LGBT rights in Italy

LGBT rights in Italy

Location of  Italy  (dark green)

– in Europe  (light green & dark grey)
– in the European Union  (light green)  –  [Legend]

Same-sex sexual activity legal? Legal since 1890[1]
Gender identity/expression Transsexual persons allowed to change legal gender
Military service Gays and lesbians allowed to serve openly
Discrimination protections Sexual orientation protections in employment (see below)
Family rights
Recognition of
relationships		 Civil unions approved in 2016 by the upper chamber (still needs to be approved by the lower chamber in May 2016)
Adoption –

Lesbian, gay, bisexual, transgender (LGBT) persons in Italy face legal challenges not experienced by non-LGBT residents.

Both male and female same-sex sexual activity has been legal since 1890, but same-sex couples and households headed by same-sex couples are not eligible for the same legal protections available to opposite-sex couples. Transgender people have been allowed to legally change their legal gender since 1982. Although discrimination regarding sexual orientation in employment has been banned since 2003, no other anti-discrimination laws regarding sexual orientation or gender identity and expression have been enacted. Public opinion on homosexuality has generally been regarded as culturally liberal, with a recent poll in 2014 indicating that a majority of Italians support same-sex marriage.

Issues

Legal status

Same-sex sexual activity has been legal since 1890.[1] The age of consent is 14 years.

Military laws

Homosexuals are not banned from military service. The Armed Forces of Italy cannot deny men or women of homosexual orientation to serve within their ranks, as this would be a violation of Constitutional rights.

Legal protections

In 2002, Franco Grillini introduced legislation that would modify article III of the Italian Constitution to prohibit discrimination based on sexual orientation.[2][3] It was not successful.

In 2004, Tuscany became the first Italian region to ban discrimination against homosexuals[4] in the areas of employment, education, public services, and accommodations. The Berlusconi government challenged the new law in court, asserting that only the central government had the right to pass such a law. The Constitutional Court overturned the provisions regarding accommodations (with respect to private homes and religious institutions), but otherwise upheld most of the legislation.[5] Since then, the region of Piedmont has enacted a similar measure.[6]

Furthermore, since 2003, discrimination on the basis of sexual orientation in employment is illegal throughout the whole country, in conformity with EU directives.

In 2006, Grillini again introduced a proposal to expand anti-discrimination laws, this time adding gender identity as well as sexual orientation.[3] It received less support than the previous one had.

In 2008, Danilo Giuffrida was awarded 100,000 euros compensation after having been ordered to re-take his driving test by the Italian Ministry of Infrastructure and Transport due to his sexuality; the judge said that the Ministry of Transport was in clear breach of anti-discrimination laws.[7]

In 2009, the Italian Chamber of Deputies shelved a proposal against homophobic hate-crimes, that would have allowed increased sentences for violence against homosexuals, approving the preliminary questions moved by Union of the Centre and supported by Lega Nord and The People of Freedom[8] (although 9 deputies, politically near to the President of the Chamber Gianfranco Fini, have voted against).[9] The deputy Paola Binetti, who belongs to Democratic Party, has voted against the party guidelines.[10]

On 16 May 2013, a bill which will prohibit discrimination based on sexual orientation and gender identity was presented in a press conference by four deputies of four different parties.[11] The bill is cosponsored by 221 MPs of the Chamber of Deputies but none of the center-right side has pledged his support yet. In addition to this bill some deputies introduced another two bills. On 7 July, the Justice Committee advanced a unified bill.[12]

The bill on the Contrast of Homophobia, Biphobia and Transphobia was amended in compliance of the request of some conservative MPs who fear to be fined or jailed for stating their opposition to the recognition of same-sex unions. On 5 August, the House started to consider the bill. On 19 September 2013, the House of Deputies passed the bill in a 228-58 vote (and 108 abstentions). On the same day a controversial amendment passed, which will protect free speech for politicians and clergymen. Now the bill goes to the Senate.[13]

Recognition of same-sex relationships

Same-sex couples living in Italy have no shared rights to property, social security or inheritance. Since the 2005 regional elections, many Italian regions governed by centre-left coalitions have passed resolutions in support of French style PACS (civil union), including Tuscany, Umbria, Emilia-Romagna, Campania, Marche, Veneto, Apulia, Lazio, Liguria, Abruzzo and Sicily. Lombardy, led by the centre-right House of Freedoms, officially declared their opposition to any recognition of same-sex relationships. All these actions, however, are merely symbolic as regions do not have legislative power on the matter.

Despite the fact that several bills on civil unions or the recognition of rights to unregistered couples have been introduced into the Parliament in the past twenty years, none has been approved owing to the strong opposition from the social conservative members of parliament belonging to both coalitions. Last, on 8 February 2007 the government led by Romano Prodi introduced a bill[14] which would have granted rights in areas of labour law, inheritance, taxation and health care to same-sex and opposite-sex unregistered partnerships. The bill was never made a priority of the legislature and was eventually dropped when a new Parliament was elected after the Prodi government lost a confidence vote.

In 2010, the Constitutional Court (Corte Costituzionale) issued a landmark ruling where recognized same sex couples as a "legitimate social formation, similar to and deserving homogeneous treatment as marriage".[15] Since that ruling, the Corte di Cassazione (the last revision court for some issues such as commercial issues or immigration issues) remanded a decision by a Justice of the Peace who had rejected a residence permit to an Algerian citizen, married in Spain to a Spaniard of the same sex. After that, this same judiciary stated that the questura (police office, where residence permits are issued) should deliver a residence permit to a foreigner married with an Italian citizen of his same sex, and cited the ruling 138.

On 21 July 2015, the European Court of Human Rights ruled that in not recognizing any form of Civil union or same-sex marriage in Italy, the country was violating Human Rights.[16]

On 2 February 2016 Italian Senators started to debate a same-sex civil unions bill.[17] On 25 February 2016, the bill was approved by the Senate in a 173-71 vote. The law provides same-sex couples with all the rights of marriage but not stepchild or joint adoption. The bill will now go to the Chamber of Deputies where a vote is expected no earlier than April.[18]

LGBT parenting

Adoption and foster care are regulated by the Legge 184/1983. Adoption is in principle permitted only to married couples who must be only opposite-sex couples. Indeed, according to Italian law there are no restrictions on foster care. In a limited number of situations, the law provides for "adoption in particular cases" by a single person, however, and this has been interpreted by some courts, including on appeal court level, to include the possibility of stepchild adoption for unmarried (opposite-sex and same-sex) couples.[19] The supreme Court of Cassation has not yet had the opportunity to decide one of those cases.

On 11 January 2013 the Court of Cassation upheld a lower decision of court which granted the sole custody of a child to a lesbian mother. The father of the child complained about the homosexual relationship of the mother which would be dangerous for the child. The Supreme Court rejected the father's appeal because it was not argued properly.[20]

On 15 November 2013 it was reported that the Court of Bologna chose a gay couple to foster a 3-year-old child.[21]

On 1 March 2016, A Rome family court approved a lesbian couple’s request to simultaneously adopt each other’s daughters.[22] Since 2014, the Rome family court has made at least 15 rulings upholding requests for gay people to be allowed to adopt their partners’ children.[22]

Transgender rights

Cross dressing is not illegal in Italy, and gender reassignment surgeries are also legal, with medical approval. However, gender identity is not a part of official anti-discrimination law.

In 1982 Italy became the third nation in the world to recognise the right to change one's legal gender. Before Italy, only Sweden (1972) and Germany (1980) recognised this right.

In 2006 a police officer was reportedly fired for cross-dressing in public while off duty.[23]

The first transgender MP was Vladimir Luxuria, who was elected in 2006 as a representative of the Communist Refoundation Party. While she was not reelected, she went on to be the winner of a popular reality television show called L'Isola dei Famosi.[24]

In 2005, a couple got legally married as husband and wife. Some years later, one of the parties transitioned as a trans woman. In 2009, she was legally recognized as such according to the Italian law on transsexualism (Legge 14 aprile 1982, n. 164 ). Later the couple discovered that their marriage was dissolved because the couple became a same-sex couple, even though they did not ask a Civil Court to divorce.

The Law on Transsexualism (164/1982) prescribes that when a transsexual person is married to another person the couple should divorce, but in the case of the trans woman mentioned above (Alessandra) and her wife, there was no will to divorce. The couple asked the Civil Court of Modena to nullify the order of dissolvement of their marriage. On 27 October 2010, the court ruled in favour of the couple. The Italian Ministry of Interior appealed the decision and this time the Court of Appeal of Bologna reversed the trial decision.

Later the couple appealed the decision to the Court of Cassation. On 6 June 2013, the Cassation asked the Constitutional Court whether the Law on Transsexualism was unconstitutional when it ordered the dissolvement of marriage by applying the Divorce Law (Legge 1 dicembre 1970, n. 898 ) even if the couple did not ask to do so. In 2014, the Constitutional Court finally ruled the case in favour of the couple, allowing them to stay married.[25]

On 21 May 2015, the Cout of Cassation also decided that sterilisation is not required in order to obtain a legal gender change.[26]

LGBT rights groups and public campaigns

Social conditions

Public opinion

According to data from the 2010 Italy Eurispes report released 29 January, the percentage of Italians who have a positive attitude towards homosexuality and are in favor of legal recognition of gay and lesbian couples is still growing.

82% of the Italian states consider homosexuals equal to all others. 41% of citizens think that homosexual couples have the right to marry in a civil ceremony, and 20.4% agree with civil unions. In total, therefore, 61.4% are in favor of a form of legal recognition for gay and lesbian couples. This is an increase of 2.5% from last year (58.9%) and almost 10% in 7 years (51.6% in 2003). "This is further proof that the Italians are ahead of their national institutions. Our parliament hear more people and what they hear as soon approve a law that guarantees gay people the opportunity to publicly recognize their families, as is done in 20 European countries "- said the national president Aurelio Mancuso Arcigay.[28]

Italians support for gay rights 2009 2010 2012 2013 2014 2015 2016
YES YES YES YES YES YES YES
recognition for same-sex couples 58.9% 61.4% 62.8% 79% - - -
same-sex marriage 40.4% 41% 43.9% 48% 55% 53% [29] 56% [30]
civil unions but not marriage 18.5% 20.4% 18.9% 31% - - -

Summary table

Same-sex sexual activity legal (Since 1890)
Equal age of consent (Since 1890)
Anti-discrimination laws in employment only (Since 2003)
Anti-discrimination laws in the provision of goods and services (Proposed)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) (Proposed)
Same-sex marriages (Pending)
Recognition of same-sex couples / Civil unions approved in 2016 by the upper chamber (still needs to be approved by the lower chamber).
Step-child adoption by same-sex couples Some courts, including on appeal court level, have admitted stepchild adoption [31]
Joint adoption by same-sex couples
Surrogacy for gays
Gays and lesbians allowed to serve openly in the military (Since 1947)
Right to change legal gender (Since 1982; without sterilisation requirement since 2015)
MSMs allowed to donate blood (Since 2001) [32]

LGBT history in Italy

Further information: LGBT history in Italy

Italian unification in 1860 brought together a number of States which had all (with the exception of two) abolished punishment for private, non-commercial and homosexual acts between consenting adults as a result of the Napoleonic Code.

One of the two exceptions had been the Kingdom of Sardinia which punished homosexual acts between men (although not women) under articles 420–425 of the penal code promulgated in 1859 by Victor Emmanuel II.

With the unification, the former Kingdom of Sardinia extended its own criminalizing legislation to the rest of the newly born Kingdom of Italy. However, this legislation did not apply to the former Kingdom of the Two Sicilies, taking into account the "particular characteristics of those that lived in the south".

This bizarre situation, where homosexuality was illegal in one part of the kingdom, but legal in another, was only reconciled in 1887, with the promulgation of the Zanardelli Code which abolished all differences in treatment between homosexual and heterosexual relations across the entire territory of Italy.

Since the introduction of the first Penal Code in 1889, effective in 1890, there have been no laws against private, adult and consensual homosexual relations.

This situation remained in place despite the fascist promulgation of 19 October 1930 of the Rocco Code. This wanted to avoid discussion of the issue completely, in order to avoid creating public scandal. Repression was a matter for the Catholic Church, and not the Italian State. In any case, it claimed, that most Italians were not interested in an issue only practised by less "healthy" and less "virile" foreigners.

This did not, however, prevent the fascist authorities from targeting male homosexual behaviour with administrative punishment, such as public admonition and confinement; and gays were persecuted in the later years of the regime of Benito Mussolini[33] and under the Italian Social Republic of 1943–45.

The arrangements of the Rocco Code have remained in place over subsequent decades. Namely the principle that homosexual conduct is an issue of morality and religion, and not criminal sanctions by the State. However, during the post-war period there have been at least three attempts to re-criminalise it – each attempt blocked by the Christian Democracy. And such attitudes have made it difficult to bring discussion of measures, for example to recognise homosexual relationships, to the parliamentary sphere.

See also

Wikimedia Commons has media related to LGBT in Italy.

General:

References

  1. 1 2 State-sponsored Homophobia: A world survey of laws prohibiting same sex activity between consenting adults
  2. ↑ Pedote, Paolo; Nicoletta Poidimani (2007). We will survive!: lesbiche, gay e trans in Italia. Mimesis Edizioni. p. 181.
  3. 1 2 Borrillo, Daniel (2009). Omofobia. Storia e critica di un pregiudizio. Edizioni Dedalo. p. 155.
  4. ↑ Text of Legislation (in Italian)
  5. ↑ Text of Decision (in Italian)
  6. ↑ Text of Legislation (in Italian)
  7. ↑ "Italian wins gay driving ban case". BBC News. 13 July 2008. Retrieved 13 July 2008.
  8. ↑ "Camera affossa testo di legge su omofobia" (in Italian). Reuters. 13 October 2009. Retrieved 13 October 2009.
  9. ↑ "Omofobia, testo bocciato alla Camera E nel Pd esplode il caso Binetti" (in Italian). Corriere della Sera. 13 October 2009. Retrieved 13 October 2009.
  10. ↑ "Omofobia, la Camera affossa il testo Caos nel Pd: riesplode il caso Binetti" (in Italian). La Stampa. 13 October 2009. Retrieved 13 October 2009.
  11. ↑ "Omofobia, un terzo dei parlamentari firma la nuova proposta di legge" (in Italian). Il Messaggero. 16 May 2013. Retrieved 16 May 2013.
  12. ↑
  13. ↑ "Omofobia, sì alle aggravanti. Ma è scontro nella maggioranza" (in Italian). la Repubblica. 19 September 2013. Retrieved 19 September 2013.
  14. ↑ "Italy may recognise unwed couples". BBC News. 9 February 2007. Retrieved 13 July 2008.
  15. ↑
  16. ↑ Advocate: European Court Rules Italy's Same-Sex Marriage and Civil Union Ban a Human Rights Violation
  17. ↑ "Italian senators debate same-sex union bill under Vatican's watchful eye". Religion News Service. Retrieved 2016-02-07.
  18. ↑ [httph://www.gazzettadelsud.it/news/english/162320/Senate-to-examine-civil-unions-bill-on-Wednesday--2-.html "Senate to examine civil unions bill on Wednesday (2)"].
  19. ↑ "Adozioni gay, la Corte d’Appello di Roma conferma: sì a due mamme". Corriere della Sera. 23 December 2015. Retrieved 21 February 2016.
  20. ↑ "Famiglie gay, Cassazione: "Un bambino può crescere bene"". il Fatto Quotidiano. 11 January 2013. Retrieved 15 November 2013.
  21. ↑ "Bologna segue la Cassazione: bimba di tre anni in affido a una coppia gay". Corriere di Bologna. 15 November 2013. Retrieved 15 November 2013.
  22. 1 2 http://www.theguardian.com/world/2016/mar/02/italy-lesbian-couples-adoption-of-each-others-children-approved
  23. ↑ "Cross-dressing Italian cop given the boot". UPI. 29 December 2006.
  24. ↑ "Luxuria: "Ora la sinistra mi critica ma vado avanti"" (in Italian). il Giornale. 25 November 2008. Retrieved 13 October 2009.
  25. ↑ Nadeau, Barbie Latza (16 June 2014). "Italian Transgender Ruling Gives Green Light to Civil Unions". The Daily Beast. Retrieved 20 February 2015.
  26. ↑ Court of Cassation judgment of 21 May 2015
  27. ↑ "Gay newborn poster sparks row in Italy". Reuters. 25 October 2007.
  28. ↑ "La regolamentazione delle coppie di fatto" (in Italian). Corriere della Sera. 15 May 2009.
  29. ↑ http://www.demos.it/a01147.php?ref=HREC1-9
  30. ↑ http://www.demos.it/a01231.php?ref=HREA-1
  31. ↑ "Adozioni gay, la Corte d’Appello di Roma conferma: sì a due mamme". Corriere della Sera (in Italian). Retrieved 2016-02-24.
  32. ↑ "Gay: vietato donare sangue, ma solo con prove rischi - Altre news - ANSA Europa". ANSA.it. Retrieved 2016-02-13.
  33. ↑ (Italian) L’omosessualità in Italia
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