Spanish Supreme Court rules Mandatory Nudist Policy discriminatory and violative of fundamental rights

By Mohammad Adil Ansari 8 Minutes Read

“Housing societies and associations cannot arbitrarily impose a mandatory nudist policy on co-owners and residents for availing communal spaces, in the absence of their consent.”

In a significant judgement (Judgement No: 217/2023), dated 13th February, 2023, the Spanish Supreme Court has held that the nudist policy of an association calling for mandatory nudity of any resident who wishes to avail the common area, is ultra vires. Such a policy is discriminatory against homeowners and residents, who did not subscribe to the naturalist ideology and wished to remain clothed in the given area. The rules were held to be violates residents’ right to freedom of movement and the right to privacy (particularly bodily privacy) in public areas which they also co-owned. 

The controversy involved the rules passed by the homeowners’ association of the Natural World apartments, a holiday apartment complex in Vera, Almeria region in Spain which had a strict clause for indispensable nudity in order to avail communal areas. The homeowners’ association had even hired security guards with the sole objective of ensuring that no person wearing clothes be allowed into the common garden area and swimming pool. They contended that the private complex is situated on the beachfront of the most popular naturist/nudist beach in Spain and had direct access to the nudist beach. It must be noted that, according to the ABC news outlet, nearly 80% of the Natura World households are nudist.

The rules and the subsequent hiring of security personnel for enforcing them attracted the ire of some of the residents who filed a lawsuit pleading that they did not consent to such measure. The naturist community contended that the obligatory nature of nudist practice in common area was established through statutory force through the bye-laws framed by all members of the housing complex. The lower courts recognizing the bye-laws had force of law, ruled against petitioners. The case subsequently went up to the Supreme Court in appeal.

The Spanish Supreme Court held that both the lower court and first appellate court erred in not evaluating the evidence in support of the validity of the nudity rules of the homeowners’ association. The court found and held that, “A simple reading of the minutes of the community meeting clearly demonstrates that the said statutes were not approved and that the judgment delivered in previous proceedings did not address this issue.”

The mandatory nudity rule was thereby void an initio and in the absence of any valid and enforceable provision in the bylaws justifying the deprivation of the enjoyment of the common elements of which the plaintiffs were co-owners, such a restraint was violated their right to equality, and discriminates against the plaintiffs on account of their ideas and thoughts, and infringed upon their exercise of freedom of movement as well as their right to privacy.

Remarking upon the plight of the petitioners, the court acknowledged that “A climate was created that was unbearable for the complainants and many other neighbours, who were hounded, coerced and discriminated against solely because they did not practise nudism. Their holiday homes had gone from being a place of rest to a place of suffering.”

The court held that, “Nudity is a perfectly respectable and legitimate personal choice, but its practice cannot be demanded without a basis.” The residents, who were co-owners to the communal property, cannot be arbitrarily prevented from exercising their right to enjoyment by deploying coercive and forceful measures, such as hiring of private security services.

The court upheld the appeal filed by residents and fixed a compensation for moral damages of 1,000 euros payable to each of the plaintiffs.

Nudism in brief : Europe, particularly Germany harbors roughly a century old nudist tradition (the movement becoming mainstream after the Firsts World War). Originally the nudist movement is credited to Kurt Barthel who started the movement in 1929 in United States. He founded the American League for Physical Culture, later renamed as the American Association for Nude Recreation. The idea was that since a human is born naked, it must be perfectly acceptable for society to accept nudity in public spaces. The philosophy was based a call for public acceptance of unclothed human body and to resist social dressing norms. It became popular during the latter part of the 20th century with many countries designating beaches and areas where nudism was allowed.

Two weeks earlier, on 3rd February, 2023 the Spanish judiciary in the case of Alejandro Colomar concerning the right to be naked on public streets gave the verdict that nudism does not fall under the right to ideological freedom but since it did not violate the Organic Law 4/2015 which restricts any act endangering the security of citizens, it cannot be termed illegal as long as the nude behavior did not lead to a disturbance of public order or endanger the safety of others.

Spain is known for its liberal approach and acceptance of public nudity since 1988, allowing individuals to practice nudism within earmarked regions. Spanish law does not have any legislative provision prohibiting public nudity, thus the widespread interpretation of the courts have been that it is allowed unless public harm or obscenity is involved. Public nudity outside of these areas, however, can be subject to legal action and fine. Some regions such as Barcelona and Valladolid have introduced their own municipal laws to regulate and prohibit nudism in areas not falling within the vicinity of the beach.

Mohammad Adil Ansari

Founding Member & Editor in Chief @LegalWires.