Morais v. Portugal (2017). In this case, the ECtHR found that the Portuguese Supreme Administrative Court had violated the applicant’s rights under Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect private and family life) of the European Convention on Human Rights.

The Court criticised the domestic judgment for its reliance on harmful stereotypes — specifically, the suggestion that sexual activity and intimacy hold less importance for women over the age of 50. The applicant, who suffered serious physical and psychological harm following a medical error, had her compensation reduced by the national court partly on the basis of her age and the assumption that, as a woman in her fifties with children, her quality of life was less affected by sexual dysfunction.

The ECtHR concluded that such reasoning reflected outdated and discriminatory views on female sexuality and constituted a violation of the Convention. This landmark decision drew international attention to the need for gender-sensitive reasoning in judicial decisions, free from prejudice or generalisations.

In Salgueiro da Silva Mouta v. Portugal, the ECtHR ruled against the Portuguese State for discrimination on the basis of sexual orientation. The applicant, a father, had been denied custody of his daughter primarily due to the fact that he was in a same-sex relationship.

Although the Portuguese courts argued that their decision was based on the child’s best interests, the ECtHR held that the judgment had introduced and relied upon prejudiced views regarding homosexuality, thereby breaching the applicant’s rights under Articles 8 and 14 of the Convention. This ruling remains a seminal moment in the recognition of LGBTQ+ rights within the Portuguese legal system and beyond.

Although case law on discrimination in Portugal remains relatively limited when compared with other jurisdictions, there have been other significant decisions. Among the most notable is the Alcindo Monteiro case (1995). Monteiro, a Portuguese citizen of Cape Verdean origin, was brutally murdered by a group of skinheads in Lisbon's Bairro Alto district in what was widely recognised as a racially motivated attack.

The case resulted in the conviction and imprisonment of several of the perpetrators, under charges that included discrimination and incitement to hatred. It marked a pivotal moment in Portugal’s confrontation with racial violence and hate crime and continues to resonate as a reminder of the legal system’s responsibility in addressing racially motivated injustice.

Another deeply troubling and significant case was that of Gisberta Salce Júnior, a Brazilian transfeminine individual who, in 2006, was brutally assaulted and ultimately killed by a group of adolescents in the city of Porto. Out of the fourteen teenagers involved, only one was old enough to be tried as an adult, and even then, he was convicted solely for failing to assist the victim — not for participating in the assault itself. He served only eight months in a juvenile facility. The other participants in the crime, all under the age of criminal responsibility, were subject to educational measures and faced no charges of homicide, as the official cause of death was ruled to be drowning.

Despite the absence of serious criminal sanctions, the public’s reaction was one of national and international outrage. Gisberta’s death became a rallying point for LGBTQ+ rights and triggered significant legislative changes in Portugal. In 2011, the country passed Law no. 7/2011, of March 15th, enabling individuals to change their name and legal gender on official documents without undergoing gender-affirming surgery — a medical certificate was sufficient. In 2018, Portugal took a further step with Law no. 38/2018, of March 15th, by revoking the 2011 law and by eliminating the medical certification requirement altogether. This Law was amended by Law no. 15/2024, of January 29th, prohibiting the so-called ‘sexual conversion’ practices against LGBTQ+ people, criminalising acts aimed at altering, limiting or repressing sexual orientation, gender identity or expression. Since then, individuals aged 16 and over have been allowed to change their legal name and gender based solely on the principle of gender self-determination.

Another widely publicized case involving a racially motivated crime took place in July 2022 in Costa da Caparica and involved the adopted children of Brazilian actors Giovanna Ewbank and Bruno Gagliasso — Titi (11) and Bless (9). While the family was on holiday, a 59-year-old Portuguese woman verbally assaulted the children, directing degrading remarks at them based on their skin colour and origin.

On November 14th, 2024, the Court of Almada in Portugal convicted the woman for the offenses, sentencing her to prison, imposing financial penalties, and mandating treatment. The case made significant impact on Portuguese legal history as it marked the first conviction in the country for racial offenses against children.

1. Challenges and Prospects

Despite the comprehensive legal framework, there are still obstacles to effective enforcement of anti-discrimination law in Portugal. These include:

• A lack of public awareness regarding legal rights, legislative framework and remedies.

• Underreporting of incidents due to fear of retaliation or distrust in institutions.

• Limited case law and judicial inconsistency in interpreting key provisions.

• Challenges in gathering sufficient evidence to support claims.

Nevertheless, Portugal continues to progress. Ongoing reforms and awareness campaigns aim to strengthen institutional responses and promote inclusivity. Recent initiatives to support diversity in the workplace and public sector hiring practices indicate a growing commitment to equality.

Final Considerations

While jurisprudence in the area of discrimination in Portugal may still be developing, As the above cases illustrate, strategic litigation can play a vital role in advancing human rights and combating discrimination in all its forms.

From issues of gender, race, and sexual orientation to the protection against the discrimination based on ancestry or territory of origin, each decision marks a step forward — not only in legal recognition but in social awareness.

FiO Legal’s Human Rights Department remains committed to supporting our clients whose rights have been infringed and to promoting greater equality before the law — in Portugal, across Europe and internationally.

By Emellin de Oliveira and Victória Costa

#HumanRights #NewDepartment # NonDiscrimination #Equality #Portugal